Electronic communication of statutory forms under the Mental Health Act

From 1 December 2020 many of the statutory forms under the Mental Health Act 1983 can be communicated electronically. This follows an amendment to Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

The Department for Health and Social Care has today published guidance explaining the circumstances in which the forms and other key documents can be sent electronically and the best practice for sending them, including signing and storing electronic forms.

The Department explains that there will be a grace period of two months during which the old versions of the forms can be used when submitting hard copy but not when communicating electronically. Come 1 February 2021 the new forms should be used.

It also acknowledges that this new guidance conflicts with aspects of the MHA code of practice and the reference guidance. Note that this guidance supersedes the conflicting guidance in the code and reference guidance and the Department will look to resolve these inconsistences as soon as possible.

With the roll out of electronic forms, hospital managers in each local and regional trust should lead the creation of a multi-agency protocol that all providers agree to abide by says the guidance. The protocol should cover: the establishment of a default secure email address for sending the forms, a system to monitor and action the emails and its safe storage.

A couple of points to note

You can only serve statutory forms and documents under the amended regulations where the receiving body, authority or person agrees to accept electronic service of these forms.

But there are a couple of exceptions to this rule.

The Department explains:

• where an approved mental health professional (AMHP), or a nearest relative wishes to serve an application for detention.

In this case, electronic communication to the hospital managers or their officers is always permitted (no agreement needed). Hospital managers are not entitled to reject a validly made application solely on the grounds of it being completed and communicated electronically.

• where the recipient is a patient.

In all such cases, statutory forms and other notifications for the information of the patient must continue to be served in hard copy. For example, the community treatment order recall form must continue to be served in hard copy and the patient should continue to be notified in hard copy if someone is authorised by a nearest relative to act on their behalf under regulation 24 of the 2008 regulations. Electronic communication can, however, be used as an additional means of providing the patient with the information, if that is their preference.

Note: all electronic forms, apart from the discharge order form, should be considered 'served' once they have been successfully sent.

In the case of a discharge order form sent electronically by the nearest relative to hospital managers, the amendment to the 2008 regulations means that service is considered to have taken place at the beginning of the next business day after which it was sent.

In circumstances where an AMHP submits an application for detention electronically and then delegates conveyance of the patient, for example to ambulance staff, a paper copy of the form is not needed to indicate that conveyance is lawful so long as the AMHP can provide evidence of a completed application supported by the necessary medical recommendations. 

Yet more guidance to get up to speed with.

Do get in touch if you would like to discuss the new guidance or require support with a Mental Health Act matter.