Deborah Jeremiah considers the relevant guidance/legislation and risk issues that should be considered by all parties responsible for the safeguarding of children.
NHS Guidance: mental health, learning disability, autism and specialised commissioning services under the MHA and ‘supporting systems’ in COVID-19
Stuart Marchant and Elizabeth Marke consider the updated guidance published by NHSE-I on the impact of COVID-19 on the use of the Mental Health Act 1983 and Code to Practice giving greater flexibilities whilst safeguarding the legal rights of patients.
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The Covid-19 pandemic has created a need for greater use of remote consultations and assessments but their suitability for each patient should be carefully considered.
The Secretary of State for Health and Social Care, Matt Hancock, said in March, the NHS “will take a digital first approach to accessing primary care and out-patient appointments” so that people can and should access care through phones and digital means “wherever clinically and practically possible”.
Principles of good medical practice continue to apply, and remote consultation will not always be appropriate because of a clinical need to see a patient in person. GMC guidance on Remote consultations can assist doctors when deciding whether remote treatment is appropriate. Nonetheless, the guidance recognises that during the pandemic “doctors may need to depart from this advice and apply their professional judgement to make best use of the resources available to them”.
Where clinically and practically appropriate, offering and making greater provisions for remote consultation may improve access to healthcare and assist in compliance with the Equality Act 2010. Health providers must avoid indirect discrimination i.e. where a provision, criterion or practice puts people with a particular protected characteristic (e.g. age, sex, disability etc.) at a disadvantage compared with others who do not share that characteristic unless it can be objectively justified. They also have an obligation to make reasonable adjustments for disabled service users. Practical and other issues, however, may make remote consultations less accessible.
Mental Health Act (MHA) Assessments
The Act states patients should be examined by medical practitioners “personally” (and seen by AMHP’s “personally” and interviewed in a “suitable manner”), however, does not necessary prescribe face-to-face assessments. The Code of Practice (“the Code”) also says assessments should be “direct” and “personal” but departing from it is possible where there is a cogent reason. A key issue is whether the doctor has carried out an assessment that meets their professional standards, particularly given the serious consequences and interference with a patient’s human rights. Some cases may be more amenable to a video or telephone assessment.
Among NHS England’s detailed guidance of 19 May 2020 is a checklist to support decisions in line with the minimum standards and safeguards on the application of technology to the MHA assessments. This includes considerations of:
(a) minimising adverse impacts (including physical and psychological risks to the service user, clinician or AMHP, and carers) and alternatives such as assessment with PPE;
(b) whether the assessment is person-centred and inclusive (e.g. can reasonable adjustments be made for adults with dementia, and those with learning difficulties and autism);
(c) quality of the assessment; and
(d) issues of governance and oversight.
However, the guidance states it is always preferable to carry out the assessment in person.
Mental Capacity Assessments
Capacity assessments may be carried out remotely but must be consistent with the principles of the Mental Capacity Act and promote a person’s rights.
Video assessment will often be the next best thing to a face-to-face assessment but telephone assessments may be appropriate. Alternatively, it may be possible to rely on evidence gathered by others on your behalf, or from recordings and other sources.
Court of Protection guidance notes careful consideration needs to be given to whether the person is being adequately supported during remote assessments, e.g. being accompanied by a "trusted person”. Additionally, arrangements made should be those which, having regard to the circumstances, are most likely to assist the person in achieving capacity.
DoLS safeguards continue to apply when changes to the care or treatment of a person lacking capacity constitute deprivation of liberty in a hospital or care home setting. There is a need to ensure protection of the person’s article 5 right to liberty while also protecting them from transmission of Covid-19.
Government guidance of 9 April 2020 states DoLS assessors should not visit care homes or hospitals unless a face-to-face visit is essential.
A Best Interest Assessor (BIA) may sometimes be able to base assessments on existing documents along with views of carers, family and friends, rather than visiting in person, with planned review at a later stage or when public health restrictions are lifted.
For urgent matters where a visit is necessary and possible, a S12 doctor may be able to undertake MHA and MCA assessments together, with the BIA conducting any further assessment by telephone or other remote means to limit contact. Where a visit is not possible but necessary, a shorter authorisation period or planned review assessment might be appropriate.
Section 49 Reports
Where a Section 49 report is required, consider whether a remote assessment is possible. If not, or if there are delays due to organisational pressures, possibilities might include an adjournment or other avenues for a report such as via the local authority, court of protection visitor, or instructing an expert with the court’s permission.
Some general considerations for remote consultations and assessments
- Good medical practice - Ensure that you continue to satisfy principles of good medical practice;
- Capacity - Consider any concerns over the service user’s capacity and satisfying the requirements of mental capacity and mental health law remotely;
- Safeguarding and support from others – Where concerns, appropriateness of remote means should be carefully reviewed;
- Identity verification, confidentiality, and data protection issues;
- Consent - Obtain appropriate consent to use of remote means and any remote treatments or course of action, and be satisfied of appropriate consent where someone else consults on another’s behalf;
- Continuity of care, joined up communication, and safety-netting;
- Equality legislation - Satisfy equality legislation (including making reasonable adjustments) e.g. text-based solutions may aid some service users with communication issues or where English is not a first language;
- Other legislation – Consider other relevant legal or professional considerations for certain services or intimate examinations e.g. sexual health consultations (especially with young or vulnerable people);
- Whether recordings are made – e.g. by service users (or with their explicit and informed consent where there is a specific reason for it);
- Practicalities – Consider IT literacy, internet connection, and alternative means if a chosen remote method fails; and
- Risk - In the context of Covid-19, risk assess face-to-face and remote means (including risks to health, and interference with human rights where appropriate), risks of delaying assessment or intervention, and consider relevant professional and government guidance.
Other useful guidance: Principles of safe video consulting in general practice during COVID-19
We can advise on legal and regulatory issues related to remote consultations and assessments, or more widely in relation to the impact of Covid-19.
It has been an extraordinary time for all agencies and statutory organisations who are responsible for and have a duty toward children.
The first substantive guidance the Government produced concerning vulnerable children was the Supporting vulnerable children and young people during the coronavirus (COVID-19) outbreak - actions for educational providers and other partners. More recently Government guidance has focussed upon the practicalities and judgements to be made in children returning to school in the ‘Supporting Children and Young People with SEND as Schools and Colleges prepare for Wider Opening’ as updated on 26 May 2020.
The primary guidance categorised vulnerable children as those with a social worker and those children and young people up to the age of 25 with an Education, Health and Care Plan (EHC Plan). Those who have a social worker include children who may have a Child Protection plan and those who are looked after by a Local Authority. A child is also deemed to be vulnerable if they have been assessed as being in need or otherwise meet the definition in Section 17 of the Children Act 1989.
The Covid-19 crisis has been a time when children are much less visible. Early years provision remains minimal; the vast majority of children are not yet back at school and there has been a significant drop in children attending hospital and other health care settings other than those requiring care for Covid 19 or associated conditions. These are the core places where safeguarding concerns are picked up and vigilant professionals are able to detect the signs that all is not well in a child’s life. These are also places where children often disclose harm. For children who require and receive care at home under a care package in many cases non-family carers are no longer going into the home while families enter lockdown, self-isolate or shield.
This concerning invisibility is compounded by the fact that face-to-face contact with children is now very difficult for professionals in schools, social care and health services other than virtually. This is no substitute for seeing the child face to face particularly where safeguarding home visits are needed. Of course in the case of very young children the virtual option is not feasible. Professionals can be forgiven for feeling very anxious about what may be happening to children behind locked down doors and that there may be a tsunami of safeguarding concerns to emerge as we come out of lockdown and schools take the first tentative steps toward integrating children and young people back into education.
In relation to children and young people with an EHC Plan and/or other vulnerabilities, many will be safely looked after at home but the guidance requires an appropriate risk assessment for each child or young person. Local authorities and schools or colleges should decide together who is best placed to undertake the risk assessment noting the duty to ensure provision remains within the local authority.
The guidance provided states that any risk assessment should include:
- The potential health risk to the individual from COVID-19 bearing in mind any underlying health conditions. This must be on an individual basis with advice from an appropriate health professional where required.
- The risk to the individual if some or all elements of their EHC plan cannot be delivered at all and the risk if they cannot be delivered in the normal manner or in the usual setting.
- The ability of the individual’s parents at home to ensure their health and health needs can be met safely.
- The potential impact of the individual’s wellbeing of changes to routine or the way in which provision is delivered.
Some schools are working with councils to ensure that children known to be vulnerable are still being seen by professionals. Anne Longfield , the Children’s Commissioner for England endorses this approach and on 25 April published a vulnerability index, published on April 25. This is intended to help local authorities identify just how many vulnerable children they are likely to have in their areas. The index highlights the estimated 102,000 young carers in England, 1.5 million children living with a parent/carer who has a severe mental health problem, and the 830,000 living in a home where domestic abuse has taken place in the last year. It highlights the more than 10,000 children estimated to be in gangs, the 130,000 children in temporary accommodation and at risk of homelessness, and the 4.1 million children living in poverty (compared to the 1.22 million who claim free school meals).
The responsibility for local authorities and their partnership agencies during this time to work together to meet individual needs is immense. The legislation emanating out of Covid 19 permits local authorities where appropriate temporarily to have more flexibility to prioritise their efforts for those children with the most complex needs. This does not however remove the wider safeguarding duty to any child who may be suffering or likely to suffer significant harm. The child’s welfare remains paramount and this continues to apply to all children. For those with EHC plans it should be noted that any flexibility to devise or deliver such plans will only remain in place temporarily and it is important to appreciate that the full range of provision must be reinstated once any temporary disapplication is lifted.
At Bevan Brittan we have a strong children’s law team who are accustomed to working in a multi-agency context and can advise upon any the aspects raised here including:
- Safeguarding policy and thresholds,
- Risk assessment around vulnerabilities and statutory duties for health, local authorities and education,
- EHC plans and support to children and young people with complex needs,
- System flexibilities in the face of Covid 19 legislation and guidance, and
- SEND duties generally and in the face of Covid 19.
NHS Guidance: mental health, learning disability, autism and specialised commissioning services under the MHA and ‘supporting systems’ in COVID-19
On 19 May 2020 NHSE-I published updated guidance on the impact of COVID-19 on the use of the Mental Health Act 1983 (“MHA”) and ‘supporting systems’ to safeguard the legal rights of people receiving mental health, learning disabilities and specialised commissioned mental health services (the “Guidance”).
Emergency provisions within the Coronavirus Act 2020 concerning second opinion safeguards and detention periods will only be enacted if it is deemed nationally that the mental health sector is experiencing extraordinary resource constraints that put patients’ safety at significant risk. To date that hasn’t been necessary and instead, the sector has been awaiting guidance from the Centre on using flexibilities within the current legislative framework – the Act and Code of Practice. This Guidance addresses the operational challenges posed by COVID-19 in light of the primary aim to continue to operate under current MHA legislation.
The Guidance identifies applications of MHA where workforce shortages can be expected to have the most significant impact and suggests actions by which local authorities and mental health providers can work together to try to mitigate the effects of workforce shortages, with a focus on collaboration, information and digital technology.
Sanctioned departures from the MHA Code of Practice
Section 5 and Annex D were developed with and approved by DHSC and set out alternative procedures where practitioners may need to make temporary departures from requirements of the Code of Practice to minimise risk to patients, staff and the public. It also highlights best practice and existing flexibilities in the Code of Practice. The aspects of the Code of Practice covered are: Section 136 assessments; AMHPs and responsibilities of Local Authorities; the hospital managers’ panel; Mental Health Tribunal Hearings; Medical reviews when a patient is placed in seclusion; Section 17 leave and visitors; Access to IMHAs; Second Opinion Appointed Doctors service; Electronic forms and electronic delivery.
The guidance seeks to strike the balance between providing flexibility (use of remote technology, electronic service of statutory documents, suspending managers’ hearings if not practicable) whilst protecting patient rights (no blanket refusals of leave or bans on visitors). It is a must read for providers and managers.
Digital MHA assessments
Importantly, the Guidance confirms the position (taken by the Judiciary) that video call can be used for MHA assessments. Doctors and Approved Medical Health Professionals may be satisfied on the basis of video assessments, that they have personally seen or examined a person in a ‘suitable manner’ as required under the MHA. However, there are minimum standards and safeguards where video assessments are acceptable.
- Clinicians must consider the relative risks and benefits of undertaking a MHA assessment in person compared to a video assessment, on a case-by case basis.
- Video assessments can be considered if:
- there is a significant risk of harm via transmission to the person and/or staff; AND
- there is a significant risk of harm due to the delay of assessment and/or subsequent intervention, in the instance that an assessment is deemed absolutely necessary and cannot be conducted in person in a safe and timely way.
- There must be a robust digital technology in place and a suitable environment that can enable a high-quality personal assessment to be conducted.
- Wherever possible a joint decision taking into account the person’s views should be made about the use of video assessments, although ultimately the decision does not require consent.
- Throughout the process, staff as well as the person and their carer should be confident with the quality of the video assessment and that it meets the requirements of the MHA.
- Clear processes should be in place which ensure that staff can safely access, complete and submit the appropriate documentation remotely.
Further specific considerations apply for particular settings e.g. for community settings or acute hospitals and particular populations e.g. children and young people or learning disability and autism.
The Guidance is cautionary in respect of the possible increased need for restrictive practice to maintain patient and staff safety in COVID-19 and in particular addresses blanket restrictions and patients who refuse to be isolated. Restrictions must be minimal, lawful, necessary and proportionate. MHA powers must not be used to enforce treatment or isolation for any reason unrelated to the management of a person’s mental health. The MHA may offer authority for enforcing social distancing and isolation of symptomatic patients. Where blanket restrictions are identified as necessary and proportionate as a result of COVID-19, providers should continue to adhere to their organisational polices regarding the regular review of the restrictions and document why they have been necessary
The Guidance addresses specific considerations for mental health, learning disability, autism and specialised commissioning services. Key themes are decisions being made on case-by-case basis, safeguarding, communication and record keeping. Further guidance is also signposted.
This Guidance needs to read by all commissioners, local authorities, providers, health care and social workers. It succeeds in addressing the operational challenges posed by COVID-19 that we have seen challenging our clients within the boundaries of current MHA legislation. Whilst government guidance is not the only basis for applying flexibilities or departures from the Code of Practice provided that there are cogent reasons, this will be the new starting point to support the provision and commissioning of services in these unusual times.