One of the most frequent conversations we’ve had over the last two years has been around the legality of electronic signatures and the Mental Health Act (MHA). I wrote an article about this in November 2019.

Electronic signatures are widely used in lots of sectors. The Law Commission cleared up any confusion in their usage in their 2019 report. The issue with the MHA was never really around a ‘wet ink’ signature vs an electronic signature. The confusion arose around the definition of what ‘in writing’ meant in the MHA Reference Guide and the inconsistencies of what was allowed depending on which form was being completed. Bevan Brittan summarised it well here.

Covid-19 has forced every sector to look at how they operate

The pandemic has stimulated amazing digital adoption across healthcare (I’d like to meet the project manager tasked with rolling out Microsoft Teams across the NHS!) The world has changed dramatically over the last few months, and so has the attitude towards electronic signatures and the Mental Health Act.

The Care Quality Commission (CQC) was particularly pragmatic towards the end of March 2020, encouraging providers to accept electronic copies of certificates during the pandemic from the Second Opinion Appointed Doctors (SOAD) service. The Department of Health (DHSC) followed suit and released guidance around electronic form requirements and their delivery during the Covid-19 pandemic. The most recent version is on page 45 of this guidance.

The clarification on the use of electronic signatures and what is/ isn’t allowed when administering the MHA is a huge step forward from the DHSC. The application of the MHA involves so many stakeholders and individuals that any confusion leads to massive variance in practice as things are interpreted from different perspectives.

Shared understanding and standards is the route towards an integrated health and social care pathway.

The guidance says that the DHSC will monitor responses and their guidance will cease to apply after the pandemic. I’m confident that a digital MHA will improve care. Electronic signatures and digital submission are a key component of this. I am obviously a little biased here, but I’m not sure how practical it will be to reverse a decision on electronic signature usage once practice starts to change. Provided there is no adverse effect or clinical risk towards the people subject to the MHA, should we really backtrack from clarity in an area which has traditionally been a bit murky? What if electronic forms make people’s jobs easier? Imagine trying to tell people that Teams usage was ok during a pandemic, but then they must stop using it.

You may also be interested in our article on how to share electronic documents securely.