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Amending the Mental Health Act: Part 8 – what can we learn from the Coronavirus Act 2020?

In the Queen’s speech in early 2020, the Government confirmed its intention to amend the Mental Health Act.  It said that a White Paper would be published to address the following:

  • greater control for patients over their treatment
  • making sure patients have a greater say in their care
  • greater choice and autonomy, including the ability to set out preferences for care and treatment in advance
  • ensuring dignity and respect
  • reforming the process for detention and providing greater support for patients to challenge detention
  • making it easier for individuals with learning disabilities and autism to be discharged from hospital and improve how they are treated in law.

In a series of briefings, we are looking at what amendments might be forthcoming.  This is the eighth briefing in the series.

Coronavirus Act 2020

In our previous briefings on this topic, we suggested that the areas for amendment were likely to be those topics that have been flagged by the independent review of the Mental Health Act, chaired by Sir Professor Sir Simon Wessely, the Regius Professor of Psychiatry at Kings College Hospital, which reported in December 2018.

However, when the Covid-19 pandemic hit, the Government enacted emergency legislation to address those areas of statute which it felt would need early amendment for the system to cope in a national emergency. These seem to be issues of systemic efficiency rather than being points that follow the more patient-centred approach outlined in the Queens Speech. There must also be a question as to whether the MHA amendments will be a priority for Government and Parliamentary time post virus when there will no doubt be said to be many economic challenges to consider first.

The Coronavirus Act is in force for two years unless brought to an end earlier. If there remains pressure on resources in the post-virus period, it is possible that some of the areas amended by that Act will be included as subjects for long-term review.

So what issues did the Coronavirus Act deal with? The areas addressed (although readers should check whether they were ultimately in force) were as follows:

  • Only one doctor’s opinion to be required to detain patients

Previously this had required two doctors certifying that the patient met the criteria for detention.  The emergency provisions reduced this to one doctor if obtaining a second opinion would be impractical or would involve undesirable delay.  One doctor did however have to be s.12 approved and to have personally examined the patient.

  • Suspending the SOAD review of treatment and medication decisions

s.58 Mental Health Act required a second opinion before providing treatment without a patient’s consent.  The emergency legislation removed this requirement for a second opinion, where the approved clinician considered that would be impractical or there would have been undesirable delay.  The approved clinician was however required to certify in writing that the treatment without consent was appropriate and that he had consulted a person who had been professionally concerned with the patient’s treatment before providing the certification.

  • Extending temporary detention under s.5(2) and s.5(4)

The duration of detention under s.5(2) was extended from 72 hours to a maximum of 120 hours.  The emergency detention pursuant to s.5(4) was extended from 6 to 12 hours.

  • Tribunals to have one judge

Mental health tribunals could proceed with one panel member, as long as that was a legally qualified mental health judge.  There were to be no medical examinations of patients by a medical tribunal member.

These amendments therefore seem to be more indicative of emergency operational need rather than likely long term substantive statutory change.

 


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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