This guidance is for commissioners of care, providers, health care professionals, Approved Mental Health Professionals (AMHPs), local authorities and other partner organisations, including the police and prisons involved in caring for people with mental health needs, a learning disability and/or autism during the pandemic.
Guidance on using the MCA Code of Practice
- The Department of Health and Social Care has provided advice on using the MHA Code of Practice during the COVID-19 pandemic period and this can be found in section 5 and Annex D of the updated guidance.
During the ongoing pandemic, mental health services and practitioners may need to make certain changes to current practices in order to continue functioning in this challenging environment and in order to comply with public health advice.
NHSE/I and the DHSC find that current circumstances may provide cogent reasons for departure from usual best practice, but that each practitioner must assess whether the departure is appropriate and must only do so when necessary and proportionate. Any departure should be monitored and evidenced. The CQC can conduct reviews if concerns are identified.
It is possible that over the comings weeks and months that operational challenges arising from resource constraints may start to impact on the use of the MHA. We look at some of these areas and the steps mental health services can take:
Workforce shortages (which were already affecting many providers prior to the crisis) may present a further operational challenge over coming weeks but the MHA must continue to be used to detain and treat people in a timely way, where this is necessary.
Consideration must be given to the possible impact on access to section 12 doctors, AMHPs and independent mental health advocacy (IMHA), possible reduction in staff with specialist learning disabilities/autism training, difficulties in accessing mental health tribunals and increases in community treatment order recalls to hospital and subsequent assessments.
The guidance suggests mitigation actions for these challenges, such as:
- deploying additional administrative resource;
- collaborative working between NHS providers and local authorities;
- use of appropriate digital technology;
- enhanced communication with patients and families;
- advanced planning for MHA work; and
- utilising dedicated senior operational resource to co-ordinate demand and capacity.
Restraint and restrictive practices
In these unprecedented times, there may be a justifiable need for restrictive practice in order to maintain both patient and staff safety, for example, where patients refuse to isolate. However, providers must, at every opportunity, use the least restrictive methods possible in line with the MHA and MCA Codes of Practice. Decisions to increase forms of restrictive practice resulting from the impact of COVID-19 should always be documented. Any use of restriction must be proportionate to the risks involved and, if required, a referral should be made to the provider’s ethics committee.
The guidance makes clear that MHA powers must not be used to enforce treatment or isolation for any reason unrelated to the management of a person’s mental health, such as detaining inpatients whose refusal to be tested/isolated is unrelated to their mental disorder.
Every decision to use restraint must continue to take into account the need to respect an individual’s liberty and autonomy. Restrictions should continue to be used only if they are necessary to prevent harm to the person in a proportionate manner and stopped at the earliest opportunity.
Providers should not impose blanket restrictions if they can be avoided. If they are necessary and proportionate due to COVID-19 providers should regularly review and document why they are necessary.
Managing patients with COVID-19
Isolating patients in a mental health setting may be challenging and providers should determine the use of the appropriate legal framework when doing so on a case-by-case basis. NHSE/I are intending to showcase legal and best practice frameworks.
Refresher physical health training for staff is recommended.
Mechanical restraints should not be used solely for infection prevention control purposes.
It is recommended that all inpatient settings should cohort all patients in specific categories even though this may breach each provider’s same sex accommodation guidelines.
To mitigate against any additional risk or distress to patients, the guidance recommends that providers assess the implications for each individual person and communicate transparently and effectively with them, their families and advocates.
Escorting patients detained under the MHA, including those on Restriction Orders (sections 41 and 49 MHA) to and from acute general hospitals
Where this transfer is related to the treatment of COVID-19, it is important that patient, staff and public safety is considered as part of the individual risk assessment, but this must be balanced with the risks in relation to infection control for all those involved.
All transfers must be planned in conjunction with the acute hospital’s safeguarding policies.
The principles set out in the guidance apply broadly across all services, including specialised services, but extra guidance is given to some providers and clinicians to support them in circumstances where extra challenges arise due to the nature of specialised commissioned services.
Secure providers will have a significant additional burden in terms of legal requirements. Organisations can make changes now to how they discharge some responsibilities under the MHA to reduce their burden as well as community transmission.
For example, using digital technology for conducting meetings or proceedings to virtual hearings, working collaboratively with other stakeholders like the Mental Health Casework Section (MHCS) and Her Majesty’s Prison and Probation Service (HMPPS) and communicating with patients and families when reviewing care plans.
If it becomes necessary for high secure services to derogate from the Safety and Security Directions the provider should consider solutions and mitigation tactics in conjunction with NHSE/I regional specialised commissioners and the Head of Mental Health For Specialised Commissioning nationally for their consideration and onward support.
If considered appropriate, the actual derogation will need to the authorised by the chief officer or their nominated deputy of each provider.
Most of the proposals in this guidance apply to all ages and the current MHA and MCA legislation for 16 to 17 year olds should continue to be used.
If there are any diagnosis challenges in children or young persons due to new emotional and behavioural constraints, advice from professionals in children and young people’s mental health should be sought.
As before, caution should be taken when determining whether an individual with a learning disability and/or autism is detainable under the MHA and reasonable adjustments to practices, policies and procedures may need to be made.
It is important that, if a person with a learning disability does not meet the specific behavioural criteria for detainment, non-compliance or difficulty in gaining compliance, with any restrictions and interventions required for the management of COVID-19, is not interpreted as adequate grounds on which to detain them.
The emotional and behavioural responses to the current situation of these patients may also provide a diagnostic challenge in assessments under the MHA. It is essential that the support of health and social care service practitioners with particular experience and expertise in learning disability and/or autism is sought in these circumstances.
People with dementia may lack awareness of the risk posed by COVID-19 and be less able to report symptoms because of communication difficulties and care providers should be alert to the presence of signs, as well as symptoms, of the virus.
No blanket decisions on care and treatment should be made for these patients and support should be sought to help ascertain their wishes and preferences as much as possible.