Can the statutory forms that have to be used under the Mental Health Act be completed electronically?
On the face of it, the answer is no. The Reference Guide to the Act says:
1.48 Where the Act itself requires information to be recorded or given in writing, the use of electronic means to record or communicate the information is not sufficient. The record must be made, or the information communicated, in hard copy.
1.49 The same applies to requirements in the regulations to record or give information in writing, unless the regulations specifically say otherwise
The effect of sections 2, 3 and 11 of the Act is that medical recommendations to support an application must be in writing and signed. Applications are required to be in the form set out in the Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 forms, all of which have a section for signature.
This gives rise to a bizarre situation whereby the application forms used by an AMHP (A1, A2, A6, A9, A10) could be completed electronically as there is no stated requirement in the Act for them to be in writing. By contrast the medical recommendations cannot be completed by written electronic means because the Act requires them to be written, and ‘in writing’ where used in the Act means any form of writing that is not electronic. It means, potentially, that an AMHP could take a laptop or a tablet to a Mental Health Act assessment and complete the forms there and then. A doctor could only complete his or her forms there and then with a pen or a typewriter.
If a record ‘must be made, or the information communicated in hard copy’ it would mean that the notification in writing of a person being authorised to accept a patient on leave under s.17(3), could not be produced by a word processor. A written authorisation to allow a person to retrieve a patient who is absent without leave would also have to be handwritten.
It is well-known that guidance is not mandatory. The Code of Practice to the Mental Health Act can be departed from with good reason, as would be the case where there is ambiguity about the effect of its provisions.
By contrast, the Hospital, Guardianship and Treatment Regulations are clear that only in limited circumstances is it permissible to communicate a written notice electronically, such as a notice barring discharge under s.25.
A more amenable interpretation of the Reference Guide provisions is that a requirement for a procedure under the Act to be in writing includes the facility for writing it onto an electronic device, which can then produce a hard copy. A typed note is likely to be just as authentic as a handwritten one and, once the text is saved on a computer, is easily audited for corrections.
The question which follows is whether, if a notice or form can be written onto an electronic device, can it also be signed electronically?
On the one hand, in September 2017 the Law Commission suggested that an electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.
On the other, the Tribunal Regulations have been amended specifically to allow certain documents to have a name typed instead of a handwritten signature. It may be thought that since this amendment has not been introduced to other parts of the Act it should be assumed that signatures should be by hand. But that is not the same as allowing an electronic signature. The Act requires medical recommendations to be signed but it does not stipulate that a signature should only be in ‘wet ink’ with a pen. There is nothing in the Hospital, Guardianship and Treatment Regulations to require a handwritten signature. If the forms can be completed electronically, there is no reason that they cannot be signed using an electronic signature.
The limit to the embrace of digital technology is that the completed medical recommendation cannot be transmitted electronically. That is just because the Regulations say so; but they do not say that a signature must be made by ink pen. CQC have long accepted that adherence to the Code of Practice on the prevention and control of infections is not necessary where there is a better alternative. If digital forms and signatures offer better security, easier use and less scope for unintelligible form completion that may well be sufficient justification for departure from the Reference Guide.
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