Update 29 March 2020: This post relates to the Coronavirus Bill 2020. For more on the Coronavirus Act 2020, and when the below provisions come into force, see here.
The temporary modifications to the Mental Health Act 1983 (MHA) appear in part 2 of Schedule 7 of the Coronavirus Bill. As expected they relax some of the provisions of the MHA to free up and reduce the pressure on health and social care staff. We’ve summarised them below and go on to comment on the likely impact. We have also included mention of the new Pilot Practice Direction issues by the Senior President of Tribunals on 19 March 2020 with regard to modifications to FTT (Mental Health) hearings.
The Act is set to expire after two years from the date on which it is passed. This is subject to a power to alter the expiry date to make it earlier or later (cl 76). There is also a power vested in the Minister to suspend and revive the operation of any provision of the Act (cl 74).
Applications for detention under sections 2 and 3 MHA:
• Para 3 allows that applications for admissions under sections 2 and 3 by an approved mental health professional (AMHP) can be made on a single medical recommendation, if the AMHP considers that the existing requirement for a second is “impractical or would cause undesirable delay”. This is a relatively low threshold. There is no change to the criteria for detention which the medical recommendation must address. There is no change to the ability of a single medical practitioner to recommend admission under section 4. The schedule then makes changes to sections 11 and 12 MHA, to make it clear that two recommendations are not always needed, and to section 15 so that the rectification provisions also apply to single medical recommendations.
• Para 4 provides that patients already in hospital may be detained under section 5(2) on the authority of any registered medical practitioner or approved clinician, if it would cause undesirable delay or be impractical to comply with the current requirement, for the power to be exercised by the practitioner and clinician in charge of the patient’s case. The time limit for detention under section 5(2) is extended from 72 to 120 hours; and the nurse’s power to detain under section 5(4) is extended from 6 to 12 hours.
Patients in the criminal justice system (CJS):
• Para 5 removes the time limit on remands to hospital under section 35(7), but para 12 provides that if a patient has been remanded for more than 12 weeks, they may not be further remanded under section 35.
• 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.
• Para 8 modifies the time limits on the conveyance or admission to hospital of patients who are remanded to hospital, subject to interim hospital order or transferred from prison, when the relevant order is made after the bill comes into force. 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 limit (para 13(2)).
This will affect those being admitted to hospital under the following provisions:
(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”.
These modifications do not apply to s37 patients who must still be conveyed and admitted within 28 days of the order.
Consent to treatment
• Para 19(1) relaxes 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.
Instead, the 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.
Places of safety
• 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).
Plainly the case for freeing up the time of health professionals including psychiatrists is unanswerable. The key changes are the loss of the requirement of the second medical recommendation in applications for detention; and the loss of the SOAD requirement in the cases of those who did not consent or could not consent to treatment by medication after three months.
To what extent is the second medical recommendation a real safeguard? There is no Strasbourg jurisprudence requiring a second medical recommendation. Under the emergency regime in England and Wales there will still be an approved mental health professional (AMHP) who has the discretion to insist on two medical recommendations, and who brings a social care perspective to the decision to apply to admit. Most ECHR jurisdictions do not have this safeguard.
The Responsible Clinician (RC) will have a continuing obligation to ensure that the nature and degree of mental disorder continues to persist, per Winterwerp v Netherlands (1979-80) 2 EHRR 387, and access to the First-tier Tribunal (FTT) will continue to exist, albeit now in a modified form, discussed below.
In our view, dispensing with the second medical recommendation would be a reasonable response without the UK derogating from Article 5 (and there is no indication that the government intends to derogate).
The effect of dropping to 1 doctor will save significant person-power. There are 30,478 hospital admissions per year, an average of 2,540 detentions per month. Some MHA assessments do not result in a detention and there are no statistics on how many assessments result in a detention. This is a significant resource that could in the interim be deployed elsewhere.
What about the loss of the SOAD? Many patients understandably feel very strongly about the power to administer treatment without their agreement. The Independent Review of the Mental Health Act noted the need to empower patients through greater choice and involvement and noted that “Not being able to make choices about your own treatment is one of the issues raised most often by people who have been detained”. The Review recommended making it harder for clinicians to administer treatment without consent, and proposed an appeal process against treatment decisions.
Safeguards in relation to consent to treatment are essential to comply with Article 8 – for example in X v Finland App 34806/04. In that case, the court noted that detention under mental health legislation was interpreted as automatically entailing the ability to medicate without consent. The court observed:
"220. …… that the forced administration of medication represents a serious interference with a person’s physical integrity, and must accordingly be based on a “law” that guarantees proper safeguards against arbitrariness. In the present case such safeguards were missing. The decision to confine the applicant for involuntary treatment included an automatic authorisation to proceed to forcible administration of medication if the applicant refused the treatment. The decision-making was solely in the hands of the doctors treating the patient, who could take even quite radical measures regardless of the applicant’s wishes. Moreover, their decision-making was free from any kind of immediate judicial scrutiny: the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication, or to have it discontinued."
The CQC receives about 16,000 requests for SOAD opinions every year, and changed treatment plans in 29% of their visits (“Monitoring The Mental Health Act 2018/19"), so this is not a negligible reduction, especially as there may also be a reduction in the ability of Independent Mental Health Advocates to offer their usual level of support. However the basic structure of Part 4 MHA, which deals with consent to treatment is otherwise unaffected by these provisions.
In the event that this proposal is adopted, it needs to be recognised that this is a departure from the direction recommended by the Review, and should be kept under close review.
The time limits for detention under sections 135 and 136 are, in our view, proportionate and we welcome the fact that the limit has not reverted to 72 hours, as it had been for many years before the Policing and Crime Act 2017.
For the sake of completeness in relation to COVID-19 related changes in the mental health jurisdiction we should mention that the Senior President of the Tribunals, Sir Ernest Ryder, has now produced a ‘Pilot Practice Direction’ (19 March 2020) for the next six months, which provides, among other things, for single judges hearing cases by telephone, as a default position, “unless the Chamber President or Deputy Chamber President or other authorised salaried judge considers it inappropriate in a particular case, in which event a two or three person Panel may make the decision”.
These changes are due to come into force from Monday 23 March 2020. This will pose a challenge to both the Tribunal and to patients’ representatives to ensure that the Tribunal continues to scrutinise the need for detention adequately.
Given these challenges there will be a need for medical and social circumstances reports to be provided within the expected time frames, and are up to date and focused on the discharge criteria. Additionally, it will be helpful if legal representatives should where possible file brief written submissions in advance of the hearing identifying relevant areas of factual dispute as appropriate and the grounds for any application being made. Judge only hearings were rejected by the FTT (Mental Health) in the recent past because of the reliance placed on specialist members in this specialist field. There will no doubt be some concern that this may now presage such hearings as the “new normal.”