Coronavirus: Use of the Mental Health Act

How will professionals use the Mental Health Act during the coronavirus crisis?

Because of the coronavirus crisis, professionals might have to change the way they use the Mental Health Act. The Department of Health and Social Care (DHSC) have provided new guidance to professionals on some aspects of the Mental Health Act. During the coronavirus crisis professionals must follow this guidance. The guidance is in addition to the guidance in the Mental Health Act Code of Practice.

When professionals use the Mental Health Act they must stick to the guidance and principles in the Code of Practice. This is to keep you safe, and to treat you fairly and with respect. You can read the Code of Practice, or an easy read version, by clicking here. 

The new DHSC guidance is in addition to the Code of Practice, and only affects a few small parts of it.

Because of the coronavirus crisis, the government have also made some temporary changes to the Mental Health Act. But at the moment, it is unlikely these changes will need to be used. So, professionals should be using the Mental Health Act in the normal way, other than the guidance below. But the temporary changes to the Act could be used in the future, if things get worse because of the coronavirus crisis.

Below we explain:

• How the new DHSC guidance might affect you, and
• Temporary changes to the Mental Health Act that professionals might use in the future, during the coronavirus crisis.

How does the DHSC guidance affect me?

The new Department of Health and Social Care (DHSC) guidance covers the following things:

• The use video technology as part of Mental Health Act assessments
• The use of Section 136 of the Mental Health Act
• The Hospital Managers panel
• Mental Health Tribunals
• Leave and visiting
• The provision of Independent Mental Health Advocates (IMHA)

We will soon publish more in-depth details on how the guidance could affect you in relation to the above things. But we’ve explained the guidance in brief below.

Can video be used for Mental Health Act assessments?

You might be assessed under the Mental Health Act to see if you need to be detained in hospital, to keep you or others safe.

Professionals can use video calls as part of Mental Health Act assessments if:

• It is safe and appropriate to do so,
• there is a high risk that you or the professionals might pass on coronavirus,
• there is a high risk to you or others if the assessment is delayed, and
• the minimum quality standards and safeguards are met. These are to ensure you have a meaningful and high-quality assessment in a safe environment. We will explain more about these in the detailed guidance we’ll publish soon.

Video can be used if professionals find it difficult to do face-to-face assessments because of coronavirus.

Professionals should ask you to agree to a video assessment. But they can use video in an assessment without your agreement if they think it’s necessary.

Video assessments should not be used if it will cause you too much distress.

There are extra things for professionals to consider if you:

• are under 18
• have a learning disability or autism, or
• are an older adult or have dementia.

How does the guidance on section 136 assessments affect me?

You might be a risk to yourself or others in a public place because of a mental health issue. The police have powers under section 136 of the Mental Health Act to take you to a place of safety. This is so you can be assessed to see if you need to be detained in hospital under the Act. A place of safety is usually in a hospital.

When you are in a place of safety, professionals can talk to you or each other by video link, if necessary.

Professionals might think you need to be detained under the Mental Health Act. An Approved Mental Health Professional (AMHP) and a doctor should see you face-to-face if possible.

How does the guidance on the hospital managers’ panel affect me?

If you are on an assessment or treatment section, the hospital managers’ panel will review your detention if you ask them to. They also have to review your detention in some other circumstances.

The hospital managers’ panel should try to meet you face-to-face during the coronavirus crisis. But video or phone contact can be used as part of a hospital managers’ panel review if necessary.

If the hospital manager’s panel find it too difficult to hold reviews, they can suspend them during the coronavirus crisis. If your review is suspended it should take priority when the crisis is over.

How does the guidance on Mental Health Tribunal hearings affect me?

If you are on an assessment or treatment section of the Mental Health Act, you have the right to apply to the Mental Health Tribunal. This includes if you are on a community treatment order (CTO). The tribunal can decide if you still need to be detained, or remain on your CTO, and other things.

Temporary legislation and directions from the Tribunal Service have changed the rules about Mental Health Tribunals. The rule changes are temporary while the coronavirus pandemic lasts.

The main changes are shown below.

Staff should continue to make sure you know about your right to apply to the tribunal.

If your solicitor can’t see you face-to-face, you should be supported to speak to them by phone or video.

What are the changes to when a tribunal must take place for section 2 patients?

If you are detained under section 2 of the Mental Health Act, you have the right to appeal to a Mental Health Tribunal. They can review your case.

Usually, the tribunal must take place within 7 days of your application. Emergency legislation says the tribunal must take place with 10 days. If the tribunal can’t take place within 10 days, the tribunal can decide to extend this time period.

What are paper tribunals?

The tribunal can decide to have a paper only tribunal.

A paper tribunal means that the tribunal will make a decision on the paper evidence that they have. This means you won’t be able to speak to the tribunal. But you can give them written evidence. Or your legal representative can.

The tribunal can only decide to have a paper tribunal if:

• The decision is needed urgently, and
• It isn’t reasonably practical to hold a hearing.

Can people join in hearings by video or phone?

Tribunals will make greater use of people joining in by video or phone. This will help to make things safe by cutting down on people meeting face-to-face.

What are the changes to the tribunal panel?

Usually the tribunal is heard by 3 panel members. They are a legal member, a doctor and a lay member. But now tribunals can be heard by a single legal member only. They can make decisions alone.

If this is considered to not be appropriate for your case, a 2 or 3-person panel can hear the case and make decisions.

Will there be any Pre-Hearing Assessments?

Sometimes an appropriate member of the tribunal must examine you to form an opinion of your mental condition. This is known as a ‘Pre-Hearing Assessment (PHE)’.

No PHE’s will take place during the coronavirus pandemic, due to the health risks they pose.

What about patients on Community Treatment Orders (CTO) or who are conditionally discharged?

You might be a Mental Health Act patient who is living in the community:

• on a Community Treatment Order, or
• on a conditional discharge from a criminal section.

If it has already been agreed that you will have a paper tribunal, this will go ahead as planned.

If a paper tribunal hasn’t been agreed, your tribunal is postponed until after the coronavirus crisis has ended.

How does the guidance on leave and visitors affect me?

Under the Mental Health Act, you usually have the right to:

• see visitors, and
• go on leave, if your Responsible Clinician agrees to it.

Leave is when you can leave the hospital for a short time but only if you agree to go back. It is sometimes known as ‘Section 17 leave.’ There are different types of leave.

Although you have a right to see visitors, professionals can stop you seeing visitors if there’s a good reason.

The Department of Health and Social Care (DHSC) are concerned that many hospitals have stopped visiting and leave during the coronavirus. This is to stop the spread of the virus.

What about leave?

DHSC say your Responsible Clinician should agree to you having leave if appropriate and possible. This is especially the case if you have autism or a learning disability, so your routine is kept the same.

Your Responsible Clinician should think about how well you understand public health measures, like social distancing. If your Responsible Clinician thinks community leave isn’t appropriate, they should at least think about giving you leave in the grounds of the hospital. They might only agree to leave if you have another person with you. This might be a relative or member of hospital staff.

What about visiting?

If possible, you should be allowed one visitor, especially if you are a child or you have a learning disability, autism or dementia. You and your visitor must stick to non-contact rules.

The hospital shouldn’t have blanket visiting bans. But they should think about whether you can have a visitor based on your individual situation.

You should be supported to maintain contact with family and friends by phone and video calls. You should be allowed access to mobile phones or other equipment to be able to do this.

Can I still speak to an Independent Mental Health Advocate (IMHA)?

You should still be able to speak to an Independent Mental Health Advocate (IMHA) by phone or video call. Hospital staff should:

• help you arrange this,
• support you to do this, and
• give you access to your mobile phone or other equipment to allow you to do this.

It might be difficult for you to speak to an IMHA by phone or video call. Staff should arrange for you to see an IMHA face-to-face, if possible.

Temporary changes to the Mental Health Act

Why have the government made temporary changes to the Mental Health Act possible?

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. Emergency legislation has been introduced to Parliament which includes temporary measures to change the Mental Health Act. 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.

The changes don’t apply at the moment. But they may be activated in the future if they are needed during the coronavirus crisis.

Are these changes part of the recent review of the Mental Health Act?

No. These are temporary measures and are separate to the ongoing review of the Mental Health Act. These changes will not happen straight away. They will only happen if staff numbers are significantly reduced.

Rethink Mental Illness will be carefully monitoring the rights and conditions of people detained under the Act. And we will continue to press for reform of the Act once the emergency measures are no longer required.

What are the changes being made?

There are number of changes being made. We have put details of these below.

What are the changes to the number of doctors required to detain you under the Mental Health Act for assessment and treatment?

Usually 3 people have to agree that you need to be detained. These are normally an approved mental health professional (AMHP) and 2 doctors. Under the new legislation the number of doctors is reduced to 1.

The AMHP has to record the reason why the decision to detain you was made on the recommendation of only 1 doctor. And they should only take this decision if they believe that staff shortages caused by coronavirus mean it would take too long for a second doctor to assess you.

What are the changes to how long you can be remanded to hospital for?

If you are accused of a crime, the court may think that your mental health was a factor in your offence. Under Section 35 and 36 of the Act, the court can send you to hospital for your mental health condition to be assessed.

Normally you can be sent to hospital for no more than 28 days. If your doctor thinks you need to be in hospital longer, they can tell the court. And the court can extend the section for further 28-day periods, up to 12 weeks at the most.

Under the emergency measures there would be no 12-week upper limit. This means that you can be kept in hospital, under a section 36 or 37, for longer than 12 weeks.

What are the changes to court orders for the detention of accused or convicted persons in hospital?

If you are accused or convicted of a crime, the court may feel that you need to be detained in hospital. Normally 2 doctors have to assess you and agree that you are so unwell that you need to be in hospital.

Under changes to court orders Section 36, 37, 38, 45A, and 51 of the new legislation, you can be sent to hospital if 1 doctor says that you are unwell. But the court has to agree that this is necessary because of the circumstances.

What are the changes to emergency detention of voluntary patients already in hospital?

Under the Mental Health Act, in emergencies professionals have the power to detain you if you are a voluntary patient. This is to stop you leaving hospital if a professionals think that you are a risk to yourself or others.

Under these powers you can only be held for a short time:

• Under section 5 (2) of the Act a doctor can agree to hold you for up to 72 hours, and
• Under section 5 (4) of the Act a nurse can agree to hold you for up to 6 hours.

You can only be held after this time if a full Mental Health Act assessment is done, and professionals agree to further detain you. This will usually be under sections 2 and 3 of the Mental Health Act.

The emergency legislation will extend these powers, so you can be held for an increased time. This is because it might take professionals longer to assess patients who are held on these temporary sections.

The extended timeframes are:

• Under section 5 (2) – you can be held up to 120 hours, and
• Under section 5 (4) – you can be held up to 12 hours.

What are the changes to the transfer of prisoners to hospital?

Under the Mental Health Act if you are a prisoner you can be transferred to hospital. This happens if 2 doctors think this is the best thing for you, because of the nature of your mental disorder. The Secretary of State for Justice must consent to the transfer.

This power is under section 47 of the Mental Health Act.

The emergency legislation says that only 1 doctor needs to recommend the transfer of you from prison to hospital. But the Secretary of State for Justice must still consent to the transfer.

What are the changes to continuation of treatment?

Under some sections of the Act, your doctor can only continue to authorise your treatment without your consent if a SOAD agrees. SOAD means ‘second opinion approved doctor’.

For example, under section 3 of the Act you can be treated against your will for 3 months. After 3 months, your doctor can only authorise treatment for you without your consent if a SOAD agrees.

Under the change, your doctor will no longer need a SOAD to agree before continuing to authorise treatment that you don’t consent to.

What are the changes to police holding powers?

You might be in the community or your own home. Police might be concerned about the safety of you or others and that you have a mental disorder.

They have powers under the Act to hold you in a place of safety. Depending on your circumstances, this could be a hospital, your home, the home of another or a police station.

The police have these powers under sections 135 and 136 of the Mental Health Act.

You can usually be held for an initial period of up to 24 hours. Which can be extended for a maximum of another 12 hours. The patient can only be held after that time if a full Mental Health Act assessment is done. And professionals agree to further detain the patient. This will usually be under sections 2 and 3 of the Mental Health Act.

The change means that you can be held for an initial period of up to 36 hours. This can be extended for a maximum of another 12 hours.

Section 117 After-care

There is no change to entitlement to free Section 117 after-care. You can get more information about ‘Section 117 after-care’ by clicking here.

This page will be updated as more information becomes available. Last updated 21.05.20

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