The issue of photocopied, scanned, emailed or faxed
Mental Health Act medical recommendations and applications has arisen quite a
bit lately, both in the Masked AMHP Facebook Group and in my local AMHP
Service.
Here’s an example of a problem an AMHP reported:
Had a dispute today: I'd emailed a scanned copy of my application
which was then printed out for conveyance of the patient as a bed became
available 15 hours after my assessment. I completed my application remotely so
they didn't have to be reassessed. I'd already informed the patient and Nearest
Relative of my decision. I had a MHA administrator state they'd raise this as
an incident and inform the patient that they were unlawfully detained unless I
drove the originals to the hospital (I'd said I would post them). The rationale
was their policy states it has to be the original and that no trust would
accept a photocopy/scanned copy.
I would say that in cases where the hospital to which a
patient detained under the MHA is a long way away (a not uncommon scenario
nowadays!) it is fairly common practice to fax the forms to the receiving hospital
so that they can be scrutinised prior to the admission. This also saves the
problem of a patient arriving at a hospital only to find that there has been
some non-rectifiable error rendering the paperwork, and the detention, invalid.
In such situations, however, the original paperwork will
accompany the patient in the ambulance so that the originals can then be
formally received by the hospital.
I had a situation recently where I had assessed a patient
in our local Sec.136 suite and it was concluded that they needed to be detained
under the MHA. The psychiatrists completed a joint medical recommendation for
Sec.2 MHA, but as the patient was from another area, there was a delay of several
hours while the patient’s home area arranged for a bed. I faxed a copy of the
medical recommendation to the patient’s local bed managers.
As a consequence I was unable to complete an application
before my shift ended. I left the medical recommendation at the hospital where
the Sec.136 suite was located, and when a bed was identified during the evening
an out of hours AMHP attended the Sec.136 suite, assessed the patient again,
and completed an application under Sec.2 MHA.
Unfortunately (and through no fault of my own), when
needed the original medical recommendation could not be found. However, the
receiving hospital accepted the faxed copy in lieu of the original, and the
patient was taken there, along with the original application form.
The patient was duly admitted to the hospital. The
following day, the medical recommendation miraculously turned up and was
transported to the hospital (don’t ask me how this happened; I suspect it was
the Statutory Forms fairy.)
Clearly, this hospital was sufficiently satisfied that
there was evidence that the patient was legally liable to be detained, that
they did not insist on the original form before accepting the patient.
With delays in finding beds for detained patients
becoming the norm, it is quite a common procedure for an AMHP to complete an
application the following day, or even days later, at which point they may be
in their office, while the medical recommendations are with the patient, for
example where a patient is resident in a care home.
There can then be logistical problems in uniting the
paperwork. Our AMHP Service’s business support officer is quite often employed
in transporting wayward section papers from one place to another, so that they
can eventually be received at a hospital.
All of this appears to indicate, however, that it is a
matter of individual hospitals making their own rules about what constitutes a
valid application.
It is not easy finding a definitive answer to this issue.
Richard Jones has a brief section on Faxed Forms. In the
19th Edition of the Mental Health Act Manual, he states on page 675:
Although only reg.25((2)(a) provides specific authority
for a form to be served by fax, it is submitted that a faxed reproduction of a
completed form can be acted upon if (a) the recipient confers with the
signatory by telephone to confirm that the form was completed by the signatory;
and (b) the original is delivered to the recipient at the earliest opportunity.
The Mental Health Act Commission endorsed the use of faxed forms (MHAC, Sixth
Biennial Report, 1993-1995, para.3.13). (I have been unable to locate a copy of
the 6th Biennial Report, so I have to trust to the accuracy of Jones’ statement.)
Jones is referring to The Mental Health (Hospital,
Guardianship and Treatment) (England) Regulations 2008.
These regulations contain the text of the MHA forms, but
also has this to say about the delivering of forms to hospitals:
3(2) Any application for the admission of a patient to a
hospital under Part 2 of the Act shall be served by delivering the application
to an officer of the managers of the hospital to which it is proposed that the
patient shall be admitted, who is authorised by them to receive it.
(3) Where a patient is liable to be detained in a
hospital under Part 2 of the Act—
(a) any order by the nearest relative of the patient
under section 23 for the patient’s discharge, and
(b) the notice of such order given under section 25(1),
shall be served either by—
(i) delivery of the order or notice at that hospital to
an officer of the managers authorised by the managers to receive it, or
(ii) sending it by pre-paid post to those managers at
that hospital, or
(iii) delivering it using an internal mail system
operated by the managers upon whom it is to be served, if those managers agree.
25(2)(a) relates to the Responsible Clinician’s barring
order when a nearest relative orders the discharge of a detained patient, and
states:
(2) In addition to the methods of serving documents
provided for by regulation 3(1), reports under this regulation may be furnished
by—
(a) transmission by facsimile, or
(b) the transmission in electronic form of a reproduction
of the report,
if the managers of the hospital agree.
There appears to be no logical reason why this should not
apply to all MHA forms. However, there is the clear proviso here that while this
particular legal form can explicitly be faxed or emailed, it is with the
agreement of the hospital managers. This appears to leave the hospital managers
with discretion about what they deem to be an acceptable method of delivery.
Does the Code of Practice offer any clarification?
I’m not sure it does.
Para35.3 states:
If no hard copies of the statutory forms are available,
photocopies of the original blank forms can be completed instead, as can
computer-generated versions. The wording of the forms must correspond to the current
statutory versions of the forms set out in the regulations.
Unfortunately, this only refers to the filling in of
forms, and restating, as is well established, that as long as the wording
accords with the regulations, the actual format of the form is irrelevant.
But then, para35.6 goes on to say:
This chapter distinguishes between receiving admission documents
and scrutinising them. For these purposes, receipt involves physically
receiving documents and checking that they appear to amount to an application
that has been duly made (since that is sufficient to give the managers the
power to detain the patient). Scrutiny involves more detailed checking for
omissions, errors and other defects and, where permitted, taking action to have
the documents rectified after they have already been acted on.
This paragraph is concerned with the difference between
receipt and scrutiny. Unfortunately, it does not really define exactly what “physically
receiving documents” means.
I suppose on the plus side, one could quote this to an
intransigent hospital manager and argue that receiving a valid copy of a form
is the same as receiving the actual original copy.
One has to look elsewhere to find guidance on the
legality of forms that are not in the traditional handwritten form.
The Ministry of Justice is very keen on reducing
paperwork and speeding up the process of law. For example its website lists electronic
copies of literally hundreds of legal forms, and offers the helpful advice: “Save
a downloaded form and fill it in electronically, or print a form and fill it in
by hand.”
Our regional Magistrates’ Courts group (the area covering
the whole of South East England) has entirely dispensed with the old system of applying
to a magistrate for a warrant under Sec.135(1) or (2).
For as long as I have been an AMHP, and ASW before that,
the procedure has been that an AMHP must manually complete the paperwork for
applying for a warrant, then attend the local magistrates’ court, have a word
with the court clerk, and then wait for a gap in proceedings in order to
convince a magistrate that they should grant the warrant.
That system has now changed. An AMHP now books a slot online
for a telephone consultation. They then complete electronic forms and send them
by secure email to a central address. After a 10 minute discussion with a
magistrate situated a hundred or more miles away, the magistrate (if satisfied)
then electronically completes and signs the warrant and emails it to the AMHP.
This form can then be infinitely copied, and each is regarded as the original
valid warrant, with only an electronic signature.
If this is considered valid for warrants under Sec.135(1)
& (2) MHA, then who is to say that the same should not apply to all the
other MHA forms?
