Legal matters - COVID-19 guidance for clinicians

Page last updated: 26 May 2021

NHS England/Improvement published  Legal guidance for mental health, learning disability and autism, and specialised  commissioning services supporting people of all ages during the coronavirus pandemic (last revised version, 25 Jan 2021) on the impact of COVID-19 on the use of the MHA. See a summary of this guidance below.

Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic has been published by NHS England/Improvement (25 January 2021) on the impact of COVID-19 on the use of the Mental Health Act 1983 (England and Wales).

Please note: since this guidance was originally issued on 2020, a court has ruled with immediate effect, to meet the legal threshold for the section of the Act which refers to "personally examined", it requires in all cases the physical presence of the doctor(s) when carrying out the assessment. As well as MHA assessments for medical and AMHP purposes, the ruling also applies to assessments for detention in relation to guardianship.

This contradicts the Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic issued by NHS England/Improvement in 2020.

The relevant section of the NHS E/I guidance document, which pertained to the use of remote or video assessments in certain limited contexts, is being redacted for the time being whilst NHSE/I seek legal advice and they will be further updated in due course.

Although it is possible that the ruling may be appealed, you should make sure that you comply with this ruling from now on, rather than the guidance issued in 2020.

Key messages

  • There are no changes to the Mental Health Act 1983 (MHA) legislation. The MHA legal framework is a basic protection of rights. Emergency changes to the current MHA legal framework were initially set out in the Coronavirus Act as a last resort in the scenario that the impact of the pandemic was deemed to be putting patient safety at considerable risk by impeding access to essential care. However, on 30 September 2020 it was announced in parliament that the Government would seek to remove the MHA emergency provisions in the Coronavirus Act.
  • While there are no legislative changes to the MHA, the Department of Health and Social Care (DHSC) has provided advice on using the MHA Code of Practice during the COVID-19 pandemic period. This aims to offer specific advice and guidance on areas which are posing a particular challenge as a result of the pandemic and where temporary departures from the Code of Practice may be justified in the interests of minimising risk to patients, staff, and the public.
  • Decisions about the application of the Mental Capacity Act 2005 (MCA) and MHA have always involved significant nuance and complexity. During the COVID-19 outbreak, providers and local authorities should follow their organisational policies to ensure the safety of staff and patients and decide on the appropriate use of the relevant legal framework on a case-by-case basis, with reference to organisational ethics committees or ethics forums and support from medicolegal and expert social work colleagues as required.
  • Blanket bans should be avoided, and services should continue to operate in the least restrictive way possible and in accordance with the MHA and MCA codes of practice. However, it is acknowledged that the impact of COVID-19 may occasionally result in a justifiable need for restrictive practice in order to maintain both patient and staff safety, such as isolating someone who is suspected or confirmed COVID-19 positive without their consent.
  • In most cases, when a patient is already detained under the Mental Health Act 1983 (MHA), the powers provided by this legislation can be relied upon to isolate someone against their consent, as long as the patient’s refusal to self-isolate is demonstrably connected to their mental disorder, or is necessary to support the overall purpose of the MHA, ie detaining patients in a safe and secure environment, where they can be treated for their mental disorder. We strongly advise against swab testing or other invasive testing procedures in absence of consent from the individual.
  • Robust and live communication across services is hugely important at a time when significant resource shortages across the sector are likely. Colleagues should take advantage of digital technologies to support communication. NHSX guidance supports mental health providers and Local Authorities in using digital and virtual channels such as MS Teams, Skype, WhatsApp and FaceTime.
  • Local authorities have substantial statutory responsibilities under the MHA and Care Act 2014, especially in providing access to approved mental health professionals and co-ordinating s117 discharge arrangements. This guidance considers how local authorities and mental health providers can work together to try and mitigate the effects of significant staff shortages.

Because of the COVID-19 pandemic the CQC is reducing visits to hospitals to minimise risk to patients, staff, and the public, which includes the Second Opinion Appointed Doctor service.

Please see full details of the new procedure for remote working for Mental Health Act SOADs in this letter from the CQC.

Summary of the new SOAD procedure

  1. Mental health services to provide a summary of the patient’s current issues to CQC when submitting a second opinion request, which SOADs will use instead of visiting the hospital to examine care records.
  2. Consultations with professionals, including with the responsible clinician, will be undertaken by telephone or video (Skype or Microsoft teams).
  3. Following telephone consultations, the CQC will ask services to support patients who agree to speak with SOADs to have access to telephones or technology to support a video call with the SOAD.
  4. SOADs will not be asked to post original copies of certificates. The CQC encourages services to accept electronic copies of certificates and act on that. The Government may lift the requirement for a paper copy, and the CQC will issue further communications once this is confirmed.

NB. Please see other information on this page regarding potential changes to consent to treatment under the Mental Health Act which are made by the emergency COVID-19 legislation - but are not yet in force (these pages will be updated if they are).

Deputy Chamber President Sarah Johnston and Chief Medical Member Dr Joan Rutherford have provided the following information for the Royal College of Psychiatrists as an update on the Mental Health Tribunal response to COVID-19.

Summary

All hearings continue as remote until September 2021 when this will be reviewed.

Pre- Hearing Examinations (PHEs) are done only at the patient’s representative’s request and not routinely for Section 2 cases. PHEs are done remotely.  

Background

The Mental Health Tribunal are aware of the continuing pressure on clinical teams during the pandemic, and the ongoing need to limit the spread of infection.

On 19 March 2020, Sir Ernest Ryder, Senior President of Tribunals, issued a Pilot Practice Direction setting out how the First-tier Tribunal and Upper Tribunal might adjust their ways of working during the immediate Covid-19 crisis. This was amended and extended to 18 March 2021. The current Senior President of Tribunals the Rt Hon. Sir Keith Lindblom has extended this to 18 September 2021.

Although it was necessary to have Judge-alone hearings in the initial stages of the Covid-19 crisis, full panel hearings resumed in June 2020.

Current Situation

  • There is no backlog of cases. 
  • There have been no appeals based solely on the fact of hearings not being done by a Tribunal Panel visiting the hospital.
  • All hearings continue to be done remotely using Cloud Video Platform. This is to avoid the spread of infection as Tribunal members may travel up to ten hospitals within a week.
  • Pre-hearings examinations, when requested, are being done remotely using Microsoft Teams; this is due to the current lack of capacity of CVP and was designed to mirror the system prior to the pandemic. This is a pilot system and is under review.
  • In general, two hearings are booked per day – as was previously the aim when hearings were held in hospitals: start times are 10.30 am and 2.15pm.
  • Some hearings are booked for the whole day: these include all hearings requiring interpreters, all cases of a patient aged 18 and under, and cases which are likely to extend over 3 hours such as when complex issues are challenged/expert witnesses attend. A request for a whole day hearing can be made for patients who require additional breaks such as those with a learning disability or Autism Spectrum Disorder.
  • Tribunal members sit nationally.

How clinical teams can help hearings proceed efficiently for the patient and reduce their own time at a hearing:

  1. For Pre-hearing Examination: for this to be done using MS teams, the MHA administration and ward staff need to be sure there is a working system - email address and knowledge of MS teams - that the staff on duty can use when the PHE is arranged.
  2. Submit written reports for Section 2 hearings at least the day before the hearing is scheduled. This means the Medical member undertaking a pre-hearing examination will be informed, and the patient’s representative can take instructions. Adjournments, which also use up clinical time, can be avoided. 
  3. If the patient requires more than half a day for a hearing – please request a whole day hearing on form MH1
  4. Do suggest any reasonable adjustments in the reports
  5. Check the patient has a representative. If not, the Detaining Authorities’ MHA administration must be informed as soon as possible, and an assessment made of the patient’s capacity as necessary. Form MH3 Rule 11(7) must be sent to the Tribunal Administration.
  6. Do log on in good time for the hearing – this means that technological glitches can be sorted out.
  7. Do encourage your organisation to invest in technology that will enable hearings to proceed with as few technological interruptions as possible.
  8. Do suggest a pre-hearing discussion is held – between the panel, the RC and the patient’s representative, to decide the order of evidence and confirm which of the statutory criteria are being challenged. This will focus on the hearing. 
  9. Please advise the panel if you think that the patient will be unable to stay in the room for the hearing or needs to give their evidence first. 
  10. Do tell the panel whether the patient is able to remain in hospital as a voluntary patient. The tribunal members are sitting nationally, so may not be aware of the policies of your Unit. 
  11. Do emphasise any limitations of your evidence. The tribunal is aware that patients are being moved from ward to ward and hospital to hospital more frequently, and that S17 leave is limited by Covid restrictions.  
  12. Please focus on the statutory criteria
  13. You may wish to suggest that any discharge is delayed for follow-up by Home treatment or Community team to be arranged. The tribunal is aware that community resources are limited and there may not be face-to-face contacts. So pro-active personal visits to contact a less compliant patient are not possible during this emergency.
  14. Do give your evidence by from a private area where you cannot be overheard.  Do check that your background does not reveal confidential information about patients or personal information about you.

Patient and Clinician Feedback about remote Mental Health Tribunal hearings

You can read the results from the first survey of Clinicians’ experiences of giving evidence at Mental Health Tribunal hearings. The survey focused on remote hearings.

The results will be used by the Mental Health Tribunal Senior Management Team and the Mental Health Tribunal Training Committee. The aim is to generate learning points for Tribunal members in this new way of working with remote hearings.

In April 2020, the Government published supplementary instructions documents with respect to the exercise of an approval function in relations to approved clinicians and the exercise of an approval function in relation to section 12 doctors 2020. These have now been withdrawn as these were temporary instructions. Online training courses are now widely available and the temporary arrangements are no longer required and will end from 1 April.

Read the full details

Guidance for health and social care staff who are caring for, or treating, a person who lacks the relevant mental capacity has been published by the Department of Health and Social Care: Mental Capacity Act and DoLS during COVID-19 pandemic

This guidance was updated on 29 May in relation to the use of emergency public health powers.

A supplementary MCA/DoLS COVID-19 Q&A has also been published which covers:

  • when can someone be tested for COVID-19 who lacks capacity to consent?
  • what does lifesaving treatment mean?
  • when does the provision of lifesaving treatment mean that the person is being deprived of their liberty?
  • advance care plans
  • the refusal of lifesaving treatment
  • how should the acid test be interpreted?
  • how can IMCAs and RPRs carry out their role?
  • when does a DoLS authorisation need to be reviewed?
  • how can the MCA principles be applied when a person is being discharged from hospital to a care home, in the context of ‘reduced choice’?
  • changes in arrangements for those living outside of hospitals and care homes
  • using previous DoLS assessments
  • managing the demand for DoLS authorisations, assessments and reviews
  • how to isolate someone if they lack capacity to consent
  • how will emergency health powers be used if the person lacks the relevant capacity?

No changes are in force in mental health legislation in Scotland, Wales or England as a result of the emergency Coronavirus Act. No changes have been made to the MHA legislation in England and all organisations and staff should continue to operate in line with existing MHA law and Code of Practice as far as possible. 

Mental Health (Northern Ireland) Order 1986 - changes are now in force. Visit our RCPsych in Northern Ireland COVID-19 pages to find out more.

Mental Health (Care and Treatment) (Scotland) Act 2003 - temporary changes in the Coronavirus Act 2020 are not yet in force and will not come into force until Scottish Ministers, on the basis of data and advice, commence provisions. Visit our  RCPsych in Scotland COVID-19 pages to find out more.

  • In England, the emergency Coronavirus Act was passed on 25 March 2020 and contained a number of emergency provisions which, if enacted, would have amended certain aspects of the MHA regarding second opinion safeguards and detention periods. However, based on the experience and outcomes of wave 1 of the pandemic, the Government has decided not to renew these emergency powers, believing they are not warranted due to the hard work of mental health services to continue the safe operation of the MHA. Government is seeking to expire the powers, meaning that they will no longer be a part of the emergency Coronavirus Act.
  • Local areas will not be able to seek to switch on the powers going forward to manage operational pressures. It is therefore essential that systems continue their hard work to mitigate against any potential negative impact of the pandemic on the safe operationalisation of the MHA. Examples of the types of mitigations that may be used are detailed in the subsequent section.
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