Coronavirus Act 2020 - Changes for Mental Health

*** Please note that this article is up to date as at the time of publication. We will update once regulations have been passed to bring the amendments for mental health into force. Please refer back to this website. ***

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The extensive Coronavirus Act 2020 (the "Act") was passed on 25 March 2020. The legislation will amend many duties and responsibilities of public authorities in existing legislation across the board.

The changes proposed for the Mental Health Act 1983 (the “MHA”) are contained in Schedule 8 to the Act.  They are dramatic and are intended to cater for a shortage of key staff while ensuring care is provided to vulnerable patients.

The amendments to the MHA will only come into force when further regulations are passed, which will set out the date from when they apply. They will apply during the “emergency period” – which means the period for which the provisions are in force.

 

PART 2 (COMPULSORY ADMISSION TO HOSPITAL AND GUARDIANSHIP)

 

Position under the MHA	Position under the Act
Applications for Detention
Detention under s.2 (assessment) or s.3 (treatment) founded on the recommendation of: 2 registered medical practitioners; 1 of whom s.12 approved; and  1 of whom has previous acquaintance with the patient.	If an Approved Mental Health Professional (“AMHP”) thinks that the normal requirement for 2 recommendations is impractical or would lead to unnecessary delay: 1 medical recommendation is sufficient from: S.12 approved doctor; Who has personally examined the patient; No need to have previous acquaintance with the patient; AMHP’s application for admission to hospital must include a statement of the AMHP’s opinion as to why only one recommendation is needed; i.e. why two recommendations would be “impractical or would involve undesirable delay”.
s.15 provides an ability to rectify defects or insufficiencies in medical recommendations within 14 days of admission to hospital.	Applies to the single medical recommendation the same way as it would have to 2 medical recommendations/joint recommendation.
Holding Powers
s.5 holding powers for in-patients: S.5(2) - doctor in charge of the patient’s care holding power for 72 hours; S.5(4) – RMN/RLDN nurses holding power in-patients receiving treatment for mental disorder for 6 hours.	Any doctor can make an application for short-term detention under s.5(2): period of detention extended to 120 hours RMN/RLDN holding power under s.5(4) period of detention extended to 12 hours.

 

PART 3 MHA (PATIENTS CONCERNED IN CRIMINAL PROCEEDINGS OR UNDER SENTENCE)

 

Position under MHA	Position under Act
Detention under the following provisions based upon evidence of 2 registered medical practitioners (“RMP”): s.36 (remand accused to hospital for treatment); s.37 (detention in hospital/guardianship of a convicted person (“hospital/guardianship order”)); s.38 (interim detention in hospital of a convicted person pending final hospital order/disposal “interim hospital order”)); s.45A (directing sentence of imprisonment in hospital instead of prison “hospital direction”); s.51 (directing hospital detention in the person’s absence).	If the Court thinks the normal requirement for evidence of 2 RMPs is impractical or would involve undesirable delay, can be based on evidence of 1 RMP. For s.45A, RMP has to give evidence orally – and s.45A(4) doesn’t apply.
Time periods for conveying and admitting to hospital under: s.37 = within 28 days of hospital order (s.40(1)) s.38 = within 28 days of interim hospital order (s.40(3)) s.45A = within 28 days of hospital direction (s.45B(1))	Time period for conveying and admitting to hospital within [the periods] or “as soon as practicable” thereafter.
Transfer of prisoners to hospital under s.47 or 48 based upon reports from 2 RMPs.	If the SoS for Justice thinks the normal requirement for evidence of 2 RMPs is impractical or involve undesirable delay, can be based on evidence of 1 RMP.
Transfer direction under s.47 expires if prisoner is not received into hospital within 14 days of it being made.	Time period extended to 28 days.
S.35 (remand to hospital for a report on the accused’s mental condition) and s.36 (remand of an accused person to hospital for treatment): accused person must be conveyed and admitted to hospital within 7 days of the remand order; remand is for: periods of no more than 28 days at a time; and no more than 12 weeks in all	Time period for conveying and admitting to hospital within 7 days or remand order or “as soon as practicable” thereafter. Upper limit of 12 weeks in total is removed.

 

PART 4 MHA (CONSENT TO TREATMENT)

 

Position under MHA	Position under Act
Treatment requiring Consent or Second Opinion
s.58(1)(b) (treatment given for more than 3 months): capacitated patient consents (Approved Clinician in charge of the treatment or a Second Opinion Appointed Doctor (“SOAD”) confirms this); or SOAD approval for either: an incapacitated patient; or a capable patient who is refusing. Doesn’t include neurosurgery for mental disorder/surgical implantation of hormones to reduce male sex drive (s.57) or ECT (s.58A) which have their own special provisions.	Approved Clinician in charge of the treatment can give the certification that a SOAD would usually give if they consider that complying with the SOAD requirement would be impractical or involve undesirable delay.
s.58(4) requires the SOAD to consult with two other professionals involved in the patient’s treatment: 1 must be a nurse; The other must not be a nurse, nor a registered medical practitioner; Neither should be the Approved Clinician in charge of the treatment or the Responsible Clinician.	Approved Clinician in charge of the treatment can certify having consulted with only 1 other professional if they consider consulting with 2 would be impractical or involve undesirable delay. Professional consulted must not be a nurse, a RMP, the Responsible Clinician.

 

PART 10 (MISCELLANEOUS PROVISIONS)

 

Position under MHA	Position under Act
Detention in Places of Safety
S.135 allows a police officer with a warrant to enter any premises named in the warrant and to remove a person to a place of safety or to keep them at the premises to allow assessment under the MHA. They can be detained in the premises/place of safety for 24 hours.	Permitted period of detention in the premises/place of safety extended to 36 hours.
S.136 allows a police officer to remove someone to/keep them in a place of safety for up to 24 hours.
S.136B allows a registered medical practitioner to extend a detention under s.135 or s.136 for a further period of 12 hours (to begin immediately at the end of the initial 24 hours).	Permitted to extend 12 hours after the initial 36 hours.

 

What about potentially infectious persons in the mental health context?

There are significant powers granted under the Act to detain potentially infectious people for screening and assessment and for containment of the infection. These include powers to isolate, restrict travel, activities (including work) and contact with other people.

Powers are granted to “public health officers” (registered public health consultants and anyone else designated by the Secretary of State), police officers and immigration officers to determine the restrictions and enforce them. The powers granted to the police and immigration officers are of shorter duration than those granted to public health officers.

The powers are very similar to those contained in the recent Health Protection (COVID-19) Regulations 2020 which came into force in February 2020. The Act has revoked those previous regulations.

What isn’t changing?

The vast majority of the MHA will not change. Areas on which there had been speculation there may be amendments, but so far, it doesn’t appear that they will be include (but are not limited to):

• Mental Capacity Act 2005 – including the Deprivation of Liberty Safeguards and the Court of Protection;
• AMHP’s duty to consult;
• Emergency Detentions;
• Renewal periods;
• Community Treatment Orders;
• Nearest Relative functions
• Managers’ Hearings; and
• Tribunals – although there is a Pilot to adjust the way of the Tribunals working to limit the spread of COVID-19 and to manage workloads.

Patients who refuse to self-isolate

What should providers do, where there is a suspicion that a patient may potentially be infectious and they either refuse to self-isolate or (when informal) seek to leave the hospital?

The appropriate legal authority for enforcing isolation upon a patient who is non-compliant, are the powers granted to “public health officers” under the Act. It’s recognised that to access these powers, it will require providers to share information about the patient, which potentially the patient does not consent to.

The Information Commissioner has acknowledged that the need for public bodies and health practitioners to be able to communicate directly with people during the COVID-19 pandemic has never been greater and if it is necessary to share information to protect public health, data protection will not stand in the way. The ICO understands that public bodies may require additional collection and sharing of personal data to protect against serious threats to public health. When regarding compliance with data protection, the ICO will take into account the compelling public interest in the current health emergency as the safety and security of the public remains the primary concern.

How should public authorities be preparing for the changes?

Communication:

Liaise with your local:

• AMHP hub, mental health teams, acute hospitals and psychiatric liaison teams to work out who the changes will work in practice for you;
• Public Health England to understand arrangements for rapid access to “public health officers” to engage the powers in relation to potentially infectious persons;
• Police force as to how the changes to s.135/s.136 may need to be supported – as well as how the powers in relation to potentially infectious persons may be implemented.

Environmental Preparation:

Providers should be prepared for patients to be cared-for, for substantially longer periods of time in acute environments:

• Short-term detentions under the s.5 “holding powers” on acute wards
• Detentions in places of safety

Some factors to consider:

• Environmental suitability
• Arrangements to support people who require restrictions and restraint

Informing Staff:

• Update staff through alerts and bulletins of the changes;
• Consider bespoke information tailored to their roles;

Training and Guidance:

Consider providing training and guidance:

• what factors should be taken into account in determining whether applying the usual requirements would be “impractical” or result in “unnecessary delay”;
• for Approved Clinicians on their extended authority in relation to treatment;
• for junior doctors who may be called to implement s.5(2) holding powers;
• to MHA officers to enable them to discharge their scrutiny functions in light of the changes;
• to equip a wider pool of staff to support the MHA functions

Alternative Arrangements:

Many mental health providers are giving consideration as to how a number of the statutory requirements; such as Hospital Manager Hearings, can be performed in the context of COVID-19.

Consideration should be given to alternative ways of working – such as teleconferences, video-links and Skype.

Statutory Forms:

• These can either be amended to reflect the changes or be read in accordance with the changes;
• Review the forms and identify the ones which will be impacted.

Providers may wish to review the information leaflets that are provided to patients about their rights and consider whether any amendments might be necessary.

Once in force, if at any time the Government suspends the legislation, public bodies will need to revert to the duties as set out in the existing MHA.

We will be issuing separate guidance notes on:

• COVID-19 - Mental Health Tribunals and Managers hearings
• COVID-19 – Powers to detain and restrict potentially infectious patients
• COVID-19 – Court of Protection Guidance on hearings and visits

For specific advice contact:

• Hannah Taylor
• Simon Lindsay
• Stuart Marchant
• Carlton Sadler

 

For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.