The law around electronic signatures and legal documents has historically been fairly unclear. This article aims to give an overview of their use with regards to the Mental Health Act (MHA) and the law as it stands.
Section 4, Article 25 of the European eIDAS regulation says:
“An electronic signature shall not be denied legal effect and admissability as evidence in legal proceedings solely on the grounds that it is in an electronic form or that it does not meet the requirements for qualified electronic signatures”
It also states a qualified electronic signature shall have the equivalent legal effect of a handwritten signature.
This is reflected in part 2, Section 7 of the UK’s Electronic Communications Act 2000. The Information Commissioners Office (ICO) has confirmed that electronic signatures are admissible in court.
In 2019 the Law Commission reviewed whether the current law is clear enough on the use of electronic signatures for legal documents.
The report published 4th September 2019 says “an electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing the document intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.”
Examples of formalities that might be required are given as: “(i) that the signature be witnessed; or (ii) that the signature be in a specified form (such as being handwritten).”
The MHA 1983 doesn’t refer to the use of electronic signatures. The current MHA Code of Practice does say that computer generated versions of statutory forms can be used provided the wording corresponds with the current statutory versions set out in the regulations, but it doesn’t go any further.
“35.3: If no hard copies of the statutory forms are available, photocopies of the original blanks forms can be completed instead, as can computer – generated versions. The wording of the forms must correspond to the current versions of the forms set out in the regulations.”
We believe much of the ambiguity around signatures and the Mental Health Act stems from the Reference Guide published in 2015. The guide is inconsistent in its approach and openly says: “ The (reference) guide is not a definitive statement of law, nor a substitute for consulting the Act itself or taking legal advice in relation to the Act.”
The Reference guide says that form M2 cannot be signed electronically. But doesn’t expressly make reference to electronic signatures anywhere else. It repeatedly mentions other statutory forms being ‘signed’ but never defines what this actually means.
Confusion arises over the Reference Guide’s definition of ‘In-Writing’ when used in relation to the MHA and Code of Practice. Where ‘In Writing’ is defined as:
1.48 – Where the Act itself requires information to be recorded or given in writing, the use of electronic means to record or communicate the information is not sufficient. The record must be made, or the information communicated, in hard copy.
1.49 – The same applies to requirements in the regulations to record or give information in writing, unless the regulations specifically say otherwise.
Throughout the Guide these definitions are often caveated with “may be communicated by electronic means, if recipient agrees.” Read literally the issue is not whether documents are “signed-electronically” but rather whether they are transmitted in hard copy.
It is important to mention that the reference guide is not up to date in relation to all areas of the MHA. In relation to Section 136 is says:
7.18 – People removed to a place of safety can be detained there for a maximum of 72 hours so that they can be examined by a doctor and interviewed by an AMHP, in order that any necessary arrangements can be made for their treatment or care.
The maximum detention period under section 135/136 was reduced from 72 hours to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary) on 11 December 2017. The Reference Guide has not been updated to reflect the 2017 change in the law and has not been updated since the law commission 2019 report which clarified the use of electronic signatures in relation to legal documents.
The law commission report is not specific to the MHA – but the law in general.
The Mental Health Act doesn’t require a signature to be handwritten or “wet-ink”. Provided all other formalities have been met under the act for the form which is being completed, then an electronic signature is legally valid.
Thalamos consulted Richard Jones, author of the Mental Health Act Manual, before writing this article. Richard references the law commissions recent consultation in the 22nd edition of The Manual, published in September 2019.
UK law and the Mental Health Act cater for the use of electronic signatures.
Law Firm Bevan Britton have also released guidance on the topic
Mental Health Act Code of Practice
Law Commission Report
Electronic Communications Act 2000
Mental Health Act Manual
Ross has spent a career fixing problems. Before Thalamos he was resolving cases as an Investigator for the Financial Ombudsman Service – balancing perspectives to get things resolved. Ross is known for his keen eye for detail and the ability to deliver ideas from inception through to completion. Ross’ desire to do something with purpose led him to co-found Thalamos with Arden.
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