Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome Mr Tomas Adell, head of the mental health and capacity unit. Tomas, you may go ahead and brief the Committee.

Mr Tomas Adell (Department of Health): I will keep this very short, which, I am sure, is what you want to hear. The Coronavirus Act 2020 (Suspension) Order (Northern Ireland) 2020 is an SR to suspend the mental health provisions in the Coronavirus Act. As we discussed in the Committee previously, schedule 10 to the Coronavirus Act provided emergency provisions for the Mental Health Order in order to allow it to function in times of extreme pressure. As the pressures did not materialise as expected, we have suspended those provisions. They can be kept live on the statute book if we have a second surge or future pressures, but, at this point, we have suspended their use, so they cannot be used now.

Will I continue with the next one?

The Chairperson (Mr Gildernew): Yes, and members can ask about each of them afterwards.

Mr Adell: Similarly, the Mental Health (1986 Order) (Amendment No. 2) Order (Northern Ireland) 2020 relates to coronavirus pressures. The Mental Health Order requires that continuing medication for detained patients requires second opinions, with a trigger point in time. Originally, that was three months. In March, we amended it to six months in order to deal with the pressures relating to COVID. This order reverses those changes, as promised at the time. Thankfully, as far as we know, those provisions have not had to be used during the period, but it was important that they were there if we were going to have a significant surge and unavailability of staff.

The Mental Health (Nurses, Guardianship, Consent to Treatment and Prescribed Forms) (Amendment) Regulations (Northern Ireland) 2020 amends two forms, forms 10 and 23, that are used for the Mental Health Order's statutory powers. Form 10 relates to detention for treatment of patients. These amendments do not relate to the coronavirus pandemic in any way. Last year, the Regulation and Quality Improvement Authority (RQIA) conducted a review on the usage of the form and came to the conclusion that the way in which the form was set up did not lend itself to being filled in correctly, which meant that it was being filled in incorrectly by some practitioners. RQIA then worked with professionals to co-produce a new form that could be filled out correctly. It was not a question of changing the substance of the form; it was about making sure that we were asking the questions in the right way to bring out the required information. Some things have swapped places, and some questions have been broken up into more than one section. Those are the main changes in the form. The substance of the form has not changed, but we had to make equivalent amendments to the prescribed forms.

Form 23 relates to second opinions. A proposal to change form 23 was made back in 2015 as a result of a judicial review that said that the reason for the second opinion was not clearly stated on the form. The new form 23, which we have in these regulations, contains a section at the end where the decision to have a second opinion has to be justified. The clinical reasons for a second opinion have to be provided.

The Chairperson (Mr Gildernew): Thank you, Tomas. I welcome that the Department is removing these types of restrictions, given that the opportunity to do so has arisen and the situation has changed. We all understood, reluctantly, that we had to bring in some of these measures, and we expressed our view that we wanted to see them removed as soon as possible. This is, therefore, welcome. It also allows you to concentrate on the restrictions that are still necessary, so it is useful in that sense.

Does this mean that, effectively, all mental health legislation has returned to how it was previously? Are any remaining temporary provisions still in existence?

Mr Adell: Everything has returned in mental health legislation. Mental capacity is similar, but there is a significant difference. Those provisions in the Coronavirus Act are still live, and are at schedule 11. The big reason for that is that they allow distance decision-making, which the Mental Capacity Act does not allow. They are kept live in order to allow videoconferencing, for instance, in decision-making in order to avoid the risk of infection. All legislative provisions in mental health are back to normal, however.

The Chairperson (Mr Gildernew): OK, thank you. I note that certain provisions are suspended. What is the process if they become necessary again? While they are suspended, how are you capturing or reflecting in any further measures any lessons that you learned from how those restrictions impacted in real life?

Mr Adell: We were very fortunate that the Mental Health Order provisions that were amended were not required. They were used twice, as we said in evidence to you before. It is possible to operate the Mental Health Order in more difficult circumstances than we first believed. That is a big piece of learning, so we will be far more reluctant to introduce the changes again if we have to.

Obviously, we have all learned a lot during this period, so we are trying to get better information on what is happening on the ground and are trying to get better data collection so that we can make informed decisions that are based on hard data rather than just discussions. We need both, but we need the data. The process to bring this back would require another Order. That is something that we would do only very reluctantly, and it would have to come up here for scrutiny as well, of course. We would not do that lightly, and we hope that, with the learning that we have had, we could avoid doing so. We would have to have a very severe second surge for us to even consider bringing it back. I can say that very confidently.

The Chairperson (Mr Gildernew): Thank you, Tomas.

Mrs Cameron: Tomas, you answered my question. I wanted to ask whether the SRs have the capacity to deal with exceptional circumstances or whether the emergency changes would still be required for future waves of coronavirus. I think that you said that if it was severe enough you might consider bringing the changes forward again but that you would be reluctant to do so.

Mr Adell: Yes, the Mental Health Order is very prescriptive. Unless we follow the statutory provisions, we cannot carry out certain acts. Especially when it comes to the detention of patients, if we get to a point where the professionals are not available, we do not want to be in a place where we cannot detain people, because that could cause significant harm to those patients and to others. It is about balancing the risks.

One of the big learning points is that we can prioritise in mental health services to make sure that those areas have the right people available, but if we come to a point where they just are not available, we must make some provision to enable people who need treatment to get it.

Mrs Cameron: OK. Thank you.

The Chairperson (Mr Gildernew): You made the point that the provisions of SR 2020/146, including the changing of forms, are not related to COVID-19. That was flagged up by RQIA. Did you consult other stakeholders on those changes on the back of RQIA raising it? How did you arrive at that decision?

Mr Adell: RQIA did the review collaboratively with the trusts, the Public Health Agency board and professionals. Towards the end of last year, they held a number of workshops and similar events in which people who fill out the forms were involved. The key, especially with form 10, was not to change the content of the forms; it was to make sure that the professionals wrote the right things on the forms. The professionals regularly missed half a question, which, obviously, is not good practice. When RQIA examined the patient's notes, it found that the information was there; it just was not written on the forms. We had the new forms ready to be put forward in February and March, but, because of COVID, that did not happen. There was a significant process back then to co-produce the forms, and the professionals, especially psychiatrists, who would be the ones filling out the forms, were to be involved in the process at all stages.

The Chairperson (Mr Gildernew): It is welcome that they were not needed very much, but, more broadly, the issue with all these restrictions and regulations is about what might happen in the future, where areas have become clearly identified as problematic during a major pandemic, creating problems for some of our most vulnerable people. The Department should be looking at how we could forestall that in the future, how we are set up at the moment and how that would impact if there were any waves of this or other pandemics. That should be considered in the fullness of time.

I will check in with Colin in the light of the problems there. Colin, do you have any questions for Tomas on this section, or are you OK? I am not hearing from Colin, so there are no other questions for Tomas.

OK, Tomas, thank you very much for attending today. We appreciate your input.

We now need to, as we did previously, consider each SR individually. The Examiner of Statutory Rules has not yet reported on any of these SRs, and they are all subject to negative resolution. SR 2020/141 is the rule that suspends the amendments relating to the Mental Health Order 1986 found in the Coronavirus Act 2020 section 10 and schedule 10.

If members have no further issues that they wish to raise in connection with this statutory rule, I ask them to agree formally that the Committee for Health has considered SR 2020/141, the Coronavirus Act 2020 (Suspension) Order 2020, and, subject to the report of the Examiner of Statutory Rules, has no objection to the rule.