The Government has introduced emergency legislation to deal with the public health risks posed by Covid-19 (Coronavirus). Most of those measures are contained in The Coronavirus Act 2020 but are also contained in a number of Regulations, all of which came into force at the end of March 2020.

The emergency legislation covers many aspects of everyday life: the key provisions have received extensive media coverage but have also been the subject of some confusion: a brief guide to the key provisions is set out below.

Key Provisions of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 – restrictions and requirements

In an effort to contain the spread of the virus and to ensure that the strain on the NHS does not become unmanageable, the government has introduced a raft of measures which impose restrictions on our movements. This will be of concern to everybody, in particular perhaps people who are affected by bipolar, who might be more adversely affected by those restrictions.

Those measures are contained in the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which came into force on 26 March 2020. [Note: a separate set of Regulations applies to Wales, which differs in some respects to the English version.]

When am I allowed to leave my home?

  1. Regulation 6 sets out the provisions on restriction of movement: no person may leave the place where they are living without reasonable excuse. The restrictions do not apply to a homeless person (Reg 6(4)). There are four main purposes which will amount to a reasonable excuse:
    1. Obtaining basic necessities;
    2. Exercising – note there is no restriction in England on this being once a day – although the Welsh Regulations do include that further restriction, nor is there any specific time limit;
    3. Seeking medical assistance (including access to mental health professionals and counselling); and
    4. Travelling to and from work, if necessary, and if it is not possible to do that work from home. The regulation provides further legitimate excuses, which include (but are not limited to): donating blood; attending a funeral of a family member; fulfilling a legal obligation such as attending court or satisfying bail conditions; accessing critical public services, including childcare and social services; continuing childcare arrangements between parents not living in the same household; for a minister or worship leader to go to their place of worship; to move house where reasonably necessary; and to avoid injury or illness or to escape risk of harm. The list is not exhaustive: there will be other things which amount to a reasonable excuse to leave the house. The question to have in mind is what is reasonable.

Am I permitted to gather with others? And in what circumstances?

  1. Regulation 7 sets out the restrictions on gatherings. Gatherings of more than two people in a public place are prohibited, except:
    1. (i) Where those gathering are members of the same household;
    2. (ii) Where the gathering is essential for work purposes;
    3. (iii) To attend a funeral; or
    4. (iv) Where reasonably necessary to: move house, help a vulnerable person, provide emergency assistance, participate in legal proceedings or fulfil a legal obligation. Note that there are NO other exceptions allowed for by the legislation.

It is a criminal offence to breach the regulations

  1. Regulation 9 makes it an offence to:
    1. (i) Contravene, without reasonable excuse, a requirement or direction given under the regulations; or
    2. (ii) Obstruct, without reasonable excuse, any person carrying out a function under the regulations. An offence under Regulation 9 is punishable by an unlimited fine.

 What is a fixed penalty notice?

  1. Regulation 10 provides that an “authorised person” (a police officer or an officer of the Local Authority) can issue a fixed penalty notice to a person who they reasonably believe has committed an offence under these regulations. Acceptance and payment of a fixed penalty notice will not amount to a conviction, and no proceedings may be taken before the end of 28 days following the date of issue of the notice. The amount specified in the notice will be £60, or £30 if paid within 14 days. If an individual receives a second fixed penalty notice, the amount doubles to £120, and will double for each subsequent breach, up to a maximum amount of £960 (i.e. after receipt of 5 fixed penalty notices). If you do not accept a fixed penalty notice, then you will be liable to prosecution for the alleged breach.

The emergency legislation also contains some provisions with particular relevance for members of our community, particularly for those who are currently patients detained in hospital under the Mental Health Act 1983, or subject to Community Treatment Orders, or for family members of people in that situation: a brief guide to those provisions is below.

The Coronavirus Act 2020 and Temporary Changes to the Mental Health Act

Section 10 and Schedule 8 of the Coronavirus Act set out proposed temporary changes to the Mental Health Act. The Coronavirus Act will remain in force for a maximum period of two years: until 23 March 2022.

However, the provisions relating to the Mental Health Act have not yet been brought into force – they will only become law if the government decides it is necessary to make those changes. If they are brought into force, they too will expire by March 2022.

What will change if the provisions are brought into force? In summary, most of the changes relate to a scaling back of the requirements for more than one professional opinion before a person can be detained, and to some extensions of the various maximum periods of detention.

  1. Change to the number of doctors required to apply for a patient to be detained under sections 2 and 3 The MHA 1983 requires that an application to detain an individual under s. 2 (for assessment), or s. 3 (for treatment) can only be made by two registered medical practitioners. Schedule 8, paragraph 3 of the 2020 Act amends the MHA 1983 so that an application can be made by just one registered medical practitioner, if it is impractical to comply with the usual rule, or it would cause an undesirable delay.
  2. Change to the number of clinicians required to make an emergency detention of a voluntary patient The MHA 1983, s. 5 sets out the circumstances where a voluntary patient can be detained in hospital. That can happen where a registered medical practitioner or approved clinician is of the view that a patient ought to be detained for assessment or treatment as an emergency. Where a registered medical practitioner applies to do that, s. 5 (2) states that the detention can only be for a period of 72 hours. The Coronavirus Act Schedule 8 paragraph 4 increases that maximum period to 120 hours. Where a nurse applies to do that, s. 5 (4) states that the detention can only be for a period of six hours. The Coronavirus Act Schedule 8 paragraph 4 increases that maximum period to 12 hours.
  3. Length of remand in hospital for those accused of criminal offences and change to the number of doctors’ reports required Section 35 of the MHA 1983 allows a Crown Court or a magistrates’ court to remand a suspect to hospital for the production of a report into their mental state. Section 36 allows a suspect to be remanded in hospital for treatment. Both place a maximum time limit on that remand of a period of 12 weeks. Schedule 8 paragraph 5 of the 2020 Act removes that time limit – although the court which ordered the remand can still terminate the order at any time. Usually, a court cannot order anybody who is accused of a crime, or has been convicted of a crime, to be sent to a psychiatric hospital without the reports of two doctors recommending that course of action. Schedule 8 paragraph 6 of the 2020 Act reduces that requirement to one report from a single doctor.
  4. Transfer of prisoners to hospital The MHA 1983 sections 47 and 48 deal with arrangements for the transfer of prisoners (whether serving custodial sentences or not) to be transferred from prison to hospital. The usual requirement is for two doctors to supply reports to the court recommending transfer. Schedule 8 paragraph 7 of the Coronavirus Act reduces that requirement to the report of a single doctor.
  5. Continuation of treatment and Second Opinion Approved Doctors Section 58 of the MHA 1983 applies to certain forms of treatment which after three months require the consent of the patient to continue. In those circumstances, the treatment can only continue in the absence of the patient’s consent if a Second Opinion Approved Doctor (SOAD) has certified in writing that the patient is not capable of understanding the nature, purpose, and likely effects of the treatment, or has not consented to it, but that the treatment is appropriate. Schedule 8 paragraph 9 of the Coronavirus Act does not dispense with the need for a second opinion altogether, but it does remove the requirement that the opinion be given by a doctor approved for the purpose, if it is impractical to obtain it and would otherwise cause undesirable delay. The second opinion must however be given by a doctor who is professionally concerned with the patient’s treatment.
  6. Police powers to remove to a place of safety Sections 135 and 136 of the MHA allow police officers to remove an individual to a place of safety: either upon entry to their home address under a warrant; or from a public place. In both situations, police officers have the power to detain a person at such a place of safety for a maximum period of 24 hours. Schedule 8 paragraph 10 increases that time limit to a maximum of 36 hours.
  7. Mental Health Review Tribunals – some changes to procedure In all courts and tribunals measures to control the spread of Covid-19 have necessitated adjustments to how hearings are conducted. This of course includes Mental Health Tribunals. In England, those adjustments are contained in an Emergency Practice Direction issued on 19th March 2020 by the President of the Mental Health Jurisdiction of the Health Education and Social Care Chamber. The measures will remain in place for 6 months, until September 2020. The changes include:
    1. In respect of any new cases, the tribunal panel (usually constituted by a legal member, medical member and a lay member) will now be heard by a legal member alone;
    2. The Responsible Clinician, Nurse and Patient will be present at the hearing. The advocate, the Judge and the Care Co-ordinator, will all attend remotely via a conference telephone call;
    3. The legal member may seek advice from a medical member by telephone during the hearing;
    4. If the patient is unrepresented, they must have the opportunity of speaking to the legal member in private via telephone;
    5. There will be no further pre-hearing examinations by medical members. Similar procedural changes in respect of Mental Health Review Tribunals in Wales are contained in Schedule 8 paragraph 11 onwards of the Coronavirus Act. Schedule 8 paragraph 11 allows for panels to be constituted by a legal member sitting alone. Paragraph 12 goes further and provides for the possibility of a Tribunal determining an application without a hearing, if to hold one would be impractical or would involve undesirable delay.