Mental Health Act
If someone who is mentally unwell is unwilling to go into hospital and there is no alternative, a decision could be taken to use legal powers called ‘sections’ to take the person to hospital and detain them there. These powers are set out under various sections of the Mental Health Act 1983 (MHA) and should only be applied when there is no less restrictive alternative to detention under the Act. The Act was amended in 2007 but not repealed, so the correct title is still the Mental Health Act 1983.
The Act is supported by a Code of Practice which was amended in 2015. An independent review of the Mental Health Act was chaired by Sir Simon Wessely, and reported in December 2018. The report made 154 recommendations for change. The Government has yet to respond.
Some sections of the Mental Health Act (MHA)
This section lasts for up to 28 days and gives the hospital time to assess, and if necessary treat, the person’s mental illness. An Approved Mental Health Professional (AMHP) makes the application to detain, supported by the opinion of two doctors. Once the person is lawfully detained, a senior clinician known as the Responsible Clinician (RC) will be in charge of the patient’s care and treatment. Patients must be told about the section, why they are detained, given information about consent to treatment, given information about their rights to have their detention reviewed (by a Tribunal and/or the Hospital Managers), the function of their nearest relative, and rights to information about an Independent Mental Health Advocate (IMHA).
This section lasts for up to six months (renewable at six months then yearly). As with Section 2, an Approved Mental Health Professional (AMHP) makes the application to detain. This is supported by the opinion of two doctors. The main purpose of Section 3 is to allow more time to treat someone for a mental health problem. The patient must also be told of their rights as with Section 2.
If someone comes to hospital under Section 4 it means the Approved Mental Health Professional assessing them was very concerned about them and needed to act urgently. Section 4 means that only one doctor saw them and it only lasts for up to 72 hours. A Section 4 may become a Section 2 once the second medical recommendation is received. The patient must also be told of their rights but there is no appeal against this section.
Section 5(2) and Section 5(4)
If someone comes to hospital as an inpatient without being under a section, they are called an 'informal' or 'voluntary' patient. If they wanted to leave the ward and their mental health condition at the time indicated that this was immediately risky, the decision could be made to assess them under Section 2 or Section 3. These assessments take time to arrange so sometimes a person is placed under Section 5(2) to allow a full assessment to take place. Section 5(2) is put in place by one doctor and only lasts up to 72 hours. If a doctor is not available to use Section 5(2), a mental health or learning disability qualified nurse may, in an emergency, stop an inpatient from leaving the ward by placing them under Section 5(4). This section only lasts up to six hours and ends when a doctor assesses the patient. The patient must also be told of their rights but there is no appeal against these sections which are known as ‘holding powers’.
A small number of people are brought to hospital by the police under Section 136. This is a power which a police officer can use if they believe someone has a mental illness and they are concerned for the person’s welfare. The person is brought to a place of safety for further assessment, which may, or may not result in detention under section 2 or 3 of the Act. The Trust has two places of safety for section 136 patients – the Cassidy suite at Highbury Hospital and the Jasmine suite at Millbrook. The section 136 authority normally lasts for up to 24 hours, though there is provision for a further 12 hours in specified circumstances.
Community Treatment Orders (CTO) – Section 17A
Some patients who are detained under Section 3 or 37 (see below) are well enough to leave hospital and carry on receiving their treatment in the community. The patient’s Responsible Clinician and an AMHP may decide that a CTO is appropriate rather than complete discharge from the section. A patient on a CTO must keep to particular conditions and can be recalled to hospital if there are concerns about their compliance with the conditions or their deteriorating mental health. A CTO lasts for up to six months and might be renewed for a further six months then yearly. The underlying section 3 or 37 does not end but is ‘sleeping’ in the background in case the CTO has to be ended. This is done by a process called revocation. Before a decision is taken to revoke a CTO, the patient must firstly be recalled to hospital which can be as an inpatient or outpatient. The patient’s Responsible Clinician has up to 72 hours to decide what to do. If the person is really unwell or their condition is deteriorating, the doctor may then decide to revoke the CTO and the patient becomes detained in hospital again. In such circumstances, the hospital must refer the patient to the Tribunal without delay. Alternatively, the recalled patient may be well enough not to have their CTO revoked and may resume their life in the community, but still on the CTO.
This is very similar to Section 3, but is issued by a court, for people who have been involved in legal proceedings and need to be admitted for inpatient treatment rather than be sent to prison. Sometimes patients who are sent to hospital by the courts may be subject to a restriction order (section 41). The restricted patient cannot be given leave of absence or be transferred to another hospital without the consent of the Secretary of State for Justice.
Independent Mental Health Advocate (IMHA)
An IMHA is a statutory advocacy service specifically to support those patients who are detained under the Mental Health Act. All detained patients must be given information about the IMHA advocacy service and how to obtain one. Those patients who have the capacity to decide whether to contact one will make their own decision, and will be able to permit access to their notes. Those patients who lack the capacity to instruct an IMHA must have one introduced to them.
the Trust receives IMHA services from ‘POhWER’ and ‘Together’.
Review of detention
A patient may ask the Hospital Managers to review or apply for a tribunal hearing.
The term Hospital Managers means the Trust. The review is delegated to Associate Hospital Managers. These people are not Trust employees. They will form a panel of three members to decide whether on the day of the panel, the patient still meets the criteria for detention under the Act or whether they still meet the criteria for being on a CTO. They have the ability to discharge most patients from liability to detention or from a Community Treatment Order. They may also review a patient’s case following a renewal of the patient’s detention by the Responsible Clinician, or following a request by the patient. The panel cannot discharge a restricted patient without the consent of the Secretary of State for Justice. Further detailed information about the Hospital Managers’ discharge power can be found in Chapter 38 of the Mental Health Act Code of Practice.
A patient or nearest relative (in defined circumstances only) may apply for a Tribunal Hearing.
The First Tier Tribunal (Mental Health) is a court. It has three members – a judge, a doctor and a specialist member. The function of the tribunal is to decide whether on the day of the tribunal the patient still meets the criteria for detention under the Act or whether they still meet the criteria for being on a CTO. The Tribunal has the power to discharge patients from liability to detention or from a Community Treatment Order. The Tribunal can discharge restricted patients. It may defer discharge until an after care package is available and can make recommendations which must be considered but are not binding.
Challenging your mental health section - new film resource
This film aims to demystify and raise awareness of the tribunal process for patients on a section. There is information from consultants about their role in the process, solicitors and the legal aspect of challenging a section, as well as an account of someone with a lived experience of going through this process.
The film was made in partnership with Trust staff and Involvement Volunteers with support from Mills and Reeves Solicitors.
See chapter 12 of the Mental Health Act Code of Practice.
There are three key methods which a person might want to use in order to plan for a time when you may lack capacity, including a time when the person is detained under the Mental Health Act:
- lasting power of attorney
- advance statements
- advance decisions to refuse treatment (ADRT)
See chapter 9 of the Mental Health Act Code of Practice.
Click here for information about planning ahead with the Mental Capacity Act.