Use of the Coronavirus Act 2020 for de facto psychiatric detention

This clinical case history illustrates the legal and ethical dilemmas encountered with the first known use of the Coronavirus Act 2020 in the UK to detain a potentially infectious person to a mental health facility. The case highlights the consequences the new legislation may have for psychiatric services and the resulting challenges for clinicians.

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The Coronavirus Act 2020 (CA 2020) came into force in the UK on 25 March 2020.1 It makes legal provisions for wide ranging areas of life in the face of the coronavirus outbreak. Its scope is vast, from closure of bingo halls and schools, to postponement of elections, changes to inquests and recording of births and deaths, and financial measures such as statutory sick pay. It also outlines the recent changes within the Mental Health Act (1983) (MHA) itself,2 including use of audio and video technology for conducting court processes such as MHA tribunals.         

The focus of this case is on Schedule 21 (p233): Powers relating to potentially infectious persons. The powers under this are wide ranging; ‘to direct or remove persons to a place suitable for screening and assessment, request a constable to remove the person to a place suitable for screening and assessment’. This includes all those who have been within an infected area in the past 14 days, including any country with human-to-human transition as seen across the UK. It gives public health officers the power to direct potentially infectious persons to go to a suitable place for assessment and screening for a maximum period of 48 hours. It may require the individual to give a biological sample (generally nose or throat swab) undertaken by a suitable health care professional. Further detention does not require a positive swab test if there are reasonable grounds to believe the individual is infective. The individual can be required to remain in a specified place for up to 14 days, enforced by a police constable.1 It is an offence to abscond or not comply with these restrictions. The individual may appeal against the restrictions through a magistrate’s court.

Case history

The patient was a middle-aged female with a background of schizophrenia and mild learning disability. She was not under secondary mental health services but lived in a care home with mental health support. She had a history of formal admissions but had been stable for many years on a depot antipsychotic administered by her GP. Some concerns had been raised three months previously that she was becoming more irritable with staff, sleeping poorly and not accepting care interventions. However, she remained compliant with her medications and did not engage with the community mental health team for assessment when this was considered.     

In April 2020, the patient developed a cough and coryzal symptoms. Other residents at the address had already been confirmed as positive for COVID-19 raising the suspicion that the patient had been infected. She continued to leave the residence against advice of staff as per government guidance, leading to a request for her GP to assess for deprivation of liberty safeguards (DoLs) (Mental Capacity Act 2005)3 to prevent her from leaving. It was suggested the patient’s capacity to understand the impact of COVID-19 was fluctuating. She would not give consent for a swab. No face-to-face review was carried out but her GP escalated concerns direct to Public Health England (PHE).     

Discussions with PHE over the following days ultimately led to a legal order under the CA 2020 Schedule 21, for the patient to be detained at a local mental health unit on a ward specifically configured for treatment of COVID-19 positive inpatients. This order had duration of seven days initially from onset of symptoms. Local mental health services were instructed to facilitate this immediately, which occurred within hours of the request.

Detention to psychiatric hospital

Under the PHE order nursing staff were authorised to exercise a number of delegated powers, specified as:

  • Use of reasonable endeavours to persuade the patient to self-isolate in a locked room and prevent her from coming into contact with other patients on the ward using such measures as they believe to be reasonable in the circumstances.
  • Applying reasonable restraint to prevent injury to herself or to prevent a criminal offence, which shall be proportionate to the risk she presents at the time it is needed.
  • Allowing the patient access to such facilities as needed in their opinion for her welfare, health and to minimise distress caused to her.
  • Complying with the reasonable instructions of the police officers who are on duty and to request assistance from the police when necessary.
  • Offering mental and physical health care as appropriate in the circumstances and measure her temperature by non-invasive means, arrange referrals for further assessments if there is a deterioration in her mental or physical health during the period of isolation.
  • Removing any articles or implements that may present a risk to her or other staff or patients and to conduct searches under direct police supervision, as they believe on reasonable grounds to be needed.

No written information regarding the detention were given to the detainee or the ward staff on arrival of the patient, who co-operated with request to self-isolate. The police remained on the ward to enforce the patient’s isolation should she try to leave her room or abscond (there is no provision in the CA 2020 for delegation of this specific power to health care providers).     

Pragmatically, the patient was treated as an informal patient on the ward, undergoing clerking and physical observations, but she declined swabbing for COVID-19 and blood investigations. Her mental state was unremarkable, but she had limited awareness of the risk to herself or others, nor why she was in hospital.     

Within 24 hours of her admission, her physical condition deteriorated and the patient was transferred via ambulance to a local medical hospital. Further assessment revealed normal bloods and COVID-19 swabs were negative. She made an uneventful recovery and was discharged home 72 hours later.     

A multi-agency review of the use of CA 2020 Schedule 21 was completed, which invited all stakeholders to feedback on the process and make suggestions on how to improve any future applications.

Discussion

Psychiatrists commonly face dilemmas in clinical practice, which arise from legal, clinical or ethical issues. These can be explored using a simple tool such as the ethical grid.4 In this case scenario, the decision in question is the appropriateness of detention to a psychiatric hospital using the Coronavirus Act 2020.

Legal issues

The legal considerations in this case are complicated by the lack of familiarity with using this legislation. There appears be no detailed guidance associated with CA 2020 to assist in decision making, which is unsurprising considering the speed with which the legislation was introduced. However, the Act is supplemented by explanatory notes, in the relevant section (93):     

We assume that the vast majority of people will comply with relevant public health advice. The policy aim of these provisions is to ensure that proportionate measures can be enforced if and when necessary. The proposals will provide public health officer [sic], constables and (in some circumstances) immigration officers with the means to enforce sensible public health restrictions, including returning people to places that they have been required to stay. Where necessary and proportionate, constables and immigration officers will be able to direct individuals to attend, remove them to, or keep them at suitable locations for screening and assessment. These measures look to…… ensure that constables can enforce health protection measures where necessary’.1     

Public Health Officers (PHOs) clearly have a duty to review what measures are necessary and proportionate, presumably through consultation with specialist providers. In comparison, we are familiar with the MHA guiding principle of using the least restrictive alternative. In this case, less restrictive options could have been pursued before detention; such as a PHO (or delegate) attempting persuasion to comply or police visiting or even arresting to formally caution and explain the consequences of non-compliance. Similarly a review of mental state and capacity via mental health referral would have explored suitability of other disposals. The history suggests that assessment of the patient’s mental health (given potential relapse indicators) was not made prior to consideration of detention in a mental health setting. It is also unclear how a mental health unit was identified as a ‘suitable location’ for screening and assessment. We assume detention in a mental health ward, providing both welfare and access to specialist mental health assessment, was considered by the PHO to best meet the needs of a potentially vulnerable woman with a history of mental health issues.     

It is not clear to what degree (if any) a capacity assessment of our patient was undertaken by any health or care professional before referral to public health. There may have been a presumption capacity was impaired because of mild learning disability, but clinically this is against established guidance.     

This case will be readily recognisable as typical of patients in psychiatric and community settings, potentially vulnerable but also lacking ability to fully understand the risks of the virus, and the consequences of not complying with social distancing and other measures to reduce transmission.     

Under the core principles of the Mental Capacity Act (2005) (MCA) there should be an assumption the patient had capacity unless proved otherwise and the patient should not be treated as incapable of making a decision unless all practicable steps have been made to assist her. If capacity was fully assessed and deemed impaired, the Deprivation of Liberty Safeguards (DoLS), an amendment to the Mental Capacity Act 2005, might have been appropriate for confining the patient to her home after considering best interests. However, she was not complying with requests of care staff in her home regarding social distancing and was demonstrating antisocial behaviour as an objecting patient, so DoLS would not be appropriate. If the patient were to be assessed mentally unwell and potentially being detainable under the MHA, then admission under Section or even informally could be undertaken. Any mental health assessment could have advised the PHO of the potential mental health disposals and role of mental health legislation.     

Both alternative scenarios (use of MHA or MCA) offer the individual safeguards as a patient through review of detention, advocacy and appeal processes. Under the CA 2020, only an appeal via a magistrate is available although how this would be pursued in lockdown measures is unclear particularly if the proposed detention is only seven days.

Ethical issues

The basic ethical principles refer to those judgments that serve as a justification for particular ethical decisions. The core medical ethical principles of beneficence, non-maleficence, autonomy and justice are all relevant to
this case.5     

Persons are treated in an ethical manner not only by respecting their decisions and protecting them from harm, but also by making efforts to secure their wellbeing. Such treatment falls under the principle of beneficence. The intention to hold in hospital could be argued on grounds there is access to medical and nursing care, should this become necessary. Two general rules have been formulated as complementary expressions of beneficent actions in this sense:

  1. do not harm, and;
  2. maximise possible benefits and minimise possible harms, while balancing most beneficial outcomes for the individual with that for the wider population.

This woman was acting in a potentially dangerous manner and putting others at theoretical risk of infection. If no action was taken and she infected the public or care staff, public health would be liable to criticism for inaction. In this regard, societal protection provides ‘moral justification’ of legal powers and deprivation of liberty for the individual. Autonomy (the right for an individual to make his or her own choice) depends on capacity to understand the issues arising from COVID-19.     

Our patient almost certainly lacked understanding regarding her risk to others and why social distancing was important.     

One important consequence of being subject to Schedule 21 of the CA 2020 is the individual’s liability to criminal proceedings: ‘should they fail without reasonable excuse to comply with any direction or instruction imposed upon them, or attempt to abscond while being kept at a place, or obstructs a person who is exercising or attempting to exercise the power conferred by this Part of this Schedule.’ Impaired capacity would not necessarily grant any immunity to such proceedings.     

Our patient had a history of mental health issues but her presentation did not suggest relapse of a mental disorder that would warrant hospitalisation. It is difficult to envisage someone without any mental health history subsequently being detained in a psychiatric hospital under the CA 2020. Is she being stigmatised by being detained in a psychiatric hospital on the assumption her behaviour must relate to her mental health?  The principle of justice is that equals ought to be treated equally, but the patient was denied a basic assessment of capacity and mental state, so arguably treated unfairly. Justice considers ‘what is deserved’. If the decision were to be she must be detained under the CA 2020, should this detention be to a mental health ward or in alternative ‘custody’, such as being locked in her own bedroom or home, or being detained in police custody? Considering the potential health complications of COVID-19 and potential need for medical intervention, any detention arguably should be in an acute hospital.     

Non-maleficence, or the duty to ‘above all, do no harm’, is stated in the Hippocratic Oath. The COVID-19 infection status of our patient was assumed in the absence of swab testing without clinical assessment. However, a swab approximately six to seven days following symptom onset was negative. The significance of this is unclear but admitting her to a ward with COVID-19-positive patients potentially exposes her to infection and subsequent risk. There are potential negative psychological effects secondary to detention such as anxiety and acute stress, especially if capacity was impaired. Another potential harm from this course of action is damage to any future relationship with mental health services should a patient be deemed complicit in the detention.     

Resource allocation is also a significant external consideration. As no case had been established on grounds of clinical need for admission, utilisation of scarce bed resources is highly questionable. The expensive consequences on police resources must also be considered given the widespread duties facing their service during the pandemic. Several officers were compelled to remain in hospital for the duration of detention.

Clinical issues

The clinical team were unfamiliar with the full legal powers of CA 2020, and whether or not this covered psychiatric treatment. The treatment team and receiving Trust were instructed to receive this woman in their facilities (but not asked for an opinion as to whether this was appropriate). We were unsure whether to admit the patient informally and whether she should go to an assessment ward or enhanced physical care ward for established COVID-19 cases in light of her unknown virus status.     

It is important to consider the duties and responsibilities of health care staff coming into contact with the patient in the ward setting. She was not a patient in the conventional sense, as she was neither informal nor detained under the MHA. Nursing staff can tend to ‘welfare’ under CA 2020 but are not protected by the traditional professional code of conduct, as the individual has not been classified as a patient. If they lock her bedroom door or the ward this is a delegated power from public health but no force or physical restraint for mental disorder would be permitted. Holding powers under Section 5(4) or Section 5(2) of the MHA would similarly have no legal basis in this case. Although a number of delegated powers are granted to clinical staff it is not clear what consequences for clinicians may be pursuant if they were not
followed.     

We assumed that if a patient is ‘admitted’ to the ward under established protocols all Trust governance policies would then apply, although this may have no legal basis. It is not clear how any clinical errors or misadventure would be assessed legally. Typical scenarios that give legal and professional protection to health care staff such as prescribing, dispensing medication, or performing observations do not apply if an individual is not deemed a patient. It would be important to have advice from the Care Quality Commission and professional regulatory bodies should this scenario be revisited.     

Discussions with clinical staff in relation to this case highlighted significant anxieties and unease relating to indemnity for being responsible for a detainee confined to hospital facilities. In reality these concerns did not transpire, as the patient was mostly consenting and compliant, which raises the question as to whether this legislation was really needed and a suitably proportionate response.

Further considerations

This case aims to raise awareness about this new legislation and the potential interface with our services. How should our profession respond and does this case suggest a misuse of psychiatric services that could result in an increase in the use of CA 2020 to detain more individuals who present theoretical risks to others? In addition, how should this legislation be utilised with mental health patients who might also be subject to detention under the MHA 1983?     

Our case is unusual because of specific use of CA 2020 by PHE to detain a member of the public in a mental health facility. The legal, ethical and practical isolation of COVID-19-positive mental health patients has been analysed with respect to hypothetical cases already in hospital.6 They conclude that the CA 2020, in its current state, is of questionable legitimacy with regards to those lacking capacity, and is deficient compared with the MHA 1983 in terms of associated guidance or procedures for caring for patients who are isolated. However, the authors also conclude that public health law (such as CA 2020) rather than mental health law, is potentially better placed to action isolation of patients who may pose a risk to others, and recommend amendments to the legislation to increase practicality with the ability to delegate enforcing powers to health and care providers.

Previous public protection legislation measures     

Psychiatry has responded critically to previous public protection legislation proposed to protect the public in the UK. The Dangerous and Severe Personality Disorder (DSPD) programme was an ambitious and controversial initiative instigated by the Government in 1999.7 Although never enacted, this invented a previously undefined diagnostic label, potentially allowing indeterminate detention for public protection regardless of whether or not the person had already committed an offence. This legislation encouraged mental health professionals, with undoubted experience in dealing with complex patients, to strengthen their existing role in public protection. The DSPD proposals provoked huge concerns regarding the use of psychiatry for preventive detention, potentially without benefit to those detained. More recently, the Prevent strategy, published by the UK Government in 2011, is part of the overall counter-terrorism strategy. The aims can be summarised as the need to ‘prevent people from being drawn into terrorism’. Many professional groups have expressed concerns about the implementation and effects on confidentiality and engagement – these focus in particular on potential conflicts with the duties of a doctor as defined by the GMC and reducing the willingness of people to access mental health treatment.8 Both pieces of legislation have some similarities in principle with the CA 2020, although in the latter specific public protection is primarily aimed at preventing infection and spread, not creating new ways to treat presumptive mental disorder or influencing the complexities of the doctor-patient relationship.     

We are not aware of other cases at this point but locally this has prompted further discussions with stakeholders, including PHOs, as to what circumstances (if any) would result in mental health involvement when using legislation in future. Early involvement of specialist mental health services in such discussions is essential if promoting the principle of least restrictive option is to be upheld. The assumptions and understandings of non-mental health professionals regarding the nature and purpose of institutional psychiatric care may lead to recommendations and decisions that are inconsistent with contemporary practice and the ethical considerations outlined above. There is a compelling argument that under no circumstances should detentions under CA 2020 be made to a mental health facility, unless this is supplementary to MHA legislation.     

Our experience suggests that use of the CA 2020 by PHE for an individual with a history of mental health issues is unlikely to provide the framework in which to effectively and legally provide containment. Furthermore any assumptions that an institution or its officers have similar powers to those offered under the MHA are flawed and therefore the use of a health facility in isolation may not be workable. We need to be vigilant so the CA 2020 is not misused to promote psychiatry assuming the custodial responsibility of non-compliant individuals in the absence of mental  disorder.

Conflicts of interest

No conflicts of interest were declared.

Dr Rees is Consultant Psychiatrist, Dr Halawa is Core Psychiatry Trainee (CT2) and Dr Lewis is Core Psychiatry Trainee (CT1), all at Avon and Wiltshire Partnership NHS Trust, Callington Road Hospital, Bristol. Mr Page is Chief Operating Officer at Avon and Wiltshire Mental Health Partnership NHS Trust, Bath.

References

  1. HM Government. Coronavirus Act 2020 (www.legislation.gov.uk/ukpga/2020/7/contents; accessed 15 June 2020).
  2. HM Government. Mental Health Act 1983 (www.legislation.gov.uk/ukpga/1983/20/contents; accessed 15 June 2020).
  3. HM Government. Mental Capacity Act 2005 (www.legislation.gov.uk/ukpga/2005/9/contents; accessed 15 June 2020).
  4. Seedhouse D. Ethics: The Heart of Health Care. Third edition. Chichester: Wiley-Blackwell, 2009.
  5. Beauchamp TL, Childress JF. Principles of Biomedical Ethics. Fifth edition. New York: Oxford University Press, 2001.
  6. Brown C, Keene AR, Hooper CR, et al. Isolation of patients in psychiatric hospitals in the context of the COVID-19 pandemic: An ethical, legal, and practical challenge. Int J Law Psychiatry 2020;71:101572 (https://doi.org/10.1016/j.ijlp.2020.101572; accessed 15 June 2020).
  7. Home Office and Department of Health. Managing Dangerous People with Severe Personality Disorder. Proposals for Policy Development. London: Home Office and Department of Health, 1999.
  8. Royal College of Psychiatrists (RCPsych). Counter-terrorism and psychiatry. Position Statement PS04/16. London: RCPsych, 2016.
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