All Wales Section 12(2) Process and Criteria

Mental Health Act 1983 Section 12(2) Approval/Reapproval Process and Criteria for Wales

1. Section 12(2) of the Mental Health Act 1983 requires that, in those cases where two medical  recommendations for the compulsory admission of a mentally disordered person to hospital, or for reception into guardianship are required, one of the two  must be made by a practitioner approved for the purposes of that section by the Welsh Ministers as having special experience in the diagnosis or treatment of mental disorder. Similar requirements regarding such approval apply to the giving of reports or  evidence in relation to Part III of the 1983 Act (refer section 54(1)).

2. The approval of doctors under section 12(2) is undertaken by Betsi Cadwaladr University Health Board on behalf of the Welsh Ministers with effect from 1st April 2009.

3. All medical practitioners, including GP Principals/salaried practitioners on the Medical Performers List, with special experience in the diagnosis or treatment of mental disorder are eligible to apply for approval under section 12(2) of the Mental Health Act 1983

4. This guidance applies only to section 12(2) approval/re-approval under the Mental Health Act 1983.

Doctors applying for approval/re-approval as an Approved Clinician do not need to apply separately for section 12 approval.

5. Entitlements

During their period of approval, section 12(2) practitioners can:

i) Make recommendations under Part II of the Act

ii) Make recommendations and give evidence to the Court under Part III

iii) Give reports to be considered by the Secretary of State for Justice for directing the transfers to hospital or guardianship of prisoners and certain other persons.

iv) Act as a mental health assessor within the meaning of the Mental Capacity Act 2005 (Deprivation of Liberty Safeguards).

5.1 Approval allows practitioners to undertake duties as above in any part of England and Wales with the exception of point 4 which only applies to Wales.

6. Responsibilities

6.1 It is the individual practitioner’s responsibility to ensure that approval is maintained.

Any registered medical practitioner approved by Betsi Cadwaladr University Health Board should:

i) Ensure that they are approved before carrying out any of the functions for which approval is a legal prerequisite.

ii) Ensure they have defence union cover to undertake section 12(2) work with a recognised medical defence organisation or similar body to cover work undertaken which is not part of a contract of employment.

iii) Keep up to date with the latest Mental Health Act guidance and have ready access to the current relevant Mental Health Act Code of Practice.

iv) If acting as a mental health/eligibility assessor within the meaning of the Mental Capacity Act 2005 (Deprivation of Liberty  Safeguards) keep up to date with the latest Mental Capacity Act Guidance and have ready access to the current Mental Capacity Act Codes of Practice.

v) Ensure they have adequate Insurance and / or Indemnity if acting as a mental health assessor/eligibility assessor within the meaning of the Mental Capacity Act 2005 (Deprivation of Liberty Safeguards) with a recognised medical defence organisation or similar body to cover work undertaken which is not part of a contract of employment. (Clinicians will need to have absolute clarity with their employers as to what action / tasks are within their contract of employment, and those that are not)

vi) Hold a licence with the GMC, and recognise and work within the limits of their competence (General Medical Council Good Medical Practice 2006).

vii) Work in accordance with the General Medical Council “Duties of a Doctor”. (annex A)

6.2 Inform Betsi Cadwaladr University Health Board if they become subject to General Medical Council Fitness to Practise proceedings (suspension of registration automatically cancels section 12(2) approval.)

6.3 Inform Betsi Cadwaladr University Health Board of any change to home or work address or telephone numbers, or other contact information (NB 7.3).

6.4 Inform Betsi Cadwaladr University Health Board of any employment change.

7. Approval Process

This Process and Criteria Document comes into force on 30th September 2021. Where a person is approved as a Section 12 Doctor, on and after that day, this Process and Criteria Document will apply to that person’s approval in accordance with this document updated 30th September 2021.

Where a person has made an application for approval, prior to the day on which this Process and Criteria Document comes into force but that application has not yet been assessed by the Approval Panel, that application is to be assessed in accordance with the previous Process and Criteria Document dated June 2013.

7.1 All administrative processes will be carried out by Betsi Cadwaladr University Health Board (see appendix 2 for a list of forms). Application forms for approval and re-approval can be obtained from the All Wales Approval Team, at the following address:

Betsi Cadwaladr University Health Board
Medical Institute
Croesnewydd Road
Wrexham
LL13 7TD

Telephone: 03000 858373/03000 847066

7.2 All approvals and re-approvals are for a maximum period of five years.

7.3 It is important to note that it is the responsibility of the individual practitioner to ensure that approval is maintained. BCUHB will remind registered practitioners 14 weeks prior to their expiry date. Therefore, it is essential that you let BCUHB know of any change to address, telephone number and/or hospital location.

7.4 Every Panel will comprise of two registered medical practitioners who are section 12 approved.

7.5 The Approval Panel will review the evidence provided. The Panel members will review the evidence independently of each other.

7.6 The Panel will make a recommendation to Betsi Cadwaladr University Health Board as to approval, re-approval or ending of  approval. The Panel decision making process will be as follows:

i. If both Panel Members are satisfied with the evidence received, the final recommendation will be submitted to the Approval Team for approval and ratification by the Board.

ii. If the decision is not unanimous, the decision will be brought to the attention of the Approval Team. Further information may be requested.

iii. If the Approving Panel does not consider that the candidate has met the requirements for approval; their reasoning will be given, together with advice as to what the applicant will need to do to fulfil the criteria.

iv. The Board will receive a report detailing approval, re-approval and termination of approval at bimonthly Board meeting.

v. The approval process will take a maximum of 7 weeks unless additional information is required from the applicant or their employer/referees.

vi. Based on the recommendation of the Panel, the delegated officer of the Board will send a letter to the applicant informing them of the outcome.

7.7 Applicants must meet the following approval criteria before approval/re- approval will be given:

All doctors will be required to submit an application form and evidence to an Approval Panel for initial approval and re-approval to ensure they meet the professional requirements to undertake Section 12 functions.

In addition, the panel will require two references. Referees must be able to comment on the applicant’s understanding of and ability to implement the Mental Health Act (1983). The All Wales AC and Section 12 Approvals Panel has reference template forms, which applicants must send to their referees for completion. One of the referees must be a Consultant Psychiatrist who is a Section 12 Approved Doctor and the other referee must be either a second Section 12 Approved Doctor or Approved Mental Health  Professional who have professional knowledge of the individual and their work for at least three months during the past twelve months and can confirm that they are able to carry out the duties of a Doctor approved under Section 12(2) of the Mental Health Act 1983.

These references should be submitted by the individual together with the application form and evidence as follows:

i) Satisfy the GMC Standards of Fitness to Practise (appendix 1).

ii) With effect from 16th November 2009, all doctors will be required to be licensed medical practitioners to be approved under section 12(2) of the Mental Health Act 1983.

iii) Attend an approved section 12 induction training course within two years prior to making the application for initial approval. Attend an approved section 12 refresher course within the final two years of approval for re-approval. All certificates must be in date when the application has been scrutinised and considered complete and error free by the Approvals Team, in readiness to submit to the Panel. The certificate must also remain valid at the point of the Panel assessing applications.

iv) For GPs – have an up to date annual appraisal which evidences a satisfactory outcome in line with current GMC requirements.
Appraisal to contain evidence that CPD was satisfactorily reflected upon. When submitting the most recent appraisal evidence, it would suffice to provide only those pages which evidences the following information:

Name of appraisee, name of appraiser, date of appraisal, the date the summary appraisal was agreed and discussion and reflections on CPD.

For Psychiatrists – either be registered with the Royal College of Psychiatrists and provide a certificate of good standing for CPD purposes.

Or,

Provide a satisfactory CPD log which has been signed by two members of the peer group. The CPD log must satisfy the Royal College of Psychiatrists criteria using the All Wales CPD form.

Psychiatry Trainees to provide evidence of a satisfactory ARCP outcome.

Or,

Provide evidence of the most recent satisfactory annual appraisal with reference to CPD being achieved. If submitting the most recent appraisal evidence, it would suffice to provide only those pages which evidences the following information:

Name of appraisee, name of appraiser, date of appraisal, the date the summary appraisal was agreed and discussion and reflections on CPD.

v)For Initial Approval Applications: Provide an up to date curriculum vitae that provides evidence/practice examples of relevant experience to support application. Provide full details (name of employer and address, experience gained and duties undertaken) and dates of employment posts, including supervised training posts which must include ‘from’ and ‘to’ dates in the format of dd.mm.yyyy. Where there are any periods of part-time working, the curriculum vitae must clearly indicate whole time equivalent.

 For Five Yearly Re-Approval Applications: Provide an up to date curriculum vitae that provides evidence/
practice examples of relevant experience to support application. Provide full details (including job title/grade of post and name and address of current employer along with duties undertaken) and start date of employment. Current and/or previous employment must be included, in chronological descending order, covering the most recent 5 year period of employment. 

vi) Applicants for approval must satisfy at least one of the following sets of additional criteria from A or B. Applicants for re-approval must satisfy the criteria from C.

vii) A copy of the most recent Disclosure and Barring Scheme (DBS) certificate is required from Applicants who work through a Locum Employment Agency or who are independent practitioners.

The DBS certificate must include checks against the DBS Children’s Barred List information and the DBS Adults’ Barred List  information.

Criteria A (New Applications)

1. Be a Member or Fellow of the Royal College of Psychiatrists, or the Royal College of General Practitioners, or be included on the Specialist Register of the GMC as a Specialist in Psychiatry (or equivalent speciality), or hold a GMC licence to practise as a Consultant Psychiatrist, or hold a post in the National Health Service as a Consultant Psychiatrist under the NHS International Fellowship Programme. New applicants for approval would normally be expected to have one of the above but would be considered without this depending on prior experience.

and

2. Have three year equivalent whole time experience in Psychiatry or Primary Care as a GP principal/salaried practitioner, which is not a temporary post and who is on the Medical Performers List, where there was special experience in the diagnosis or treatment of mental disorder either in the UK or in line with GMC Guidance as an Overseas Qualified Doctor. Posts of less than 3 months’ duration cannot be included.

At least four months of experience must be in an approved supervised psychiatric training post and accredited training department or satisfy the criteria for GPwER. An overseas qualified doctor must first demonstrate their suitability for supervised practise under limited registration. After a period of limited registration those doctors may then apply for full registration on the basis that they have demonstrated their capability for unrestricted practise.

Criteria B (New Applications)

1. Have four years’ equivalent whole time experience in Psychiatry or Primary Care as a GP Principal/salaried practitioner, which is not a temporary post, and who is on the Medical Performers List, where there was special experience in the diagnosis or treatment of mental disorder either in the UK or in line with GMC Guidance as an Overseas Qualified Doctor. Posts of less than 3 months’ duration cannot be included. At least four months of experience must be in an approved supervised psychiatric training post and accredited training department or satisfy the criteria for GPwER. An overseas-qualified doctor must first demonstrate their suitability for supervised practise under limited registration. After a period of limited registration, those doctors may then apply for full registration on the basis that they have demonstrated their capability for unrestricted practise.

and

2. Attend two supervised Mental Health Act assessments, within one year alongside a section 12 approved Doctor and achieve continuous satisfactory reports. Please note that the assessments need to be supervised by two separate Section 12 approved Doctors.

Forensic Physicians, who are not Psychiatrists or General Practitioners on the Medical Performers List must apply under Criteria B. They should be a member of the Faculty of Forensic and Legal Medicine of the Royal College of Physicians, have a reference from the local lead forensic physician which includes evidence with respect to training, and have experience which includes:-

(a) at least four years of clinical experience after registration as a member of the Faculty in areas considered by the approving body to be relevant to the assessment of mental disorder, whether gained in consecutive years or not; (posts of less than 3 months’ duration cannot be included) of which at least four months are in a supervised psychiatric training post;

(b) a minimum of six months’ full time or twelve months’ part time employment as a forensic physician, whether gained in consecutive years or not.

Criteria C (Applications for re-approval)

1. Applications for re-approval are required to be submitted 7 weeks prior to current approval expiring. All doctors will be required to submit an application form and evidence to an approval panel to ensure they continue to meet the professional requirements to undertake section 12(2) functions. This includes General Practitioners who have previously been but are not currently on the Medical Performers List; and have previously been a section 12 doctor and the date of the end of the practitioner’s latest period of approval as a section 12 doctor is within the twelve month period immediately preceding the date of the practitioner’s application for a reapproval.

and

2. Each doctor seeking re-approval will be required to undertake refresher training within the final two years of the current approval period. All individuals must provide written confirmation (patient identifiable information removed) of one or more of the following:-

i) Undertaking at least two assessments under Part II of the Mental Health Act 1983 within the previous two years.

ii) Confirmation of active involvement as a medical member of the Mental Health Review Tribunal for Wales or the First Tier Tribunal (HESC Chamber)

iii) Active involvement as a Second Opinion Appointed Doctor (SOAD) under the Mental Health Act 1983.

iv) Preparation of independent expert reports for Courts under Part 3 or the MHA, Mental Capacity Act, Deprivation of Liberty Safeguards or relevant legislation relating to children.

v) Undertaking assessments as a Second Opinion Appointed Doctor for the Care Quality Commission or the Healthcare  Inspectorate Wales.

vi) Confirmation of having acted as a Responsible Clinician or a Section 12 Doctor in charge of the treatment of a patient.

vii) Attend two Mental Health Act assessments supervised by a Section 12 approved Doctor and achieve continuous satisfactory reports.

8. Suspension of Section 12 Approval

8.1 If at any time during the period of approval the Section 12(2) Doctor’s professional body suspends that registration or listing, the approving Board must suspend that clinician’s approval for as long as the registration or listing is suspended if:-

• There are significant risks to patients.
• It is felt that the clinician cannot exercise sound judgement with relation to mental health law.
• Any other conditions and circumstances leading to the review of the application and approval of section 12 that the Approval Board  considers reasonable and appropriate.

8.2 If at any time during the period of approval a Section 12 Doctor has conditions attached to their registration or listing by their professional body, the Approving Board may suspend that person’s approval.

8.3 If at any time during the period of approval a Section 12 Doctor is convicted of, or receives a caution for, a criminal offence in the United Kingdom or is convicted of or receives a caution for an offence outside the United Kingdom which, if committed in England and Wales, would constitute a criminal offence, the approving Board may suspend that person’s approval.

8.4 Before the Approving Board suspends a Section 12 Doctor’s approval it must:-

a. give the Section 12 Doctor its reasons for considering suspending the approval;

b. give the Section 12 Doctor a period of time which the Approving Board considers reasonable to make representations in respect of the proposed Section 12 action; and

c. consider representations submitted by the Section 12 Doctor to the Approving Board.

8.5 When the Approving Board suspends a Section 12 Doctor’s approval, the Approving Board will inform the Section 12 Doctor and the professional body responsible for regulating the Section 12 Doctor’s professional registration or listing of its reasons for the decision.

8.6 If a person’s approval is suspended, that person may not act in that capacity unless until the suspension of approval is ended by the Approving Board.

8.7 Where the suspension of approval has ended, the approval will continue to run for the remainder of the period of approval unless the Approving Board ends it earlier.

8.8 An employing organisation dismisses, suspends a clinician or places restrictions on practice:

In this circumstance, the Panel will ask the employing organisation for relevant information about the reasons behind the  suspension/restriction on practice. The Approval Team will review the available information and recommend a course of action. All organisations have a duty to disclose information pertinent to a practitioner’s Section 12 Doctor’s status as they may work elsewhere and employers have no powers to withdraw Section 12 Doctor status.

The outcomes available to the Approval Team are as follows:

• Remove Section 12 Doctor status
• Suspend Section 12 Doctor status pending investigations
• Recommend a reassessment of competence in Section 12 Doctor roles by the Panel
• Leave Section 12 Doctor status unaltered.

9 End of Approval

9.1 The approval of a Section 12 Doctor ends upon the expiry of the period of approval.

9.2 The Approving Board will end the approval of a Section 12 Doctor before the expiry of the period of approval in the following circumstances:-

a) If in the opinion of the Approving Board the Section 12 Doctor does not comply with any of the conditions to maintain approval during the period of approval.

b) If in the opinion of the Approving Board, the Section 12 Doctor no longer has the relevant competencies.

c) If the Section 12 Doctor no longer meets the professional requirements.

d) If the Section 12 Doctor makes a request, in writing, to end their approval.

e) Evidence of risks to patient safety. Where there is evidence that a clinician has not demonstrated sound judgement in relation to application and practice of mental health legislation.

f) If the Section 12 Doctor’s licence to practise is removed by their professional regulatory body (the GMC), the approval must end.

If the licence is later restored, and the professional requests that their approval status be restored, the Approving Body will require the following information which will be coordinated by the Approvals Team:

1. If applicable, a confirmation letter from the Clinical Director or Medical Director that the professional will have the continued opportunity to work as a Section 12 Doctor.

2. The Approving Board will also make relevant enquiries to the professional’s Medical Director or equivalent (if applicable), for assurances relating to the supervision and management of the professional, or any other relevant enquiry, as deemed reasonable, by the Approving Board.

3. The Approval Team will check that the professional’s licence to practise has been restored.

g) If all of the information is deemed to meet the above requirements by the Approving Board, the Board will consider ratifying the restoration of the approval for the remainder of the five year approval period

h) Due to any other conditions and circumstances leading to the review of the application and approval of Section 12 that the  Approval Board considers reasonable and appropriate.

9.3 Before the Approving Board ends the Section 12 Doctor’s approval under 9.2 a to e, the Approving Board must

a) give the Section 12 Doctor its reasons for considering ending the approval

b) give the Section 12 Doctor a period of time which the Approving Board considers reasonable to make representations in respect of the proposed action; and,

c) Consider representations submitted by the person to the Approving Board.

9.4 Where the Approving Board ends the approval of a Section 12 Doctor under paragraph 9.2, the Approving Board must immediately notify that clinician, in writing, of the date of the ending of approval and the reason for the ending of approval.

10 An individual raises concern about a clinician’s S12 Doctor status

The Approval Team will not investigate individual concerns but will advise the complainant to refer the matter to the employing organisation and/or the regulatory body for further investigation.

In the event of the S12 Doctor working on a freelance basis, the Approval Team will review the concerns and advise the complainant to refer the clinician to the relevant regulatory body.