Guidance

Guidance on the electronic communication of statutory forms under the Mental Health Act

Updated 13 January 2021

Introduction

An amendment to Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 ^{[footnote 1]} enables many of the statutory forms under the Mental Health Act 1983 (MHA) to be communicated electronically. This guidance explains the circumstances in which statutory forms and other documents can be sent electronically, best practice for doing so and general principles around the sending, signing and storing of electronic forms.

The amended 2008 regulations are in force from 1 December 2020 and apply to England only. 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.

We are aware that this guidance conflicts with aspects of the MHA code of practice and the reference guide. Note that this guidance supersedes conflicting guidance in the code of practice and reference guide and we will endeavour to address these inconsistencies as soon as possible.

1. Electronic communication of forms under the 2008 regulations

The amended 2008 regulations enable statutory forms and other documents under Part 2 of the MHA to be served electronically, but only where the receiving body, authority or person agrees to accept electronic service of these forms.

There are a couple of exceptions to this:

• 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 (see section 2 for further guidance)
• where the recipient is a patient. In all such cases, statutory forms and other notifications for the information of the patient must continue to be served in hard copy. For example, the community treatment order recall form must continue to be served in hard copy and the patient should continue to be notified in hard copy if someone is authorised by a nearest relative to act on their behalf under regulation 24 of the 2008 regulations. Electronic communication can, however, be used as an additional means of providing the patient with the information, if that is their preference (see section 3 for further guidance)

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

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.

2. Serving the AMHP's application for detention electronically

As stated in paragraph 14.44 of the code of practice, doctors and AMHPs undertaking assessments for detention need to 'apply professional judgment and reach decisions independently of each other, but in a framework of co-operation and mutual support.' This should not change when forms are submitted electronically, nor where assessments are carried out remotely, as temporarily supported by the NHSE's legal guidance for use during the COVID-19 pandemic.

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. In line with paragraph 17.26 of the code of practice, agencies should agree local policies and procedures regarding the nature of authorisation given by AMHPs (and others) when authorising people to transport patients on their behalf.

This should be the case whether a form is submitted electronically or in hard copy. In accordance with sections 2, 3 and 6 of the MHA, an application for detention submitted by an AMHP must be founded on the necessary medical recommendations. As such, it’s the responsibility of the AMHP to support their application with 2 accompanying medical recommendations. It’s vital that these statutory documents are retained and sent to the receiving hospital as a package.

3. Communication of statutory forms to the patient

As stated above, although staff should continue to communicate statutory forms and other notifications to patients in hard copy, they should actively offer the patient the option of also receiving the form electronically, if that is their preferred method of communication. This offer should be made to all patients, and providers should consider whether reasonable adjustments should be made to help disabled patients access documents electronically if that is their preference.

4. General principles on the electronic communication and storage of forms

The 2008 regulations, as amended, do not specify that the recipient's agreement has to be secured 'prior' to the document being sent, but we nonetheless encourage prior agreement to be sought. This is to avoid confusion and ensure that the form is dealt with in the appropriate way by the recipient. Prior agreement should ideally include a standing agreement, to avoid the need for agreement to be sought every time.

Electronic forms should be considered equivalent in status to paper forms. Neither is more valid than the other. This means that, for example, where forms authorising an individual's detention are in an electronic format and they need to be transferred from one hospital to another, there should be no question over the validity of these forms by the receiving hospital simply because they’re electronic.

Hospital managers should ensure all records are complete and stored safely. As with hard copy forms, where documents containing personal data are sent or stored electronically this information should be kept securely, in line with the Data Protection Act 2018 and the General Data Protection Regulation.

In line with paragraph 35.5 of the code of practice, which states that those acting on the authority of statutory forms should ensure they are in proper form if concerned about the quality and integrity of an electronically transmitted form, the recipient may request that the form be resent in a revised electronic format or in hard copy, if necessary.

Where rectifications to forms are made, including those under section 15 of the MHA, a transparent audit trail must be maintained that shows who edited the form, when they made the edit and what was added and/or omitted. All electronically completed forms should include the author's (secure) email address, alongside the postal address, in the relevant section of the statutory form so that the author can be easily contacted in case rectifications are required.

Hospital managers in each local or regional trust should lead the creation of a multi-agency protocol that all providers agree to abide by. The protocol should cover:

• establishment of a default secure email address(es) for sending statutory forms and all other relevant correspondence to, either directly or in copy
• arrangements to monitor and action emails to this inbox in an appropriate and timely manner
• how the storage of complete records will be safely and securely maintained as outlined earlier in this section, whether electronically or in hard copy

Electronic signatures on forms have the same meaning as in section 7(2) of the Electronic Communications Act 2000. This states that an electronic signature is 'so much of anything in electronic form as is incorporated into or otherwise logically associated with any electronic communication or electronic data; and purports to be used by the individual creating it to sign'. As such, electronic signatures on electronically submitted statutory forms may be a typed name or initials, a scan or photo of a wet ink signature, or an electronically drawn signature, among other options meeting the definition specified above.

5. Transitional arrangements

The amendment to the 2008 regulations includes minor changes to the statutory forms. These comprise of an addition of a field in which the author's email address can be entered and, where relevant, an option to indicate that the form has been served electronically. There will be a grace period of 2 months starting 1 December 2020, during which the old versions of the statutory forms can be used when submitting in hard copy, but not when communicating electronically. After 1 February 2021 the new forms should be used in all cases.

Note, it is the Department of Health and Social Care's view that minor discrepancies between a form and the statutory templates should be accepted. However, it will be for recipients to decide on a case by case basis whether it is appropriate to accept such forms (and if the matter were ever litigated the court would determine the form's validity).

Annex A: further advice on possible scenarios

Below we provide advice on how to proceed in scenarios that mental health staff have indicated may emerge as a result of the changes to the 2008 Regulations. We have also addressed specific queries that have been raised by mental health staff in the detailed advice section, which is broken down by topic area.

Scenario 1: submission of the statutory forms by the AMHP

The patient is at a police station. They have been seen by one doctor who has filled out the paper form by hand and left this at the police station pending the patient’s full assessment. 

The AMHP and a second doctor attend the police station and see the patient. The doctor completes the second medical recommendation using a tablet device.

The AMHP also completes the application form digitally. The AMHP is unsure whether to submit the forms by hand or electronically as the forms are in different formats.

Response

It’s not strictly necessary that the forms are either all in hard copy or electronic format, and of course the AMHP isn’t required to get the hospital’s agreement to receive the application electronically but, practically it makes sense for the AMHP to speak to the hospital about the format so that they can submit the forms as one coherent package.

Where possible, when an application for admission is being made, doctors should agree the method of service with the AMHP to support them in submitting their application by the most convenient means.

Scenario 2: delegating transport of the patient during admission

The AMHP coordinating the patient’s admission to hospital is unable to transport them to hospital and so they wish to delegate the responsibility to ambulance staff.

The ambulance staff insist that the paper forms are needed before they can lawfully transport the patient.  

The AMHP is unable to provide the ambulance staff with the paper versions of the admission form and medical recommendations as these are in an electronic format.

Response

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.

We know that it is stated in the code of practice that the paper forms should be given to the person authorised to transport the patient. However, as stated above, this aspect of the code is superseded by this guidance.

If staff wish to offer additional reassurance to ambulance or police staff, where forms are in an electronic format, we are aware that some trusts have created a paper slip that provides key information to the person authorised to transport the patient.

Scenario 3: transferring a patient to a new hospital

A patient is to be transferred to another hospital under section 19 and the forms authorising their detention need to be transferred to the new hospital.

The forms were originally made out and submitted electronically and they have been stored as such by the current hospital.

Staff at the current hospital wish to email the forms to the new hospital but they refuse to receive them in an electronic format as they are worried about the validity of the electronic forms. The hospital staff are unsure how to proceed.

Response

Electronic forms are equivalent in status to paper forms. Neither is more valid than the other.

This means that, if the forms authorising an individual’s detention are in an electronic format and they need to be transferred from one hospital to another, there should be no question over the validity of these forms by the receiving hospital simply by virtue of their being electronic.

Scenario 4: making rectifications under section 15 of the MHA

A detention application form was originally furnished in hard copy, but for the purposes of moving to an entirely digital system, an electronic version of the form was created and stored. 

An error is spotted in the form and the administrator is unsure which version of the form should be rectified as they are unsure which should be considered the original.

They are also unsure how to keep a record of any rectifications made to the electronic version of the form.

Response

Firstly, it is important to note that section 15 doesn’t say anything about “original” forms. Therefore, so long as one version of the form is rectified, section 15 would be satisfied.  

It is for trusts to establish their own systems when it comes to keeping a record of rectifications under section 15. As usual, a transparent audit trail must be maintained that shows who edited the form, when they made the edit and what was added and/or omitted. This might include usual methods of version control, like saving the initial form as ‘v1’ and including the date in the file name, and saving the updated form as ‘v2’, with the later date in the file name.

All electronically completed forms should include the author’s (secure) email address, alongside the postal address, in the relevant section of the statutory form, it should be possible to easily contact the author in case rectifications are required.

Scenario 5: the transition period

During the transition period (1 December 2020 to 1 February 2021), the use of the old paper forms is allowed, but only where service has taken place by hand.

A mental health administrator is checking the validity of an application for admission, which uses the old template.

They are unsure whether the form was furnished over email originally or by hand and therefore whether the sender has used the correct form.

Response

Providers should aim to have a system in place whereby it’s clear how the original form was delivered.

If it’s unclear, they should accept the old version of the form (during the transition period) unless they have good reason to think that it was originally sent electronically. That the form is presented to them in hard copy is probably a sufficient reason to assume that it was originally delivered in hard copy, in which case it’s valid during the transition period.

Detailed advice

Using the new statutory forms 

The forms published on GOV.UK are predominantly made to support electronic communication.

The old paper forms (or the ‘pink forms’) can still be used if serving by hand or in secure mail until the 1 February 2021 (during the transition period). In the meantime, we urge you to seek updated versions of the pink forms if you still wish to continue using paper.

Place an order for updated pink forms with Xerox.

If you already have access to the Xerox ordering portal, you may be asked to change your password from the last time you logged in. There is a ‘forgot password’ option if required.

You can also adapt the electronic versions of the forms for this purpose.

We have been asked if the form is still valid if the new statutory wording is added by hand in the hard copy, or by typing into an electronic version. In our view, so long as the wording in the form reflects the statute, then either approach can be used.

We have also been asked if the form is invalidated if optional text is deleted by the author, as is possible in the electronic version of the form. Please note that deleting optional text does not invalidate the form. However, if the author wishes to make clear where deletions have been made, the strikethrough functionality may be used.

We are aware that some staff are concerned about the integrity of electronic forms if they are editable. While we do not think that this should compromise the integrity of the form, staff may consider making the form un-editable by converting to PDF or making it read only.

Sending forms electronically 

The guidance states that a form should be considered served once ‘successfully sent’. We have been asked what this means in practice. We have purposefully decided not to define exactly what this means as we know that there will be variation between trusts in terms of how they wish to operate.

For example, some may consider the form to be successfully sent once it is visible in their sent items, others may wish to set up read receipts or another type of automated email to indicate that receipt has taken place. We are also aware that some trusts may not be using email at all and are instead using alternative digital platforms to submit the forms.

Of course, if staff have reason to believe that the form has not been sent successfully, for example the internet connection is intermittent, then they should make efforts to ensure that the form has been successfully received.

Storing forms electronically

We have been asked whether the changes to the regulations give hospital managers the authorisation to move to a digital approach to the storing of statutory forms, even for those that were originally completed on paper. To confirm, paper forms can be converted to digital format and stored electronically and vice versa, regardless of whether the form was made out before or after the change to the 2008 Regulations.

There is no need to maintain the original format, so long as the new version is a replica. Of course, if converting to from hard copy to electronic, the paper form should be disposed of safely and confidentially.

Submitting the application for detention forms

We are aware that for staff working in community settings, such as AMHPs, using paper forms may often be more convenient. We wish to reiterate that this is still an option. Staff can still use the paper forms if that is their preference or if this is more convenient due to poor internet reception or lack of access to an electronic device and so on.

The statute has not changed in terms of the service of paper forms, so staff completing and serving statutory forms are free to continue doing what they were doing before, so long as they use the updated forms from the 1 February 2021.

Protocol around electronic form submission and storage

We have been asked whether ward staff will continue to have a role in scrutinising the forms if they are being submitted electronically, or if the form should be sent straight to the MHA administrative office.

We see no reason why this should not continue to be the case. This matter should be considered as part of the multi-agency protocol, developed by hospital managers.

Nearest relative discharge forms

We have been asked to clarify the rules around the nearest relative discharge forms. These differ depending on the method of service. If it’s sent electronically it’s considered served at the beginning of the next business day; if it’s sent by post, it’s considered served on the second or fourth day after posting (depending on whether it was sent first or second class); and if it’s delivered using an internal mail system it’s served immediately after it’s deposited into that system.

In terms of what counts as the next business day, in the case of electronic service, Regulation 2 of the 2008 Regulations defines a “business day” as “any day except Saturday, Sunday or a bank holiday”.

This aims to allow staff sufficient time to act upon the nearest relative discharge order, as we know that some trusts have reduced staff over the weekend.

It should be noted that, before the nearest relative can submit a discharge order electronically, the hospital managers need to agree that service can take place by this method. This means that hospital managers should be aware in advance and able to make the requisite arrangements to ensure the responsible clinician’s availability does not present a barrier to responding to the discharge order in at timely manner.

1. The Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2020 ↩