Dr Gabrielle Pendlebury, Medicolegal Consultant at Medical Protection and practising psychiatrist, looks at new guidance concerning the electronic communication of statutory forms under the Mental Health Act

On 1 December 2020, an amendment to the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 came into force, enabling many of the statutory forms under the Mental Health Act 1983 (MHA) to be communicated electronically in England.

It should be noted that this change in practice only applies in England. For Trusts that operate at the border of Wales or Scotland, if the receiving body, authority or person is based in either Wales or Scotland, you should continue to follow current requirements around the communication of statutory forms.

What does the guidance say?

The Department for Health and Social Care (DHSC) has published guidance explaining the circumstances in which the forms and other key documents can be sent electronically and the best practice for sending them, including signing and storing electronic forms. They are aware that this guidance conflicts with aspects of the MHA code of practice and the reference guide: they also note that this guidance supersedes conflicting guidance in the code of practice and reference guide, and they will endeavour to address these inconsistencies as soon as possible.

The DHSC has also explained that there will be a grace period of two months, during which the old versions of the forms can be used when submitting hard copy but not when communicating electronically. From 1 February 2021 the new forms should be used.

The guidance prompts hospital managers in each local and regional Trust to ensure the creation of a multi-agency protocol that all providers agree to abide by. The protocol should cover the establishment of a default secure email address for sending the forms, and a system to monitor and action the emails and its safe storage.

Receipt of electronic forms must be agreed

You can serve statutory forms and documents under the amended regulations only where the receiving body, authority or person agrees to accept electronic service of these forms.

The exceptions to this rule are:

• where an approved mental health professional (AMHP) or a nearest relative wishes to serve an application for detention.

  In this case, electronic communication to the hospital managers or their officers is always permitted (no agreement needed). Hospital managers are not entitled to reject a validly made application solely on the grounds of it being completed and communicated electronically.

• where the recipient is a patient.

Statutory forms and other notifications for the information of the patient must continue to be served in hard copy. Electronic communication can be used as an additional means of providing the patient with the information, if they prefer and consent to this.

All electronic forms, apart from the discharge order form, should be considered 'served' once they have been successfully sent.

Other considerations

In the case of a discharge order form sent electronically by the nearest relative to hospital managers, the amendment to the 2008 regulations means that service is considered to have taken place at the beginning of the next business day after which it was sent.

Where an AMHP submits an application for detention electronically and then delegates conveyance of the patient, for example to ambulance staff, a paper copy of the form is not needed to indicate that conveyance is lawful so long as the AMHP can provide evidence of a completed application supported by the necessary medical recommendations.

At Medical Protection we hope that this change in practice will aid appropriate information sharing and improve systems, but should you experience any issues you should contact our medicolegal advice line on 0800 561 9090 to discuss as needed.