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31st March 2020

Covid-19: Changes to mental health law

As well as lots of other changes, such as giving new powers to Police powers in the community, the Coronavirus Act 2020 has authorised emergency changes to the Mental Health Act (MHA).

Many people using mental health services, their supporters and their carers, are worried and confused about these. They are particularly concerned about changes to the way people can be admitted to a mental health in-patient ward using compulsion. This affects a lot of people: in 2018-19, around 50,000 people who needed treatment for a mental disorder were detained against their will.

Summary of key points

  • These changes are nothing to do with the review of the MHA that has been ongoing for some time now; they are simply a response to Covid-19 (Coronavirus).
  • These changes to the MHA don’t apply immediately but are available for use if services are so short-staffed, due to Covid-19, that they can’t properly apply the usual system.
  • They are temporary changes, that, if needed, will only be available while the pandemic stresses are at their height.
  • All mental health professionals relying on the truncated processes must stay alert to protect patients’ basic human rights to freedom and a family life as far as possible.

Short-term possible changes to the MHA

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. The government is concerned that Covid-19 might, at its height, reduce the number of mental health professionals available to help people whose mental health places them at risk.

The changes are available, but not yet in force. By having them in the legislation, they are ready to be activated quickly if the crisis worsens. It’s important to notice that they are nothing to do with the ongoing plans to reform the MHA, aimed at making it more clearly reflect the wishes and feelings of people who are mentally unwell. These changes are clearly temporary measures, to be used only when absolutely necessary, and for as short a time as they can.

Reason for the changes

Someone experiencing a crisis in their mental health may well stop being able to think rationally about their health needs, their relationships, or how they act in general. They may, of course, cause harm to other people, especially if their thinking becomes very disordered and delusional, so that they perceive other people as dangerous. But far more likely is that mentally unwell people focus all their negative emotions inwards, so that the risk of harm is overwhelmingly to themselves. It is lawful to detain people for compulsory care and treatment under the MHA, simply because this law is actually a framework to protect the human rights of these very vulnerable people.

What are the changes?

Currently, the MHA assessment process acts to protect the rights of people who may be detained. It does this through multi-disciplinary scrutiny – led by an approved mental health professional (AMHP), who consults at least two doctors, and an identified relative of the person. They must give careful consideration to whether there is a less restrictive option, such as giving the person care and treatment in the community. This acts as a brake on excessive risk aversion or paternalism by clinicians, while making sure that people’s rights are central throughout the process.

The main changes allow for the probability that staffing problems may well affect the normal process. So instead of two doctors, one will be sufficient authority for detention. For the same reason, the current strict rules can be loosened during the pandemic, about how long someone can be held, in a place of safety, for the assessment process to happen.

In the same way, but only if absolutely necessary, the requirement is also dropped for a ‘second opinion authorised doctor’ (SOAD) to agree, after 3 months in hospital, that the treatment someone is resisting remains in their best interests.

Access to a mental health tribunal has been a keystone of protecting people’s crucial right to appeal against their detention, and have their situation scrutinised by an independent group of professionals. For the next six months at least, a tribunal can, if it seems sufficient for that individual patient, consist solely of one legally qualified person, who will dial in to the tribunal as will relevant mental health professionals. The patient, their responsible clinician and a nurse caring for them will be together and face to face.

And, again, the current rules about the interface between mental health in-patient settings and the criminal justice system can, in this emergency, be loosened. You can find details of the potential changes at here https://www.rcpsych.ac.uk/about-us/responding-to-covid-19/responding-to-covid-19-guidance-for-clinicians  and up to date advice from Rethink, the mental health charity, at here https://www.rethink.org/advice-and-information/covid-19-support/

Rights still exist

 As ever during this uncharted journey we need to be aware that people’s rights will inevitably be curtailed, not so much by the Coronavirus Act 2020 as by the virus. This means we must do everything we can to minimise coercion and compulsion, such as engaging with the patient as the expert in their own condition, and prioritising remote contact with loved and trusted relatives and friends.

We must never start to regard this as the ‘new normal’.  Some people will still need help from their clinicians, advocates and legal advisers to be better heard at tribunal or in Court. Crucially, the entire system must never lose sight of the need to protect the rights of people who, through no fault of their own, are detained in hospital and treated against their will.

Conclusion

The legal changes reflect how important it is to take care of people who desperately need care and treatment due to a mental disorder but who, usually as a part of that disorder, lack the mental capacity to realise how vulnerable they are without necessary treatment. It is, sadly, predictable that the current universal stresses, with widespread anxiety and fear combined with social isolation, might lead to a rise in the number of people becoming acutely unwell and in urgent need of emergency admission.

It’s to be applauded that this proactive set of measures is ready to swing into action if needed, on a strictly temporary basis, during the Covid-19 pandemic.

 

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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