The Mental Health Act and Covid-19

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Are Psychiatric Hospitals Still Acting Lawfully?

It is understandable that various public health measures have been introduced to tackle the spread of Covid-19, but there has been a lot of misinformation and misunderstanding about their scope and purpose within the mental health sector.

This is, in part, due to the necessary speed with which the Coronavirus Act 2020, and the multitude of supporting documents and guidance, were introduced. Unfortunately though, whilst the new rules might achieve their desired objectives, the lack of debate and detailed analysis of their impact prior to their introduction has meant that there have also been a number of unforeseen consequences.

Most concerningly, Mental Health Act powers are increasingly being used to enforce treatment and reasons other than those to do with the patient’s mental health. Covid-19 has given rise to a proliferation of blanket policies throughout hospitals and Mental Health Trusts, as well as the unlawful use of seclusion and isolation on patients for reasons other than those connected with their mental disorder.

This article is relevant to all frontline professionals working with adults in any mental health setting, including doctors, nurses, OTs, social workers, support workers, MHAAs and hospital managers. Please feel free to forward this article to any colleagues who may be interested.

MHA during Covid-19

Schedule 8 of the Coronavirus Act 2020 contains a host of changes to the Mental Health Act. These include increased assessment periods, authorising the use of only one medical recommendation in applications for admission under sections 2 and 3 and the removal of the need for SOAD certifications after three months’ detention. At the beginning of this pandemic, which seems a lifetime ago now, there was considerable confusion over how all of this would come into effect.

What has changed, and what has not?

So far, there have been no changes to the law. The Coronavirus Act is written in such a way as to enable each of its 29 schedules, containing a wide array of prospective emergency changes to legislation, ranging from criminal proceedings through to residential tenancies, to be switched on and off as the progress of the pandemic and, more crucially, its health and social care impact on the wider public dictates.

Schedule 8, which contains all the potential changes to the Mental Health Act, has not been activated and there is no change whatsoever to the law surrounding the compulsory admission and treatment of patients in a psychiatric setting. Now that the pandemic has passed its peak, it is hoped that Schedule 8 will never be activated, even if there is a second or third spike.

What is inescapable though, is that we are all experiencing a huge impact on our day-to-day lives as a result of the pandemic and many of the decisions being made about psychiatric patients are taking place with, at least, one eye solidly fixed on the coronavirus itself and the social distancing measures it requires. This has resulted in Trusts and hospital managers having to hurriedly write their own policies for staff to follow during the emergency period.

The Operational Impact

The problem with all of this is that, in order for those policies to stand a chance of standing up to legal challenge, they should always strike a balance between the protection of the public health on one hand and the rights and freedoms of the individual patient on the other. This means that just as the social distancing measures change with the ebb and flow of the pandemic, so should those policies. They should be kept under constant review and rewritten whenever the balance tips too far one way or the other.

Similarly, no private hospital group or, to a lesser extent, trust should have a “one size fits all” approach to this. As we now know, the pandemic impacts different areas of the country differently. It follows that policies in place in one hospital in an area where the pandemic is fully under control should be much more relaxed than those in an area where R is well above 1.

To draw a, hopefully apt, analogy, just as the assessment of an individual’s capacity is both time and decision specific, so should be the Covid-19 policies in each and every individual hospital and, if possible, ward.

Crucially, blanket policies for the entirety of the pandemic, such as those prohibiting visits, particular forms of leave or requiring patients to spend time in seclusion if they leave the hospital groups are, in all likelihood, not going to survive legal challenge.

NHS England are fully aware of the considerable legal perils and pitfalls which such policies can cause. Anxious to prevent a further significant drain on resources from successful legal challenges, they have published numerous sets of non-statutory guidance for professionals to follow during the pandemic. Their “Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic”, version 2 of which was published on 19th May, is required reading for anyone involved in formulating or writing policy at any level.

The consequences of failing to adhere to ECHR principles

It follows that it is essential for all staff to understand what those actual policies are, why they are there, what they have been designed to achieve and how to balance their implementation against the rights of the patients.

Above all, it is crucial that they understand that this balance can often be delicate and a patient’s refusal to accept a policy or social distancing guidance is not necessarily a symptom of their mental illness and, in such cases where it is not, using the powers granted to them by the Mental Health Act to enforce compliance may well be unlawful.

Legally, the Mental Health Act is there to help manage patients’ mental health. It is not there to help manage anything else, except on occasions where the patient’s beliefs and actions arise from their mental illness. Crucially, it is not there to help staff enforce the provisions of the Coronavirus Act or any of the, mainly non-statutory, non-enforceable, guidelines which have been issued in the wake of the pandemic. Capacitous patients should, whenever possible, be placed in the same position as anyone else, where the expectation is that they will adhere to the guidelines, but they are free to choose not to do so as well. Above all, Mental Health Act powers cannot be used to enforce treatment, or isolation, for any reason other than the management of a patient’s mental health. This especially includes detaining inpatients who refusal to be tested or isolated is not related to their mental disorder.

The difficulties facing those responsible for ensuring that Covid-19 does not make its way onto psychiatric wards are complicated and numerous. They should be. Managing the rights of a significant number of people who are being detained in a mental hospital against their will whilst also attempting to keep them, staff members and members of the public safe from the pandemic is not supposed to be easy. There are, deliberately, very few legally excusable reasons for taking actions which contravene a patient’s right to private and family life, the principle of least restriction, the right to freedom from discrimination, their right to life, their right to freedom from inhumane or degrading treatment or, indeed, any of their fundamental human rights.
It follows that professionals must have the legal literacy to navigate their way through this complex legal landscape on a case by case basis.

The use of digital technology

As social distancing measures have made it increasingly difficult for professionals to be in the same room as someone upon whom they are required to carry out a Mental Health Act assessment, it is perhaps only reasonable to expect those professionals to find other ways to perform their duties. The developments in video conferencing software are also now such that examining staff can be satisfied that they have examined a person in a “suitable manner” and have “personally seen” that person, even if they have done so from the other end of a webcam.

Digital technology cannot, however, be used at the whim of the professionals. Such use must always comply with GDPR provisions and must be used safely, consistently and with considerable oversight. Above all, it should not be considered as a replacement for face to face meetings and examinations which must take place wherever and whenever it is safe to do so.

Max Duddles, Solicitor & Subject Matter Expert in Mental Health Law

This article was first published on the 6th July 2020.

If you have found this article interesting, you may be interested in reading our recent article on Covid-19 & the impact on MCA/DoLS

AMHP Legal Update 2020

We are delivering a one-day interactive virtual course to look at all of the key legal developments in the field of mental health over the past 12 months or so.  Find out more about the course here

Coronavirus Act 2020

In order to assist practitioners to make decisions lawfully and ethically and to feel more confident in their decision-making, we have created an intensive short course focusing on the practical application of the Act - Acting lawfully and ethically under Coronavirus Act 2020. Find out more about the course hereirus Act 2020. Find out more about the course here