Coronavirus and the Mental Health Act 1983

Last week, the Lord Chancellor approved the issue of the Pilot Practice Direction, which affects the Health, Education and Social Care Chamber of the First Tier Tribunal (mental health).

The Practice Direction is issued on a pilot basis for a period of six months, although it will be reviewed during that time. The changes it makes are;

The Tribunal Panel

The Tribunal Judge alone shall make every decision unless it is considered by the Chamber President, Deputy Chamber President or other salaried judge considers it to be inappropriate, in which event a two or three-person panel may make the decision.

Disposal of hearings

If a reference has been made under section 68 MHA and the patient is a community patient aged 18 or over, the tribunal will now be suggesting that proceedings are dealt with on paper, unless it is considered inappropriate.

Pre-Hearing examination

Rule 34 requires the tribunal to examine the patient to form an opinion on his/her mental condition, so far as practicable. It has been decided that during the COVID-19 pandemic, it is not practical under rule 34 for any pre-hearing examination’s to take place.

Amendments have also been made to the MHA, which will come into force should the crisis worsen. No changes have been made yet.

The changes will include;

• Requiring only one doctor for a recommendation for detention under the MHA rather than two.
• The powers under section 35 and 36 are extended, meaning patients remanded to hospital under these provisions can be kept for longer than 12 weeks.
• The court can make orders for the detention of accused or convicted people on the recommendation of one doctor, rather than two.
• The powers under section 5(2) and 5(4) have been extended. Under section 5(2) the holding power is now 120 hours, and under section 5(4) the holding power is now 12 hours.
• Prisoners transferred into hospital under section 37 can be done on the recommendation of only one doctor, rather than two, but the Secretary of State for Justice must still agree.
• A Second Opinion Approved Doctor (SOAD) no longer needs to agree to treatment to which patients do not consent to.
• The police powers under sections 135 and 136 have been extended for up to 36 hours, which can be extended for an additional 12 hours.

For more information

Should you have any questions or concerns about detention under the Mental Health Act 1983 please contact Rebekah Sambrooks.

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