Easements which weaken Mental Health Act protections to be dropped

As recommended in our Law under lockdown report, the government will drop the provisions of the Coronavirus Act 2020 which weaken Mental Health Act 1983 (MHA) protections in England.

Although these provisions, referred to as ‘easements’, have not been used during the pandemic, it’s reassuring that they have been removed from the Coronavirus Act to ensure much-needed clarity and security for those working in the sector.

The easements would have allowed for an application to detain a person under sections 2 or 3 of the MHA to be based on a single recommendation from one doctor, rather than two, if seeking a second recommendation was "impractical or would involve undesirable delay".

They would also have allowed provisions to extend time limits under the MHA, allowing:

  • doctors and nurses to detain patients already in hospital to 120 (instead of 72) and 12 (instead of six) hours
  • the police to detain a person in a place of safety for 36 hours (instead of 24)

Health and social care secretary Matt Hancock has confirmed that these were “always powers of last resort” and that when measures are not needed they will be set aside. Secondary legislation will soon be produced to enable this to happen.

Our view

We’ve engaged consistently upon the MHA easements throughout the pandemic, successfully lobbying for the government’s criteria for ‘switching on’ the easements to be published in order for the sector to adequately prepare in advance.

Despite this, the easements to the Care Act 2014 and Social Services and Well-being (Wales) Act 2014 remain within the Coronavirus Act. This allows local authorities to suspend their duties to assess, develop and review care plans, carry out financial assessments and meet needs subject to their obligations under the Human Rights Act.

We’ve called for:

  • improved guidance to be published clarifying how to conduct the required process under these easements
  • the government to provide detailed guidance to assist local authorities with making human rights assessments

We’ll continue to monitor the government’s response to our recommendations related to the impact of coronavirus (COVID-19) measures on access to justice for vulnerable people as raised in our Law under lockdown report.

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