Key COVID-19 legal developments in the health sector: MHA process guidance

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Key COVID-19 legal developments in the health sector: MHA process guidance

Published 3 April 2020


The CQC guidance on SOADs suggests in summary:

• Hospitals provide (via secure email) a summary ‘of current issues’ when submitting a second opinion request which will be used instead of a visit to examine records
• Consultation will be via telephone/video
• Services should support patients to speak to SOADs via telephone/video
• Services are encouraged to accept electronic copies of certificates (‘we recognise that there is a debate as to the legal validity of electronic signatures in MHA statutory documents, however, it is anticipated that Government may shortly lift the requirement for a paper copies’).


In relation to Part 3 Patients, The Mental Health Casework Section (MHCS) has issued a briefing.

By way of summary:

• This is a ‘time limited’ document, specific to the Covid-19 situation
• Transfer

o Medical treatment - Where P needs to be urgently treatment for Covid-19 this will be treated as any other medical emergency- so no requirement to inform MHCS first- though you should notify as soon as practicable.
o To another mental health hospital

- No advance agreement required where transfer is a ‘level transfer’ or a ‘transfer up’. MHCS to be informed as soon as practicable.
- Where ‘downward transfer’- verbal agreement required first from MHCS
- All Covid-19 transfers are to be treated as ‘temporary transfers’, so for review after 6 months.
- Leave will not automatically transfer and will need to be agreed with MHCS.
- An ‘urgent transfer form’ is attached to the guidance.

• Leave

o Existing leave to overnight community placements can be extended for 5-7 nights on email request to the MHCS
o MHCS will need to be satisfied risk adequately managed and addressed

• Conditional discharge

o There is no formal requirement for Supervisors to have face to face contact with patients (P), so the relevant responsible provider can determine an appropriate process in the circumstances (with reference to NHSE guidance)
o Reports

- Both Conditional Discharge Reports (CDRs) and Annual Statutory Reports (ASRs) still have to be submitted and the statutory responsibilities remain the same (on Supervisors & the MHCS) but

• CDRs can be in alternative formats (e.g email)
• ADRs can be older than 3 months or a CPA report accepted where suitable (as evidenced in a covering email from RC).

Mental Health Tribunals

In relation to the current postion, across the Tribunals and in particular in relation to the Health, Education & Social Care Chamber (which, of course, includes the Mental Health Tribunal) you can access general guidance here, with guidance for the specific Tribunals here.

Updated guidance (‘help for users’) has now been published (July 2020). This confirms that:-

• Cases continue to be listed to be heard by video or telephone link (apart from some paper hearings).
• They are heard by the usual three person panels via video or telephone link.
• Joining details are sent out in advance of the hearings, with an option to ‘dial in’ via telephone for those who can’t access the video link (support is available).
• There are no medical examinations taking place.
• The position continues to be kept under review.

See the ‘frequently asked questions’ guidance here.



Gill Weatherill

Gill Weatherill


+44 (0)191 404 4045

Sarah Woods

Sarah Woods


+44 (0) 117 918 2744