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.

The Coronavirus Bill – Proposed Amendments to the Mental Health Act 1983

26.03.20. Update: The Coronavirus Act 2020 has now been passed, but the changes, including to the MHA, are not as yet in force. Schedule 8, which relates to the MHA, appears unchanged from the Bill.

The Coronavirus Bill was published today (19^th March 2020). You can find the full text here. 

The full Bill obviously covers a multitude of proposed measures, including for example emergency registration of nurses and social workers. The proposed amendments to the MHA for England and Wales are contained in Schedule 7. Changes to the Scottish legislation are contained in Schedule 8.

This is my understanding of the main proposed changes relating to the MHA 1983.

The main substance of these changes appears to relate to an anticipated shortage of doctors who can make recommendations. It does not appear to anticipate any shortage of AMHPs, who will still be required to undertake an assessment and make the application.

As has been signaled, there will be changes to the requirements regarding applications under s.2 and s.3 MHA.

The Bill states:

An application by an approved mental health professional under section 2 or 3... may be founded on a recommendation by a single registered medical practitioner (a “single recommendation”), if the professional considers that compliance with the requirement under that section for the recommendations of two practitioners is impractical or would involve undesirable delay.

So it would appear that, while s.2 and s.3 can still involve two medical recommendations, an AMHP can decide to dispense with one if it is not practical to obtain 2 doctors to make recommendations.

The Bill then goes on to say:

An emergency application under section 4 may not be founded on a single recommendation (but this does not limit section 4(3)).

I’m taking this to mean that in effect s.4 (which only requires one recommendation) is suspended for the duration of these amendments.

The Bill makes it clear that the single recommendation has to be made by a s.12 approved doctor, but that doctor does not need to have had previous acquaintance.

S.5(2) is being amended so that instead of this hospital detention lasting 72 hours, it will now last for up to 120 hours, or 5 days. The time limit for s.5(4), the nurse’s holding order, is also extended, from 6 hours to 12 hours.

Along the same lines, Part III of the MHA, relating to criminal proceedings, will only require one medical recommendation. This relates to s.36, s.37, s.38, and s.45A.

Presumably anticipating delays in admissions to hospital, the time limits for conveyance of accused or convicted prisoners to hospital have been relaxed, the Bill stating:

The provisions listed in sub-paragraph (2) have effect as if references to conveying or admitting a person to hospital within a specified period were references to doing so within that period or as soon as practicable after the end of that period.

Finally, s.135 & s.136 are amended to extend the period of detention in a place of safety from 24 hours to 36 hours (not 72 hours, as had previously been the time limit until the recent amendments in 2018).

Any existing forms that conflict with these changes can be used with “appropriate amendments” (which can presumably be handwritten if necessary).

There is no indication of how long these changes might continue.

The Bill does, of course, still have to pass through, and be approved by, Parliament, and there may be further amendments.

However, it does seem likely that most, if not all, of these changes will go through.