NHS Legal Guidance on the Use of the Mental Health Act in Light of the Coronavirus Act

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.