There are two main coronavirus pages on Mental Health Law Online:
- This page, which contains guidance about the guidance.
- The page, which contains links to and summaries of all Coronavirus resources on our database - currently there are 80.
As of 9/6/20, all resouces in thewere categorised and listed in this summary page or its associated pages. If any documents are added to the database after that date they will automatically appear in a list immediately below:
- Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20) (Added to MHLO: 2020-07-03 9:52:54 PM)
- Legal Aid Agency, 'Civil news: fee rules change for mental health remote hearings' (16/7/20) (Added to MHLO: 2020-07-16 10:45:26 PM)
- HMCTS et al, 'Mental Health Virtual Tribunal: An Easy Read Guide' (22/7/20) (Added to MHLO: 2020-07-23 9:06:59 PM)
- Welsh guidance hospital managers' discharge power. Welsh Government, 'Coronavirus: guidance for Local Health Boards and Independent Hospitals in Wales exercising Hospital Managers' discharge powers under the Mental Health Act 1983' (14/4/20) — "This guidance is provided to assist Local Health Boards (LHB's) and Independent Hospitals in Wales exercising Hospital Managers’ discharge powers under the Mental Health Act 1983 (the Act) during this exceptional period."
- NHS guidance on MH law during coronavirus pandemic. NHS, 'Legal guidance for mental health, learning disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic' (v2, 19/5/20) — "This guidance provides advice and support to commissioners (clinical commissioning groups [CCG] and specialised commissioning), providers (CCG commissioned and specialied commissioned), health care professionals, social workers, Approved Mental Health Professionals, local authorities, experts by experience, clinical experts, and independent chairs for Care and Education and Treatment Reviews, as well as regional NHS England and NHS Improvement colleagues, to help with the local planning already underway. The guidance will also be helpful for other individuals and partner organisations, involved in the pathways of care, for people with mental health needs, a learning disability and/or autism, including police, prisons and Immigration Removal Centres (IRCs)." The main headings are: (1) Introduction; (2) Key messages; (3) The Mental Health Act 1983 and the emergency Coronavirus Act; (4) Operational considerations for use of the MHA; (5) Guidance on using the Code of Practice during the COVID-19 pandemic period; (6) The Mental Capacity Act; (7) The Care Act; (8) Specific considerations regarding restraint, restrictive practice and the management of people who refuse to isolate; (9) Escorting patients detained under the MHA, including those on Restriction Orders (Sections 41 and 49 MHA) to and from acute general hospitals; (10) Specific considerations for specialised commissioned services; (11) Specific considerations for learning disability and autism services; (12) Specific considerations for people with dementia; (13) Specific considerations for mental health, learning disability and autism and the Criminal Justice System; (14) Application of digital technology to Mental Health Act assessments; (15) Annexes: (Annex A) Resources that have been developed to support practice in mental health; (Annex B) Mental Health Casework Section; (Annex C) COVID-19 - Escorting patients detained under the Mental Health Act (MHA) including those on Restriction Orders (Sections 41 and 49) to and from acute general hospitals; (Annex D) Guidance on using the Code of Practice during the pandemic period: (a) Section 136 assessment; (b) Approved Mental Health Professionals (AMHPs) and responsibilities of Local Authorities; (c) The role of hospital managers’ panel; (d) Mental Health Tribunal Hearings; (e) Medical Reviews of Seclusion; (f) Section 17 leave and visitors; (g) Access to Independent Mental Health Advocates (IMHAs); (h) Second Opinion Appointed Doctors service; (i) Electronic forms and electronic delivery; (Annex E) Checklist to support decision in line with the minimum standards and safeguards on the application of technology to the MHA assessments.
Ministry of Justice
- MHCS coronavirus update. Mental Health Casework Section, 'MHCS Update: Covid-19' (Dear Colleague letter, 19/3/20) — This letter explains that MHCS staff are all working from home, their policies and procedures remain the same, and the ability to deliver casework is unchanged. If staffing levels decrease: the priorities will be recalls, prison transfers, upward transfers, tribunal statements and level/downward transfers and repatriations; there might be delays in leave decisions and discharges; and conditional discharge reports (CDRs) and applications for changes of discharge conditions (unless important because of risk) will be the lowest priority.
- MHCS coronavirus guidance. Mental Health Casework Section, 'Q and A for healthcare professionals and MHCS staff' (30/3/20) — The questions are: (1) Will MHCS relax a requirement that supervisors should have face-to-face contact with patients living in the community, for conditional discharge reports? (2) What happens if a patient, who is detained in hospital, requires urgent treatment as a result of suspected COVID-19? (3) What happens if there is an urgent need to transfer a patient with suspected Covid-19 from one mental health hospital to another? (The document contains a new shorter transfer request template for use in this scenario.) (4) Is there still a requirement to submit Conditional Discharge Reports (CDRs) and Annual Statutory Reports (ASRs)? (5) How do I extend previously granted overnight leave at a community placement, to prevent the need for the patient to go back and forth between the hospital and community placement?
- MOJ coronavirus update. Ministry of Justice, 'COVID-19 Stakeholder Update' (22/3/20) — This email contains (among other things) clarification that the "key worker" category includes: advocates required to appear before a court or tribunal (remotely or in person); other legal practitioners required to support the administration of justice, including duty solicitors and lawyers and others who work on imminent or ongoing court or tribunal hearings; solicitors and barristers advising people living in institutions or deprived of their liberty. - Includes clarification of the "key worker" category
Mental Health Tribunals
- Mental Health Tribunal and coronavirus (detailed page for England)
- MHRT for Wales and coronavirus
- MHT for Scotland and coronavirus
Court of Protection
- Official Solicitor coronavirus guidance. Official Solicitor, 'Coronavirus update - property and affairs team' (19/3/20) — The Official Solicitor and Public Trustee Office is operating but, because all staff are working remotely and do not have access to anything sent by post, it is requested that all documents are sent electronically. In order to avoid administrative delay, attachments should be sent as clearly-labelled separate files rather than single large files.
- COP User Group coronavirus update. HHJ Carolyn Hilder, 'Court User Group meeting (28/4/20) cancellation notice' (Letter to stakeholders, 18/3/20) — The next CUG meeting has been postponed from 28/4/20 until 6/10/20, and any issues arising in the meantime should be addressed to the Senior Judge of the Court of Protection's Business Support Officer.
- Critical lay view of remote COP hearing. Celia Kitzinger, 'Remote justice: a family perspective' (Transparency Project, 29/3/20) — This article is written from the perspective of the daughter of the patient in the video hearing in A Clinical Commissioning Group v AF B.
- Article about coronavirus guidance mentioning MCA. Alex Ruck Keene, 'COVID-19 and MCA - first guidance out' (Mental Capacity Law and Policy, 19/3/20) — This article contains brief comments on the following: (1) DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20); (2) HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20).
- Impact of coronavirus on operation of MCA. Alex Ruck Keene and Rosie Scott, 'The COVID-19 pandemic, the Coronavirus Bill and the Mental Capacity Act 2005' (39 Essex Chambers, 25/3/20) — This article contains information under the following headings: (1) The Coronavirus Bill; (2) Non-Statutory Guidance; (3) Guidance from the Court of Protection; (4) Advance care planning; (5) Commentary.
- Coronavirus testing and capacity. Alex Ruck Keene et al, 'Rapid response guidance note: Testing for COVID-19 and mental capacity' (4/5/20) — "The Court of Protection team has been asked to advise on a number of occasions as to the legal position in relation to testing for COVID-19, especially as testing (a) starts to be more generally available; and (b) is increasingly been rolled out as mandatory in certain settings. What follows is a general discussion, as opposed to legal advice on the facts of individual cases, which the team can provide. It primarily relates to the position in England in relation to those aged 18 and above; specific advice should be sought in respect of Wales and those under 18."
- Coronavirus advice for patients, carers and others. Mind, 'Coronavirus and your rights' (April 2020) — This web page contains links to further Mind resources on: (1) Coronavirus and social care rights; (2) Coronavirus and sectioning; and (3) Coronavirus and your mental health.
Other courts & courts generally
Those also working in other courts should check the external links for updates in their own fields, but some guidance documents appear below.
- Parole Board coronavirus guidance. Martin Jones, 'Guidance to members' (Parole Board, 20/3/20) — The guidance from the PB CEO's Twitter account is: (1) The Parole Board is considering changes to guidance, so that fewer cases are directed to oral hearing. (2) The views of the prisoner or representative will be sought but the decision on whether an oral hearing is needed lies with the panel chairman. (3) At oral hearings, panel members, legal representatives, witnesses and victims may be allowed to undertake video/telephone links from home to try to avoid delay to hearings. (4) If one panel member cannot attend owing to coronavirus then the hearing should proceed wherever possible. (5) More cases will be concluded by a single panel member. See also: Parole Board, 'Further guidance to members' (1/4/20)
- Parole Board guidance. Parole Board, 'Further guidance to members' (1/4/20) — (1) A panel can now make these decisions at MCA (Member Case Assessment): (a) to release or recommend transfer to open conditions in appropriate cases on the papers; (b) to refuse release or decline transfer to open conditions in appropriate cases on the papers; (c) to direct a case to an oral hearing. (2) Members have the option to expand the panel if they wish. (3) The guidance includes factors to consider when deciding whether an oral hearing is needed.
- Jury trials have been paused. Lord Chief Justice, 'Review of court arrangements due to COVID-19, message from the Lord Chief Justice' (23/3/20) — (1) This message notes that jury trials cannot be conducted remotely and states that all jury trials will be paused for a short time to enable appropriate precautions to be put in place (this topic is only of peripheral interest to MHLO readers so please check the Judiciary website or elsewhere for further updates). (2) In relation to family and civil courts it confirms that hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.
- Coronavirus jury trials guidance. Lord Chief Justice, 'Coronavirus (COVID-19): Jury trials' (17/3/20) — (1) No new trial should start in the Crown Court unless it is expected to last for three days or fewer; (2) all cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned; (3) trials currently underway will generally proceed in the hope that they can be completed.
- Coronavirus Family Court guidance. President of the Family Divison, 'COVID 19: National Guidance for the Family Court' (19/3/20) — This guidance for all levels of the Family Court and in the High Court Family Division provides detailed guidance on remote hearings and states that "whilst the default position should be that, for the time being, all Family Court hearings should be undertaken remotely either via email, telephone, video or Skype, etc, where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place".
- Coronavirus court guidance on remote hearings. Lord Chief Justice, 'Coronavirus (COVID-19): Message from the Lord Chief Justice to judges in the Civil and Family Courts' (19/3/20) — This message states: "The rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with. HMCTS are working urgently on expanding the availability of technology but in the meantime we have phones, some video facilities and Skype." It contains some outline guidance in relation to social distancing, litigants in person, trials and hearings involving live evidence, prioritising work, possession proceedings, injunctions and committal hearings, civil appeals, and family matters.
- Civil courts remote hearing protocol. Judiciary of England and Wales, 'Civil justice in England and Wales: Protocol regarding remote hearings' (20/3/20) — "This Protocol seeks to provide basic guidance as to the conduct of remote hearings."
- Tribunal coronavirus hygiene guidance. Senior President of Tribunals, 'Guidance for tribunal judges and members - COVID-19 measures' (23/3/20) — This guidance covers matters such as 2m separation and hand washing.
- Telephone and video hearing coronavirus guidance. HMCTS, 'HMCTS telephone and video hearings during coronavirus outbreak' (18/3/20) — This guidance on telephone and video technology has information under the following headings: (1) The decision to use telephone and video hearings; (2) Using existing technology and making new technology available; (3) The rules on using video and audio technology in courts; (4) Proposed legislation
- HMCTS and MOJ coronavirus guidance. HMCTS and MOJ, 'Coronavirus (COVID-19): courts and tribunals planning and preparation' (published 13/3/20 and updated periodically) — Advice and guidance for court and tribunal users during the coronavirus outbreak. This Gov.uk page is updated regularly, contains its own information, and also contains links to many of the relevant documents.
- Remote hearing guidance for users. HMCTS, 'How to join telephone and video hearings during coronavirus (COVID-19) outbreak' (8/4/20) — "Use this guide if you’ve been asked to join a hearing by telephone or video using BT MeetMe, Skype for Business or Cloud Video Platform (CVP) during the coronavirus outbreak."
- Department of Health coronavirus ethical guidance. DHSC, 'Responding to COVID-19: the ethical framework for adult social care' (19/3/20) — The introduction states: "Recognising increasing pressures and expected demand, it might become necessary to make challenging decisions on how to redirect resources where they are most needed and to prioritise individual care needs. This framework intends to serve as a guide for these types of decisions and reinforce that consideration of any potential harm that might be suffered, and the needs of all individuals, are always central to decision-making." There are eight values and principles: (1) respect; (2) reasonableness; (3) minimising harm; (4) inclusiveness; (5) accountability; (6) flexibility; (7) proportionality; (8) community. Under the "respect" heading it states that "those making decisions should ... where a person may lack capacity (as defined in the Mental Capacity Act), ensure that a person’s best interests and support needs are considered by those who are responsible or have relevant legal authority to decide on their behalf".
- Coronavirus hospital discharge service requirements. HM Government and NHS, 'COVID-19 Hospital Discharge Service Requirements' (19/3/20) — The covering letter states: "We face an unprecedented challenge in the weeks and months ahead to provide health and social care services that meet the needs of people affected by coronavirus (COVID-19)." The document summary states: "This document sets out the Hospital Discharge Service Requirements for all NHS trusts, community interest companies and private care providers of acute, community beds and community health services and social care staff in England, who must adhere to this from Thursday 19th March 2020. It also sets out requirements around discharge for health and social care commissioners (including Clinical Commissioning Groups and local authorities). ... Implementing these Service Requirements is expected to free up to at least 15,000 beds by Friday 27th March, with discharge flows maintained after that." In Annex A (The Discharge to Assess Model) the MCA is mentioned: "Duties under the Mental Capacity Act 2005 still apply during this period. If a person is suspected to lack the relevant mental capacity to make the decisions about their ongoing care and treatment, a capacity assessment should be carried out before decision about their discharge is made. Where the person is assessed to lack the relevant mental capacity and a decision needs to be made then there must be a best interest decision made for their ongoing care in line with the usual processes. If the proposed arrangements amount to a deprivation of liberty, Deprivation of Liberty Safeguards in care homes arrangements and orders from the Court of Protection for community arrangements still apply but should not delay discharge."
- CQC letter to providers about coronavirus. CQC, 'Routine inspections suspended in response to coronavirus outbreak' (16/3/20) — The CQC has written to all registered health and social care providers stating that inspections will stop from 16/3/20 (except in a very small number of cases when there is concern about harm), asking to be notified within 24 hours of any suspected or known case or outbreak of COVID-19, and stating: "We encourage everyone to act in the best interests of the health of the people they serve, with the top priority the protection of life. We encourage you to use your discretion and act in the best way you see fit." (emphasis in original)
- Coronavirus guidance for psychiatrists. Royal College of Psychiatrists, 'Legal matters - COVID-19 guidance for clinicians' (March 2020, updated periodically) — This contains information under the following headings: (1) Emergency legislation and the Mental Health Act - not yet in force; (2) Update on the operation of Mental Health Tribunals; (3) Changes to SOAD procedures.
- CQC coronavirus procedure for SOADs. Care Quality Commission, 'COVID-19: Interim Methodology for Second Opinions' (Dear Colleague letter, 20/3/20) — The summary stated in the letter is: "(1) We are asking mental health services to provide a summary of the patient’s current issues to CQC when submitting a second opinion request, which SOADs will use instead of visiting the hospital to examine care records. (2) Consultations with professionals, including with the responsible clinician, will be undertaken by telephone or video (Skype or Microsoft teams). (3) Following telephone consultations, we will ask services to support patients who agree to speak with SOADs to have access to telephones or technology to support a video call with the SOAD. (4) SOADs will not be asked to post original copies of certificates. We encourage services to accept electronic copies of certificates and act on that. The Government may lift the requirement for a paper copy, and we will issue further communications once this is confirmed."
- Guidance on learning disability and autism. NHS, 'Clinical guide for front line staff to support the management of patients with a learning disability, autism or both during the coronavirus pandemic - relevant to all clinical specialities' (ref 001559, v1, 24/3/20) — The Overview states: "People with a learning disability have higher rates of morbidity and mortality than the general population and die prematurely. At least 41% of them die from respiratory conditions. They have a higher prevalence of asthma and diabetes, and of being obese or underweight in people; all these factors make them more vulnerable to coronavirus. There is evidence that people with autism also have higher rates of health problems throughout childhood, adolescence, and adulthood, and that this may result in elevated risk of early mortality". The following key points are discussed: (1) Be aware of diagnostic overshadowing; (2) Pay attention to healthcare passports; (3) Listen to parents/carers; (4) Make reasonable adjustments; (5) Communication; (6) Understanding behavioural responses to illness/pain/discomfort; (7) Mental Capacity Act; (8) Ask for specialist support and advice if necessary; (9) Mental wellbeing and emotional distress.
- AMHP coronavirus guidance. BASW, 'Information and support for AMHPs, AMHP leads and Principal SWs on the role of AMHPs during the Covid-19 pandemic' (25/3/20) — The introduction to this 11-page document states: "This information has been prepared by BASW, with support from the Approved Mental Health Professional Leads Network and the Chief Social Workers office to provide up to date information on the AMHP role as the country responds to the Covid 19 pandemic." This is version 1. Check the BASW website for updates.
- Social distancing and mental capacity. Sian Davies et al, 'Rapid response guidance note: COVID-19, social distancing and mental capacity' (39 Essex Chambers, 31/3/20) — "The Court of Protection team have been asked to advise on a number of occasions since 17 March 2020 as to the legal position where a person (“P”) lives in the community and declines to practice social distancing in circumstances where P does not (or may not) have capacity to make decisions about social contact in the circumstances of COVID-19. Clearly the consequences of P going into the community, as she ordinarily would, are (a) that she is at risk of contracting COVID-19, (b) that she may infect others, if she has the virus, and (c) that she may be in breach of the new police powers which have come into effect."
- Coronavirus public health restrictions. Alex Ruck Keene, 'Public health restrictions and capacity' (Mental Capacity Law and Policy, 29/3/20) — "Two sets of regulations brought into force in the past week have radically changed the legal landscape in England & Wales, effectively placing the population under severe restrictions (which the Daily Mail might even characterise as house arrest) for their good, and the good of society. This post looks at them through the prism of the law relating to those with impaired decision-making capacity; it also looks at through a similar prism at a part of the Coronavirus Act 2020 which is not (yet) in force, but is likely to come into force shortly,"
- Coronavirus mental health law changes. Hannah Taylor, 'Coronavirus Act 2020 - Changes for Mental Health' (Bevan Brittan, 1/4/20) — This web page sets out the proposed changes to the MHA in table format. It then gives some information under the following headings: (1) What about potentially infectious persons in the mental health context? (2) Patients who refuse to self-isolate; (3) How should public authorities be preparing for the changes? (a) Communication; (b) Environmental preparation; (c) Informing staff; (d) Training and guidance; (e) Alternative arrangements; (f) Statutory forms.
- Care Act "easements". DHSC, 'Care Act easements: guidance for local authorities' (1/4/20) — "This guidance sets out how Local Authorities can use the new Care Act easements, created under the Coronavirus Act 2020, to ensure the best possible care for people in our society during this exceptional period." The first sentences of the changes (which are each followed by "however"-type sentences) are: (1) Local Authorities will not have to carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements. (2) Local Authorities will not have to carry out financial assessments in compliance with pre-amendment Care Act requirements. (3) Local Authorities will not have to prepare or review care and support plans in line with the pre-amendment Care Act provisions. (4) The duties on Local Authorities to meet eligible care and support needs, or the support needs of a carer, are replaced with a power to meet needs.
- Support for adult social care providers. CQC, 'CQC sets out next steps to support adult social care during the COVID-19 pandemic' (15/4/20) — This document deals with (1) Personal Protective Equipment; (2) coronavirus testing procedures for staff; (3) statistics (from this week, death notifications collected from providers will include whether the person had suspected or confirmed COVID-19); (4) information gathering (data on coronavirus pressures from services providing care in people's own homes will now be collected).
- OPG procedure. OPG, 'NHS and social care staff: check if a COVID-19 patient has an attorney or deputy' (7/4/20) — The Office of the Public Guardian aim to respond to requests: (1) in relation to coronavirus patients, within 24 hours, Monday to Friday, with weekend requests being prioritised on Mondays; (2) for other patients, within the usual 5 working days.
- EPA registration guidance. OPG, 'How to register an EPA during the coronavirus outbreak' (27/4/20) — "If you need to register an EPA now, you can still do so while observing government guidance on social distancing, self-isolating and shielding."
- Complaints procedure. CQC, 'CQC has made changes to Mental Health Act complaints process' (11/5/20) — The CQC are prioritising MHA complaints from or about currently-detained patients; other complaints "will be reviewed, but may be paused during the coronavirus outbreak".
- Coronavirus prison transfer guidance. HMPPS and NHS, 'Prison transfers and remissions to and from mental health inpatient hospitals in relation to COVID-19' (28/4/20) — The headings are: (1) Context and principles; (2) Protocol for the pathway; (2.1) Referral; (2.2) Assessment; (2.3) Requires transfer and detention under the Mental Health Act 1983 (MHA); (2.4) Remissions from mental health hospital to prison; (3) Contacts for national escalation (if required); (4) Useful resources and links.
Various resources relating to the Coronavirus Act 2020 can be found on that Act's page.
- Legislation amending MHA 1983 • Coronavirus legislation. Coronavirus Act 2020 — This Act, among other things, amends the MHA 1983 in light of the coronavirus pandemic. The Act is in force on 25/3/20, although s10 and schedules 8-11 (amendments to the MHA and NI/Scottish equivalents) will commence on a date to be specified in regulations. The paragraphs of schedule relating to "Constitution and proceedings of the Mental Health Review Tribunal for Wales" came into force on 27/3/20.
In addition, here is some other relevant legislation:
- Public Health (Control of Disease) Act 1984
- Civil Contingencies Act 2004
- Health Protection (Coronavirus) Regulations 2020 - Made under the 1984 Act
- Tribunal Procedure (Coronavirus) (Amendment) Rules 2020
- Coronavirus Act 2020 (Commencement No 1) (Wales) Regulations 2020
Many of these pages are updated regularly:
- Gov.uk website, 'Coronavirus (COVID-19): what you need to do'
- Courts and Tribunals Judiciary: Court of Protection: Guidance (COVID-19)
- Courts and Tribunals Judiciary: Coronavirus (COVID-19) advice and guidance
- Gov.uk, 'HMCTS daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak'
- Law in the Time of Corona. This blog from Kings Chambers is aimed at the legal and business community.
- Crimeline, 'Coronavirus (COVID-19): Guidance'. Aimed at criminal lawyers.
- Transparency Project, 'COVID-19 and family courts: Links in one place to new arrangements'. Aimed at family (and COP) lawyers.
- Legal Action Group, 'Updates on the COVID-19 crisis' (25/3/20)
- RCPsych, 'Patient engagement - COVID-19 guidance for clinicians' (March 2020, updated periodically)
- RCpsych, 'Key topics: COVID-19'
- Edge Training, 'COVID-19 Related Resources for Health & Social Care Professionals'
- British Association of Social Workers, 'Coronavirus (COVID-19) BASW updates'
- NHS: Mental health, learning disabilities and autism: Guidance