The emergency changes to the Mental Health Act (in the Coronavirus Act 2020) intend to reduce the number of psychiatric professionals required to complete the usual statutory processes under the Mental Health Act (MHA). This will enable them to treat and detain more psychiatric patients (if necessary) in a system which is predicted to become acutely stretched. It is anticipated that the number of acute psychiatric incidents will rise, during the crisis. Although not mentioned within this emergency legislation, there may also be a move to creating 'psychiatric A&E departments' on psychiatric hospital sites, so that unwell psychiatric patients would not need to attend at the usual A&E department for emergency triage.
The changes in law (once the relevant sections of the Act are brought into force by ministers, which has not yet happened) will apply to all patients within scope of the MHA, not specifically to those who are suspected to have Covid-19. The purpose of this part of the emergency legislation is not intended to treat Covid-19 patients any differently, from a psychiatric perspective. It is The Health Protection (Coronavirus) Regulations 2020 which allow for the detention, isolation and screening (including testing) of people suspected of having Covid-19.
The changes in the new Act:
- Only one doctor's opinion required to detain patients. Previously, for an application to be made, by an approved mental health practitioner ("AMHP") to detain ('section') patients for admission and/or assessment in a psychiatric hospital, pursuant to s.2 and 3 MHA, the opinion of two doctors certifying that a patient satisfied the detention criteria was required. One doctor had to be approved by the Department for Health and Social Care ("s.12 doctor") for this purpose, and one had to have personal acquaintance with the patient. The emergency provisions provide that only one doctor is required, if this doctor considers that obtaining a second opinion is impractical or would involve undesirable delay. The sole doctor must be s.12 approved and must have personally examined the patient (however there is no requirement for personal acquaintance).
- Suspending second opinion appointed doctor reviewing treatment and medication decisions. Under s.58 MHA, an approved clinician in charge of a patient's treatment is required to obtain a second opinion, before providing treatment and medication without a patient's consent. The emergency provisions do not require a second opinion, where the approved clinician considers that obtaining one would be impractical or would involve undesirable delay. The clinician in charge of the patient's care is still required to certify (in writing) that the proposed treatment without consent is appropriate, and they are required to consult a person who has been professionally concerned with the patient's treatment, before providing certification.
- Extending temporary detention under section 5(2) and section 5(4). Previously, a doctor in charge of a patient's treatment in a hospital could temporarily detain the patient for the purpose of allowing a MHA Assessment, to consider whether detention in a psychiatric hospital was required. The emergency provisions allow any doctor to exercise s.5(2) MHA powers, if this doctor considers that requiring the clinician in charge of the patient's treatment to make the application is impractical or would involve undesirable delay. The duration of the detention under section 5(2) MHA is extended from 72 hours (3 days) to a maximum of 120 hours (5 days). Emergency detention pursuant to s.5(4) MHA, for a patient who is receiving treatment for a mental disorder in hospital (as an informal patient), to allow for a medical report to consider longer detention, will be extended from 6 to 12 hours.
- Mental Health Tribunals to only operate with one judge. The President of the First-Tier Tribunal (Health, Education and Social Care Chamber) has issued guidance (commencing 19 March 2020, for six months) stating that mental health tribunals must now only consist of one panel member, a legally-qualified mental health judge. The only exception is when the Chamber President, Deputy Chamber President or an authorised salaried judge decides that a larger panel is appropriate for a particular case. Further, there will be no examinations of patients by any medical tribunal members in proceedings, under this new guidance.
What can mental health providers do now?
The Government has confirmed that Guidance from the Department of Health & Social Care is being written now. Until then, mental health Trusts can anticipate the above changes, and prepare to provide training for staff and education for patients, along with new forms, as soon as the relevant provisions in the Act are brought into force.
In the spirit of collaboration, we are freely sharing responses with other healthcare providers, when we have consent to do so. We can provide advice and support on any healthcare or medical law matter. If you have any legal or ethical questions arising as a result of this crisis, please let us know.
The Act itself is here; https://services.parliament.uk/bills/2019-21/coronavirus.html
The Explanatory Notes are here: https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf
The guidance from the government is here: https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do
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