Mental Health Act

• Mental Health Act
• The Care Quality Commission
• Mental Health Act Code of Practice 1983
• Responsible clinician
• Hospital managers
• Nearest relative
• Approved mental health professional 
• Sections 2 and 3
• In an emergency – Section 4
• Detaining voluntary patients – Section 5
• Crown and magistrates’ court powers
• Police powers
• Community treatment orders/ supervised community treatment
• Guardianship
• Leave of absence when detained in hospital – Section 17
• Compulsory treatment
• Right to appeal against decisions made under the Mental Health Act
• Independent mental health advocates
• After hospital – Section 117

Mental Health Act

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.

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

The Mental Health Act also allows people to be put on supervised community treatment, after a period of compulsory treatment in hospital. Someone on supervised community treatment is called a 'community' patient.

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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, 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’ to do this and they 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.

The Mental Health Act requires the Care Quality Commission to report once a year about the use of the law. Its report Monitoring the Mental Health Act in 2010/11 (published in December 2011) says that during the year, there were 45,248 compulsory admissions and detentions in hospital under the Mental Health Act (compared with 45,755 compulsory admissions and detentions in 2009/10).

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Mental Health Act Code of Practice 1983

This document is for mental health professionals and describes good practice when treating people under the Mental Health Act.

It lists ‘Guiding Principles’ that mental health professionals must consider when they take a decision to detain 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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Responsible clinician

People who are detained under the Mental Health Act or discharged onto supervised community treatment must be under the care of a 'responsible clinician'. A responsible clinician need not be a psychiatrist, though at present almost all of them are doctors. He or she must, however, be an 'approved clinician'.

An approved clinician might be a doctor, a psychologist, a mental health nurse, an occupational therapist or a social worker who has been trained and approved to carry out certain duties under the Mental Health Act.

Some treatment decisions can only be taken by approved clinicians. Other decisions, such as renewing someone's detention in hospital, or placing a patient on supervised community treatment, can only be taken by a responsible clinician. 

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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 responsible for detaining and treating people under the Mental Health Act; for making sure the law is used properly; and for ensuring that patients who are detained and treated under the Act are fully informed of their rights.

Hospital managers 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 supervised community treatment. They also hear appeals from patients who disagree with a decision to detain or treat them compulsorily. An organisation may set up 'managers' panels' to consider discharge and appeals. These often include people from the local community who have an interest in mental health.

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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.  

A nearest relative can apply to hospital managers for someone to be admitted to hospital compulsorily for assessment (Section 2), treatment (Section 3), or in an emergency (Section 4). This power is rarely used.

They 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 such an application if they believe discharge is likely to result in serious risk to the patient or to other people.

A nearest relative should be informed or consulted if mental health professionals are proposing to detain someone for treatment under the Mental Health Act unless it is not practictable to do so, or unless consultation would result in 'unreasonable delay.'

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.

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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Approved mental health professional 

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’ to carry out certain duties under the Mental Health Act. Most AMHPs are social workers.

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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. This means they have had special training that enables them to take decisions under the Mental Health Act.

An approved mental health professional (AMHP) or someone’s nearest relative can apply for an individual to be admitted under Section 2. An AMHP should inform the nearest relative if someone is to be detained under Section 2 (applications from nearest relatives are very rare).

People admitted under Section 2 stay in hospital for up to 28 days. Section 2 cannot be renewed. A Section 3 application must be made to detain a patient for a longer period.

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 apply for an individual to be admitted under Section 3. Applications from nearest relatives are very rare.

A nearest relative should 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 supervised community treatment. 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 can be made by an approved mental health professionals or a nearest relative. Applications from nearest relatives are very rare.

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. 

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Detaining voluntary patients – Section 5

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 to hospital either for treatment, or for a report to be made about their mental health.

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. 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. The Ministry of Justice closely monitors patients who are under restriction orders.

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.

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Police powers

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 police station, for example, but is nowadays mostly a hospital.

People can be held under Section 136 for up to 72 hours, during which time they should be seen by a doctor and 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.

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.

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Community treatment orders/ supervised community treatment

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) onto supervised community treatment. In these circumstances, they are placed on a community treatment order (CTO). The decision to discharge someone onto supervised community treatment is 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.

After 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. Revocations of CTOs are not classified as a formal admission to hospital, which means that people who are re-detained are not included in the official figures about the number of admissions and detentions during the year, published by the Care Quality Commission.

The Care Quality Commission’s annual report about the use of the Mental Health Act in 2010/11 said that 3,834 CTOs were used during the year. However, at the end of March 2011, there were 4,291 people who were on a CTO. This is because many CTOs made in earlier years were still in place.

The power to make a CTO was introduced in 2008 as a result of amendments made to the Mental Health Act in 2007. 

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Guardianship

Under the Mental Health Act, people living in the community who have a ‘mental disorder’ can be given a guardian if two doctors think they need help, or supervision. A guardian may be a social services authority, or an individual who is approved by a social services authority. An individual is called a private guardian.

A guardian has legal powers, which include telling someone where they must live, and telling someone to attend appointments for treatment. However, treatment cannot be given without the person’s consent.

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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. 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 agrees leave of absence 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.

In some circumstances, some types of treatment have to be approved first of all by an independent doctor, called a second opinion appointed doctor (SOAD). These doctors check whether the proposed treatment is appropriate for an individual patient, and whether a patient’s opinion and rights have been properly considered.

The Care Quality Commission appoints psychiatrists to be SOADs and their role is to undertake a review of treatment on detained patients who lack capacity at that particular time, or who disagree with their treatment.

They also currently review treatment of all patients who are on supervised community treatment (even though people on supervised community treatment cannot be treated against their wishes unless they are recalled to hospital.) However, the Health and Social Care Bill 2011 proposes to change these rules. If the Bill becomes law, a SOAD's approval will no longer be needed if a patient on supervised community treatment agrees (and has the capacity to do so) to the treatment that is proposed.

During 2010/11, the Care Quality Commission received around 13,500 requests for a second opinion.

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.

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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). People on supervised community treatment also have a right to appeal to hospital managers and the First–tier Tribunal (Mental Health).

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

Legal Aid is available to people appealing to both hospital managers and the First–tier Tribunal (Mental Health). People can ask a solicitor to write to the Tribunal for them, and help them with an appeal. The Law Society has a list of solicitors who specialise in mental health law.

People who have a complaint about treatment under the Mental Health Act can contact the Care Quality Commission. Find out more by visiting the Care Quality Commission website. 

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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).

Your local primary care trust is responsible for organising independent mental health advocacy services for people detained under the Mental Health Act. However, under the reforms spelled out in the Health and Social Care Bill 2011, primary care trusts are to be abolished in 2013. After that time, local social services authorities are to become responsible for organising the independent mental health advocacy service.

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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. 

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 mental and physical health care, the examples include appropriate accommodation, help organising daytime activities and help with welfare benefits and managing money.

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.

The primary care trust and local social services authority (in the area where someone was living at the time of admission) is currently legally responsible for providing and paying for aftercare. After 2013, the Health and Social Care Bill 2011 proposes that the primary care trust's duty will transfer to clinical commissioning groups.