Mental Health and the COVID-19 Crisis

The current Covid-19 Pandemic has brought about numerous concerns for all of us who work in the legal profession but none more so than how this will impact upon the rights of us as individuals.  At Legal Services Agency we provide specialist advice to those with mental ill health, their family and carers.  Many of those we work with are or have been subject to Orders under the Mental Health (Care and Treatment) (Scotland) Act 2003 either within hospital or in the community.

On 19^th March 2020 the British Government introduced emergency legislation in the form of the Coronavirus Bill – now the Coronavirus Act 2020 – to assist in dealing with the ongoing pandemic.  The Act brings into force unprecedented powers for Ministers in today’s society.  Initially the Bill proposed granting such powers for a period of 2 years but thankfully, after cross party pressure, the powers will be subject to review every six months however, the Act itself will remain in place for the initially planned two year period.  A small concession on what is a great infringement on the rights and liberties of some of the most vulnerable within our society, not just those with mental ill health.

Schedule 9 of the Act proposes a number of changes to the 2003 Act including:

• Duration of Emergency Detention Certificates being extended to 120 hours.
• An approved medical practitioner may grant a Short Term Detention Certificate without consulting a Mental Health Officer if they consider it  impracticable or to do so would involve undesirable delay.
• A second Short Term Detention Certificate may be granted before or on the day of the expiry of the first Short Term Detention Certificate.  If a second certificate is granted the doctor must record why it has been impracticable to apply for a Compulsory Treatment Order.
• An Application for a Compulsory Treatment Order may be founded on a report from a single approved medical practitioner.  Again this is where the approved medical practitioner considers it impracticable to do so or in doing so would cause undesirable delay.
• Suspension of the requirement to review  a number of different orders including but not limited to mandatory reviews of Compulsory Treatment Orders.

It is clear from the provisions of the Act that the intentions behind it lie in trying to accommodate times where there might be a reduction in the available staff – which from our experience is already challenging – both from the medical profession and from Mental Health Officers.  However can this Act be considered as an erosion of the few safeguards in place for those facing considerable restrictions on their choices and liberties?  I would suggest so.

Emergency Detention Certificates

Unlike other forms of detention an Emergency Detention Certificate does not require to be granted by an approved medical practitioner and is granted for the purpose of detaining a person for medical assessment.  This means that the certificate can be granted by a doctor who does not need to be a psychiatrist or have particular expertise in the diagnosis of mental disorder.  There is no right of Appeal to the Mental Health Tribunal for Scotland against an Emergency Detention Certificate.  The 2003 Act specifies that such a certificate does not require to be agreed to by a Mental Health Officer where it is impracticable to do so.  The Mental Welfare Commission’s most recent Monitoring Report notes that on average 50% of all Emergency Detention Certificates have Mental Health Officer approval.  Will this be the situation we now face with Short Term Detention Certificates?  In practical terms a person could now be detained in hospital for assessment for up to 4 days with no recourse to the Mental Health Tribunal and their detention not having been considered by another professional.

Short Term Detention Certificates

The purpose of a Short Term Detention Certificate is to allow the detention of a person in hospital for the purposes of determining what medical treatment should be given, or for the giving of medical treatment.  Under the 2003 Act a Short Term Detention Certificate is to be approved by a Mental Health Officer.  Where a Mental Health Officer does not approve, the option to shop around is not available and a certificate cannot be granted.  The consent of a Mental Health Officer is there to safeguard patients from arbitrary detention.  This lack of approval removes an important layer of protection.  Should a person be unable to instruct a solicitor to pursue an Appeal the situation may arise where they are detained for up to 8 weeks, with the consent of only one person, before any independent consideration of their circumstances takes place.

Compulsory Treatment Orders

Removal of the requirement for two medical reports again removes a protection against arbitrary detention.  It can be the case where medical professionals do not agree on the need for either Detention under a CTO or in community circumstances measures that are required within one.  At a time where even the instruction of a solicitor may not afford you the second opinion medical report it is important that all internal safeguards within the legislation remain.

A mandatory review ensures that an order is reviewed by the Tribunal every 2 years where there have been no other Hearings within that period.  The suspension of these may mean that Orders would automatically continue, where the patient does not lodge an Appeal,  for potentially 4 years in total without an independent review.  Where a patient is able to instruct a solicitor this may not be the case however we should be looking to protect the rights of those who are most vulnerable and not always in a position to do so themselves.

On 24th March 2020 the Mental Welfare Commission for Scotland provided an Advice Note for professionals working in the areas of Mental Health and Adults with Incapacity in anticipation of the Bill receiving Royal Assent.  It can be found on their website at https://www.mwcscot.org.uk/news/covid-19-mental-welfare-commission-advice-note-version-1-24-march-2020.  The note sets out some practical considerations which alleviate the above concerns to a certain extent however the suggestions are not binding upon those practising in the area.  The reality of the changes becomes more stark when looked at through the number of days, as opposed to hours, the Orders may be granted for.  At a time of confusion and uncertainty we are reliant upon the recognition of mental health professionals that any steps which can be taken to ensure the rights of people with mental ill health are safeguarded, in the same way we would expect in the normal functioning of society.  At the time of writing the provisions mentioned in this article have not been brought into force by the Scottish Government and it still remains to be seen whether this will be deemed necessary.

Rachel Walker
Solicitor/Associate
LSA