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COVID-19: its effect on mental health services

It is hoped that changes made to the Mental Health Act 1983 (“MHA”), Care Act 2014 and the Social Services and Wellbeing (Wales) Act 2014 will ease…

The Coronavirus Act 2020 (“the Act”) is now in force, having received Royal Assent on 25 March 2020.

The legislation will be in place for an initial period of two years and reviewed every 6 months.

It is hoped that changes made to the Mental Health Act 1983 (“MHA”), Care Act 2014 and the Social Services and Wellbeing (Wales) Act 2014 will ease the burden on frontline staff and enable authorities to prioritise their resources at the height of the pandemic.

The amendments to the MHA are in section 10 and schedule 8 of the Act. These will not come into effect until Regulations bring them in to force.

Mental Health Act 1983

The removal of the requirement for a second recommendation to detain and treat patients.

An individual can be detained under section 2 MHA for up to 28 days if they have a mental health disorder (mental illness, learning disability or personality disorder), need to be detained for a short time for assessment/medical treatment and it is necessary for their own health & safety or for the protection of others. 

An individual can be detained for up to six months (subject to review by a responsible clinician) under section 3 MHA if they have a mental disorder, need to be detained for their own health & safety or for the protection of others and treatment cannot be given unless detention is in a hospital. 

Prior to the Act coming into force, an application for admission and detention of a person under sections 2 or 3 MHA had to be supported by two written recommendations of two medical practitioners.

Schedule 8 para 3 (1) of the Act has the effect of changing the MHA to allow for any application by an AMHP for admission and detention of a person under sections 2 or 3 MHA to be based on a recommendation from one approved doctor who has personally examined the patient, if seeking a second recommendation is ‘impractical or would involve undesirable delay.’ There is no requirement for the approved doctor to have had a ‘previous acquaintance’ with the patient. 

A single recommendation from an approved doctor can be rectified where it is insufficient to warrant the detention during the first 14 days of a patient’s admission provided that a fresh recommendation in accordance with section 15(2) MHA is provided to the hospital managers. 

Prior to the Act coming into force, the only circumstances where a single recommendation from a doctor would take place was under section 4 MHA, pertaining to urgent emergency admissions. Section 4 MHA remains unchanged.

Patients in the Criminal Justice System

The Act has the effect of changing the MHA in respect of a number of powers pertaining to the remand of accused persons and the detention of convicted persons (sections 36, 37, 38, 45A and 51(5) MHA).  Again, one doctor as opposed to two can provide evidence to authorise such detentions on the same basis that seeking a second opinion is ‘impractical or would involve undesirable delay.’

The transfer of patients from prison to hospital (s47 and s48 MHA) can also be based on the recommendation of one doctor as opposed to two on the same test.

The period for the conveyance, admission and transfer of a patient remanded to hospital has also been amended under the Act. Such patients must be admitted “as soon as reasonably practicable after the end of that period”, and no later than seven days after the expiry of the current time limits set under sections 35, 36 and 40 MHA.

Relaxation of holding powers

The MHA allows for professionals to temporarily detain voluntary patients already in hospital to stop them from leaving hospital if it is thought they are a risk to themselves or others, prior to the patient being fully assessed under sections 2 and 3 MHA. 

The Act has the effect of relaxing the time limits imposed on this detention in sections 5(2) and 5(4) MHA if it would cause undesirable delay or be impractical to comply with the current time restraints.  

The time limit for detention under section 5(2) by a doctor is extended from 72 to 120 hours and a nurse’s power to detain under section 5(4) is extended from 6 to 12 hours.

Consent to treatment

Prior to the Act, a patient detained under section 3 MHA opposing a particular treatment by their responsible or approved clinician was reviewed every three months under section 58 MHA by a second opinion appointed doctor (“SOAD”). The SOAD was required to provide a certificate to administer medication without consent after 3 months.

Schedule 8 paragraph 9(1) of the Act removes the requirement for a certificate to be given by a SOAD if it is thought that this would cause undesirable delay or be impractical. The Act allows for the responsible clinician or approved clinician to give the certificate subject to consultation with a person concerned with person’s medical treatment who is not a doctor or nurse.

Detention to a place of safety

Under sections 135 and 136 MHA, the police have powers to detain a person in need of care to a place of safety, pending a formal mental health assessment. The place of safety can be the home of a family member or friend, a hospital or a police station. 

The Act has the effect of increasing the police powers of detention of such persons from 24 hours (with the power to further detain for 12 hours) to 36 hours (with the same power to further detain for 12 hours).

Comment

At this time of uncertainty, it is unfortunately likely that the vulnerable will suffer and mental health services will see a drastic influx of patients.    

The effect of dropping to one doctor and removing the requirement for a SOAD certification will dramatically increase the availability of professionals to be deployed elsewhere. Freeing up the time of professionals involved in mental health services, to allow for greater flexibility when they are less able to respond and to allow for the continued running of services of the MHA is clearly paramount. 

However, the use of the more flexible provisions temporarily enacted in light of the pandemic comes without precedent. The decision as to whether seeking a second opinion is ‘impractical’ and will cause ‘undesirable delay’ is very much open to interpretation and depends on the progression of the pandemic and how constrained the mental health services really become.

When such decisions are made they need to be properly recorded to mitigate any scrutiny they may be subjected to in due course. 

The situation is changing each day and it is important for everyone to keep abreast of the latest guidance. Specialist advice to help manage the workplace risks associated with COVID-19 can be provided by Weightmans’ Regulatory Team. Contact us. 

Maya Ravindran
Solicitor
DDI: 0151 242 6932
maya.ravindran@weightmans.com

Morris Hill
Legal Director
DDI: 0151 242 7990
morris.hill@weightmans.com

David Birch
Partner
DDI: 0113 213 4014
david.birch@weightmans.com

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