Coronavirus Law & Policy: Changes to Mental Health Law (England) Please note: following the six-month review of the Coronavirus Act, this Explainer will be updated when law relating to the changes to the Mental Health Act duties is published Download this Explainer as a PDF here. The Coronavirus Act, which came into force on 25 March 2020, gave governments across the UK the possibility to make many temporary changes to health and social care legislation. The Act allows the UK government to make changes to the Mental Health Act (MHA), including the removal of key safeguards that are there to protect people detained in mental health hospitals to prevent them from being detained longer than needed and/or discharged without support. These changes are not yet in force. These changes to the Mental Health Act, if switched on, will apply in England and Wales. Further changes to mental health tribunals have been introduced in Wales. See Wales: Changes to Mental Health Law for further information. What is the Mental Health Act? The Mental Health Act (MHA) 1983 is a law which covers the assessment, treatment and rights of people with a “mental health disorder”. The Act uses the term “mental health disorder” to describe people with; a mental illness, a learning disability, a personality disorder. Why might the Mental Health Act be changed? In late March, the UK government presented the Coronavirus Bill to parliament, asking them to approve possible suspensions to several laws about people’s care and support during the Covid-19 pandemic. The Government said these changes may be necessary because many public services would face significant pressures due to Covid-19 and the effects the pandemic may have on staff and resources. Parliament passed this law, the Coronavirus Act on the 25 March 2020. One part of the Coronavirus Act deals with the MHA and allows some changes to be made to the safeguards that are there to protect people in mental health hospitals. These changes are not yet in force, but the UK government can make these changes when they see that there is a reduction in the number of mental health professionals available, due to the Covid-19 pandemic. Which changes can be introduced? The Coronavirus Act allows the government to make the following changes to the Mental Health Act 1983: The power to detain someone under the MHA can be implemented using one opinion of one doctor instead of two. Extension or removal of time limits under the MHA, meaning that people may either be detained for longer than they need or released to the community early. A course of medication, being administration to a person detained under certain sections of the MHA, can be continued against their will for more than 3 months without the approval of a specialist ‘second opinion approved doctor’. Instead the continuation of the medication could be approved by an approved clinician. A person who is in prison can be transferred to hospital if one doctor thinks this is the best thing for you, because of the nature of your mental disorder, instead of two. However, the Secretary of State for Justice would still need to consent to the transfer. None of these changes to the Mental Health Act are currently in force. If switched on, these changes will apply in England and Wales. Under separate legislation and directions from the Tribunal Service some changes have been made to mental health tribunals. These changes are in force, the main changes are: The right to appeal against detention under s.2 of the Mental Health Act should be heard within 10 days instead of 7. The tribunal can decide to have a paper only tribunal but only when the decision is needed urgently, and it is not “reasonably practical” to hold a hearing. Tribunals can be heard by a single legal member only, instead of the usual 3 members (a legal member, a doctor and a lay member). This single lay member can make decisions alone. Tribunals are making greater use of people joining in by video or phone instead of in person. No Pre-Hearing Assessments will take place during the Covis-19 pandemic. These changes to mental health tribunals apply only in England. For changes to mental health tribunals in Wales, see Wales: Changes to Mental Health Law. What does this mean for people who have mental health issues? These proposed changes could have a worrying impact on people living in England who have mental health issues. Mental Health Services are already facing a number of issues. Last year’s NHS data (England) shows almost 50,000 people were newly detained under the Mental Health Act in 2018/19, although the true figure is likely to be higher as the data is incomplete. Added to this are some significant failures of both mental health law and services to respect the rights of people who are detained. The Mental Health Act (MHA) itself is currently under review. There are numerous reviews and investigations into the way detained people are treated, in February the regulator found that more focus on human rights is needed by healthcare services when using the MHA. The Covid-19 situation is undoubtedly impacting on people’s mental wellbeing. The need for safeguards when a person is already in a vulnerable situation cannot be overstated. These changes, if enacted, will remove some of those crucial safeguards. The extension or removal of time limits under the MHA, meaning that people may either be detained for longer than they need or released to the community early, has an additional impact on peoples live due to the changes to the duties to assess care and support needs in the community. Read our Explainer on Changes to Adult Social Care Duties (in England). The people with mental health issues that BIHR works with everyday tell us, having their human rights respected would have helped make their experience of mental health treatment and detention far less traumatic. The risk with sweeping new measures is that the experience of people who are already vulnerable becomes even worse, and for up to two years. Any length of unnecessary detention will have a significant impact. Which Human Rights Are Involved? As mentioned above, these changes could potentially result in increased detention or inappropriate discharge. Detaining someone in a mental health ward beyond what is necessary or releasing them early into the community without the required support, may result in people experiencing inhuman and degrading treatment (Article 3), which is never lawful under human rights law. The proposed removal of some of the current safeguards around mental health detention would also raise issues under the right to liberty (Article 5). The right to family life (Article 8), both of those detained and their family members could be affected by these changes. The right not to be discriminated against in these rights (Article 14) is also very relevant here. What happens now? Although the above changes to the Mental Health Act are not yet in place, the government may choose to “switch on” these changes in the next few days, weeks or months. However, because provisions are switched on by the government, it doesn’t mean they would have to be used. It will be up to NHS England to provide advice as to whether they use provisions or not. When these changes are switched on there will also be government guidance published. It is likely that this will include recommendations around how to have least impact on people. Such as, provisions should be used on a case by case basis, practitioners should be cautious in their use and consider their alternatives e.g. can a second doctor be consulted via a video assessment if they cannot assess in person? If/when these changes are enforced, we will update this information and further explain any new guidance. Where can I find more information? BIHR information: BIHR’s Coronavirus and Human Rights Hub. BIHR’s Explainers on the Mental Health Law Changes in Scotland, Wales and Northern Ireland. BIHR Explainer on Changes to Adult Social Care Duties (in England). Local mental health information and support NHS England- Mental Health UK Government – Mental Health and wellbeing Citizens Advice -Mental Health PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.