Mental Health Act changes: ensuring continuity of care during Covid-19

Peter Harper, Clinical Applications Specialist at Servelec and registered mental health clinician, discusses the potential temporary changes to the Mental Health Act

> Read more on our response to Covid-19

In recent weeks, emergency legislation has been introduced to Parliament which includes temporary measures to change the Mental Health Act. The Government has proposed emergency legislation intended to manage the impact of Covid-19 on the health and care system and those who rely on it when pressure on health services is rising significantly.

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.

These are temporary measures and are separate to the ongoing review of the Mental Health Act. The changes will not apply from the moment the legislation is passed but may be activated if the crisis worsens; they are also yet to be passed by the Cabinet.

What are the temporary proposed changes?

  • Usually three people have to agree that a patient needs to be detained for assessment and treatment. These are normally an approved mental health professional (AMHP) and two doctors. Under the new legislation the number of doctors is reduced to one. The AMHP will need to record the reason why the decision to detain was made on the recommendation of only one doctor, and they should only take this decision if they believe that staff shortages caused by Covid-19 mean it would take too long for a second doctor to assess
  • Under Section 35 and 36 of the Act, the court can send a patient to hospital for their mental health condition to be assessed. Normally this would be for a period of no more than 28 days. If the doctor believes the patient will need to be in hospital longer, they can inform the court to ask for an extension to the section for further 28-day periods, up to 12 weeks in total. Under the emergency measures there would be no 12-week upper limit. This means that the patient can be kept in hospital, under a section 36 or 37, for longer than 12 weeks
  • Under changes to court orders Section 36, 37, 38, 45A, and 51 of the new legislation, the patient can be sent to hospital if one doctor believes they are unwell but the court has to agree that this is necessary because of the circumstances
  • Under Section 5 (2) of the Act a doctor can agree to hold a patient for up to 72 hours. Under the emergency legislation the patient can be held up to 120 hours
  • Under Section 5 (4) of the Act, a qualified mental health nurse can agree to hold the patient for up to six hours. Under the emergency legislation the patient can be held up to 12 hours
  • Under the Mental Health Act, a prisoner can be transferred to hospital under Section 47 of the Mental Health Act. The emergency legislation states that only one doctor needs to recommend the transfer from prison to hospital but the Secretary of State for Justice must still consent to the transfer
  • Under certain sections of the Act, a doctor can only continue to authorise treatment without consent if a Second Opinion Appointed Doctor (SOAD) agrees. Under the change, the doctor will no longer need a SOAD to agree before continuing to authorise treatment that a patient does not consent to
  • Under Sections 135 and 136 of the Mental Health Act, a patient can usually be held for an initial period of up to 24 hours which can be extended for a maximum of another 12 hours. Under new powers the person can be held for an initial period of up to 36 hours and can be extended for a maximum of another 12 hours
  • Mental health tribunals are not covered in this piece of legislation but there may be some changes to the way mental health tribunals take place:
    • The tribunal hearing may be done by telephone conference
    • At present three panel members are needed; this may be reduced o It may take longer for your tribunal to take place
    • The hearing may be done as a ‘paper hearing’ meaning that the patient may not have to attend the tribunal themselves

The Mental Health Act must continue to function effectively throughout the pandemic, in order to ensure the safety, care, and the treatment of people severely affected by mental illness.

In preparation, we’re happy to offer advice regarding the powers proposed. If the legislation is passed we’ll also offer advice regarding any changes that may need to be made including temporary reconfigurations of Rio. However, local process changes may be sufficient to ensure temporary measures are adhered to.

To assist in any future temporary changes to the Mental Health Act, we’re happy to provide guidance for our customers on how to record information in Rio. Please contact your account manager for further information or complete the form below.

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