Coronavirus: temporary changes to the Mental Health Act

19/03/2020

Why are the government making emergency changes to the Mental Health Act?

The Mental Health Act must continue to function effectively throughout the Covid-19 pandemic, in order to ensure the safety, care, and treatment of people severely affected by mental illness. Emergency legislation has been introduced to Parliament which includes temporary measures to change the Mental Health Act. This is because the government is concerned that Covid-19 will reduce the number of mental health professionals available to help people whose mental health places them at risk.

The changes will not apply from the moment the legislation is passed - they may be activated if the crisis worsens.

Are these changes part of the recent review of the Mental Health Act?

No. These are temporary measures and are separate to the ongoing review of the Mental Health Act. These changes will not happen straight away. They will only happen if staff numbers are significantly reduced.

Rethink Mental Illness will be carefully monitoring the rights and conditions of people detained under the Act. And we will continue to press for reform of the Act once the emergency measures are no longer required.

What are the changes being made?

There are number of changes being made. We have put details of these below.

Changes to the number of doctors required to detain you under the Mental Health Act for assessment and treatment

Usually 3 people have to agree that you need to be detained. These are normally an approved mental health professional (AMHP) and 2 doctors. Under the new legislation the number of doctors is reduced to 1.

The AMHP has to record the reason why the decision to detain you was made on the recommendation of only 1 doctor. And they should only take this decision if they believe that staff shortages caused by coronavirus mean it would take too long for a second doctor to assess you.

Changes to how long you can be remanded to hospital for

If you are accused of a crime, the court may think that your mental health was a factor in your offence. Under Section 35 and 36 of the Act, the court can send you to hospital for your mental health condition to be assessed.

Normally you can be sent to hospital for no more than 28 days. If your doctor thinks you need to be in hospital longer, they can tell the court. And the court can extend the section for further 28-day periods, up to 12 weeks at the most.

Under the emergency measures there would be no 12-week upper limit. This means that you can be kept in hospital, under a section 35 or 36, for longer than 12 weeks.

Changes to court orders for the detention of accused or convicted persons in hospital

If you are accused or convicted of a crime, the court may feel that you need to be detained in hospital. Normally 2 doctors have to assess you and agree that you are so unwell that you need to be in hospital.

Under changes to court orders Section 36, 37, 38, 45A, and 51 of the new legislation, you can be sent to hospital if 1 doctor says that you are unwell. But the court has to agree that this is necessary because of the circumstances.

Changes to emergency detention of voluntary patients already in hospital

Under the Mental Health Act, in emergencies professionals have the power to detain you if you are a voluntary patient. This is to stop you leaving hospital if a professional thinks that you are a risk to yourself or others.

Under these powers you can only be held for a short time:

• Under section 5 (2) of the Act a doctor can agree to hold you for up to 72 hours, and
• Under section 5 (4) of the Act a nurse can agree to hold you for up to 6 hours.

You can only be held after this time if a full Mental Health Act assessment is done, and professionals agree to further detain you. This will usually be under sections 2 and 3 of the Mental Health Act.

The emergency legislation will extend these powers, so you can be held for an increased time. This is because it might take professionals longer to assess patients who are held on these temporary sections.

The extended timeframes are:

• Under section 5 (2) – you can be held up to 120 hours, and
• Under section 5 (4) – you can be held up to 12 hours.

Changes to the transfer of prisoners to hospital

Under the Mental Health Act if you are a prisoner you can be transferred to hospital. This happens if 2 doctors think this is the best thing for you, because of the nature of your mental disorder. The Secretary of State for Justice must consent to the transfer.

This power is under section 47 of the Mental Health Act.

The emergency legislation says that only 1 doctor needs to recommend the transfer of you from prison to hospital. But the Secretary of State for Justice must still consent to the transfer.

Changes to continuation of treatment

Under some sections of the Act, your doctor can only continue to authorise your treatment without your consent if a SOAD agrees. SOAD means ‘second opinion approved doctor’.

For example, under section 3 of the Act you can be treated against your will for 3 months. After 3 months, your doctor can only authorise treatment for you without your consent if a SOAD agrees.

Under the change, your doctor will no longer need a SOAD to agree before continuing to authorise treatment that you don’t consent to. 

Changes to police holding powers

You might be in the community or your own home. Police might be concerned about the safety of you or others and that you have a mental disorder.

They have powers under the Act to hold you in a place of safety. Depending on your circumstances, this could be a hospital, your home, the home of another or a police station.

The police have these powers under sections 135 and 136 of the Mental Health Act.

You can usually be held for an initial period of up to 24 hours. Which can be extended for a maximum of another 12 hours. The patient can only be held after that time if a full Mental Health Act assessment is done. And professionals agree to further detain the patient. This will usually be under sections 2 and 3 of the Mental Health Act.

The change means that you can be held for an initial period of up to 36 hours. This can be extended for a maximum of another 12 hours.

Are there any changes to mental health tribunals?

Separate legislation has changed the rules about mental health tribunals. The rule changes are temporary while the coronavirus pandemic lasts. The changes will be reviewed in 6 months’ time.

The changes are shown below.

Changes to the tribunal panel

Usually the tribunal is heard by 3 panel members. They are a legal member, a doctor and a lay member. But now tribunals can be heard by a single legal member only. They can make decisions alone.

If this is considered to not be appropriate for your case, a 2 or 3-person panel can hear the case and make decisions.

Members dialling in by phone

Some people won’t be physically present at the tribunal but will join by phone.

The legal member and your care coordinator will join by phone. If you have a legal representative, they can join by phone too.

If there is a 2 or 3-person panel, the doctor and lay member will join the meeting by phone too.

You, your responsible clinician and nurse should still physically be at the tribunal.

Legal member advice from a lay member or doctor

The legal member can get advice from a doctor or lay member before or during the tribunal by phone. If they do this, they should tell you during the tribunal the advice they received.

Speaking to the legal member at the tribunal

If you have no legal representation, you can ask to speak to the legal member by phone without other people being in the room. But the legal member can decide whether to allow this.

Pre-Hearing Assessments

Sometimes an appropriate member of the tribunal must examine you to form an opinion of your mental condition. This is known as a ‘Pre-Hearing Assessment (PHE)’.

No PHE’s will take place during the coronavirus pandemic, due to the health risks they pose.

Community Treatment Orders – Paper tribunals

Sometimes the hospital managers must refer you to a tribunal after 6 months have passed. If you this is the case and you are on a Community Treatment Order (CTO) the tribunal might be a paper one. Unless this is thought to be inappropriate in your case.

A paper tribunal means that the legal member, or panel, will make a decision on the paper evidence that they have. This means you won’t be able to speak to the legal member or panel. But you can give then written evidence. Or your legal representative can.

Section 117 After-care

There is no change to entitlement to free Section 117 after-care. You can get more information about ‘Section 117 after-care’ by clicking here.

This blog will be updated as more information becomes available. Last updated 30/03/20

For more information about mental illness & Covid-19, visit our dedicated hub

 

 

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