Use of electronic signatures in the mental health setting

During these unprecedented times, there are greater pressures being placed on health and social care professionals every day.

We are seeing new issues arising daily, from supporting individuals in the community and how to maintain contact with individuals, to managing social distancing within ward environments.

With workforces being moved around, mental health professionals also have the need to ensure detention paperwork is completed correctly and on time. With more and more healthcare professionals supporting patients remotely and with an increasing use of digital technology, can patient paperwork now be completed electronically?

Currently, the Mental Health Act and the Code of Practice do not address the use of electronic signatures. The Code confirms that computer generated versions of statutory forms can be used, ensuring the wording on the form complies with the statutory versions prescribed in the Regulations. However, it says nothing more.

However, the Law Commission considered the use of electronic signatures in September 2019.

They confirmed that: “…an electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.”

The Commission further state within their review that: “An electronic signature is admissible in evidence in legal proceedings. It is admissible, for example, to prove or disprove the identity of a signatory and/or the signatory’s intention to authenticate the document.”  This enforces current legislation. Section 7 of the Electronic Communication Act 2000 confirmed that electronic signatures have equivalent legal effect to a handwritten signature. The Information Commissioner’s Office have also confirmed that electronic signatures are admissible in court.

So, whilst the MHA is quiet on the use of electronic signatures, there is sufficient legal authority to confirm electronic signatures are admissible and would not impact the legality of documents.

However, before speeding ahead and converting to all detention paperwork being signed off electronically, the first step is to ensure you have policies/protocols in place. This is to ensure the correct use of electronic signatures and, where required, limiting the use of these within your organisation. You should also set out how electronic signatures should be used and how to confirm they have been properly applied to paperwork with authorisation, for audit purposes.

If you need any further advice, please do contact Molly Sanghera or a member of the team.

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