Mental Health Act

What the law allows

The Mental Health Act 1983 (which was substantially amended in 2007) is the law in England and Wales that allows people with a ‘mental disorder’ to be admitted to hospital, detained and treated without their consent – either for their own health and safety, or for the protection of other people. (Scotland and Northern Ireland have their own laws about compulsory treatment for mental ill health.)

People can be admitted, detained and treated under different sections of the Mental Health Act, depending on the circumstances, which is why the term ‘sectioned’ is used to describe a compulsory admission to hospital. Section 2 is used to admit someone for assessment, Section 3 for treatment and Section 4 in an emergency. People who are compulsorily admitted to hospital are called ‘formal’ or 'involuntary' patients.

Between 1 April 2013 and 31 March 2014, the Act was used 53,176 times in England to detain patients in NHS or independent hospitals for longer than 72 hours. (This is not the number of people who were detained under the Act, as some people are detained more than once within a year). This figure is five per cent higher than the previous year (2012/13). On 31 March 2014 there were a total 18,166 people in England who were detained in hospital for more than 72 hours.

The Mental Health Act also allows people to be put on Community Treatment Orders (CTOs), following a period of compulsory treatment in hospital. Between 1 April 2013 and 31 March 2014, there were 4,434 new CTOs made in England under the Act, five per cent fewer than in the previous year (2012/13). At 31 March 2014, there were 5,365 people being treated in the community on CTOs.

The decision to detain someone in hospital or to put someone on a CTO is taken by doctors and other mental health professionals who are approved to carry out certain duties under the Act and must follow specific procedures.

Someone can also be admitted to hospital under the Mental Health Act following an order by a Crown Court or, in restricted circumstances (for assessment only), a Magistrates' Court.

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Approved mental health professionals, approved clinicians and Section 12 approved doctors

Approved mental health professionals, approved clinicians and Section 12 approved doctors are three terms used by the Mental Health Act to describe professionals who have been trained and 'approved' to carry out particular duties under the Act.

An ‘approved mental health professional’ (AMHP) is a social worker, mental health nurse, occupational therapist or psychologist who has received special training to help decide whether people need to be admitted to hospital. They are ‘approved’ by a local social services authority for five years at a time. Most AMHPs are social workers.

An ‘approved clinician’ is a doctor, a psychologist, a mental health nurse, an occupational therapist or a social worker who has been trained and approved (for five years at a time) to carry out certain duties under the Mental Health Act by an organisation acting on behalf of the Secretary of State in England or Welsh Ministers in Wales. Only an approved clinician can take overall responsibility for the case of someone who has been detained in hospital or on a CTO and act as their 'responsible clinician' (see below).

A doctor who is 'approved' under Section 12 of the Act is approved on behalf of the Secretary of State (or the Welsh Ministers) as having special expertise in the diagnosis and treatment of 'mental disorders'. Doctors who are approved clinicians are automatically also approved under Section 12. Section 12 approved doctors have a role in deciding whether someone should be detained in hospital under Section 2 and Section 3 of the Mental Health Act.

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Responsible clinician

People who are detained under the Mental Health Act, or who are on CTOs, must be under the care of a 'responsible clinician'. He or she has overall responsibility for an individual's care. A responsible clinician need not be a psychiatrist, though at present almost all of them are doctors. All responsible clinicians have 'approved clinician' status. 

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Mental Health Act Code of Practice

The Mental Health Code of Practice contains guidance that health professionals should follow when detaining and treating people under the Mental Health Act. A revised and updated Code of Practice comes into force on 1 April 2015. The new iteration reflects changes in the law and developments in professional practice that have happened since the last update in 2008.

The Code of Practice lists ‘guiding principles’ that mental health professionals must consider when they take a decision to detain and treat someone under the Mental Health Act.

An important guiding principle is that the person who is detained and treated against their will must be as fully involved in planning treatment as possible, and their wishes should be taken into account by the team of mental health professionals responsible for their care within hospital. Family members and other carers should also be involved, unless the person who is unwell does not want them to be, or there are other specific reasons.

Another key guiding principle is that care and treatment should be provided in the least restrictive way possible – this means that if possible, someone should be admitted to hospital without the constraints of the Mental Health Act applying to them.

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Hospital managers

Under the Mental Health Act, the term 'hospital managers' describes the organisation that is in charge of the hospital – an NHS trust, for example. Hospital managers are ultimately responsible for what happens to people who are detained and treated under the Mental Health Act within that particular hospital; for making sure the law is used properly within the hospital; and for ensuring that patients who are detained and treated under the Act are fully informed of their rights.

Hospital managers can hear appeals from patients who disagree with a decision to detain or treat them compulsorily. They have the power to discharge patients who have been detained under the Act (but not patients who have been detained by the courts), or patients who are on a Community Treatment Order.

Hospital managers (ie the organisation) delegate their specific duties to members of the staff and sometimes other people. An NHS trust may, for example, set up 'managers' panels' to consider appeals and discharges. These often include people from the local community who have an interest in mental health.

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Nearest relative

When someone is detained under the Mental Health Act, it is the responsibility of the approved mental health professional (AMHP) to identify the person’s ‘nearest relative’. The law says the ‘nearest relative’ is someone’s husband, wife, civil partner or unmarried partner, if they have been living together for more than six months. If someone does not have a spouse or partner, the ‘nearest relative’ is their child, if they are over 18. If someone does not have a child, or their child is under 18, their nearest relative is then one of their parents. If their parents are not alive, their nearest relative is the first relevant person in the following order who is aged over 18: a brother or sister; a grandparent; a grandchild; an uncle or aunt; a nephew or niece; somebody who is not related but with whom the person has been living for more than five years.

The Mental Health Act gives someone's 'nearest relative' certain powers.  

The ‘nearest relative’ must be informed (for Section 2) or consulted (for Section 3) if mental health professionals are proposing to detain someone for treatment under the Mental Health Act unless it is not practicable to do so, or unless consultation would result in 'unreasonable delay.' A patient cannot be admitted under Section 3 if the ‘nearest relative’ disagrees, although the approved mental health professional can in certain circumstances go to court to seek to displace the ‘nearest relative’ (see below).

The nearest relative can apply to the hospital managers to admit someone to hospital compulsorily for assessment (Section 2), treatment (Section 3), or in an emergency (Section 4). This power is rarely used: the approved mental health professional usually makes the application to the hospital for admission under the Act.

A nearest relative can also ask the hospital managers to discharge the person who has been detained (unless he or she has been detained following an order from a judge or magistrate). However, the responsible clinician can block this if they believe discharge is likely to result in serious risk to the patient or to other people.

People with mental health problems can apply to the County Court to change their nearest relative if they think the person named by law is unsuitable. It is also possible for an identified nearest relative to delegate their powers to another person.

The charity Rethink Mental Illness has produced a Factsheet that contains detailed information about the role of the nearest relative. You can download it from the Rethink Mental Illness website.

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Sections 2 and 3

The sections most commonly used to admit someone to hospital are Sections 2 and 3.

Section 2 is an ‘assessment’ order. It allows for someone who is unwell to be admitted to hospital so health professionals can find out what is wrong, recommend how to help and start treatment.

Two doctors must agree that someone should be detained in hospital for assessment, and one of them must be a ‘Section 12 approved’ doctor. They then recommend admission using statutory forms. An approved mental health professional (AMHP) or someone’s nearest relative can then apply to hospital managers for an individual to be admitted under Section 2 (though applications from nearest relatives are very rare).

An AMHP should inform the nearest relative if someone is to be detained under Section 2. People admitted under Section 2 can be kept in hospital for up to 28 days. Section 2 cannot be renewed: if health professionals want to detain a patient for a longer period, they must do so under Section 3 of the Act.

Section 3 allows people to be admitted and detained for treatment for up to six months. Two doctors have to agree someone should be detained for treatment in the interests of their health or safety, or for the protection of others. One of them must be a Section 12 approved doctor. An approved mental health professional (AMHP) or nearest relative can then apply to hospital managers for an individual to be admitted under Section 3. Applications from nearest relatives are very rare.

A nearest relative must be consulted by an AMHP before someone is detained under Section 3 unless it is not practicable to do so, or unless consultation would result in 'unreasonable delay.' If a nearest relative objects, detention under Section 3 cannot go ahead unless legal action is taken to remove the title of nearest relative (and the rights that accompany the title) from the person who is objecting.

A patient's responsible clinician may renew Section 3 to keep them in hospital for a period longer than six months. The responsible clinician may also decide to discharge a patient onto a Community Treatment Order. This means they will be treated in the community, rather than in the hospital (see below).

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In an emergency – Section 4

Section 4 applies when there is a crisis and someone needs urgent help but there is not enough time to arrange for an admission under Section 2 or Section 3.

Section 4 allows people to be admitted and detained for up to 72 hours after one doctor has said that urgent admission is needed. An application for a Section 4 admission is usually made by an approved mental health professional (AMHP). A nearest relative can also make an application, but this very rarely happens.

During the 72-hour period, a second doctor should review the patient. The outcome may be that the individual is detained under Section 2 or Section 3; that the individual agrees to stay in hospital as an informal or voluntary patient; or that he or she is allowed to leave the hospital. If this is the case, community-based mental health professionals will usually make sure an individual is getting appropriate treatment and support. 

Use of Section 4 has been steadily decreasing over recent years. In 2013/14, Section 4 was used just over 300 times in England, compared with 851 times in 2007/8.

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Detaining voluntary patients – Section 5

People who are admitted to hospital when they are unwell without the use of compulsory powers are called ‘informal’ or ‘voluntary’ patients.

If someone has been admitted to hospital as an informal or voluntary patient, they are not detained and are free to come and go. 

However, the doctor in charge of their care (or someone delegated by this doctor) can complete a Section 5(2) to stop them leaving hospital. This would be done if mental health professionals believed there were risks to the patient or other people. Section 5(2) lasts for up to 72 hours, allowing time for a decision to be taken about whether a Section 2 or Section 3 should be applied.

In a small number of cases – if a doctor is not available – a registered nurse can use Section 5(4) to prevent someone leaving hospital. This power only lasts for up to six hours and ends when a doctor arrives on the ward.

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Crown and Magistrates’ court powers

Courts can use the Mental Health Act to send someone who is accused of a crime or convicted to hospital either for treatment, or for a report to be made about their mental health.

Section 35 is used to send an accused person on remand to hospital for a report; Section 36 is used to send an accused person on remand to hospital for treatment.

Under Section 37, a court can rule that someone convicted of an offence should be detained in hospital to receive treatment instead of being sent to prison (this is sometimes called a hospital order). If the courts are concerned that an individual poses a risk to others, Section 41 allows a restriction order to be added to the Section 37 for the protection of the public. The Ministry of Justice closely monitors patients who are under restriction orders. Section 38 allows someone convicted of an offence to be sent to hospital for assessment before they are sentenced (this is sometimes called an interim hospital order).

The Mental Health Act also allows both convicted and remand prisoners to be transferred to hospital for treatment. Section 47 is used to transfer a sentenced prisoner to hospital and Section 48 is used to transfer a prisoner on remand. A Section 47 or Section 48 is invariably accompanied by a restriction order made under Section 49.

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Police powers – place of safety orders

Section 136 of the Mental Health Act allows the police to take someone from a public place to a place of safety, if they think he or she needs immediate care or control. A 'place of safety' might be a mental health hospital, an accident and emergency department, or a police cell. People can be held under Section 136 for up to 72 hours, during which time they should be seen by a doctor and by an approved mental health professional (AMHP). They may then be placed on Section 2 or 3 of the Mental Health Act, they may be admitted to hospital as an informal or voluntary patient, or they may be discharged.

In December 2014, the government published the results of a review of the use of Sections 136 and 135 following concerns about the continued use of police cells as 'places of safety', particularly for young people and children. The review recommends a future government (elected after the 2015 general election) change the law so that police cells are only ever used for people who are violent, and never for children and young people, and that people can only be held under Section 136 for a maximum 24 hours rather than 72.

Section 135 allows the police to gain entry into someone’s premises to allow an assessment under the Mental Health Act to be made, or to return someone who has left the hospital and is absent without leave. A warrant from a Magistrates' Court is required before this power can be used. For patients who are to be assessed for detention, the police must be accompanied by an approved mental health professional (AMHP) and a doctor.

Guidance about the use of Sections 135 and 136 and different types of places of safety is given in the updated Mental Health Act Code of Practice. The total number of people detained under Section 136 in England in 2013/14 was 23,036: 17,008 people were taken to a hospital; the rest were taken into police custody.

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Community Treatment Orders

People can be discharged from hospital after being on a Section 3 or Section 37 (imposed by a court after someone has been convicted of a crime) on a ‘Community Treatment Order’ (CTO). The decision to discharge someone onto a CTO taken by the responsible clinician with a supporting recommendation from an approved mental health professional (AMHP).

Conditions are attached to a CTO. These conditions might include staying at a particular address, attending for treatment at a particular time or place, or taking medication, for example. Failure to comply with the conditions, or a significant deterioration in mental health, may result in the individual being recalled back into hospital.

On recall (which lasts for up to 72 hours), an assessment is made. After the assessment, an individual may be returned to the community; admitted to hospital as a voluntary or informal patient; discharged from the CTO or the CTO may be revoked. This means they will be re-admitted to hospital and the Section under which they were initially detained will come back into force.

In 2013/14, there were 4,434 new CTOs made in England. However, the number of people on supervised community treatment is greater than this figure – at 31 March, 5,365 people were being treated on CTOs. This is because CTOs made in earlier years are still in place.

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Guardianship

Section 7 of the Mental Health Act allows for people who have a 'mental disorder' to be given a guardian in the interests of their own welfare or to protect other people. A guardian helps someone live as independently as possible within the community.

If a patient is currently detained in hospital under the Mental Health Act, they may be discharged to receive care and treatment in the community under guardianship. In most cases there will be other options, such as the use of a community treatment order (CTO). The updated Mental Health Act Code of Practice gives guidance (in Chapter 30) about when to use guardianship rather than a CTO.

The guardian is most commonly the local authority, but may be an individual (such as a relative or friend) who is approved by the local authority (called a 'private guardian'). A guardian must always act in a person's best interests.

Medical recommendations from two doctors (one of whom must be approved under Section 12 of the Mental Health Act) are needed and then an approved mental health professional (AMHP) or the person's nearest relative can apply to the local authority for a guardianship order to be made. If a nearest relative objects to the making of a guardianship order, it cannot proceed.

A court can also make a guardianship order (under Section 37 of the Mental Health Act).

Section 8 of the Act gives a guardian legal powers: to require a person to live in a certain place (and to return them to that place if they leave it); to require a person to attend appointments for 'medical treatment, occupation, education or training'; to require a doctor, AMHP or other person access to visit. Guardianship does not allow treatment to be given without a person's consent.

A guardianship order lasts for up to six months initially, but can be renewed for a further six months, and again for a further year at a time. The local authority will ask a doctor (called the responsible clinician) to say if someone still needs a guardian. (If someone has a private guardian, the doctor is called the 'nominated medical attendant' instead).

People can ask to stop have a guardian by writing to the local authority or the First-tier Tribunal (Mental Health). Someone's nearest relative can also apply to end a Section 7 guardianship order by writing to the local authority.

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Leave of absence when detained in hospital – Section 17

If someone is detained in hospital under the Mental Health Act, it is against the law for them to leave without specific permission granted by the responsible clinician. When people are detained in hospital under Sections 2, 3 and 37, they may be given a time-limited leave of absence. This means they can leave the hospital grounds with permission – to visit their family, for example, or for a trial visit home prior to discharge. Sometimes, a member of staff might escort a patient on leave. The responsible clinician must authorise leave under Section 17.

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Compulsory treatment

Treatment can in most circumstances be given to people detained in hospital under the Mental Health Act without their agreement. However, even though the law allows for people to be compulsorily treated, their consent should always be sought in the first instance and mental health professionals should take a patient's wishes into account when planning treatment.

Patients who have the ‘capacity to consent’ – who are able to make an informed decision – cannot be given electroconvulsive therapy unless they agree, or unless it is an emergency.

A second opinion appointed doctor (SOAD) service is run by the Care Quality Commission and seeks to safeguard the rights of patients detained in hospital under the Mental Health Act who either refuse treatment or who lack capacity (and are therefore unable to make an informed decision) at that particular time. The Care Quality Commission appoints psychiatrists to be SOADs. Their role is to undertake a review of the recommended treatment for these patients. They check whether the proposed treatment is appropriate for an individual patient, and whether a patient’s opinion and rights have been properly considered.

SOADs also review treatment of patients who are on a Community Treatment Order unless they have capacity and consent to their treatment. People on a CTO cannot be treated against their wishes unless they are recalled to hospital other than in very unusual circumstances. 

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Right to appeal against decisions made under the Mental Health Act

When someone is compulsorily admitted, the hospital managers have a duty to inform them of their rights to appeal against detention.

There are no rights of appeal against the very short-term detentions (Sections 4, 5(2) and 136) but for longer detentions, a patient can appeal to the hospital managers and to the First–tier Tribunal (Mental Health) or Mental Health Review Tribunal for Wales. People on a Community Treatment Order also have a right to appeal to hospital managers and the First–tier Tribunal (Mental Health) and theMental Health Review Tribunal for Wales.

Staff on the ward must inform patients about their rights to appeal, how to contact hospital managers and the First-tier Tribunal/Mental Health Review Tribunal for Wales, and about specialist services that can help them, like the independent mental health advocate service in England (see below).

People who are appealing against detention might find it useful to have legal representation. The Law Society has a list of solicitors who specialise in mental health law.

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Independent mental health advocates

Independent mental health advocates help people detained under the Mental Health Act in England to understand their rights. They can help people admitted to hospital, people on supervised community treatment and people who have a guardian.

These advocates are nothing to do with the health professionals involved in treatment and care. They can help people understand what they are being told by mental health professionals, and represent their views. They can also help if someone wants to appeal to a First–tier Tribunal (Mental Health).

Local authorities are responsible for organising an independent mental health advocacy service. Most frequently, they commission voluntary organisations to provide the service:

However, the Care Quality Commission's report 'Monitoring the Mental Health Act in 2013/14' says that 'awareness of, and access to, independent mental health advocates, is still not good enough.'

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After hospital – Section 117

Under Section 117 of the Mental Health Act, free 'aftercare' is offered and provided to people who have been detained and given treatment under Sections 3, 37, 47 or 48 of the Mental Health Act. This includes people who have been discharged onto supervised community treatment.

NHS clinical commissioning groups and local social services authorities are jointly responsible for providing and paying for aftercare.

The Mental Health Act does not spell out what aftercare should consist of, but the Mental Health Act Code of Practice gives examples. As well as health and social care, the examples include supported accommodation and employment services.

Patients should be involved in planning aftercare, and relatives should be involved unless an individual does not give consent for this to be the case.

Aftercare services provided under Section 117 should continue until the section is formally discharged. An individual must be invited to the discharge meeting.

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The Care Quality Commission

The Care Quality Commission is responsible for protecting the interests of people detained and treated under the Mental Health Act in England, for making sure they are cared for properly, and for ensuring the Mental Health Act is used correctly. It does this by monitoring the use of the Mental Health Act, and by visiting hospitals and speaking to patients. The Care Quality Commission appoints ‘Mental Health Act commissioners’ who visit every psychiatric ward in England where patients are detained on a regular basis. They also seek to meet patients placed on supervised community treatment.

In Wales, the Healthcare Inspectorate Wales's Mental Health Review Service is responsible for monitoring the Mental Health Act. Their 'Mental Health Act reviewers' visit psychiatric wards and meet patients placed on supervised community treatment.

 

 


This page was updated 26 February 2015.
Links last updated: 26 February 2015
Next links check due: April 2015


Resources

Inpatients formally detained in hospitals under the Mental Health Act 1983, and patients subject to supervised community treatment, Annual Report, England, 2013/14, published 29 October 2014 by the NHS Health and Social Care Information Centre.

Monitoring the Mental Health Act in 2013/14, Care Quality Commission annual report, published 6 February 2015.


Resources

Mental Health Code of Practice, updated version, January 2015


Department of Health: Mental Health Act 1983 information leaflets

This archived website page contains leaflets written for people admitted and detained in hospital under the Mental Health Act or place on supervised community treatment. There are also leaflets about nearest relatives, the right to complain to the Care Quality Commission and electroconvulsive therapy for patients detained in hospital. The leaflets were produced for hospitals and local social services authorities to help them meet their legal obligation to provide written information to patients.


Resources

Nearest relative fact sheet

produced by Rethink Mental Illness, updated December 2011.
Downloadable from this page where all Rethink Mental Illness' factsheets are listed. 


Other useful websites

Civil Legal Advice (GOV.UK)

Free legal advice for those eligible for legal aid (in England and Wales).


Information about Legal aid (GOV.UK)


Law Society

The website helps you find a solicitor.


Mental Health Law Online


Other useful websites

Care Quality Commission

This organisation protects the interests of people whose rights are restricted under the Mental Health Act in England.


Healthcare Inspectorate Wales's Mental Health Review Service

This organisation protects the interests of people whose rights are restricted under the Mental Health Act in Wales.


Other useful websites

Mental Health Act in Wales