COVID-19: difficulties for mental health practitioners and legislative change

As this is a fast moving topic, please note that this article is current as at 24/04/20. For further information, please contact Daniel Freeman and Matthew Angus.

Whilst measures are being taken to protect the public and the NHS against COVID-19, mental health practitioners face particularly difficult issues in responding to the challenges that COVID-19 presents. This is largely due to the administrative nature of the Mental Health Act 1983 (the MHA) and the risks that some patients can present to themselves, others and staff.

Changes to the MHA – when in force

On 25 March 2020 the Coronavirus Act 2020 (the Coronavirus Act) was enacted.

Schedule 8, Part 1 of the Coronavirus Act sets out a number of amendments to the MHA for England and Wales, which at the time of writing have not yet come into force (as per s.87 of the Coronavirus Act). However, when implemented the effect of the amendments will be, in summary:

• Only one medical recommendation (as opposed to two) will be required for applications for assessment or treatment.
• The time period for detention of existing inpatients under s.5(2) of the MHA will be extended from 72 to 120 hours (three to five days), and the ‘holding power’ under s.5(4) of the MHA will apply for 12 hours instead of six hours.
• Currently, under s.35 of the MHA, a person cannot be detained for the above purpose for longer than 12 weeks in all. The Coronavirus Act has removed this timescale.
• Court powers to remand an accused (s.36 of the MHA) and detain them as part of criminal proceedings (ss. 37,38,45A and 51 of the MHA) could potentially be exercised on the evidence of one medical practitioner.
• The deadline for a transfer direction ceasing to have effect under s.47(2) of the MHA will be increased from 14 to 28 days.
• A certificate for treatment without consent (s.58(3)(b) of the MHA) can potentially be provided more easily, subject to certain conditions.
• Sections 135(3ZA) and 136(2A) of the MHA (period of detention in a place of safety) and 136B of the MHA (extension of detention) will be amended so that any period of “24 hours” referred to in those sections is extended to “36 hours”, providing extra detention time at a place of safety.

Difficulties for mental health practitioners

However, these proposed changes do not sufficiently address some of the difficulties that mental health professionals are facing. What should practitioners do with, say, capacitous (a person deemed to have mental capacity for that particular decision) informal patients who wish to discharge themselves from the ward whilst infected, or ‘non-compliant’ capacitous patients on the ward who pose an infection risk to staff and other patients?

Save for common law powers to prevent a breach of the peace or temporarily restrain a dangerous patient, no direct statutory powers are given directly to health professionals. However, under Schedule 21 of the Coronavirus Act (which is in force now) they can call on a Public Health Officer (PHO) who can, in certain circumstances, give directions or instructions and impose requirements or restrictions on a person, regardless of their mental health condition or mental capacity.

If a PHO has “reasonable grounds to suspect a person is potentially infectious” they can direct a person (and ask the police to assist) in removing them for up to 48 hours (or longer in some cases) to a place suitable for screening and assessment. This is not defined, and could conceivably include a different part of the hospital ward.

Police officers have the same powers to direct or remove someone to a suitable place for screening. So, if someone is about to discharge themselves (or has discharged themselves) and a PHO is not available, the police could assist if asked and take someone for screening and assessment until a PHO can assess. A police officer must consult a PHO in exercising these powers, if practicable.

Powers - after assessment and screening

Following assessment and screening, a PHO may “impose such requirements and restrictions on the person as the officer considers necessary and proportionate in the interests of the person, for the protection of other people, or for the maintenance of public health”.

As defined, “requirements” could include remaining at a specified place for a specified period, or remaining in isolation, and this could be up to 14 days (or longer in certain cases). Restrictions “may include” restrictions on a person’s activities (including their work or business activities) or their contact with other persons, or with other specified persons.

An individual who fails to comply with requirements and restrictions, risks a criminal conviction, and the police have powers to return those who abscond.

The powers apply to children too, but an individual who has responsibility for a child must, so far as reasonably practicable, ensure that the child complies with any direction, instruction, requirement or restriction given to or imposed.

Practical issues

On a practical level, getting hold of a PHO may be difficult as it is not clear exactly how this is done and a call to Public Health England is advised in the first instance.

However, where medical practitioners consider there is an immediate risk to staff or others, then calling the police and asking them to assist may be a more appropriate course of action.

The current unprecedented situation is resulting in a number of practical issues and many of these are not yet dealt with by legislation. However, a common sense approach, by the police, the healthcare service, and the public as a whole will assist in supporting the containment of COVID-19.

Read others items in Healthcare Brief: COVID-19 edition - April 2020