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Coronavirus Act 2020 - Implications for detained psychiatric patients

Friday 27 March 2020

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  1. The Coronavirus Act 2020 (CVA 2020) will significantly affect the position of those detained for psychiatric purposes. This is both procedurally, in that there is a significant relaxation of the medical expertise that is required prior to someone being compulsorily admitted, and substantively, in that people can be detained for longer. There are also significant changes in the extent to which the validity of those decisions is considered by the First Tier Tribunal, because there are very significant changes made to the composition of the Tribunal and the procedures by which it works.
     
  2. Section 10 of the CVA 2020 introduces several changes brought about in Schedule 8 of the CVA 2020. Also, some psychiatric patients may be affected by the changes introduced by section 14 of the CVA 2020, which significantly affects the public law duties of health providers in relation to their delivery of community care services, and the modifications to the provision of care and support introduced by section 15 and Schedule 12. However, this note focuses on the Section 10/ Schedule 8 changes.
     
  3. The procedures for admitting patients into compulsory detention under the Mental Health Act 1983 (MHA) are changed significantly. Currently, applications for admission for treatment (section 3 MHA) or assessment (section 2 MHA) require two medical recommendations; Schedule 8 para 3 (1) changes that to one. This has some important implications, including that a patient detained under section 3 who opposes particular treatments would previously have had a 3- month review (section 58 (1) (b) MHA). Such patients can now be treated without consent on the say- so of their responsible clinician. The review now requires only one other medical practitioner to be involved, and can be dispensed with if the responsible clinician considers that it is “impractical or would involve undesirable delay”. Such patients, who have been admitted without any prior judicial authority, will likely also end up with a much less sophisticated and informed procedure in the First Tier Tribunal. Currently, a First Tier Tribunal considering a patient detained under the MHA would comprise a legally- qualified chair, a medical member (a psychiatrist) and a lay member. Rule 34 of the Tribunal Procedure Rules 2008 require the medical member to examine the patient in order to apprise the tribunal of the patient’s “mental condition”. Schedule 8 paragraph 11 has conferred powers on the President of the Mental Health Review Tribunal to appoint tribunals comprising only the legal members, or the legal member and one other (Schedule 8 paragraph 11 (2)). Accordingly, patients will be detained and treated compulsorily with very much less clinical and legal scrutiny. Currently, tribunals are taking place without any personal attendance on the patient by the panel (which obviously introduces its own difficulties and anxieties for unwell patients, especially those with delusions).
     
  4. The CVA 2020 also lengthens the time for which those patients already in hospital can be sectioned under nurses’ and doctors’ powers under section 5 MHA. Schedule 8 paragraph 4 CVA 2020 lengthens the periods for which these emergency sections remain in force, these being further inroads into liberties of those detained without any further scrutiny.
     
  5. There are similar statutory variations to the procedures applying to those transferred from prison to hospital, which reduces the number of clinicians required to be involved in such transfers (see CVA 2020 Schedule 8 paragraph 7), with similar in relation to those who are remanded into psychiatric detention either pre- or post- conviction (CVA 2020 Schedule 8 paragraph 6). The transitional provisions would suggest that some of these provisions will still be applying to extant tribunal applications etc. even if the powers to sit with fewer people have otherwise come to an end.
     
  6. These changes are likely to be significant, and reduce the checks and balances on arbitrary detention of those thought to be mentally unwell. Decisions about liberty are increasingly placed in one person’s hands, and it may well be that those individuals become more risk averse than they might were more people involved. Not only would that result in loss to the involuntarily detained patient, but it would also be costly of hospital and clinical resources. These changes are something that I would hope will only be in force for the minimum amount of time.

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