Legal matters - COVID-19 guidance for clinicians

Page last updated: 5 August 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 (second version, 19 May) 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.

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.

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).

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 23 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.

Temporary  AC & S12(2)  supplementary instructions (2020) have been issued, due to the current suspension of AC and S12(2) approval training to mitigate the transmission of COVID-19, which:

  • allow approval extensions of 12 additional months for applicants whose cycle of approval is due to expire by 31 March 2021 
  • facilitate temporary reinstatement of AC or s12(2) approval where is has lapsed in the last 12 months.

Plans for online induction courses - sign up 

We have been collaborating with Section 12(2) MHA and Approved Clinicians Approvals Panel Chairs in England to produce an induction course that can be delivered online.

Our initial proposal has been received positively and we are now developing the content. The plan is to deliver this in time for all those trainees entering ST4 in August to gain Section 12 (2) approval before they start work. If you are interested in attending the course please fill out our form.

Further details

Where an applicant is unable to attend required mandatory refresher training, their period of approval will be extended for 12 months - commencing from the expiration date of an applicant’s current period of approval. All existing renewing applicants (due to expire by 31 March 2021) should receive an updated approval outcome letter indicating the extended period of approval from their local board, commencing from the expiration date of an applicant’s current period of approval. If this has not been received from your local approval body, contact details can be found on the GOV.UK website.

Renewing applicants who have already attended an AC or S12(2) refresher course and can meet all requirements of the current AC & S12(2) Instructions (2015) will have their applications processed in the standard manner and approval will be awarded for a five year period.

A temporary 12 month reinstatement of AC or standalone S12(2) approval for those applicants whose period of approval lapsed within the previous 12 months (from 14 April 2020). Once ‘lapsed’ applications have been processed re-approval will last for 12 months commencing from the date of reinstatement. Recently lapsed applicants should directly contact their local approvals panel to request an application pack with supporting guidance.

Applicants must hold a current professional licence to practice and support their re-approval application with the following:

 NB  These temporary measures relating to AC and S12(2) standalone approval do not extend to initial applications.

 

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.

For an update on the new ways of working for Mental Health Tribunals, please see this update from Deputy Chamber President Sarah Johnston and Chief Medical Member Dr Joan Rutherford.

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