Electronic forms are coming for Part 2 MHA (mostly)

The Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2020, laid before Parliament on 1 October 2020, and coming into force on 1 December 2020, will allow for the electronic sending and receiving of statutory forms required when managing the admission, detention, assessment or treatment of a person under Part 2 Mental Health Act 1983.

The regulations amend the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 (S.I. 2008/1184) (the ‘2008 Regulations’) to allow for the use of electronic means of communication for the sending and receipt of documents under the Act. In particular the amendments to the 2008 Regulations allow for statutory forms to be served by email. The instrument also makes consequential amendments to these forms.

The 2008 Regulations, as amended from 1 December 2020, provide that the authority, body or person on whom the form is served must agree to receive the form electronically. An exception to this is where a person, usually an Approved Mental Health Professional (‘AMHP’), wishes to serve an application for detention via electronic transmission. In such cases, electronic communication to the hospital managers is always permitted (i.e. the managers’ agreement is not a pre-condition for using electronic means.

A further exception is that documentation given to patients under the MHA, must be provided in hard copy, although electronic versions may be given in addition to this.  As the Explanatory Memorandum explains, this is because patients may not have consistent and reliable access to the required technology. An example of a document which cannot be served on patients electronically is a form recalling to hospital a patient subject to a Community Treatment Order.

The Explanatory Memorandum notes that these amendments follow recommendations made in 2018 by the Independent Review of the Mental Health Act 1983, chaired by Sir Simon Wessely, for the Department and NHS England and Improvement (‘NHS E/I’) to look at steps which could be taken to use information technology to support the operation of the MHA.   It also notes that:

The need for these changes has been accelerated because of the current pandemic, and the need to support efforts to control infection by minimising unnecessary face to face contact. Even without these circumstances, the Government sees no continuing need to maintain restrictions on electronic service.

Practical guidance to assist in applying the changes made by this instrument will be published before the amendments come into force. This guidance will, among other topics, discuss common understandings, agreements and working protocols which organisations will need to establish locally.

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