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Emergency changes to Mental Health Act 1983 in response to pandemic

23.03.2020

Coronavirus Bill 2019-2021

The Coronavirus Bill ("the Bill") had its first reading in the House of Commons on Thursday (19 March 2020) and it is due for its second reading today (23 March 2020). There is no real opposition to the Bill and it is believed it will pass without significant amendment.

How does the Bill affect the Mental Health Act 1983 ("MHA")?

The Bill introduces temporary amendments to the MHA (as well as mental health legislation in Scotland and Northern Ireland which is beyond the scope of this briefing).

The main thrust of the changes is to reduce the number of doctors' opinions required for various steps under the MHA and to modify time limits for detention and movement between court, prison and hospital.

The obvious motivation is to be able to still lawfully manage patients under the MHA despite serious shortages of staff in both the health and criminal justice systems and to 'free up' health care professionals for pandemic specific work.

Clause 9 is the enabling provision which gives effect to Schedules 7, 8, 9 and 10.

The detail is then set out in Schedule 7 which applies to England and Wales and makes temporary modifications to the MHA 1983.

The changes

The key changes set out in Schedule 7 are as follows:

  • Paragraph 3: changes to the number of doctors required to detain for assessment and treatment under the MHA

The number of doctor recommendations required for an application for detention under sections 2 or 3 of the MHA is reduced from two to one in certain circumstances.

This is the provision that will have the most direct impact on AMHPs work. It is important to note that it will not become the default position to only obtain one doctor recommendation. Rather, the legislation allows for this to happen if obtaining the advice of a second doctor would be impractical or would involve undesirable delay (para.3(1)). It will be for the AMHP to decide whether or not that is the case and if the AMHP decides it is necessary to proceed with only a single recommendation then they must set out a statement of their opinion on this in the application (para.3(3)).

  • Paragraph 4: changes to emergency detention of voluntary patients already in hospital

The maximum periods for detaining a person under section 5 MHA (an application in respect of a patient already in hospital – commonly known as 'holding powers') are extended. The period for a doctor to detain a patient under section 5(2) is extended from the current 72 hours to a new maximum of 120 hours. The period for a nurse to detain a patient under section 5(4) is extended from the current 6 hours to a new maximum of 12 hours.

  • Paragraphs 5 to 8: changes to the 'criminal' MHA provisions

These paragraphs make modifications relevant to patients involved in the criminal justice system and are less directly relevant to AMHPs but both AMHPs and other social care staff working in a mental health setting should nevertheless be aware of them. They amend the time limits for the court remanding a person to hospital under sections 35 and 36 and for the transferring prisoners to hospital under sections 47 and 48. They also allow for only one doctor recommendation rather than two for orders detaining people under sections 36, 37, 38, 45A and 51 and transferring under sections 47 and 48.

  • Paragraph 9: changes to administration of treatment to detained persons

The provision allows for doctors to authorise continued treatment of a detained patient without the agreement of a second opinion approved doctor ("SOAD") (as required under section 58 MHA) if it be impractical or would involve undesirable delay to obtain that.

  • Paragraph 10: changes to police holding powers

The periods for which a person can be held by police in a place of safety, under sections 135 and 136 MHA, are extended. The current initial maximum period of 24 hours is extended to 36 hours. As currently that can then be extended for a maximum of another 12 hours which means the composite maximum period for holding is increased from 36 to 48 hour in total.

What does this mean for local authorities?

These modifications to the MHA are intended to increase the numbers of available health workers, in particular doctors, so they can respond to the needs of patients during the pandemic and also deal with increased pressures on health and social care services due to staff absences during this period.

For local authority AMHP teams, the most notable change is undoubtedly the relaxing of the requirement for two doctors to recommend detention under section 2 or 3 (Sch.7, para.3 of the Bill). Here AMPHs will have the additional role of making the decision about when to proceed with an application based on a single medical recommendation and must be able to justify those decisions in writing in the application.

It is evident both from the drafting of the provision and from the Government's guidance published in advance of the Bill that the intention is for single medical recommendation only to be relied upon where necessary i.e. due to the lack of available doctors (which of course is anticipated as highly likely during the pandemic).

The provision is clearly intended to give some flexibility in the exceptional circumstances which health and social care staff will be operating and ought to be relatively straightforward for AMHPs to apply; however, to avoid the possibility of any later challenges, AMHPs should ensure they have set out their reasons fully in the application.

It may for example be sensible to explain what attempts have been made to obtain a second doctor's opinion or why even doing that was not possible in the circumstances. AMHPs will be used to already providing similar explanations about consulting a nearest relative. AMHPs need to be made fully aware of the legislative changes and understand this additional part of their decision making.

Although the Bill seeks to reduce the burden on doctors in respect of these MHA responsibilities, there is no material change to the AMHP role (save for the additional decision about whether to proceed with a single recommendation as set out above). Local authority AMHP teams, therefore, continue to be under a duty to provide sufficient numbers of qualified AMHPs to cover the service in their area during this pandemic period. This will undoubtedly be of concern to those teams in light of likely staff shortages due to sickness and self-isolation requirements and robust rota systems will need to be utilised to ensure there is cover.

It is crucial to keep in mind that all persons carrying out AMHP duties (including MHA assessments and making applications for detention) must be properly approved or re-approved pursuant to section 114 MHA and the Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008, SI 2008/1206 ("the Regulations"). It may, however, be possible to use non-AMHP trained staff for other more administrative tasks within AMHP teams so long as they are not performing AMHP duties.

How we can help

We have a number of barristers in our health and social care team who are experts in this area and can provide advice and assistance to local authorities on the issues raised in this bulletin, as well as the full range of health and social care issues local authorities are facing.