The Government’s emergency Mental Health Act changes: what do they mean in practice?

20 March 2020
By Louis Allwood

20 March 2020

The government has proposed emergency legislation intended to manage the impact of Coronavirus on the health and care system and those who rely on it at a time when pressure on health services is expected to rise significantly. The Coronavirus Bill sets out key changes to specific parts of the Mental Health Act. These will:

  • Enable the detention of people who need urgent treatment for a mental health disorder and are a risk to themselves or others based on the opinion of a single doctor, rather than two, before an application is made by an Approved Mental Health Professional (AMHP).
  • Increase the time in which a person can be held in a Place of Safety under Sections 135 and 136 from 24 to 36 hours. Where there are ‘grounds to suspect a person has a mental disorder’ and is unable to keep themselves safe, Section 135 allows the police, alongside a doctor and an AMHP, to enter a private premises and take that person to a place of safety (usually a hospital, but sometimes a police station for people over the age of 18). Section 136 enables a police officer to take an individual who appears to have a mental disorder and is ‘in need of immediate care’ outside their home to a place of safety where a doctor and an AMHP can examine the person and make plans for their treatment.
  • Extend the time limit for compulsory detention under Section 5(2) of the Mental Health Act from 72 to 120 hours. Section 5(2) applies to a person who would otherwise be in hospital voluntarily as a patient or inpatient but is held temporarily for their own safety or the safety of others on the recommendation of an approved clinician.
  • Extend the time limit for compulsory detention under Section 5(4) of the Mental Health Act from six to 12 hours. Section 5(4) applies to a person in hospital who is temporarily held for their own immediate safety on the recommendation of a mental health nurse. An approved clinician may then make a further assessment to detain the person for a longer period under Section 5(2).

Changes are also planned for the Care Act 2014 in England and the Social Services and Well-being Act 2014 in Wales, which will no longer require local authorities to carry out the full range of their normal responsibilities, for example they will be able to delay care assessments and not meet some people’s needs in full. This, it is proposed, will mean that care and support can be prioritised for those with the most serious and urgent care needs. Similarly, the regulations requiring providers to carry out assessments for access to ‘NHS continuing healthcare’ – where a person’s health and associated care needs would be identified as requiring a package of support directly from the NHS – are also set to be relaxed during the emergency period.

The emergency legislation responds to concerns that demand will increase while the availability of qualified practitioners will decrease. It is expected that self-isolation will mean that fewer Section 12 doctors (including psychiatrists and some GPs) will be present to assess people who may need to be admitted or kept in hospital. The proposed alterations are time-limited for two years and are among several changes designed to give services more flexibility when they are less able to respond.

The impact of social isolation, fear, and economic uncertainty affects us all, but people with mental health problems may feel particularly vulnerable

We recognise the necessity of taking steps to empower health services to provide safe, urgent care for people in crisis. The impact of social isolation, fear, and economic uncertainty affects us all, but people with mental health problems may feel particularly vulnerable. The provision of timely, safe and effective mental health intervention is more important now than ever – services must be able to support people at risk.

However, for many people, emergency changes to legislation present a daunting prospect. The proposed extension of time limits, particularly under section 5(2), are lengthy, and the reduction in the number of opinions required to detain a person can undermine trust in services where it is already fractured. Though it is also worth noting that the extension of Section 136 to 36 hours is considerably shorter than the 72 hours, often in police custody, that the Act used to allow until very recently. And while the reduction in the number of doctors making an application is a significant change, the role of AMHP is not changing and their function as a safeguard of people’s rights will be retained in all cases.

The temporary and exceptional nature of the Coronavirus Bill must be clearly communicated

The temporary and exceptional nature of the Coronavirus Bill must be clearly communicated. Those who could be affected should be given the firmest assurances that these measures will only take effect when and where staff numbers have been severely reduced in a local area. Decision makers should monitor the use of the new powers and listen to feedback from mental health professionals and people with lived experience to ensure that use of the Mental Health Act is safe and effective.

The new measures also highlight the vital role of Approved Mental Health Professionals. AMHPs already provide an additional perspective that is critical to safeguarding and protecting the rights of individuals, their families and the wider public. This voice will become more important where the number of professionals making decisions for vulnerable individuals decreases. The AMHP workforce must be properly supported and shielded from burnout as conditions become ever more challenging.

Emergency measures must not become the new normal

At the same time, to help mitigate the need for these emergency measures, the wider mental health workforce, including community mental health teams and their partners in voluntary and community organisations, should be properly equipped with the right standard of Personal Protective Equipment (PPE). Giving these frontline practitioners the best chance of staying healthy will help maintain workforce numbers and provide continuity of support for people who without it may reach crisis point and require use of the Mental Health Act.

Emergency measures must not become the new normal. They should be kept under review, swiftly rolled back as soon as possible, and replaced with a renewed focus on comprehensive reform of the Mental Health Act in line with the findings of the Wessely Review. While the process of modernising the Mental Health Act may have to take a back seat during this crisis, it is vital that longer term reform remains on the agenda and that plans are not scaled back.

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