Legal matters - COVID-19 guidance for clinicians in Wales

We'll keep this page updated as new guidance is developed.

Please note: Updates to Mental Health Tribunals and SOADs on this page are exclusive to clinicians working in Wales.

This applies to the Emergency legislation and the Mental Health Act 1983 England and Wales - not yet in force.

The Coronavirus Bill plans to temporarily change the Mental Health Act 1983 (MHA) to allow certain functions relating to the detention and treatment of patients to be carried out by fewer doctors’ opinions or certifications. It will also temporarily allow for the extension or removal of certain time limits relating to the detention and transfer of patients. 

The Bill has not yet become law and even when it has most of the measures will not necessarily come into effect straight away. Local areas will have the ability to trigger the provisions when necessary due to extreme shortage.  

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 measures 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 the 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 the transfer to move a 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 the 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/incapacious patients if impractical or would involve undesirable delay to obtain the 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 a 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 the 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) (the 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 (the 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 an 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 the court, prison, and hospital. This will enable them to be admitted to hospital for treatment where there might otherwise be delays owing to a 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 the 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 the hospital 

Para 6  applies to various sections of the MHA which allow a court to send an accused or convicted person to the 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 the 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 a convicted person in hospital pending final hospital order or other disposals); 

(d)s45A(3) (power to direct that a person sentenced to imprisonment be detained in the 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 the 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 types of detainee to the 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 with the matters mentioned in a report from one registered medical practitioner, Conveyance of accused or convicted persons to the hospital 

Para 8 makes changes to the time limits imposed by the MHA for taking an accused or convicted person to the 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 the 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 

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 people 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 a 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.  

Update on the operation of Mental Health Tribunals

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.

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).

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 co-ordinator 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.

 

Covid Bill

Once the amendments to the Covid Bill receive gain royal ascent (in the next few days), the MHRT office will then be able to further increase the functionality of the Tribunal and ways in which hearings are conducted.

Hearings

The MHRT office are actively trailing Tribunal hearings conducted via teleconferencing. 

To facilitate a hearing by TC, the patient (presumably with their nurse who would be attending the hearing) will need to have access to a private room that has a telephone with an outside line. They will then need to dial in to a number and join the conference call. No additional functionality is required.

If there are difficulties facilitating this, the MHRT office will need to know on a case by case basis.

Sending/Receipt of Post

The MHRT office is no longer able to send and receive post due to the country-wide advice to remain home as much as possible. As a result, they are unable to post acknowledgement and notification letters to patients and nearest relatives.

If ward staff have email addresses, or there are generic email addresses available for wards, the MHRT office can send the letters directly to wards. Likewise, for community patients, if the MHRT office receive the email address for the Care Coordinator, they can ask for their assistance with this.

For nearest relative communications, health boards should ensure that they capture necessary NR contact details on patient assessment. The MHRT may ask Care Coordinators to pass on communications as an alternative.

HIW have released a statement in relation to changes to the Second Opinion Appointed Doctor (SOAD) service, effective immediately (26th March)

In practice, this will mean clinicians will be asked to upload the additional documentation, where available, as described in the document to allow our SOADs to conduct a fully remote SOAD request. HIW will then provide this information to SOADs along with the request.

If the SOAD feels information submitted is inadequate, HIW will firstly request further information. If this is not possible, or there is inadequate information provided, they advise s62 or 64g, or any new legislative emergency powers, if applicable, should be used where appropriate.

HIW SOADs will conduct Statutory Consultee (SC) consultations remotely, and will make every reasonable attempt to also interview the patient remotely. It is the clinicians responsibility as providers to take every reasonable and proportionate measure to ensure a patient can, if he/she so wishes, speak remotely to the SOAD.

We are also requesting the clinician accept digital copies of certificates as adequate for action until hard copies, wet signature, of the certificate can be provided.

Clinicians are asked to supply HIW with one secure email address to which SOADs can return their CO forms by email for the duration of the pandemic.

HIW may however ask SOADs to print and sign the hard copies of CO forms with wet signature, if required, once the pandemic ceases.

For all outstanding/open SOAD cases, clinicians are asked to supply HIW with the additional documentation required.

HIW are compiling a list of FAQ’s as a basis to provide more comprehensive guidance as they commit to a remote SOAD service to deliver the statutory responsibilities, whilst minimising risks to clinicians, patients, and SOADs.

Here you'll find guidance for local health boards and independent hospitals on discharge powers under the Mental Health Act 1983.
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