Coronavirus and the Mental Health Act 1983 AswiniWeereratne QC - - PowerPoint PPT Presentation

Coronavirus and the Mental Health Act 1983

@DoughtyStreet/@DoughtyStPublic

AswiniWeereratne QC

@AswiniQC a.weereratne@doughtystreet.co.uk

Sophy Miles

@sophymiles1 s.miles@doughtystreet.co.uk

Today’s presentation

• 1. The Aim
• 2. Temporary changes to the

MHA by schedule 8 Coronavirus Act 2020 (CvA)

• 3. Key changes

– 1 medical recommendation not 2 – No second opinions under s 58 – Extended time periods – MH Tribunal issues

• 4. Convention issues

5.Managing psychiatric detention and COVID:

– ‘Lockdown’ regulations and schedule 21 of CvA – Isolation and segregation – Section 17 MHA leave – Discharge planning – Tribunal representation

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THE AIM

• De-stress health and care workers on the frontline under the MHA

https://www.who.int/docs/default-source/coronaviruse/mental-health-considerations.pdf https://www.england.nhs.uk/2020/04/nhs-launches-mental-health-hotline-for-staff-tackling- covid-19/

• De-stress lawyers battling with ever increasing legislation and

guidance

• Examine any legal implications of the new provisions
• Provide a practical understanding of the new terrain

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CvA 2020 Schedule 8-applications for admission

• Context- to free up clinical staff. NOT yet in force.
• Applications for admission under sections 2 and 3 can be

made on the basis of one medical recommendation- para 3.

• Must be registered medical practitioner (RMP) who is

approved under section 12 MHA- para 3(7)

• Need not have previous acquaintance with patient.
• AMHP to decide whether waiting for 2 practitioners is

“impractical or would cause undesirable delay”-para 3(1)

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CvA 2020, Schedule 8- patients in hospital

• Patients already in hospital can be detained under section 5(2)
• n authority of any RMP or approved clinician (AC)-para 4 (1)
• Currently limited to RMP or AC “in charge” of patient’s

treatment

• Detention under section 5(2) extended from 72 to 120 hours-

para 4(2)

• Detention under section 5(4) (by a nurse registered in mental

health or LD nursing)- extended from 6-12 hours- para 4(3).

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CvA Schedule 8- patients in the criminal justice system

• Para 5: No time limit on remands to hospital under section 35(7) (remand for report), or for section

36 (remand for treatment).

• Para 6: Evidence from a single medical practitioner will now be sufficient for the following powers:
• (a) section 36(1) (power to remand accused person to hospital for treatment);
• (b) section 37(1) (power to order detention in hospital, or guardianship, of convicted person);
• (c) section 38(1) (power to order interim detention of convicted person in hospital pending final

hospital order or other disposal);

• (d) section 45A(3) (power to direct that a person sentenced to imprisonment be detained in hospital

instead of prison). The practitioner must still give oral evidence (para 5(3));

• (e) section 51(5) (power to order detention of a person in hospital in the absence of the person).
• Para 7 permits the Secretary of State to transfer a patient from prison under sections 47 or 48 on

the report of one practitioner if satisfied that 2 reports are impractical or would cause undesirable delay.

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CvA Schedule 8- patients in the criminal justice system

• Para 8: modifies the time limits on the conveyance or admission to hospital of patients in

the CJS

• Must be admitted “as soon as reasonably practicable after the end of that period”, and no

later than seven days after the expiry of the current time limit (para 13(2)).

• (a) section 35(9) (including as applied by section 36(8)) (remand in hospital) - currently 7

days

• (b) section 40(1) and (3) (effect of hospital orders and interim hospital orders) - currently

28 days

• (c) section 45B(1) (effect of hospital directions and limitation directions) - currently 28

days.

• Section 47(2) (period within which person subject to transfer direction must be received

into hospital) has effect as if for “14 days” there were substituted “28 days”.

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CvA Schedule 8- Consent to treatment

• Para 9(1) removes the requirement for a certificate to be

given by a “second opinion appointed doctor” (SOAD) to be

• btained in order to administer medication without consent

after 3 months, under section 58.

• Responsible clinician or approved clinician may give the

certificate, but must consult with one other person who must have been concerned with person’s medical treatment, but who must not be a nurse or doctor.

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CvA Schedule 8 Consent to Treatment

• CQC receives c 16,000 requests for SOAD opinions every year, and

changed treatment plans in 29% of their visits (“Monitoring The Mental Health Act 2018/19”

• Independent Review of the Mental Health Act “Not being able to

make choices about your own treatment is one of the issues raised most often by people who have been detained”.

• Recommended making it harder for clinicians to administer

treatment without consent, and proposed an appeal process against treatment decisions.

• SOADs currently reviewing summary of issues rather than notes

and carrying out interviews remotely.

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CvA Schedule 8- Emergency powers

• Para 10 extends the duration of detention in a “place of

safety” under sections 135 or 136 to 36 hours (increased from the current limit of 24 hours).

• Not reverted to 72 hours, as had been for many years before

the Policing and Crime Act 2017.

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CvA Schedule 8- MHRT for Wales

• Para 11 allows the President to decide that the MHRTW could

consist of either one of the legal members or one of the legal members and one of the non-legal members, rather than the usual three members.

• Will always be legal member, but there may also be one non-

legal member as well.

• Criteria that it would be “impractical or would involve

undesirable delay” for the Tribunal to sit with three members.

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CvA Schedule 8- MHRT for Wales

• Para 12 allows MHRTW to determine an application or reference without

a hearing if

• (a) holding a hearing is impractical or would involve undesirable delay,
• (b) having regard to the nature of the issues raised in the case, sufficient

evidence is available to enable it to come to a decision without a hearing; and

• (c) to dispense with a hearing would not be detrimental to the health of

the patient.

• MHRTW must give parties notice of provisional decision and can reverse
• n receiving representations

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RCN: Covid-19 Mental Health Position Paper

• Recommended that Government review Schedule 8 with Chair

and Members of the Independent Review of the MHA 3 months after the brought into force

• Increased periods of detention will impact already
• verstretched workforce- recommended measures to support

mental health staff

• Suggests extending AMHP role to registered MH nurses
• Express concern about burden on informal carers if there are

redeployments

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NHS England and NHS Improvement: Legal Guidance

• Can be found at https://www.england.nhs.uk/coronavirus/wp-

content/uploads/sites/52/2020/03/C0072-MHLDA-Covid-19- Guidance-Legal-300320.pdf

• Wherever possible we must continue to guard against overly

restrictive practices

• Even if Schedule 8 enacted should only be used locally when

“absolutely necessary”

• “Under no circumstances” should MHA be used to enforce

restriction, treatment or isolation not related to mental health.

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The First Tier Tribunal (Mental Health)

• Pilot Practice Direction issued on 19 March 2020- 6 months:
• Amends composition so that judge sitting alone makes all

decisions,

• Full panel if CP, DCP or authorised STJ considers if appropriate,
• Judges may “seek advice” from wing members which must be

recorded and disclosed,

• CTO references can be dealt with on the papers by agreement,
• No pre-hearing examinations during pandemic.

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Guidance from the Chamber President and HESC DCP- 19 March 2020

• Prioritising section 2 and recall hearings for those on

conditional discharges

• Intention to conduct all hearings by telephone (now using

secure video facility)

• If the patient is unrepresented that they are given an
• pportunity to speak to the Judge without other people in the

room.

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The First Tier Tribunal (Mental Health)

• “Help for Users” document explains judge will hear case alone

by telephone or video

• “Unfortunately, we are not able to hear cases for community

patients on a CTO or those who have already been conditionally discharged, because of the difficulties we have in

• rganising hearings where everyone can participate. These

cases will be put off until we can hear them unless you or your representative make an application to the Tribunal to explain why your case must go ahead.”

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Upper Tribunal

• Pilot

PD https://www.judiciary.uk/wp- content/uploads/2020/03/General-Pilot-Practice-Direction- Final-For-Publication-CORRECTED-23032020.pdf

• UT will usually make decisions on the papers where rules

allow

• UT will provisionally decide to deal on papers and invite

parties’ views

• Hearings will take place remotely.

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Upper Tribunal

• Guidance

for Users issued 16 April 2020 https://www.judiciary.uk/wp- content/uploads/2020/04/UTAAC-Guidance-for-Users-in- England-and-Wales-16-04-2020_.pdf

• Arrangements “in hand” for processing applications
• “May be necessary” to prioritise cases related to welfare

benefits or other important rights (likely to include MHA cases).

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Convention issues

• A. Medical recommendation for admission
• B. No SOAD. Self certification by approved clinician under s 58

MHA

• C. Tribunal constitution
• D. Extended periods

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Medical recommendation: Winterwerp v Netherlands (1979-80) 2 EHRR 387

• A5(1)(e): ‘the lawful detention of persons of unsound mind’
• 3 minimum conditions a) reliably shown to be of unsound mind,

b) mental disorder of a kind or degree warranting compulsory confinement, c)continued detention depends on the persistence

• f such a disorder [39]
• Lawful detention must still conform with procedural and

substantive rules including those prescribed by law so as not to be arbitrary

• No one may be confined as a person of unsound mind in the

absence of a ‘true mental disorder’ of a ‘kind or degree etc’ established by ‘objective medical expertise’ [39]

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Medical recommendation: domestic case law

• CA adopted the Winterwerp formulation in relation to admission and continued detention:

“the test is whether it can be ”reliably shown” that the patient suffers from a mental disorder sufficiently serious to warrant detention.” (R(H) v NE London MHT [2002] QB 1 at [29]

• No requirement for more than one medical recommendation. Criteria and other

admission/discharge safeguards are unchanged. NB:

• Grounds for detention must still be properly considered. Reasoning must link detention

with the mental disorder: St George’s Healthcare NHS Trust v S [1998] 3 All ER 673; AM v SLAM [2013] UKUT 365

• Applies also to someone with mental disorder who is resisting social distancing or

screening for COVID 19. Detention and treatment cannot be under the MHA unless the refusal to consent is a “clear” manifestation of the mental disorder and it could be treated under section 63 of the MHA: A Healthcare B NHS Trust v CC [2020] EWHC 574 (Fam)

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No SOAD: section 58 MHA

• Unamended provision was criticised in 1998 by the Committee on the Prevention of Torture (CPT)
• Every competent patient must be given the opportunity to refuse treatment
• No right to challenge before impartial tribunal: R(Wilkinson) v RMO Broadmoor [2002] 1 WLR 419 at [34]. JR is

safeguard.

• Standard of proof is ‘medical necessity convincingly shown’: Hercgefalvy v Austria (1992) EHRR 437; R(N) v Dr M

[2002] EWCA civ 1789; R(PS) v G [2003] EWHC 2336.

• A3 is violated if treatment reaches minimum threshold ie actual physical injury or intense physical

and mental injury: Pretty v UK

• MHA Review (December 2018) recommended greater safeguards for compulsory treatment,

including through judicial decisions for ECT and with a focus on the wishes and preferences of the patient.

• This leaves the amendment to s 58 in schedule 8 on shaky grounds even in times of a pandemic.
• A3 carries a positive protective and investigatory duty to protect from harm: Re E (A Child) [2009] 1 AC 537

at [7]; E v UK (2003) 36 EHRR 31 at [99]

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Tribunal constitution: A5(4) requires a ‘court’

• Independent of the executive and the parties to the case
• Procedure of a judicial character
• Fundamental procedural guarantees to the individual in view of detention
• Access, opportunity to be heard in person or through a representative
• Review must be wide enough to bear on conditions which are ‘essential’ for the

‘lawful’ detention under A5(1)(e): E v Norway

• Winterwerp, above at [56-60]
• Court must be able to decide lawfulness and order release: Ireland v UK and

many others, cited in Stanev v Bulgaria at [168-171].

• Paper hearings
• Postponement of contested CTO hearings: R(KB) v MHRT [2003] MHLR 1; PJ v

Welsh Ministers [2018] UKSC 66

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Extended time periods

• Civil sections: modest increases
• Criminal justice sections: regular reviews

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Psychiatric detention and COVID 19

• 49,988 new detentions in 2018-19
• Rates decline with age except after age 65

https://digital.nhs.uk/data-and-information/publications/statistical/mental-health-act-statistics-annual-figures/2018-19-annual- figures

• CQC reported 247 deaths of detained patients in 2017/2018
• Global attention is focused on those with COVID 19 and frontline responders
• Marginalised populations are overlooked
• Ignorance of the differential impact on people with mental disorder will hinder

aims to prevent further spread of COVID, and augment existing health inequalities: The Lancet 2/4/20

https://www.thelancet.com/action/showPdf?pii=S2215-0366%2820%2930090-0

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Psychiatric detention and COVID 19: risks

• Mental disorder can increase the risk of infections, including

pneumonia

• Reduced awareness of risk/diminished efforts at personal

protection

• Confined conditions on psychiatric wards
• Barriers to timely access to health services due to

discrimination

• Co morbidities with COVID make treatment more challenging

and potentially less effective

• Parallel epidemic of fear, anxiety and depression. Relapse.
• Inability to attend OP appointments due to travel restrictions.

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Psychiatric detention and COVID 19: risks (2)

• Michelle Bachelet, UN High Commissioner for Human Rights

(25 March): – Coronavirus “risks rampaging through such institutions’ extremely vulnerable populations – “Governments should address the situation of detained people in their crisis planning to protect detainees, staff, visitors and of course wider society”.

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COVID restrictions - emergency legislation

• Lockdown/social distancing regulations:

– Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (No. 350)(26/3/20) – Health Protection (Coronavirus, Restrictions) (England) (Amendment) Regulations 2020 (no. 447)(21/4/20)

• Screening/assessment/isolation by PHOs

– Schedule 21 of the CvA 2020: applies to potentially infectious or infected persons (25/3/20)

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RCP and RCN guidance

• Ward communities
• Visitor guidance
• Infection control
• Routine mental health care
• Community mental health settings and hierarchy of need:

decision-making tool

• Managing capacity and demand
• Medication
• Policies

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Isolation, seclusion and segregation

• NAPICU (National Association of Psychiatric Intensive Care and

Low Secure Units) guidance (10 April)

• Challenging patients with infection risk to others, or in a high

risk group, or in ward in lockdown or self isolating

• Local ethics committees to consider restrictive interventions

for managing infection, including restrictions on leave

• Sets out framework to be read with chapter 26 MHA Code of

Practice (2015) and to be updated as experience is gained

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MHA Code of Practice (2015) chapter 26

• Guidance to professionals on safe and therapeutic responses

to disturbed behaviour of all those receiving treatment for mental disorder in a hospital

• Includes restraint, seclusion and long-term segregation
• Primary, second and tertiary (positive behaviour support)

interventions and individual plans

• Provider policies to guide services: minimising intervention,

procedures for authorisation, review and discontinuing, involving family and advocates

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NAPICU guidance on primary, secondary and tertiary interventions and COVID risks

• Primary: pre infection measures. Well-being. Admission checks eg

temperature, discussion and information sharing, s 17 leave balance risks, capacity assessments

• Secondary: Method for identifying and managing CV risks, to self
• r others and if infection is confirmed, specific plan depending on

challenging behaviour profile and cooperation of patient. Isolation and adherence to principles of chapter 26

• Tertiary: disturbed behaviour and infected. Segregation.
• Use of sched 21 powers and MHA COP
• Policies

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Secondary interventions

• If isolation is for risk infection only and patient is cooperative

then MHA COP may not apply but every effort to apply the principles: planned interventions, evidence based, lawful, in patient’s interests proportionate and dignified

• Isolation: plan with cooperation, reducing physical

intervention

• Schedule 21 powers
• If in doubt: ethics committee

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Tertiary interventions

• Positive for COVID 19, acute behavioural disturbance, increased

risk to others of infection

• Apply safeguards in MHA COP chapter 26
• Extended segregation
• Avoid segregation if possible and only where close physical contact

is the only alternative: extended holds.

• Medication
• PPE
• Ethics committee

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Section 17 leave

• Balance risks and benefits in line with national guidance eg

searches and hygiene procedures on return from leave

• Consider individual patient’s recovery
• Maintain leave if possible or communicate changes early to patient

with process for review

• Must comply with social distancing
• Limit duration and locality
• Risks: absconding, risk of infection
• Ethics committee

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Section 17 leave (2)

Hiller v Austria (app no 1967/14), 22/2/17 at [54] “today’s paradigm in mental health care is to give persons with mental disabilities the greatest possible personal freedom in order to facilitate their re-integration into society. The Court considers that from a Convention point

• f view, it is not only permissible to grant hospitalised persons the maximum

freedom of movement but also desirable in order to preserve as much as possible their dignity and their right to self- determination. It also follows from the case-law on Article 5 of the Convention that a deprivation of liberty must be lifted immediately if the circumstances necessitating it cease to exist or change [...] or must be scaled down to the extent which is absolutely necessary under the given circumstances “

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Ethical considerations for psychiatrists

“Principles to be borne in mind in resolving particular ethical dilemmas include fairness and distributive justice, equity, respect for autonomy, necessity, proportionality and reciprocity, and beneficence and non-maleficence, whilst continuing to promote empowerment, autonomy and recovery. All approaches need to remain consistent with human rights – the Universal Declaration of Human Rights and the Convention on Rights of Persons with Disabilities.”

https://www.rcpsych.ac.uk/about-us/responding-to-covid-19/responding-to- covid-19-guidance-for-clinicians/covid-19-ethical-considerations https://www.bma.org.uk/advice-and-support/covid-19/ethics/covid-19-ethical- issues

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Basic action points

• Is the patient in isolation or segregation for infection control
• r behaviour disturbance or both?
• Are they cooperating?
• Has section 17 leave been reduced?
• What are the written policies?
• Has there been reference to the ethics committee?
• Refer to the MHA Code of Practice

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Resources

• https://www.rcpsych.ac.uk/about-us/responding-to-covid-19/responding-to-covid-19-

guidance-for-clinicians/community-and-inpatient-services/inpatient-services

• https://www.rcpsych.ac.uk/about-us/responding-to-covid-19/responding-to-covid-19-

guidance-for-clinicians/community-and-inpatient-services

• https://www.england.nhs.uk/coronavirus/publication/guidance-managing-capacity-and-

demand-within-inpatient-and-community-mental-health-learning-disabilities-and-autism- services-for-all-ages/

• https://www.england.nhs.uk/coronavirus/wp-

content/uploads/sites/52/2020/03/C0031_Specialty-guide_LD-and-coronavirus-v1_-24- March.pdf

• https://www.rcpsych.ac.uk/about-us/responding-to-covid-19/responding-to-covid-19-

guidance-for-clinicians/community-and-inpatient-services/providing-medication

• https://www.rcn.org.uk/clinical-topics/mental-health/covid-19-guidance
• https://napicu.org.uk/wp-content/uploads/2020/04/NAPICU-Guidance_rev3_10_Apr.pdf
• https://www.rcpsych.ac.uk/about-us/responding-to-covid-19/responding-to-covid-19-

guidance-for-clinicians/covid-19-ethical-considerations

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Discharge planning

• No change to section 117 MHA duty to provide aftercare on LA

and CCG

• CvA Schedule 12: Care Act “easements” –key duties downgraded

to powers

• https://insights.doughtystreet.co.uk/post/102g3ng/how-does-the-

coronavirus-act-2020-alter-the-care-act-2014

• Guidance for local authorities
• https://www.gov.uk/government/publications/coronavirus-covid-

19-changes-to-the-care-act-2014/care-act-easements-guidance- for-local-authorities

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“Managing Capacity” guidance

• https://www.england.nhs.uk/coronavirus/wp-

content/uploads/sites/52/2020/03/Managing-demand-and- capacity-across-MH-LDA-services_25-March-final-1.pdf

• Rapid decisions – may use patient panel or ethics committee
• Maximise capacity for digital visits
• “Whatever NHS needs it will get”- financial constraints must

not stand in the way of action including discharge packages

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Managing Capacity

• Review all inpatients to support safe discharge “where

feasible”- on case by case assessment

• Discharge plans must reflect risks in relation to Covid-19 for

individuals

• Must QUICKLY agree who is responsible for care packages
• More frequent meetings of funding panels- should see FEWER

disputes

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Managing Capacity- Transforming Care

• The requirements to hold Care (Education) and Treatment Reviews

(C(E) TRs) for those with learning disabilities and/or autism, who have been admitted or are at risk of being admitted to hospital.

• NHS England’s can be found here:

https://www.england.nhs.uk/learning-disabilities/care/ctr/.

• “While recognising the current COVID-19 guidance means we may

need to adapt the way C(E)TRs are undertaken, we expect all local areas to continue to ensure that a process remains that fulfils this role.”

• Likely to be remote assessments

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Discharging to a Deprivation of Liberty- care homes and hospitals

• Government guidance:
• https://www.gov.uk/government/publications/coronavirus-covid-

19-looking-after-people-who-lack-mental-capacity

• Backlog of DOLS cases may increase:
• “Fundamentally, it is the Department’s view that as long as

providers can demonstrate that they are providing good quality care and/ treatment for individuals, and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights.”

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Discharging to a Deprivation of Liberty-other placements

• Deprivation of liberty needs to be authorised by the Court of

Protection under section 16 MCA.

• Court can accept applications for such orders by email, and is

accepting electronic signatures during the pandemic.

• More at https://courtofprotectionhandbook.com/posts/

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The Tribunal

• The Tribunal provides “a significant safeguard for patients who

have had their liberty curtailed” (MHA Code of Practice, 12.4).

• Can support effort to reduce unnecessary inpatient detention
• Needs to continue to receive the necessary information
• Requirements in MHA Code for preparation of reports,

aftercare and CPA still in force; no change to Practice Direction

• Easements don’t affect requirement to provide information
• Even more important to resolve funding issues.

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A Fair Remote Hearing

• New procedure to ensure legal representatives get access to

records by secure email;

• Taking instructions by phone/video- harder to appreciate the ward

milieu;

• Loss of non-verbal communication and ability to reassure during

hearing;

• Judges will be seen but cannot always see patient – demeanour?

Absence of medical member?

• Communication of decisions.

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For the diary…….

• Tuesday, 5 May - 3pm
• The Coronavirus Act 2020: infectious diseases and emergency
• powers. Aswini Weereratne QC and Sophy Miles
• Tuesday, 12 May - 3pm
• IMCAs and RPRs innovating on the front-line led by Oliver

Lewis and Kate Mercer. Wednesday, 20 May - 3pm

• Coronavirus, CoP and housing led by Lindsay Johnson. Please register

your place here.

• We are planning a further seminar to mark Mental Health Week (w/b

18 May)- watch this space!

Coronavirus and the Mental Health Act

@DoughtyStreet/@DoughtyStPublic

AswiniWeereratne QC

@......... a.weereratne@doughtysteet.co.uk

Sophy Miles

@sophymiles1 s.miles@doughtystreet.co.uk