The Coronavirus Bill as, as this is published, being debated in Parliament. Simon Burrows looks at the changes to the Mental Health Act.
INTRODUCTION
1. The purpose of this fact sheet/guide is to give an outline of the Government’s Coronavirus Bill (CVB), and how it relates to mental health law- and, in particular, how those in the field are affected by it.
2. This document is published on the day the CVB goes before Parliament. It seems that there maybe some disagreement on some of its provisions, so the Bill may not become an Act in its present form. Until it is an Act, of course, it is not the law. What follows then is how the CVB appears in its published form. Its final version will be the subject of an amended version of this document.
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THE CORONAVIRUS BILL-ITS PURPOSE
4. Below, I will refer to three sources:
• Mental Health Act 1983 (as amended) (MHA)
• CVB (as placed before Parliament): https://publications.parliament.uk/pa/bills/cbill/58-01/0122/cbill_2019-20210122_en_1.htm
• The Explanatory Notes to the CVB (the Notes) : https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf
5. The purpose of the Coronavirus Bill: (CVB) is to enable the Government to respond to an emergency situation and manage the effects of a covid-19 pandemic. A severe pandemic could infect up to 80% of the population leading to a reduced workforce, increased pressure on health services and death management processes. The Bill contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts.
6. Furthermore, it aims to support Government in the following:
• Increasing the available health and social care workforce
• Easing the burden on frontline staff
• Containing and slowing the virus
• Managing the deceased with respect and dignity
• Supporting people
There is no need at this point for a detailed analysis of the provisions. The Notes are clear as to what these provisions do to the Mental Health Act 1983 (as amended).
7. In what follows, that which is taken directly from the Notes will be underlined or the CVB which will be underlined and in bold. My narrative and comments will be in italics, so as not to confuse.
8. Schedule 7 of CVB applies to England and Wales and modifies MHA.
THE PROCESS OF DETENTION: SECTIONS 2, 3, 4 and 5 MHA
9. Notes: Paragraph 3 relates to sections 2 and 3 of the MHA, which allow for the compulsory hospitalisation of patients with mental disorders. Normally applications by Approved Mental Health Professionals to detain patients must be supported by the recommendations of two doctors. However paragraph 3(1) allows for applications to contain only one such medical recommendation, if obtaining the advice of two doctors is either impractical or would unduly delay the application.
However, an emergency application under s. 4 may not be founded on a single recommendation- but s.4(3) still applies unlimited (in the case of an emergency application).
10. Notes: Paragraph 4 modifies the effect of section 5 of the MHA, which allows for the short-term detention of patients who are already in hospital. It extends the maximum period for which a patient can be detained under section 5.
Under s. 5(2) as amended, any registered practitioner or approved clinician may furnish a report for the purposes of s. 5(2) “if it appears to the practitioner or clinician that complying with the requirement under that provision for the report to be furnished by the practitioner or clinician in charge of the treatment of the patient is impracticable or would involve undesirable delay”.
11. What is meant by “undesirable”?- This will relate to the burden compliance with the requirement would have on frontline staff- the avoidance of which is a specific purpose of the Bill.
The period of detention under s. 5(2) (providing for the detention of a patient who is already an in-patient in hospital- informally) increases from 72 hours to 120 hours.
12. Section 5(4) can be used where a nurse (of a prescribed class- as defined by s. 5(7)) may detain a patient in hospital where it appears to that nurse that a patient already receiving treatment for mental disorder in the hospital needs to be detained, but it is not practicable to secure the immediate attendance of a practitioner/clinician to furnish a report under s. 5(2) . The power of detention is now extended from 6 hours to 12 hours- thus buying more time for the s. 2 or 3 process to be completed.
PATIENTS INVOLVED IN THE CRIMINAL JUSTICE PROCESS
13. Paragraph 5 extends the period for which a person accused of a crime can be remanded to hospital under sections 35 and 36 of the MHA, by removing the rule that a person cannot be remanded for more than 12 weeks in total. It will remain the case that a person cannot be remanded to hospital for more than 28 days at a time.
14. Paragraph 6 applies to various sections of the MHA which allow a court to send an accused or convicted person to hospital. It provides that, in certain circumstances, courts can make such orders on the advice of one doctor rather than two.
Ed: the sections are:
s.36(1) (the power to remand a person to hospital for treatment)
s. 37(1) (the power to order detention in hospital or guardianship of a convicted person)
s.38(1) (the power to order interim detention of a convicted person in hospital pending a final hospital order or other disposal)
s 45A(3) (the power to direct that a person sentenced to imprisonment be detained in hospital instead of in prison)
s. 51(5) (the power to order the detention of a person in hospital in the absence of the person).
In each case the powers can be exercised if:
(a) The Court is satisfied that complying with the requirement applying to that provision for the evidence of two registered medical practitioners is impractical or would involve undesirable delay AND
(b) The court is satisfied on the evidence of a single registered medical practitioner of the matters of which it would have to be satisfied on the evidence of two practitioners.
15. Paragraph 7 modifies the conditions under which the Secretary of State may make a “transfer direction”, to move a serving prisoner or other type of detainee to hospital.
The Secretary of State for Justice may give directions under s. 47 (removal to hospital of persons serving sentences of imprisonment) or s.48 (removal of other prisoners- i.e. those prisoners who have not been sentenced) if the prisoner meets the relevant statutory criteria (paras (a) to (c)- mental disorder requiring detention for medical treatment in hospital which is available) including the SSJ being of the “opinion having regard to the public interest and all the circumstances that it is expedient to do so”.
Once again the usual requirement for reports from at least two registered medical practitioners is reduced to one if the SSJ “(a) is satisfied that complying with the requirement under that provision for reports from at least two registered medical practitioners is impractical or would involve unreasonable delay and (b) is satisfied of the matters mentioned in paragraphs (a) to (c) of that provision by a report from one registered medical practitioner, and any other conditions for the exercise of that power are met”
16. Paragraph 8 deals with the time limits imposed by the MHA for taking an accused or convicted person to hospital, following a decision to admit them. It allows for the person to be taken to hospital as soon as is practicable after the normal limit expires.
The provisions fall into two categories.
First, s 35(9), 40(1) and (3) and 45B(1)
Section 35 MHA concerns the remand to hospital by a criminal court for a report on an accused person’s mental condition. Under s. 35(4) as it stands, the Court needs to be satisfied that that arrangements have been made for the admission of the accused “within the period of seven days beginning with the date of remand” Under s. 35(9), the directions gives authority to the Constable conveying the accused and to the managers of the hospital receiving him. The period in s. 35(4) is extended from 7 days to “within that period or as soon as practicable after the end of that period”.
17. The extension given when an interim hospital order is made under s. 40(1) and (3) is from the present 28 days to “within that period or as soon as practicable after the end of that period”.
18. Section 45B relates to hospital and limitation directions. The time presently for the Constable to convey a person made subject to such a direction to hospital is 28 days. Under the CVB that too is will be for that period or “as soon as practicable after the end of that period”.
19. The second category concerns s. 47(2) which currently places a time limit on the transfer direction (i.e. the period during which the transfer to hospital can take place)
ADMINISTRATION OF MEDICATION WITHOUT CONSENT
20. Paragraph 9 changes procedures around the administration of medication to detained patients without their consent.
21. Section 58 of the MHA makes provisions for certain types of medical treatment that cannot be given to a patient unless they consent, or an independent clinician (or second opinion approved doctor- SOAD). If the patient consents, the SOAD must certify that consent has been properly given. This is a major safeguard for patients who may, otherwise, be treated without their consent.
22. Section 58(1)(b) which concerns the ability to provide treatment without consent to a detained patient beyond the three month period (during which it is lawful) requires a certificate from a SOAD (under s. 58(3)(b)). Under the amended version gives the “approved clinician in charge of treatment” the power to give the certificate under s. 58(1)(b) “if the clinician considers that complying with the requirement under that provision for the certificate to be given by a registered medical practitioner other than that clinician or the responsible clinician is impractical or would involve undesirable delay” (CV Bill Schedule 7 para 9(1).
23. When deciding whether grant such a certificate in normal circumstances, the registered medical practitioner (SOAD) has to consult two other persons concerned with the patients medical treatment- one a nurse, and the other neither a nurse, nor a registered medical practitioner. (the statutory consultees). This is a major safeguard for the rights of the patient.
24. However, under the CV Bill at para 9(1) “may give a certificate under s. 58(3)(b) having consulted only one other person, if the practitioner (or clinician) considers that complying with the requirement under s. 58(4) for consultation is impractical or would involve undesirable delay”.
25. Under para 9(3), however, the person consulted “(a) must have been professionally concerned with the patient’s medical treatment and (b) must not be a nurse, a registered medical practitioner the responsible clinician or the approved clinician in charge of the treatment in question”.
POLICE POWERS: PLACES OF SAFETY
26. Paragraph 10 extends the time for which a person can be kept in a “place of safety” by a police officer under sections 135 and 136 of the MHA.
27. These could be very important provisions if there is a breakdown in the social fabric, or if the community support presently provided to those with mental health issues in the community start to disintegrate.
28. Sections 135 and 136 are the powers whereby the police are able to use their powers to take mentally disordered persons to a place of safety. Section 135(1) concerns warrants to enter private premises to search and remove a person, where it appears to a justice of the peace “on information on oath laid by an approved mental health professional]” that a person “believed to be suffering with a mental disorder” “has been, or is being neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or (b) being unable to care for himself, is living alone in such a place”.
29. Section 136 provides the constable with a similar power, this time without a warrant where “a person appears to a constable to be suffering from mental disorder and to be immediate need of care or control”, remove the person to a place of safety, or if he is already in one, keep him there, or remove him to another such place.
30. There are, needless to say, time limits on the duration of these powers. The “permitted period of detention” at the present time is 24 hours (from the time of removal)- see ss 135(3ZA) and 136(2A) MHA. These are now extended under CV Bill Schedule 7, Para 10 to 36 hours.
TRANSITIONAL PROVISIONS
31. Paragraphs 11 to 13 contain transitional provisions.
32. Para 11 states (in a not straightforward way):
“Paragraph 4(2) or (3), 8(3) or 10 continues to apply after the end of a period for which it has effect for the purposes of determining the length of any period which has begun before the end of that period”.
33. What this seems to mean is that once the CV Bill’s jurisdiction ends, any time limits that started during the currency of the provision, continues in accordance with the CV Bill.
Paragraphs 12 and 13 are clearer in relation to the period.
DEPRIVATION OF LIBERTY UNDER THE MENTAL CAPACITY ACT?
34. There is no reference to the Mental Capacity Act 2005’s Schedule A1 provisions- universally known as the DOLS. Considering the enormous bureaucratic headache these have caused those involved in administering them, it is curious that the Government has not taken the opportunity to reduce the workload on front line staff by varying (or even suspending) the requirements.
35. It is not clear as yet the extent to which the current emergency will increase the amount of pressure on local authorities, NHS bodies, care homes and the Court of Protection. However, residents who are literally unable to see their family are likely to feel isolated (and with good reason) and are more likely to wish to leave the care home. Equally, Hospitals are already trying to discharge those who will fall into the MCA’s jurisdiction, many into care homes- thus prompting an increase in the use of DOLS.
CONCLUDING REMARKS
36. The effect of the CVB will be to reduce the safeguards for those who are the subject of coercive action under the Metal Health Act- whether through the civil or the criminal process. What has prompted these changes is an entirely justified concern about the effect the pandemic will have on the health service. The need to adjust is unquestionable. The CVB is likely to reduce the burden on the health service. That will come at a cost to patients. At the time of writing, the CVB is proposed to be in place for a tern of two years. There is controversy over this- usually emergency legislation (like the old Prevention of Terrorism Act) had “sunset” clauses- and required periodic renewal. That would seem appropriate here- and it is possible that the CVB will have either a shorter fixed term, or a requirement for periodic renewal.
37. Watch this space.
CORONAVIRUS: GUIDANCE FOR LAWYERS AND BUSINESSES 