The Coronavirus Act: implications for mental health providers

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The Coronavirus Act: implications for mental health providers

Published 23 marzo 2020

Schedule 8 of the Coronavirus Act 2020 (C.7) provides for amendments to the Mental Health Act (MHA), and identifies some significant implications for mental health service providers, if implemented.

Although enacted on 25.3.2020, the relevant amendments to the MHA (s.10, Schedule 8), will not come into effect until Regulations bring them in to force.

In summary:

1. Applications based on one medical recommendation

Provision is made for applications for s2 and s.3 to be made by the AMHP based on a single medical recommendation (referred to as a ‘single recommendation’), where the AMHP considers that obtaining the two medical recommendations usually required, would be ‘impractical or would otherwise involve undesirable delay’.
This will require:

• The AMHP to include a ‘statement of the opinion’ that obtaining a second recommendation would be ‘impractical or involve undesirable delay’.
• The single recommendation will have to come from a s.12(2) approved doctor who has personally examined the patient (P).
• There will be no requirement for that doctor to have ‘previous acquaintance’ with P.
• The single recommendation can be rectified under s.15 where it is insufficient, by a fresh recommendation being obtained by the AMHP in accordance with s.15(2) of the MHA.
• S.4 applications are unaffected in practice– so usual s.4 rules will apply.

2. Sections 5(2) & 5(4)

The Act provides for the relaxation of the holding powers in s.5(2) & 5(4).

In relation to s.5(2):-

• The holding power can be used by any doctor or AC furnishing the requisite report, where requiring the report to be furnished by the Dr/AC in charge of P’s treatment would be ‘impractical or would otherwise involve undesirable delay’.
• The detention will last for up to 120 hours (5 days) rather than 72 hours.

In relation to s.5(4):-

• The detention will last for up to 12 hours rather than 6 hours.

3. T Forms & Medication

Medication given to P on a T3 under s.58(3)(b), (where P doesn’t or can’t consent) which would currently require a SOAD certification, can be certified by the RC, if the RC considers that requiring a SOAD certificate would be ‘impractical or would otherwise involve undesirable delay’.

The requirement to consult is also ‘relaxed’, so that where the RC considers consulting two persons professionally concerned with P’s treatment would be ‘impractical or would otherwise involve undesirable delay’, the RC need only consult with one such person.

The consultee, however, must not be a nurse, a doctor or the AC/RC in charge of P’s treatment.

4. Place Of Safety Detention

The power to detain in a place of safety in s.135 & s.136 is extended from 24 hours to 36 hours (and could be further extended for 12 hours in accordance with s.136(B)).

5. Part 3 Provisions

There are also changes introduced for Part 3 provisions which:-

• Provide for court orders (including s.36; s.37; s.45A) to be made based on the evidence of one doctor rather than two (again, the impractical/undesirable delay test will apply).
• Provide for prison transfers (s.47 & s.48) to be made based on the evidence of one doctor rather than two (again, the impractical/undesirable delay test will apply).
• Extend periods for conveyance/admission/transfer of P to hospital.
• Extend periods for P to be remanded to hospital by the court for report (s.35 ) or treatment (s.36).

6. Mental Health Review Tribunal for Wales

Constitutional changes for the Welsh MHRT are also introduced (Schedule 8 at 11-13).

Challenges

Whilst these provisions may be welcomed as one way of easing the resource burden imposed on health and social services by the virus, care will have to be taken that the provisions are only relied on where the criteria can be justified.

Ultimately, it will, of course, be a matter for the AMHP to decide what ‘impractical’ and ‘undesirable delay’ mean in practice. At first glance the ‘impractical’ test appears very wide and could already apply in many cases, even without issues raised by the coronavirus. Care will need to be taken that the test is appropriately applied.

From a Trust/independent hospital perspective, whilst the hospital will be able to rely on an application that ‘appears to be duly made’ (s.6(3)), care will need to be taken that proper scrutiny is carried out, particularly in relation to the AMHP’s written justification as to why the criteria apply.

Care will also need to be taken over decisions made by the RC that they should complete the T3, rather than this being completed by the SOAD. Hospitals should consider how this should be monitored so that subsequent challenges are not made to such decisions, particularly when we may not know until it is effectively too late how the criteria may be assessed by the regulators or courts.

S.62 could, of course, also be considered where the relevant criteria apply.

The requirement for the consultee to be neither a doctor or a nurse, but some other professional, professionally involved with P, may still cause issues in practice.

Schedule 21 Powers

Finally, it should be noted that the provisions in Schedule 21 of the Act provide powers to detain and isolate, similar to the provisions which previously existed in the Health Protection (Coronavirus) Regulations 2020 (SI 2020 No.129) (which are repealed by the Act – Schedule 21 (24)).

Schedule 21 provides powers to detain and isolate ‘potentially infectious persons’.

An individual can be subjected to screening and assessment, including isolation or detention in a hospital for that purpose, where necessary for the reduction of the risk of infection or contamination. Such a decision must be taken by the Secretary of State or a Public Health Officer (PHO- a designated officer or Registered Public Health Consultant) and would only apply where certain conditions are met.

The police are given powers to use reasonable force and to enter property to remove a person to a specified place for screening and assessment and to isolate/ keep them there.
From a practical perspective, it is not yet clear how these could/would be put into effect, particularly, for example, in the context of hospital settings.

Authors

Gill Weatherill

Gill Weatherill

Newcastle

+44 (0)191 404 4045

Helen Kingston

Helen Kingston

Newcastle

+44 (0)191 404 4046

Sarah Woods

Sarah Woods

Bristol

+44 (0) 117 918 2744

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