Use of electronic forms under the Mental Health Act accelerated by the pandemic
On 1 October 2020 The Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2020 were laid before Parliament. The Explanatory Memorandum to the Regulations confirms that they allow for certain statutory forms used for the exercise of powers of admission, detention, assessment and treatment under the Mental Health Act 1983 (‘the Act’) to be served by electronic means. It provides that, with one exception, those bodies or authorities in receipt of these forms may agree to receive them by electronic means. Documents cannot be served on patients solely by electronic means although electronic versions may be provided in addition to hard copy forms.
Where a person, usually an Approved Mental Health Professional (‘AMHP’), wishes to serve an application for detention via electronic transmission, such electronic communication to the hospital managers is always permitted.
There are also consequential amendments to the statutory forms.
This is part of the Government’s work to modernise the Act which has been subject to a recent Independent Review, and reflects advances in information technology within the National Health Service (‘NHS’).The Memorandum refers to integrated and secure information systems in the NHS, which have potential to help professionals follow the requirements of the Act in ways that do not use their time unnecessarily, for example by waiting to receive signed paper forms.
It confirms that the need for these changes has been accelerated because of the current pandemic, and the need to support efforts to control infection by minimising unnecessary face to face contact. Even without these circumstances, the Government sees no continuing need to maintain restrictions on electronic service.
The Regulations are due to come into force on 1 December 2020. Practical guidance to assist stakeholders in applying the changes will be published before the amendments come into force. This guidance will, among other topics, discuss common understandings, agreements and working protocols which organisations will need to establish locally.
Organisations will welcome the changes which should assist in responding to the needs of patients quickly and appropriately. The benefits in our COVID-19 world are obvious.
It is important to start formulating procedures to deal with the changes and ensuring agreements are in place regarding service, receipt and scrutiny of forms.
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.