What has happened?
Temporary changes have been made to the UK Mental Health Act (MHA) 1983 due to the coronavirus outbreak, the Coronavirus Act 2020 is a new UK law to help under staffed mental health services cope during times of crisis.[1] Although currently, the changes don’t apply, they are available to be used if the situation demands so.
What does it mean?
The new law has changed the rights people are entitled to regarding both social care and sectioning. The changes will only apply if the local-authority or service is so short-staffed due to the coronavirus they cannot properly follow the usual system. These legal changes will only apply for a certain period of time known as the ‘emergency period’.[2]
The changes to social care mean that local authorities can prioritise certain parts of their adult care services if there is a shortage of staff as a result of the pandemic. This is to ensure that the most urgent and serious care needs are still met during the peak of the coronavirus outbreak.[3] Although this would mean the most urgent cases were seen to, it could result in not everyone’s assessed care needs being met and subsequent delays in assessments could mean the needs of some urgent patients may be overlooked. It could also result in people from ‘non-essential’ areas being deployed to work in other parts of the NHS, potentially making it more difficult for areas that were already suffering from staff shortages.
Many countries have established strict procedures with regard to mental health patients to ensure the patients’ rights are protected. However, with the new law in place, this could be under threat. Two professionals are usually required to do MHA Assessments to ensure that the least restrictive option possible is used. These assessments determine if a patient is discharged, placed under a section, or admitted informally. However, under the Coronavirus Act, these could be implemented with just one doctor’s opinion.[4] This would mean that there are fewer procedures in place to ensure that the patients get the best possible treatment.
Another amendment to the MHA means that the amount of time a patient can be detained by health professionals and the police has been significantly increased.[5] Whilst detained patients are often placed into A Place of Safety under Sections 135 and 136 of the MHA,[6] these can be small rooms or areas that don’t allow for proper social distancing.
It took 6 days for the Coronavirus Act to be passed from its first reading (and became law on the 25 March 2020), an extremely short time compared to the usual approximate time of 1 year. It has been nearly 50 years since the British government has used the Emergency Powers Act 1920 to accelerate the law-making process.[7] This demonstrates how in times of crisis the government can quickly act to make and enforce new laws, although legislation will expire in 2 years and is subject to a 6-month parliamentary review.[8]
A patient who is on an assessment or treatment section of the Mental Health Act has the right to apply to the tribunal. Some temporary changes have been made regarding the rules about mental health tribunals. The changes will only apply while the coronavirus pandemic lasts. One of the main changes is that tribunals can now be held by video or phone, this could produce some difficulties as it may be more stressful for the patient. Another key change is the use of paper tribunals where the tribunal will make a decision based on documented evidence. This means that the patient or their legal representative will not be able to speak at the tribunal, but they can give written evidence.[9]
Written by Isabella Hunter
Assessing firms:
#PinsentMasons #Shoosmiths #OsborneClarke #TrowersandHamlins #DuncanLewis #HillDickinson #IrwinMitchell #GTStewartSolicitorsandAdvocates #SouthernsSolicitors #BisonSolicitors #ABRSolicitors
References:
[1] Mind, ‘Coronavirus and your rights’ (2020) <https://www.mind.org.uk/information-support/legal-rights/coronavirus-and-your-rights/>
[2] Ibid
[3] Gov.uk, ‘What the Coronavirus Bill will do’ (2020) <https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do#easing-the-burden-on-frontline-staff-both-within-the-nhs-and-beyond>
[4] Ibid
[5] Nursing Times, ‘What does the Coronavirus Act 2020 mean for mental health nursing?’ (2020) <https://www.nursingtimes.net/roles/mental-health-nurses/what-does-the-coronavirus-act-2020-mean-for-mental-health-nursing-24-04-2020/>
[6] NHS, ‘Mental Health Act’ (2019) < https://www.nhs.uk/using-the-nhs/nhs-services/mental-health-services/mental-health-act/>
[7] Towers and Hamlins, ‘The Coronavirus Act 2020 – what does it mean for your business?’ (2020) < https://www.trowers.com/insights/2020/april/the-coronavirus-act-2020--what-does-it-mean-for-your-business>
[8] Mark Ferguson, ‘The UK Coronavirus Act’, Pinsent Masons (2020) < https://www.pinsentmasons.com/out-law/analysis/the-uk-coronavirus-act>
[9] Rethink Mental Illness, ‘Guidance on changes to the Mental Health Act’ < https://www.rethink.org/advice-and-information/covid-19-support/nhs-guidance-on-temporary-changes-to-the-mental-health-act-due-to-coronavirus/>
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.