Urgent covid-19 legal changes explained

We learned this week that changes to the Mental Health Act will be included in the government’s emergency covid-19 bill.

It has proposed, that under an emergency situation:

1. Mental Health Act assessments could be carried out by one instead of two doctors

2. Temporary extension or removal of time limits in mental health legislation will be allowed.

Both measures are intended to address extreme staffing pressures, should they arise, and are largely extensions of powers currently available under the existing act. The temporary changes would only be enacted following advice from clinicians and approval of the chief medical officer, Chris Whitty.

Under section four of the act as it currently stands, one doctor may already be used in emergency circumstances and so the government’s proposal might just mean loosening that definition.

The second proposal around “time limits” was a surprise, and its vague wording seems to have sparked some public concern.

However, the Department of Health and Social Care has clarified what changes would apply.

Under section five of the existing act, a patient who is voluntarily in hospital can be held for 72 hours while awaiting a Mental Health Act assessment, if a doctor believes they are too unwell to leave. In the new emergency situation, this would be extended to 120 hours.

Also under section five, nurses currently have the ability to detain a person for up to six hours, and this would extend to 12 hours.

Under sections 135 and 136, police can detain a person in need of care at a “place of safety” for up to 24 hours. This will be extended to 36 hours. This part of the act is something services already struggle to meet, and so, in a scenario where there may be a 20 per cent or more reduction in mental health staff, seems sensible.

The 24 hours can be extended by 12 hours under the existing law already, if a patient is inebriated or needs physical healthcare. It isn’t yet clear if the 36 becomes the default in this situation, or whether this could be extended further to 48.

It is worth noting this change, if actioned, could mean police officers have to spend an additional 12 hours with a mental health patient. Hopefully the Home Office has been consulted?

Finally, the government’s emergency bill would allow for the cap on section 35 and 36 holding powers to be lifted.

This part of the act relates to the period during or before criminal trials. If a judge believes a person under prosecution has a mental health problem, they can order an assessment. During this time, the person can be held in hospital for up to 12 weeks.

Cohorting

Mental health trusts are being told they should identify areas — such as wards with ensuite bathrooms — to cohort patients with covid-19 symptoms. This is the approach being taken by all NHS providers.

However, with 350 dormitory wards across England, and much of the estate not fit for purpose, appropriate places will be scarce.

Do you work for mental health services? Over the next few weeks, I will be focusing on the impact covid-19 is having on the sector and I am keen to hear from front-line staff, leaders and patients. Contact me on rebecca.thomas@wilmingtonhealthcare.com or direct message on twitter @Rebeccasmt