Coronavirus and the Mental Health Act 1983 AswiniWeereratne QC Sophy Miles @AswiniQC @sophymiles1 @DoughtyStreet/@DoughtyStPublic a.weereratne@doughtystreet.co.uk s.miles@doughtystreet.co.uk
Today’s presentation 1. The Aim 4. Convention issues 2. Temporary changes to the 5.Managing psychiatric detention MHA by schedule 8 and COVID: Coronavirus Act 2020 (CvA) – ‘Lockdown’ regulations and schedule 21 of CvA 3. Key changes – Isolation and segregation – 1 medical recommendation – Section 17 MHA leave not 2 – Discharge planning – No second opinions under s 58 – Tribunal representation – Extended time periods – MH Tribunal issues t. 020 7404 1313 w. www.doughtystreet.co.uk
THE AIM • De-stress health and care workers on the frontline under the MHA https://www.who.int/docs/default-source/coronaviruse/mental-health-considerations.pdf https://www.england.nhs.uk/2020/04/nhs-launches-mental-health-hotline-for-staff-tackling- covid-19/ • De-stress lawyers battling with ever increasing legislation and guidance • Examine any legal implications of the new provisions • Provide a practical understanding of the new terrain t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA 2020 Schedule 8-applications for admission • Context- to free up clinical staff. NOT yet in force. • Applications for admission under sections 2 and 3 can be made on the basis of one medical recommendation- para 3. • Must be registered medical practitioner (RMP) who is approved under section 12 MHA- para 3(7) • Need not have previous acquaintance with patient. • AMHP to decide whether waiting for 2 practitioners is “impractical or would cause undesirable delay” - para 3(1) t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA 2020, Schedule 8- patients in hospital • Patients already in hospital can be detained under section 5(2) on authority of any RMP or approved clinician (AC)- para 4 (1) • Currently limited to RMP or AC “in charge” of patient’s treatment • Detention under section 5(2) extended from 72 to 120 hours- para 4(2) • Detention under section 5(4) (by a nurse registered in mental health or LD nursing)- extended from 6-12 hours- para 4(3). t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8- patients in the criminal justice system • Para 5: No time limit on remands to hospital under section 35(7) (remand for report), or for section 36 (remand for treatment). • Para 6 : Evidence from a single medical practitioner will now be sufficient for the following powers: • (a) section 36(1) (power to remand accused person to hospital for treatment); • (b) section 37(1) (power to order detention in hospital, or guardianship, of convicted person); • (c) section 38(1) (power to order interim detention of convicted person in hospital pending final hospital order or other disposal); • (d) section 45A(3) (power to direct that a person sentenced to imprisonment be detained in hospital instead of prison). The practitioner must still give oral evidence (para 5(3)); • (e) section 51(5) (power to order detention of a person in hospital in the absence of the person). • Para 7 permits the Secretary of State to transfer a patient from prison under sections 47 or 48 on the report of one practitioner if satisfied that 2 reports are impractical or would cause undesirable delay. t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8- patients in the criminal justice system • Para 8 : modifies the time limits on the conveyance or admission to hospital of patients in the CJS • 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 limit (para 13(2)) . • (a) section 35(9) (including as applied by section 36(8)) (remand in hospital) - currently 7 days • (b) section 40(1) and (3) (effect of hospital orders and interim hospital orders) - currently 28 days • (c) section 45B(1) (effect of hospital directions and limitation directions) - currently 28 days. • Section 47(2) (period within which person subject to transfer direction must be received into hospital) has effect as if for “14 days” there were substituted “28 days”. t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8- Consent to treatment • Para 9(1) removes the requirement for a certificate to be given by a “second opinion appointed doctor” (SOAD) to be obtained in order to administer medication without consent after 3 months, under section 58. • Responsible clinician or approved clinician may give the certificate, but must consult with one other person who must have been concerned with person’s medical treatment, but who must not be a nurse or doctor. t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8 Consent to Treatment • CQC receives c 16,000 requests for SOAD opinions every year, and changed treatment plans in 29% of their visits ( “Monitoring The Mental Health Act 2018/19 ” • Independent Review of the Mental Health Act “Not being able to make choices about your own treatment is one of the issues raised most often by people who have been detained” . • Recommended making it harder for clinicians to administer treatment without consent, and proposed an appeal process against treatment decisions. • SOADs currently reviewing summary of issues rather than notes and carrying out interviews remotely. t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8- Emergency powers • Para 10 extends the duration of detention in a “place of safety” under sections 135 or 136 to 36 hours (increased from the current limit of 24 hours). • Not reverted to 72 hours, as had been for many years before the Policing and Crime Act 2017. t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8- MHRT for Wales • Para 11 allows the President to decide that the MHRTW could consist of either one of the legal members or one of the legal members and one of the non-legal members, rather than the usual three members. • Will always be legal member, but there may also be one non- legal member as well. • Criteria that it would be “impractical or would involve undesirable delay” for the Tribunal to sit with three members. t. 020 7404 1313 w. www.doughtystreet.co.uk
CvA Schedule 8- MHRT for Wales • Para 12 allows MHRTW to determine an application or reference without a hearing if • (a) holding a hearing is impractical or would involve undesirable delay, • (b) having regard to the nature of the issues raised in the case, sufficient evidence is available to enable it to come to a decision without a hearing; and • (c) to dispense with a hearing would not be detrimental to the health of the patient. • MHRTW must give parties notice of provisional decision and can reverse on receiving representations t. 020 7404 1313 w. www.doughtystreet.co.uk
RCN: Covid-19 Mental Health Position Paper • Recommended that Government review Schedule 8 with Chair and Members of the Independent Review of the MHA 3 months after the brought into force • Increased periods of detention will impact already overstretched workforce- recommended measures to support mental health staff • Suggests extending AMHP role to registered MH nurses • Express concern about burden on informal carers if there are redeployments t. 020 7404 1313 w. www.doughtystreet.co.uk
NHS England and NHS Improvement: Legal Guidance • Can be found at https://www.england.nhs.uk/coronavirus/wp- content/uploads/sites/52/2020/03/C0072-MHLDA-Covid-19- Guidance-Legal-300320.pdf • Wherever possible we must continue to guard against overly restrictive practices • Even if Schedule 8 enacted should only be used locally when “absolutely necessary” • “Under no circumstances” should MHA be used to enforce restriction, treatment or isolation not related to mental health. t. 020 7404 1313 w. www.doughtystreet.co.uk
The First Tier Tribunal (Mental Health) • Pilot Practice Direction issued on 19 March 2020- 6 months: • Amends composition so that judge sitting alone makes all decisions, • Full panel if CP, DCP or authorised STJ considers if appropriate, • Judges may “seek advice” from wing members which must be recorded and disclosed, • CTO references can be dealt with on the papers by agreement, • No pre-hearing examinations during pandemic. t. 020 7404 1313 w. www.doughtystreet.co.uk
Guidance from the Chamber President and HESC DCP- 19 March 2020 • Prioritising section 2 and recall hearings for those on conditional discharges • Intention to conduct all hearings by telephone (now using secure video facility) • If the patient is unrepresented that they are given an opportunity to speak to the Judge without other people in the room. t. 020 7404 1313 w. www.doughtystreet.co.uk
The First Tier Tribunal (Mental Health) • “Help for Users” document explains judge will hear case alone by telephone or video • “Unfortunately, we are not able to hear cases for community patients on a CTO or those who have already been conditionally discharged, because of the difficulties we have in organising hearings where everyone can participate. These cases will be put off until we can hear them unless you or your representative make an application to the Tribunal to explain why your case must go ahead.” t. 020 7404 1313 w. www.doughtystreet.co.uk
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