Legal matters - COVID-19 guidance for clinicians

Page last updated: 1 April 2020

There are currently no changes to the Mental Health Act 1983 England and Wales (MHA). We'll keep this page updated as any changes and new guidance is developed.

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  (30 March) on the impact of COVID-19 on the use of the MHA. See a summary of this guidance below. Future updates to this guidance are expected to include information on local enactment of emergency MHA provisions.

NO CHANGES ARE CURRENTLY IN FORCE to mental health legislation as a result of the emergency Coronavirus Act. These pages will be updated if this changes.

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 RCPsych in Scotland COVID-19 pages for more.

Mental Health (Northern Ireland) Order 1986 - changes are not in force. Visit RCPsych in Northern Ireland COVID-19 pages for more.

Mental Health Act 1983 England and Wales

The Coronavirus Act creates the ability for changes to be made to the Mental Health Act 1983 (MHA) so that certain functions relating to the detention and treatment of patients to be carried out with fewer doctors' opinions or certifications. It also temporarily allows for the extension or removal of certain time limits relating to the detention and transfer of patients.

While the emergency legislation has been passed the changes to the Mental Health Act 1983 are not currently in force. These emergency provisions will only be put in place when triggered by the Secretary of State for Health and Social Care. The College will keep members well informed if this does happen. Once triggered, such changes should only be applied locally where absolutely necessary due to extreme staff shortages. We expect to be able to share implementation guidance in due course.

Further information and guidance about local implementation will be provided here as soon as it is made available, this will include guidance on the operation of Mental Health Tribunals.

Until the measure are implemented in your area the existing legal guidance should be followed.

Quick read summary of changes to the MHA for clinicians

Civil Detentions

  • Section 5(4) - emergency detention power extended from 6 to 12 hours

  • Section 5(2) - emergency detention power extended from 72 to 120 hours. Can be any RMP (registered medical practitioner) or AC (approved clinician). Does not need to be the doctor or AC in charge of the patient’s care.

  • Sections 2 and 3 - one medical recommendation by a s12 approved doctor required, where involving two is impractical or would involve undesirable delay

  • Sections 135 and 136 – detention extended from 24 to 36 hours

Forensic Detentions

  • Sections 35(7) and 36(6) extends the period a person accused of a crime can be remanded to hospital by removing the rule that a person cannot be remanded for more than 12 weeks in total. It will remain that a person cannot be remanded to hospital for more than 28 days at a time

  • Sections 36(1), 37(1), 38(1), 45A(3), 51(5) Courts can send an accused or convicted person to hospital on the advice of one doctor where involving two is impractical or would involve undesirable delay.

  • Sections 47(1) or 48(1) Secretary of State can make transfer to move person from prison to hospital on advice from one registered medical practitioner

  • Sections 35(9), 40 (1) and (3), 45B(1)removes time limits for taking an accused or convicted person to hospital after decision to admit, instead to be taken “as soon as is practicable”

Consent to treatment

  • Section 58(3)(b) - the Approved Clinician (AC) in charge of medical treatment can authorise treatment after 3 months for non-consenting/incapacitous patients if impractical or would involve undesirable delay to obtain view of SOAD (Second Opinion Appointed Doctor). AC Must carry out the required consultations but only needs to consult one other person, if complying with the requirement with two other persons is impractical or would involve undesirable delay.

Please see further details of the changes below

The Bill is designed to respond to the covid-19 pandemic and will expire after two years with the exception of the provisions relating to the power to award indemnity payments,.. To provide flexibility, clause 75, allows for the application of the Act to be extended (or shortened) by way of regulations made by a Minister of the Crown.

The Bill also amends the Mental Health (Care and Treatment) (Scotland) Act 2003, the Criminal Procedure (Scotland) Act 1995, the Mental Health (Northern Ireland) Order 1986, the Mental Capacity Act (Northern Ireland) 2016

Overview of emergency changes to the Mental Health Act 1983 in the Coronavirus Bill

Schedule 7 - Part 2 Modifications of the Mental Health Act 1983 (England and Wales)

Paragraph 3 - Applications for compulsory admission to hospital for assessment or treatment- change from requiring two s12 doctors to only one s12 doctor

Normally applications by Approved Mental Health Professionals to detain patients must be supported by the recommendations of two doctors. However paragraph 3(1) allows for applications to contain only one such medical recommendation, if obtaining the advice of two doctors is either impractical or would unduly delay the application.

Further details:

  • A single recommendation must otherwise comply with requirements of s2(3) or s3(3) MHA

  • An application founded on a single recommendation must include a
    statement of the opinion

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

  • Section 11(7) (applications may be founded on separate or joint
    recommendations) does not apply to an application founded on a single recommendation.

  • Section 12(1) has effect as if it required a single recommendation to be signed on or before the date of the application, and to be given by a practitioner who has personally examined the patient.

  • Section 12(2) has effect as if it required a single recommendation to be given by a practitioner approved for the purposes of that section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder (or by a person treated as so approved by virtue of section 12(2A)).

  • Section 12(1) and (2) do not otherwise apply to a single recommendation (and accordingly there is no requirement for the practitioner giving the recommendation to have previous acquaintance with the patient).

  • A single recommendation is subject to section 15(2) (except paragraph (b)) in the same way as one of two recommendations (and section 15(3) does not apply to it).

Paragraph 4 - Applications for compulsory admission of patients already in hospital – extending

Paragraph 4 changes section 5 of the MHA (which allows for the short-term detention of patients who are already in hospital) by extending the maximum period a patient can be detained under section 5 from 72 hours to 120 hours, and nurses’ holding powers would extend from 6 to 12 hours”

Further details:

Para 4(1) Any registered medical practitioner or approved clinician may furnish a report for the purposes of section 5(2) (detention of patient in hospital 35 pending application for admission) if it appears that complying with the requirement under that provision for the report to be furnished by the practitioner or clinician in charge of the treatment of the patient is impractical or would involve undesirable delay.

Para 4 (2) Amends MHA Section 5(2) (period for which patient can be detained following report by practitioner or clinician) references to 72 hours detention in this section should be changed to 120 hours

Para 4 (3) Amends Section 5(4) MHA (period for which patient can be detained pending report by practitioner or clinician) references to 6 hours should be changed to 12 hours.

Paragraph 9 Administration of medicine to persons liable to detention in hospital

Changes the procedures around the administration of medication to detained patients without their consent, meaning that medication can be administered beyond three months without an opinion from a Second Opinion Appointed Doctor, where to follow usual procedure would be impractical or cause undesirable delay

Further details:

Para 9 (1) The approved clinician in charge of treatment within s58(1)(b) (administration of medicine for more than three months) may give a certificate under s58(3)(b) (appropriateness of treatment without consent) if the clinician considers that complying with the requirement for the certificate to be given by another registered medical practitioner other than that clinician or the responsible clinician is impractical or would involve undesirable delay.

Para 9 (2) A registered medical practitioner or an approved clinician may give a certificate under section 58(3)(b) having consulted only one other person, if the practitioner (or clinician) considers that complying with the requirement under section 58(4) for consultation with two other persons is impractical or would involve
undesirable delay.

Para 9(3) The person consulted must have been professionally concerned with the patient’s medical treatment, and must not be a nurse, a registered medical practitioner, the responsible clinician or the approved clinician in charge of the
treatment in question.

Detention in place of safety

Paragraph 10 extends the time for which a person can be kept in a "place of safety" by a police officer under sections 135 and 136 of the MHA.

Further detail

Para 10 In Sections 135(3ZA) and 136(2A) (period of detention in a place of safety)
136B (extension of detention) “24 hours” is to be substituted for “36 hours”.

Changes relating to Part Three of the Act - Patients in contact with the Criminal Justice System

Changes in paragraphs 5-8 reduce the number of doctors’ opinions required and modify time limits for detention and movement of people between court, prison and hospital. This will enable them to be admitted to hospital for treatment where there might otherwise be delay owing to shortage of qualified staff in a pandemic.

Period of remand to hospital

Para 5 – extends the period a person accused of a crime can be remanded to hospital under sections 35 and 36 MHA, by removing the rule that a person cannot be remanded for more than 12 weeks in total. It will remain the case that a person cannot be remanded to hospital for more than 28 days at a time.

Further details:

Amending Sections 35(7) and 36(6) MHA: “on or for more than 12 weeks in all” to be omitted Court orders for the detention of accused or convicted persons in hospital

Para 6 applies to various sections of the MHA which allow a court to send an accused or convicted person to hospital. It provides that, in certain circumstances, courts can make such orders on the advice of one doctor rather than two.

Further details:

Any power of a court under a provision, as listed below, may be exercised if the court—

(a) is satisfied that complying with the requirement for the evidence of two registered medical practitioners is impractical or would involve undesirable delay, and

(b) is satisfied on the evidence of a single registered medical practitioner

MHA Provisions relevant to para 6:

(a)s36(1) (power to remand accused person to hospital for treatment);

(b)s37(1) (power to order detention in hospital, or guardianship, of convicted person);

(c)s 38(1) (power to order interim detention of convicted person in hospital pending final hospital order or other disposal);

(d)s45A(3) (power to direct that a person sentenced to imprisonment be detained in hospital instead of prison) (only if the practitioner has given evidence orally before the court (and section 45A(4) accordingly does not apply).

(e)s51(5) (power to order detention of a person in hospital in the absence of the person).

Directions for the transfer of prisoners to hospital

Para 7 modifies the conditions under which the Secretary of State can make a "transfer direction", to move a serving prisoner or other type of detainee to hospital.

Further details:

A transfer direction may be given under section 47(1) or 48(1) if the Secretary of State—

is satisfied that complying with the requirement that provision for reports from at least two registered medical practitioners is impractical or would involve undesirable delay, and is satisfied of the matters mentioned in a report from one registered medical practitioner, Conveyance of accused or convicted persons to hospital

Para 8 makes changes to the time limits imposed by the MHA for taking an accused or convicted person to hospital, following a decision to admit them. The changes remove existing time limits and instead allow the person to be taken to hospital “as soon as is practicable” after the normal limit expires.

Further details:

Para 8 changes references to conveying or admitting a person to hospital within a specified period to references to doing so “within that period or as soon as practicable after the end of that period” in the following provisions:

(a)s35(9) (including as applied by section 36(8)) (remand in
hospital);

(b)s40(1) and (3) (effect of hospital orders and interim hospital orders);

(c)s45B(1) (effect of hospital directions and limitation directions).

Para 8 applies, during a period for which it has effect, only in relation to a person for whom an order or direction is made after the beginning of that period.

Powers relating to potentially infectious persons “quarantine powers”

Clause 49 and Schedule 20

Link to Schedule 20: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/cbill_2019-20210122_en_20.htm#sch20-pt2

Certain powers are conferred on public health officers, constables and immigration officers to protect the public from the health risks associated with e COVID-19, including powers to require peope reasonably suspected to have COVID-19 to s go to a suitable place to undergo screening and assessment where they reasonably suspect the person has or may have covid-19

Further details:

The provisions will apply in relation to England, Scotland, Wales and Northern Ireland, respectively.

The provisions confer powers on public health officers to require persons to go to suitable place to undergo screening and assessment where they reasonably suspect the person has or may have covid-19, or has been in an infected area within the 14 days preceding that time. Such persons are referred to in the provisions as "potentially infectious" persons.

There are additional powers for public health officers to impose other appropriate restrictions and requirements upon potentially infectious persons where they are necessary and proportionate, such as a requirement to remain in isolation, restrictions on travel, activities and contact with other people. The provisions also confer powers on public health officers and constables to enforce the restrictions and requirements imposed under the schedule.

Public health officer” means—an officer of the Secretary of State designated by the Secretary of State for any or all of the purposes of this Schedule, or a registered public health consultant so designated

The clause and schedule certain powers on immigration officers and constables in relation to persons whom they have reasonable grounds to suspect as being potentially infectious. An immigration officer or a constable may direct such a person to go to a place suitable for screening and assessment, or may remove a person to such a place to undergo screening and assessment, or to keep that person there for a time-limited period to be handed over to a public health officer for the same purpose. In exercising their powers under these provisions, immigration officers and constables will be obliged to consult a public health officer, so far as practicable to do so.

Operation of Mental Health Tribunals in England will be changed for the next 6 months (beginning 23 March 2020) to limit the spread of COVID-19 and to allow tribunals to manage their workloads appropriately.

While the emergency Tribunal Practice Directions remain in force there will be no Tribunal hearings for CTO or Conditionally Discharged patients.

NB tribunal processes under the MHA are different in Wales. RCPsych in Wales COVID-19 legal page has full details. 

The Senior President of the Mental Health Tribunal has issued an emergency practice direction to cover the next six months (during which time the changes will be reviewed and revoked should they become inappropriate or unnecessary).

Please read this message from Deputy Chamber President Sarah Johnston and Chief Medical Member Dr Joan Rutherford which sets out how clinical teams can help hearings proceed efficiently and reduce their own time at a hearing under the new procedures (doc).

All hearings will go ahead following the new procedure set out below:

Pre-Hearing Examinations (PHEs)

  • Mental Health Tribunals will no longer be conducting Pre-Hearing Examinations (PHEs), as it is deemed not practicable to do so in the current environment.
  • No medical member should conduct any further PHEs.

Hearings

  • If the booking has already been confirmed, from Monday 23rd March 2020 the patients’ and clinical team will be attending the hearing by telephone only. No hearings will be in person.
  • Any new cases will be listed before a single Judge (unless it is decided by the Chamber President or Deputy Chamber President that a two or three person panel is required).
  • The single tribunal judge can seek the advice of one or more nonlegal members to assist with decision-making, provided the advice is recorded and disclosed to the parties.

    Proceedings without a hearing

  • Tribunal should suggest to the patient or their representative that proceedings be dealt with based on the papers in cases where: a reference has been made under s68 MHA )duty of managers of hospitals to refer cases to the tribunal); the patient is a community patient over 18; and, the patient agrees in writing that they do not require a hearing

For inpatient cases already listed

  • Once received from the Tribunal office, the multi-disciplinary team (MDT) will be sent the telephone dial in details by the MHA office
  • The MDT will dial in from a private office/ interview room. The MDT are not expected to be in the same room and may dial in from home if self-isolating.
  • The patient will dial in from a private ward interview room, under the supervision of a member of the ward team
  • The solicitor will dial in from their own office
  • The solicitor may wish to talk with the patient privately before the hearing, to take their instructions for the hearing – this must be facilitated where possible

For Community Treatment Order cases already listed

  • Once received from the Tribunal office, the Responsible Clinician (RC) and Care co-ordinator will be sent the telephone dial in details by the MHA office
  • The RC and Care coordinator will dial in to the hearing from a private office/interview room. The MDT are not expected to be in the same room and this may be from home if you are self-isolating.
  • Where possible, the patient will dial in from their placement – this will need to be facilitated by a member of staff at the community placement.
  • If this is not practicable, the MHA office needs to be informed as soon as possible.
  • The solicitor will dial in from their own office
  • The solicitor may wish to talk with the patient privately before the hearing, to take their instructions for the hearing – this must be facilitated where possible

Communicating tribunal conclusions

It is suggested that the decision is not announced as the Judge will not be able to see the patient, witnesses of hearing room. The MHA office 

will ensure that the patient and the MDT are notified of any official written decision as soon as we are able.

Any patient self-isolating, or who is suspected to be suffering from symptoms of the Corona Virus, would not be expected to take part in their hearing.

The MHA office must be informed immediately of any suspected cases, so that they can make alternative arrangements.

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.

NB SOAD processes under the MHA are different in Wales. RCPsych in Wales COVID-19 legal page has full details. 

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).

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 (30 March) on the impact of COVID-19 on the use of the Mental Health Act 1983 (England and Wales), a summary of its contents is provided on this page.

Future updates to this guidance will be added to these pages and are expected to include information on local enactment of emergency MHA provisions. 

Key messages

  • Currently no changes to the MHA and the MHA Code of Practice should be adhered to as it currently stands until further notice.
  • MHA powers must not be used to enforce treatment or isolation for any reason unrelated to the management of a person’s mental health.
  • While the NHS faces unprecedented challenges relating to COVID-19, where possible overly restrictive practice must be guarded against
  • Robust, live communication across services is hugely important at this time. Digital technologies should be used to support communication.
  • Emergency changes to the current MHA legal framework will only be enacted if patient safety is deemed to be at considerable risk
  • 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 should follow organisational policies to ensure the safety of staff and patients, and decide on the appropriate relevant legal framework on a case-by-case basis, with reference to organisational ethics committees and support from medicolegal colleagues as required.

Operational considerations for the MHA - including areas where workforce shortages can be expected and suggested mitigating actions

The Mental Capacity Act 2005 - guidance under development to support decisions about the care and treatment of people who lack the relevant mental capacity – will be shared as soon as possible  

The Care Act  - information on how emergency changes, if enacted, may impact on many people within mental health services and detained under the MHA, with rights under the Care Act.

Restraint and restrictive practice - Providers must use the least restrictive methods possible. Any use of restriction must be proportionate to the risks involved, end as soon as possible and providers should refer to their ethics committees where required.

Isolation due to suspected or confirmed COVID-19 cases - Colleagues should determine appropriate use of the relevant legal framework on a case-by-case basis, with reference to organisational ethics committees and support from medicolegal colleagues as required. Any restriction on the right to liberty has to be lawful, necessary and proportionate.

Specific considerations for Adult and CAMHS secure services - including changes organisations can make now to how functions under MHA are discharged without changes in legislation such as virtual meetings and paper only managers’ hearings

Specific considerations for high secure services    it may be necessary due to the implications of COVID for high secure services to derogate from the Safety and Security Directions

The Mental Health Casework Section published a Q&A for Healthcare Professionals (30 March)

Specific consideration for CAMHS -  all inpatient services  The emotional and behavioural responses of some children to constraints, uncertainties and significant changes to daily living due to COVID-19 may provide diagnostic challenges for assessment under the MHA. Advice from professionals with experience in children and young people’s mental health should be sought in such cases wherever possible.

Specific considerations for learning disability and autism services - if a person with a learning disability does not meet the specific behavioural criteria for detainment, 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.

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.

Specific considerations for mental health and the criminal justice system  -Where suspected and COVID-19 positive patients require transfer or remission as part of this pathway, these cases must be considered on an individual basis, taking into account both mental health and physical healthcare needs.

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