NSUN Response to the Coronavirus Bill 

Measures proposed on 19th of March in the UK’s Coronavirus Bill will relax safeguards in mental health legislation and suspend the Care Act for up to two years in order to ensure that health services can continue to operate in the event of increased demand.  

NSUN is concerned that significant legislative changes are being rushed through with minimal informed scrutiny, and inadequate consideration as to their impact on the lives and rights of people who live with mental ill health, distress, or trauma. The Coronavirus Bill also effectively suspends the Care Act 2014 and is likely to have a serious negative impact on adults with care and support needs and their carers, at a time when their needs may increase.

Whilst we understand that these are unprecedented times, any legislative change must be proportionate and thought through, and should protect all of us. These are key changes which will not just affect people in the short term, but could impact on our rights in the longer term.

We understand that we will all have to make sacrifices at this time of national crisis. However we are concerned that some people will have no choice but to sacrifice treatment, support or their liberty at a time when they are in most need.

Given the lack of priority given to revision of mental health legislation in the past, NSUN is urging a clear and well-communicated six month sunset clause for these changes which should not be retained unless there is overwhelming need, in addition to the recommendations set out below.

We have focused on legislative changes in England unless otherwise specified.

1. Mental health legislation in England and Wales

Minimising some of the safeguards in an already coercive Mental Health Act (MHA), and extending its powers, is a step in the wrong direction. 

The rationale for the legislative changes is the anticipated shortage of doctors who can make recommendations for detention under the MHA, and a likely reconfiguration of the mental health estate to create space for additional beds. However, the changes do not appear to anticipate any shortage of Approved Mental Health Professionals, who will still be required to undertake an assessment and make the application. 

Much of the attention has rightly been on the proposed extensions to detention and the removal of safeguards. However, NSUN is also drawing attention to another consequence: the likely increase in individuals being discharged early into the community, where community mental health services have been depleted by years of cuts, and will suffer additional strain in the coming months. The proposed changes to mental health legislation are therefore likely to increase both coercion and neglect

Summary of changes:

The Coronavirus Bill will relax safeguards in mental health legislation for up to two years in order to ensure that health services can continue to operate in the event of increased demand. The Bill allows the 4 governments across the UK (of Northern Ireland, Scotland, Wales and the UK) to switch on these new powers when they are needed (and to switch them off again once they are no longer necessary), based on the advice of Chief Medical Officers of the 4 nations.

Under the proposed temporary coronavirus legislation, if staffing levels reach a critical point, the Government is able to switch on additional powers in England and Wales  which would mean that: 

  • An Approved Mental Health Professional (AMHP) could secure advice from one doctor, rather than two doctors, in order to section someone, if it is impractical to get advice from two doctors or would cause undue delay. Under the emergency regime in England and Wales the AMHP will still have the discretion to insist on two medical recommendations.

  • The clinician in charge of the patient's treatment could be allowed to continue medication without their consent (forced treatment) beyond three months without getting an independent/second opinion (SOAD), if they think that would cause undesirable delay or be impractical. 

  • Some time limits set in the Mental Health Act could be extended, including: 
  • Under section 5: emergency detention for people already in hospital would extend from 72 hours to 120 hours, and nurses’ holding powers would extend from 6 to 12 hours
  • Under sections 135 and 136: police powers to detain a person found in need of immediate care at a “place of safety” would extend from 24 hours to 36 hours.
  • Under section 35/36: The cap on how long someone can be held in hospital while awaiting a report (currently 12 weeks) would be lifted. 

  • The potential removal of NHS Continuing Healthcare Assessments which are supposed to identify and provide the help people should receive when they leave hospital.

NSUN Recommendations

It is critical that Government ensures that exemptions only extend as far as is absolutely required, both in time and scope, and are regularly monitored and adjusted.

Detaining someone raises important human rights concerns around their right to liberty (Article 5 of the Human Rights Act (HRA)) and their right to a private and family life (Article 8 HRA). Any restrictions of these rights must be lawful, legitimate and proportionate. Lack of resources as a sole justification is usually not enough to restrict a person’s human rights.

We are calling on the Government to: 

  • Reconsider plans to remove the safeguard of a second opinion after three months of treatment. This safeguard is a minimum protection for people made to have medication under the Mental Health Act, including for those who are being forced to take medication. It should be retained, particularly for higher risk prescribing. The Independent Mental Health Act Review recommended making it harder for clinicians to administer treatment without consent, and proposed an appeal process against treatment decisions. To give some context, the CQC receives about 16,000 requests for SOAD opinions every year, and changed treatment plans in 29% of their visits (“Monitoring The Mental Health Act 2018/19"). Removing safeguards in relation to consent to treatment may be in breach of Article 8 of the Human Rights Act.

  • Remove plans to extend a doctor’s holding powers to five days under Section 5 of the Mental Health Act. Currently a voluntary patient can be prevented from leaving hospital so that they can be assessed for detention under the Mental Health Act, with no entitlement to an advocate or tribunal, for up to 72 hours. The proposal is to extend this to 120 hours. NSUN does not believe the extension to 120 hours is proportionate or reasonable, and believes it may be in breach of the Human Rights Act.

  • Clarify the role of Approved Mental Health Professionals (AMHPs) within the emergency legislation, which seems to extend the role of AMHPs in the light of the anticipated shortage of doctors who can make recommendations for detention under the MHA, but without increasing the number and capacity of AMHPs. NSUN’s understanding is that there are currently under 4000 AMHPs and no central register of AMHPs. If there are no AMHPs available, this calls into question the legality of detention under the MHA.

  • Make clear through regulations and/or statutory guidance when these additional powers under the Mental Health Act can be used and the circumstances in which they will be turned on and turned off and ensure proper reporting of all decisions made under the emergency legislation. 

  • Make clear through regulations and/or statutory guidance that individuals should not be discharged early unless there is adequate support in place for them through community mental health services, and ensure NHS Continuing Healthcare Assessments continue to be carried out.

2. Suspension of Care Act 

Summary

The Coronavirus Bill is likely to have a serious negative impact on adults with care and support needs and their carers. It essentially suspends the Care Act 2014 duties in England to assess and arrange services to meet the needs of Disabled adults, including the duty to meet the eligible needs of Disabled people (Section 18) and their carers (Section 20).  Care Act assessments for care and support would become powers that can be used, rather than duties which must be done. The only exception is where a failure to provide services would result in a breach of the European Court of Human Rights (ECHR). However, the threshold for ECHR breaches in this area is high, which means the proposed Bill risks leaving many Disabled adults with no entitlement to care, at a time when their need for care may be considerable. Other changes in the Coronavirus Bill will allow health bodies to delay carrying out an assessment for eligibility for NHS continuing care.

Duties for young people transitioning to adult social care have also been suspended. The Secretary of State for Education will have power to disapply the duty on schools and other institutions to admit a child to a school where they are named on an Education Care and Health Plan (EHCP).  The Secretary of State will be able to vary provisions of the act, such as the core duty to procure provision set out in an EHCP, so instead of being an absolute duty it becomes a ‘reasonable endeavours’ duty, creating a lesser entitlement for up to two years.

NSUN Recommendations:

NSUN is also calling for a reversal of the proposed suspension of the elements of the Care Act which set out the duty to meet the needs of those in need of care. Any changes to the Care Act which may deprive people of care and support are too important to roll into such a sweeping bill and need to be debated separately.

3. The benefits system and Statutory Sick Pay 

Whilst benefits and Statutory Sick Pay are not included in the Coronavirus Bill, many people who live with mental ill-health, distress or trauma depend on benefits and social care, and will be disproportionately affected by Covid-19. 

It is encouraging that the Government has already suspended face-to-face assessments for Employment and Support Allowance (ESA), Universal Credit (UC) and Personal Independence Payments (PIP) to avoid people having to risk infection by travelling to an assessment. 

However, we urge the Government to go further. Alongside User Led Organisations DPAC and RITB, we call on the Government to:

  • Suspend all assessments, reassessments, sanctions, conditionality jobcentre visits, training/work experience programs; allow in claimants favour all Mandatory Reconsiderations and Tribunals; and default to granting awards until the emergency is over.
  •  Introduce interim assessment phase payments equal to Statutory Sick Pay for people making new claims of PIP, ESA, UC for reasons of illness or impairment. 
  • End any delay in payment, beginning with advance payment on day one of all benefits. As Universal Credit does not give enough to live on, it must be increased and all rent (Local Housing Allowance) and personal allowances should be increased to real world living amounts.


Statutory Sick Pay (SSP)

The current rate of SSP is far too low.  £94.25 a week is just 29 per cent of the £328.40 income an individual would receive for a 40 hour week paid at the minimum wage or 26 per cent of the 2018/19 Living Wage rate of £360 for a 40 hour  working week. We are urging the Government to increase the rate to match the National Living Wage or Minimum Wage to ensure people can meet their living costs at this time. We also urge the Government to expand the eligibility for SSP to cover those who earn under £118 per week and to ensure everyone can access financial support from day one, regardless of their employment type. 

Sources of information

39 Essex Chambers:

https://www.39essex.com/the-coronavirus-bill-schedule-11/

Alex Ruck Keane:

https://www.mentalcapacitylawandpolicy.org.uk/covid-19-and-mca-first-guidance-out/

British Institute of Human Rights:

https://www.bihr.org.uk/Blog/the-corona-virus-bill-and-human-rights

The Coronavirus Bill

https://services.parliament.uk/bills/2019-21/coronavirus.html

Doughty Street Chambers:

https://insights.doughtystreet.co.uk/u/102d7k0/sophy-miles

Equality and Human Rights Commissions:

https://www.equalityhumanrights.com/en/our-work/news/human-rights-and-equality-considerations-responding-coronavirus-pandemic

Human Rights Act (1998)

http://www.legislation.gov.uk/ukpga/1998/42/contents

Inclusion London:

https://www.inclusionlondon.org.uk/campaigns-and-policy/act-now/coronavirus-bill-could-leave-thousands-of-disabled-people-without-support/

The Independent Review of the Mental Health Act (1983)

https://www.gov.uk/government/publications/modernising-the-mental-health-act-final-report-from-the-independent-review

Liberty:

https://www.libertyhumanrights.org.uk/news/press-releases-and-statements/liberty-calls-continuous-scrutiny-coronavirus-bill

The Masked AMHP

https://themaskedamhp.blogspot.com/2020/03/the-coronavirus-bill-proposed.html?m=1

Mental Health Act (1983)

http://www.legislation.gov.uk/ukpga/1983/20/contents

Mind:

https://www.mind.org.uk/news-campaigns/news/mind-responds-to-changes-to-the-mental-health-act-in-emergency-covid-19-legislation/

Recovery in the Bin:

https://recoveryinthebin.org/2020/03/17/3-point-plan-to-make-dwp-support-people-during-covid-19-outbreak/

Lucy Series

https://thesmallplaces.wordpress.com/2020/03/20/the-mental-health-acts-forgotten-sibling/