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In response to Covid-19, the UK government introduced a range of temporary changes health and care law via the Coronavirus Act 2020. The Coronavirus Act includes changes to health and care legislation in Wales as well as England, Scotland and Northern Ireland.

This Explainer will take a look at the changes to mental health law in Wales made by the Coronavirus Act 2020 to the Mental Health Act 1983 and its duties around Mental Health Review Tribunals in Wales. These changes are now in force following the enactment of  Coronavirus Act 2020 (Commencement No. 1) (Wales) Regulations 2020 (“the Coronavirus Wales Regulations”).

The Coronavirus Act also contains other temporary changes to the Mental Health Act 1983. These changes, if made, will apply in both England and Wales. Please see BIHR Explainer Coronavirus Law & Policy: Changes to Mental Health Law (England).

The Welsh Government have also published an Information Note on “delivering the Mental Health (Wales) Measure 2010 during Covid-19 pandemic” and Guidance “for Local Health Boards and Independent Hospitals in Wales exercising Hospital Managers’ discharge powers under the Mental Health Act 1983”. These publications provide guidance and information of an advisory nature for public bodies in Wales when carrying out these duties.

What is the Mental Health Review Tribunal for Wales?

The Mental Health Review Tribunal for Wales safeguards patients who have had their liberty restricted under the Mental Health Act. It reviews the cases of patients who are detained in a hospital or living in the community subject to a conditional discharge, community treatment or guardianship order. You can apply to this Tribunal to be discharged from your section. For further information, please see the Mental Health Review Tribunal website.

What has changed?

The Coronavirus Wales Regulations, which came into force on 27 March 2020, bring certain provisions of the Coronavirus Act into force in Wales, including sections 11, 12 and 13 of Schedule 8 concerning the Mental Health Review Tribunal.

Usually, there must be at least three members to constitute a Mental Health Review tribunal. Under s. 11 of the Coronavirus Act, the Tribunal can now be constituted by one or two members: by one of the legal members of the Tribunal, or by one of the legal members of the Tribunal and one other member who is not a legal member.

Further, under s. 12 of the Coronavirus Act, the Tribunal can now determine a case without a hearing if it considers that:

  • holding a hearing is impractical or would involve undesirable delay;
  • depending on the nature and complexity of the issues in the case, the Tribunal has enough evidence to make a decision without a hearing; and
  • doing so would not be detrimental to the health of the patient (including their mental health).

Under s. 13 of the Coronavirus Act, the President of the Welsh Tribunals may nominate another legal member of the Tribunal to act as the temporary deputy of the President of the Tribunal if the President is unable to discharge the functions of President.

The Mental Health Review Tribunal have also published a Guidance Direction note on the changes. The Guidance is operational for 6 months. Here, they explain that while the Guidance is in place, the Tribunal “shall hold hearings by telephone or by video conference where possible.

What does this mean for people wanting to use the Mental Health Review Tribunal?

For people in Wales wanting to use the Mental Health Review Tribunal to review their detention and potentially be discharged from their section, this means that their case can be decided without a hearing if the requirements outlined above have been met. Where a hearing is held, there can now be just one or two people on the panel, and they will be held by telephone or video conference where possible.

Which Human Rights are involved?

Access to and the operation of the Mental Health Review Tribunal may impact a number of rights under the Human Rights Act 1998, including:

The right to liberty (Article 5 of the HRA)

Liberty can only be restricted in certain circumstances, for example in relation to mental health/capacity issues. When liberty can be restricted this must be authorised by a law and a set of safeguards need to be in place to ensure this is a fair and proportionate restriction.

When someone is either detained or a community patient in a hospital in Wales or a patient who resides in Wales, review of this detention by the Tribunal is important, especially if they are hoping to be discharged. Being detained is a restriction on the right to liberty and having this reviewed is an important part of ensuring that the restriction is fair and proportionate.

The right to respect for private and family life and home and correspondence (Article 8 of the HRA)

This covers people’s right to be involved in decisions about themselves, maintaining relationships with others and protecting well-being. Again, this right can be restricted in some circumstances but the process for doing that must be rights respecting, i.e. it must be lawful, for a legitimate reason set out in the right itself, and importantly it should be proportionate. When someone is detained, their right to private and family life is restricted. Mental Health Review Tribunals in Wales play an important role in reviewing detentions and ensuring restrictions are lawful and proportionate.

What happens now?

The changes to the Mental Health Review Tribunal have been in force since 27 March 2020. The Tribunal’s guidance has been issued for 6 months. Further, the Coronavirus Act is subject to a 6-month review period, this will be due at the end of September 2020.

Where can I find more information?

BIHR information:

 Local mental health information and support:

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.