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COVID-19 – Significant Proposed Mental Health Act Changes

The Government has recognised that the increased demand together with staff shortages within healthcare as a consequence of the Coronavirus will mean that it will be very difficult to comply with some of the procedural requirements of the Mental Health Act 1983. It is feared that this may result in patients who need mental health treatment, due to the risks they pose to themselves or others, in an inpatient setting being less likely to receive it. The Coronavirus Act 2020 includes important amendments to help ease pressures during this uncertain time although these are subject to pending regulations coming into force. The measures are temporary and intended to be used in this emergency situation only.

Most significant changes:

Compulsory Admission to Hospital

  • An Approved Mental Health Professional can detain a person under s2 or 3 of the Act on the advice of one doctor approved under s12 of the Act, if the AMHP considers that the usual requirement of two doctors would be impractical or involve undesirable delay.
  • The AMHP will have to review urgency and staff availability on a case by case basis.
  • An application founded on a single recommendation must include a statement of the opinion of the AMHP regarding impracticality or delay as referred to above.

Patients already in Hospital

  • Any registered medical practitioner whether or not in charge of the patient’s treatment may furnish a report for the purposes of section 5(2) (detention of patient in hospital pending application for admission). Previously only the clinician in charge of treatment could produce the report. Assuming the Bill is implemented, this will change: if it appears to the practitioner that complying with this requirement would be impractical or would cause undesirable delay.
  • This is to be examined on a case by case basis and should not be regarded as applying automatically. The provision enables a practitioner or clinician in charge of the patient’s treatment to delegate to a colleague with a greater workload capacity in the circumstances stated.
  • Section 5(2) (the period for which a patient can be detained following the report by the practitioner or clinician) has effect in relation to a patient detained after the beginning of any period for which this sub-paragraph has effect as if for “72 hours” there were substituted “120 hours”, this extends the existing period by 48 hours. It contemplates that there may be a greater need for the holding power pending arrangements being made for an assessment under the Act.
  • Section 5(4) (period for which patient can be detained pending report by a practitioner or clinician) has effect in relation to a patient detained after the beginning of any period for which this sub-paragraph has effect as if for “six hours” there were substituted “12 hours”. Thus, the proposed extension of the period in respect of the nurse’s holding powers represents a significant increase.

Directions for the transfer of prisoners to Hospital

  • A direction for the transfer of a prisoner to hospital may be given under section 47(1) or 48(1) (removal of prisoners to hospital) if the Secretary of State:
  1. is satisfied that complying with the requirement under that provision for reports from at least two registered medical practitioners is impractical or would involve undesirable delay; and
  2. is satisfied of the matters mentioned in paragraphs (a) to (c) of that provision by a report from one registered medical practitioner, and any other conditions for the exercise of the power are met.
  • Section 47(2) (period within which person subject to transfer direction must be received into hospital) has effect as if for “14 days” there were substituted “28 days”.

Review of Treatment

  • Detained patients treated with medication for their mental disorder without their consent have the right under s58 of the Act, after three months, to have their medication reviewed by a Second Opinion Appointed Doctor, a service provided by the Care Quality Commission. An amendment proposed in the Bill sets out that the three month period will commence from the end of the emergency period, effectively removing the review during this time. There is no definition of “emergency period”, reflecting the uncertainties surrounding the virus.

Removal to a place of safety

  • Sections 135(3ZA) and 136(2A) (period of detention in a place of safety) and 136B (extension of detention for a person detained under s 135 or 136) take effect in relation to a person detained after the beginning of any period for which this paragraph has effect as if for “24 hours” (in each place where it occurs) there were substituted “36 hours”. This again proposes a potential extension of up to an additional 12 hours in respect of existing permitted periods of detention of patients in places of safety.

It is important to remember that the majority of the normal procedural requirements will have to be followed unless circumstances deem this impractical or would involve undesirable delay. Should you require any advice regarding these emergency measures, please do not hesitate to get in contact.


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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