NHS England has issued Legal Guidance on the use of the Mental Health Act during the
coronavirus pandemic. You can find the full document here.
It
begins by stressing that:
There
are currently no changes to the Mental Health Act 1983 legislation and
colleagues should continue to adhere to the MHA Code of Practice as it
currently stands until further notice.
It
makes clear that there must be a clear distinction between the principles of
the MHA and possible requirements to manage people infected by the coronavirus:
MHA
powers must not be used to enforce treatment or isolation for any reason
unrelated to the management of a person’s mental health.
Schedule
8 of the Coronavirus Act, relating to amendments to the MHA 1983, is not in
force (and may never be). The guidance clearly states that these powers
will
only be enacted if it is deemed nationally that the mental health sector is
experiencing unprecedented resource constraints that put patients’ safety at
significant risk.
It
also makes it clear from the outset that there will be no changes to the
current Mental Capacity Act.
It
continues to hammer home the message that:
It
remains the case, even in the wake of the emergency powers, that the MHA should
only be used ‘with respect to the reception, care and treatment of mentally
disordered patients and other related matters’. Under no circumstances can the
MHA be used to enforce treatment, restrictions or isolation that is unrelated
to the management of a person’s mental health.
The
guidance suggests a number of actions that those involved in the care and
treatment of people with mental disorder can and should take to ensure that the
word and spirit of the MHA are respected.
One
recommendation is that at a local level there must be additional resources
provided to maintain an adequate supply of s.12 doctors to conduct assessments
under the MHA.
One
of the ways it suggests is that the Department of Health and Social Care will
extend the licences of s.12 doctors and approved clinicians. These licences
will be extended for 12 months.
S.140
MHA gets a mention, stating that there should be local systems “to ensure s140
agreements in relation to bed availability are in place and updated in light of
COVID-19”.
The
guidance goes into some detail in stressing how people with learning disability
and/or autism should be treated, reinforcing the recommendations in the Code of
Practice by stating that “caution should be taken when determining whether an
individual with a learning disability and/or autism is detainable under the
MHA.”
One
key statement relates the requirement that people with learning disability
should be exhibiting “abnormally aggressive or seriously irresponsible conduct”
in order to meet the threshold for detention under the MHA. It states unequivocally
that:
non-compliance
or difficulty in gaining compliance with any restrictions and interventions
required for the management of COVID-19 is not interpreted as adequate grounds
on which to detain them. Further, the fundamental principle that the MHA is not
for the treatment of physical disorders must be borne in mind where there is no
association between a person’s physical and mental disorder.
It
also recognises that:
The
emotional and behavioural responses of people with autism to the constraints,
uncertainties and significant changes in daily living as a result of the
management of COVID-19 may also provide a diagnostic challenge in assessments
under the MHA.
It
goes on to stress:
It
is essential that the support of health and social care service practitioners
with particular experience and expertise in learning disability and/or autism
is sought wherever possible to enable appropriate, reasonably adjusted
assessments.
With
reference to use of the MCA, it recognises that the impact of the Coronavirus “may
result in a justifiable need for restrictive practice in particular
circumstances”. But it also stresses that the principle of employing the least
restrictive option should always be paramount:
Any
use of restriction must be proportionate to the risks involved and providers
should refer to their ethics committees where required.
I
remain hopeful that the current MHA can continue to function as it currently
is, without the need for the emergency changes in the Coronavirus Act. AMHPs
and other mental health professionals need to work together to ensure that all
the principles underlying the MHA and the Human Rights Act are never dispensed
with because of operational difficulties arising from this national health
emergency.
