NHSE-I published on 19 May updated guidance on the impact of the coronavirus (COVID-19) pandemic on the use of the Mental Health Act (MHA) and supporting systems to safeguard the legal rights of people receiving mental health, learning disability and autism services, including specialised commissioned services. Importantly, it contains a section, written in conjunction with, and approved by the DHSC, on using the MHA Code of Practice during the COVID-19 pandemic period (see Section 5 and Annex D). This aims to offer specific advice and guidance on areas, which are posing a particular challenge as a result of the pandemic and where temporary departures from the Code of Practice may be justified in the interests of minimising risk to patients, staff, and the public.
The key messages from the guidance are as follows:
- There are currently no enacted changes to the Mental Health Act 1983 (MHA) legislation. The MHA legal framework is a basic protection of rights. Emergency changes to the current MHA legal framework, set out in the Coronavirus Act, will only be enacted if patient safety is deemed to be at considerable risk – the overarching aim of the emergency powers is to ensure that those people in critical need of mental healthcare are able to access this throughout the pandemic period.
- While there are currently no legislative changes, the Department of Health and Social Care (DHSC) has provided advice on using the MHA Code of Practice during the COVID-19 pandemic period (see Section 5 and Annex D). This aims to offer specific advice and guidance on areas, which are posing a particular challenge as a result of the pandemic and where temporary departures from the Code of Practice may be justified in the interests of minimising risk to patients, staff, and the public.
- MHA powers must not be used to enforce treatment or isolation for any reason unrelated to the management of a person’s mental health, such as detaining inpatients whose refusal to be tested/isolated is unrelated to their mental disorder. For currently detained patients, providers should not impose blanket restrictions, but the use of the MHA may offer authority for enforcing social distancing and isolation of symptomatic patients. It is vital these powers are used with regard to the principles of the MHA Code of Practice.
- While the NHS and social care are facing unprecedented challenges relating to COVID-19, wherever possible health and care services and professionals must continue to guard against overly restrictive practice.
- Decisions about the application of the Mental Capacity Act 2005 (MCA) and MHA have always involved significant nuance and complexity. During the COVID-19 outbreak, providers and Local Authorities should follow their organisational policies to ensure the safety of staff and patients and decide on the appropriate use of the relevant legal framework on a case-by-case basis, with reference to organisational ethics committees or ethics forums and support from medicolegal and expert social work colleagues as required.
- Robust and live communication across services is hugely important at a time when significant resource shortages across the sector are likely. Colleagues should take advantage of digital technologies to support communication. NHSX guidance supports mental health providers and Local Authorities in using digital and virtual channels such as MS Teams, Skype, WhatsApp and FaceTime. Section 14 of this document also provides guidance on when video assessments can support remote MHA assessments.
- Local authorities have substantial statutory responsibilities under the MHA and Care Act 2014, especially in providing access to approved mental health professionals and co-ordinating s117 discharge arrangements. This guidance considers how local authorities and mental health providers can work together to try and mitigate the effects of significant staff shortages.
Remote MHA assessments
The discussion of remote assessments is of considerable importance as there have been debates as to whether these are acceptable. The guidance (at section 14, and expressly as being applicable solely during the current pandemic), makes clear that:
The MHA makes it a legal requirement that doctors must “personally examine” a person before recommending that they be detained, and that an Approved Mental Health Professional (AMHP) must have “personally seen” the person before applying for a detention.
It is the opinion of NHS England and NHS Improvement and the DHSC that developments in digital technology are now such that staff may be satisfied, on the basis of video assessments, that they have personally seen or examined a person in a ‘suitable manner’. Bearing in mind the need to prevent infection and to ensure the safety of the person and staff, in some circumstances the pandemic may necessitate the use of such digital technology for MHA assessments. Providers should follow the guidance below to inform this decision. While NHS England and NHS Improvement and DHSC are satisfied that the provisions of the MHA do allow for video assessments to occur, providers should be aware that only courts can provide a definitive interpretation of the law.