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 abril 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

The Senior President of Tribunals has issued a practice direction on a pilot basis and associated guidance on how it may be necessary for Tribunals to adjust their ways of working to limit the spread of the virus and manage their workloads appropriately during the Covid-19 pandemic. The pilot will run for 6 months and will be kept under review. The key points to note are as follows:

• For any new cases decisions will be made by a single Judge (unless this is considered to be inappropriate in a particular case by senior members of the tribunal in which case a two or three person panel may make the decision).
No pre-hearing examinations - It will not be practicable for any pre-hearing examinations by the medical member to be conducted.
S2 and CD recall hearings will be prioritised.
• In cases where:

i. a reference has been made under section 68 of the Mental Health Act 1983 (duty of managers of hospitals to refer cases to tribunal); and
ii. the patient is a community patient aged 18 or over

the Tribunal should suggest to the patient or their representative (as appropriate) that the proceedings are dealt with on the papers, unless, having regard to the overriding objective, it considers this to be inappropriate.
If the patient/their representative agrees in writing that they do not require a hearing, the Tribunal may determine the matter on the papers in accordance with Rule 35(3) of the 2008 Rules.
Hearings will proceed by telephone. The Judge will dial into the hearing on a conference call number. The RC, Nurse and patient will be present. The care coordinator will also join the hearing by telephone. The representative will choose to attend the hospital or attend by telephone. In those cases in which there is a panel of two or three the medical member and/or SpLM will join by telephone in the same way.
• If the Tribunal Judge needs to ask a medical member or SpLM specialist advice they will leave the call and contact the SpLM or MM who will be available that day. The Judge will then enter the conference again, repeat the advice they have been given and have the patient’s representative make any submissions. If the Judge seeks advice before the hearing starts the advice will be read to the witnesses and the patient’s representative before the hearing starts.
• If the patient is unrepresented it is suggested that they are given an opportunity to speak to the Judge without other people in the room, but this will be a matter for the individual Judge.
• It is suggested that the decision is not announced as the Judge will have no visual impression of the patient, witnesses or hearing room.

Links to the Practice Direction Pilot and associated guidance can be found here and here


Gill Weatherill

Gill Weatherill


+44 (0)191 404 4045

Sarah Woods

Sarah Woods


+44 (0) 117 918 2744