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Legal rights and coronavirus: Admissions under the Mental Health Act

The UK is in lockdown. The Government has advised people to remain in their homes and Parliament has passed extraordinary legislation. In this blog human rights solicitor Emma Jones looks at the possible changes under the Mental Health Act at this time.

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Emma Jones specialises in human rights claims relating to the treatment and care individuals receive in hospitals, schools and in social care settings, false imprisonment and assault claims, actions against the police and public law challenges.
The Corona Virus Act 2020 schedule 8 has set out several important changes to the Mental Health Act 1983 that could come into force.  The changes are available, but not yet in force. By having them in the legislation, they are ready to be activated quickly if the crisis worsens.  It is  not clear if, once implemented, the changes would be at national level or just in response to issues arising in certain areas.
 

Changes to admissions under the Mental Health Act

 
The main changes to individual admissions under the new provisions, would be that admissions to a mental health facility under sections 2 and 3  of the Mental Health Act could  be  made with one  section 12-approved medical recommendation if the Approved Mental Health Professional (AMHP) considers that  getting  a  second medical recommendation is “impractical or would involve undesirable delay”.
 
Currently, an AMHP needs two medical recommendations to make an application for admissions.  Given doctors’ workloads, illness and the need for self-isolation it might be hard to get the assistance of two doctors. 
 
However, one medical recommendation can be used if the AMHP considers that getting a second recommendation is impractical or would cause delay.  
 
If there is an application for admission on one medical recommendation the application “must include a statement of the opinion” of the AMHP giving reasons for using only one medical recommendation.
 
Requiring only one recommendation does lessen the statutory safeguards for compulsory detention, which is why detailed reasons will be needed to include why it was either impractical or would involve undesirable delay, with details of attempts made to secure the second doctor.  Also, if admission is to be based on the medical recommendation of one doctor it is only valid if provided by a section 12 approved doctor. A section 12 approved doctor is a medically qualified doctor who has been recognised under section 12(2) of the Mental Health Act. They have specific expertise in mental disorder and have additionally received training in the application of the Act.
 
In this current climate the role of the AMHP becomes more vital to ensure that individuals are not detained inappropriately.  If an inappropriate detention does take place you can make a complaint about being detained when you should not have been detained.  Complaints can be made to the hospital managers and through the hospital’s standard complaint policy. You can seek a hearing to have your detention reviewed.
 
It is right that, at this time, measures are put in place to ensure that those who require detention for their own safety or the safety of others can be assessed and, if necessary, an application can be made.  However, it is vital that if any of the proposed changes are used that they are used in a way that is as limited as is possible at this time. 
 
For an individual to be deprived of his/her liberty when it is not necessary is to strip that person of a basic and fundamental human right.  It is vital that if this measure is to be used it is used properly; that the AMHP sets out full and valid reasons for relying on the recommendation of only one medical practitioner and that no new practices develop that could result in a chipping away of fundamental rights.
 
 

Changes to treatment provisions under the Mental Health Act

 
The main changes to the treatment provisions for those detained under the Mental Health Act would be:
 
  • Decision to give medicine without consent for a period of more than three months under MHA s.58 could be taken by the approved clinician in charge of treatment without a second opinion if it would be impractical or would involve undesirable delay
 
  • In certifying the treatment, the approved clinician could consult with only one other person if consulting two would be impractical or would involve undesirable delay. However, that person must have been professionally concerned with the patient’s medical treatment, and

must not be a nurse, a registered medical practitioner, the responsible clinician or the approved clinician in charge of the treatment in question.
 
What has not changed is that being able to give medication without a person’s consent is only allowed under the Mental Health Act.  Otherwise, if an individual has capacity s/he cannot be forced to take any medication they do not want to take.  To be able to force an individual to take medication goes against a person’s right to autonomy – to choose what they want to put into their body.  Under the MHA the time for being able to give medication without consent or approval from another doctor is limited.  However, under the new provisions this time can be extended and the need for consultation reduced. 
 
It is imperative at this time that practices do not change and as far as possible those involved in the treatment and care of individuals with mental health stick to the safeguards that are in place.

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