Electronic Signatures and the Mental Health Act

Introduction

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.

European and UK law – use of electronic signatures

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.

Clarification on the law

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 Mental Health Act and The MHA Code of Practice

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.”

How does this relate to the application of the Mental Health Act?

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. 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 will be referencing 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.