Key COVID-19 legal developments in the health sector: Key Issues for MH providers

Published 6 enero 2021

Will the Mental Health Act (MHA) be changing?

No. The Coronavirus Act contained a number of emergency provisions which, if enacted, would have amended certain aspects of the Mental Health Act regarding second opinion safeguards and detention periods. However, the Government has decided to expire these powers, meaning they will no longer be a part of the Act. Accordingly, no changes are being made to the MHA legislation and organisations should continue to operate in line with existing MHA law and Code of Practice as far as possible.

As explained in NHSE’s legal guidance for mental health services during the pandemic (see further below), decisions must continue to be made in accordance with the MHA, Regulations and Code. It will be important to continue to consider the Code’s guiding principles, including the ‘least restrictive’ principle, and to ensure that there is no unlawful deviation from MHA statutory requirements.

However, there will be an impact on the application of the principles and criteria. For example, what might be the ‘least restrictive’ option will be influenced by the challenges posed by the virus in practice, and the broader lock down and isolation measures which apply to the general population. Whether P’s mental disorder is of a nature or degree to require treatment in a hospital will depend on the facts of the individual case, which could include consideration of the impact of the virus on P’s mental health/care plan.

What about leave?

Decisions on leave and discharge will still need to be made on a case-by-case basis by the Responsible Clinician (RC), but will clearly be impacted by the issues above.

For detained patients, providers should continue to impose the least restrictive measures necessary to provide care and treatment and consideration should therefore still be given to allowing patients section 17 leave, but given the above, severe restrictions are placed on all patients whether detained or informal, in line with the rest of the population.

RCs will need to consider the above restrictions and the risk to patients, staff and the general public along with the patient’s capacity to understand the above instructions from government before authorising leave. Given the restrictions on the size of public gatherings, this will also need to be considered when prescribing leave.

NHSE guidance on the application of the MHA during the Covid19 pandemic

Version 3 of the guidance was published on 30 November 2020 (the original version was published on 30.3.2020). The guidance can be found here.

Key Points

From a mental health service provider perspective, the key issues include:-

• Confirmation that although potential changes to the MHA were introduced in the Coronavirus Act 2020, these will not now be implemented.
• Guidance on the isolation of patients in mental health settings. This will need to be justified on a case-by-case basis.
• Annex D contains guidance on the use of the MHA Code of Practice during the pandemic, recognising that changes may need to be made to practice during this time, with potential departures from the Code guidance. Read more here.
• Guidance on digital technology, remote assessments and electronic documentation.

Challenges for providers

• Every decision to depart from ‘usual practice’ will need to be justified on a case-by-case basis.
• Great care will need to be taken in relation to remote assessments, in particular to ensure that reliance on a remote assessment is justified as opposed to being convenient and use does not become a ‘default’ position.
• All relevant guidance will need to be taken into account in relation to the use of remote assessments. This may prove difficult in practice, resulting in subsequent face-to-face assessments having to take place. It is likely that there will be future challenges to the quality of remote assessments, particularly around the decision to detain.
• Any deviation from the Code will still need to be justified on a case-by-case basis, even where it is set out as a suggested option in Annex D. This will need to be recorded and monitored. Care will need to be taken not to depart from the actual MHA requirements, which still have to be complied with. The MHA provisions requiring hospital managers to consider renewals in s.20 and s.20A are an important example.