The Mental Health Act

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This information has been designed by LPFT Carers Council to assist carers and relatives to understand the Mental Health Act 1983.

A patient can agree to go into hospital on a voluntary basis without the need for compulsory powers of detention. A voluntary patient must be deemed capable of consenting to their own care and treatment and must agree to being admitted to hospital in accordance with the plan of care agreed. As a voluntary patient you can refuse care and treatment and you can leave the hospital when you want, but you are still expected to take part in your treatment plan.

When a patient is in need of mental health care and treatment in hospital and either is not deemed capable of consenting to the care and treatment needed, or because of their mental disorder a patient’s risk to themselves and or others is serious enough for them to be compulsory detained and treated in hospital, the Mental Health Act 1983 provides a legal framework to ensure those patients are detained and treated lawfully. When a patient is compulsory detained, the Mental Health Act 1983 provides a wide range of requirements that ensure the detained patient has the right to appeal their detention status; has access to an advocate and is provided with appropriate information explaining their rights and how to exercise their rights. The following information has been put together to assist in explaining the key components of the Mental Health Act 1983. If you have further questions, there are many ways to contact the Trust and access a wealth of information. The ward or an appropriate professional involved in the patient’s care and treatment will be happy to assist with any questions you have, and the Trust’s website provides access to a wide range of helpful information and contact details. 

In the United Kingdom any person who is detained and treated against their will must be subject to a regime prescribed by law. For patient suffering from mental illness in need of compulsory inpatient care and treatment, the most common use of lawful authority is provided by the Mental Health Act 1983. A patient may be compulsorily detained and treated in hospital if qualified clinicians determine, through formal clinical assessment, that the legal criteria provided for in by the Mental Health Act, is satisfied.

It is very important a patient is only compulsory detained and treatment under the Mental Health Act, if necessary.  Therefore, a patient should only be detained in hospital if:

  • They are not capable of consenting to their care and treatment in hospital for their mental disorder; or
  • Professionals are of the view that the patient presents a clear risk to themselves or others or where there is reliable evidence indicating a strong likelihood that the patient will change their mind about care and treatment which  will result in a serious risk to their health or safety or to the safety of other people.

Before a patient can be lawfully detained under the Mental Health Act, they will need to be formally assessed by mental health professionals to make sure that it is necessary and lawful.  Most commonly a formal assessment is undertaken seeking the agreement of two qualified doctors and an independent mental health professional, most often referred to as an Approved Mental Health Professional (AMHP).

Where a patient is detained, the Mental Health Act provides a dedicated legal role for a patient’s ‘Nearest Relative’. A patient’s nearest relative is determined by  legal criteria set out in the Mental Health Act. A named ‘Nearest Relative’ is different from a patient’s next of kin or carer and has a dedicated legal role in the patient’s detention under the Act. A patient’s nearest relative has several important functions under the Mental Health Act 1983.

These include:

  • A power to apply for a patient’s admission to hospital under section 2 or section 3 of the Mental Health Act 1983 or reception into Guardianship
  • A power to require that an AMHP assesses the patient, with a view of that person making an application under the Mental Health Act 1983
  • A power to object to the making of a Guardianship application or a section 3 application by an AMHP (and the right to be consulted in accordance on the application of a section 2 application)
  • A power to discharge the patient from civil detention or Guardianship
  • A power in some cases to apply to a Tribunal for the patient’s discharge

The following is a brief summary/overview of most applied civil sections of the Mental Health Act 1983:

Section 2

This is a civil section for assessment (or for assessment followed by treatment). Two doctors must make the recommendation, and the application is then made by an Approved Mental Health Professional (AMHP). The detention period lasts for a maximum of 28 days and cannot be extended. At any time during the detention period a patient may be assessed under the Mental Health Act in accordance with section 3 criteria.

Section 3

This is the long-term civil section. An Approved Mental Health Professional makes an application for admission, based on the recommendations of two medical practitioners. The initial period for which detention is authorised is six months, but it can be renewed by the Responsible Clinician for a further six months, then for further periods of 12 months.

The criteria for admission are set out in S.3(2) of the Mental Health Act:

  • The patient is suffering from mental disorder of a nature or degree which makes it appropriate for him/her to receive medical treatment in a hospital; and
  • It is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
  • Appropriate medical treatment is available for him. 

The Mental Health Act provides a dedicated section for patients to be granted leave from hospital whilst compulsorily detained. Section 17 of the Mental Health Act sets out the legal requirements for leave from hospital. The Mental Health Act gives the Responsible Clinician the power to grant a patient leave from hospital for a specified period. A patient may be required to keep to certain conditions, such as returning on a certain day or at a certain time or staying at a place or in the care of a person.

The Responsible Clinician in charge of a patient’s care and treatment can place conditions on the leave arrangements, such as where patients must stay whilst away from the hospital and impose a set period of time for the leave.

Patients should be involved in leave arrangements and given a copy of the leave conditions documented on the leave form. Where appropriate, the plan of leave should also be discussed and shared with the patient’s Nearest Relative and any appropriate family or friends involved in the patient’s care.   

The Responsible Clinician can revoke a patient’s leave at any time and order the patient to return to hospital.

If patients do not return to hospital at the end of the leave period agreed, they can be made to return. Any patient absent from hospital without authority will be regarded as absent without leave or ‘AWOL’.

Sometimes there may be occasions where patients no longer need to receive care and treatment in hospital however still require the formal structure and support for their care and treatment in the community that comes from the Mental Health Act. The Mental Health Act 1983 provides for certain patients to be made the subject of a Community Treatment Order (CTO). The Act also provides for patients to be made subject to a Guardianship application. 

This is not a detaining section, it’s a regime that allows a person to live in the community supported by a legally appointed guardian. A person may be made subject to a guardianship application if:

  • The patient is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this section; and
  • It is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.

The guardian may be either a local social services authority or any other person. Their powers are:

  • to require a patient to reside at a place specified by the authority or person named as guardian;
  • to require a patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
  • to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.

A Community Treatment Order (CTO) allows a person who has been detained in hospital for treatment (most commonly those who have been detained in accordance with s.3 and s.37 of the Mental Health Act 1983) to leave hospital (discharged from detention) and continue to receive treatment in the community with the overall aim of preventing the patient being readmitted to hospital.

The Code of Practice states “the purpose of a CTO is to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm to the patient or to others that this might cause. It is intended to help patients to maintain stable mental health outside hospital and to promote recovery. The principles, treating patients using the least restrictive option and maximising their independence; and purpose and effectiveness should always be considered when considering CTO’s”.

Patients who are on a CTO will be subject to two mandatory conditions requiring them to make themselves available for examination for renewal of the CTO and if necessary, to allow a second opinion approved doctor to provide a legal certificate to authorise treatment. The CTO is also likely to include additional discretionary conditions which will depend on individual circumstances but must be for the purpose of ensuring the patient receives medical treatment or to prevent risk of harm to the patient and others. Such conditions will form part of the patient’s CTO which is made by the Responsible Clinician in charge of the patient’s treatment. 

A CTO lasts for an initial period of six months from the date when the order was made. The community treatment period can be extended for a further period of six months and, following that, it can be extended for periods of 12 months at a time.

The Mental Health Act 1983 allows for short term ‘emergency holding powers’ which can be used by professionals when there is sufficient concern that a voluntary patient may require a formal assessment to consider compulsory detention and assessment and/or treatment.  For voluntary inpatients doctors and nurses have powers which allow them to take certain measures to prevent a patient to leave hospital in accordance with the Mental Health Act 1983.  In the community the police have the power to exercise short term holding powers.  A summary of the most used holding powers is explained as follows:

Short Term Emergency Holding Powers for voluntary inpatients:

- Section 5(2) Doctors Holding Power – lasts up to a period of 72hrs

- Section 5(4) Nurses Holding Power – lasts up to 6 hours – can only be used by certain qualified nurses

Short Term Emergency Holding Powers for patients in the community:

- Section 136– Police powers allowing the removal a person to convey them to a place of safety and hold them there for purposes of formal MHA assessment – lasts up to 24 hrs.

- Section 4 (s.4) - Emergency admission for assessment 

Section 4 application is used only in cases of urgent necessity. 

  • Only one medical recommendation is required
  • It lasts for a maximum of 72 hours
  • The applicant (usually an AMHP) must have seen the patient in the previous 24 hours and certify that getting the second doctor would “involve undesirable delay”.
  • A second medical opinion should be sought as soon as possible.  A second medical recommendation will essentially convert the section 4 application into a section 2 application for detention and assessment (see above).

The Trust provides detention and treatment under the Mental Health Act for certain categories of patients detained by courts in relation to criminal proceedings; some of these patients are ‘restricted’ meaning consent of the Ministry of Justice (and/or courts) is required for the purposes of leave and discharge. A brief summary of the most applied sections is explained as follows:

Section 35

The Crown Court or Magistrates' Court can remand a patient to hospital if one doctor has evidence that:

  • there is reason to suspect the defendant has a mental disorder of a nature or degree that requires a formal assessment under the Act by qualified professionals and
  • it would be impracticable for an assessment to be made if the defendant were made subject to bail.
  • A defendant can be detained and assessed under section 35 for up to 28 days, renewable for further periods of 28 days, to a maximum of 12 weeks in total.

Section 37

Under this section, a defendant can be ordered by the courts to receive care and treatment in hospital for their mental disorder.

The Crown Court can make a hospital order before or after a defendant has been convicted of a crime. The Magistrates' Court can only make a hospital order when a defendant have been convicted of an offence that could be punished with a prison sentence.

The court makes a hospital order where it is satisfied from the evidence that:

  • The defendant has a mental disorder of a nature or degree that makes detention for medical treatment appropriate
  • appropriate medical treatment must be available, and
  • a hospital order is the most suitable option considering all the relevant circumstances (including a defendant’s history and character and other methods of dealing with mental health treatment that might be available to the court).

A patient can be detained and treated under the requirements of section 37 for an initial period of up to 6 months; following the initial period the detention period can be renewed for a further 6 months and thereafter annually. The courts allow the Responsible Clinician to power to decide when it is clinically appropriate for the patient to be discharged.

Section 37/41

If the Crown Court has made a hospital order under section 37, it can also impose a 'restriction order'. Most commonly this means a patient can only be discharged, transferred, or given leave only with the permission from the Ministry of Justice/courts.

The Court will make a restriction order if it is satisfied that is necessary to protect the public from serious harm.

There is no fixed time limit for how long a patient can be kept under this section. It changes the time limit of section 37.

Section 47

Section 47 applies if the Ministry of Justice orders a defendant to be transferred from prison to hospital for mental health treatment.

A patient can be detained under this section for up to 6 months, renewable for a further 6-month period and thereafter, annually.

Who can discharge a patient from detention under the Mental Health Act?

Depending on the type of section a patient is subject to different rules apply to how the patient can be discharged. A patient may be discharged from detention under the Mental Health Act:

  • by the Responsible Clinician in charge of the patient’s treatment
  • by the managers of the hospital – this role is carried out by an independent panel of lay persons called Associate Hospital Managers who have been appointed by the Trust to undertake this function
  • by the patient’s ‘Nearest Relative’
  • by the First-tier Tribunal (Mental health)
  • In relation to a patient subject to guardianship, discharge may be effected by the responsible social services authority, rather that the hospital managers.

Strict legal criteria are provided for in the Mental Health Act regarding the process of a patient’s discharge from detention. If you require further information about this, please speak with a member of staff on the ward or any member of staff who is involved in the patients care and treatment.

It is important to note that separate rules apply to the discharge arrangements of patients who are detained under the Mental Health Act by criminal courts, the majority of patients detained at the direction of courts can only be discharged with the agreement of the Ministry of Justice. The Nearest Relative has no power to order the discharge of a patient subject to a hospital order under section 37. A patient’s Nearest Relative has no power to discharge a patient who is subject to emergency holding powers under the Mental Health Act (see above).

For patients who are detained under certain sections of the Mental Health Act, they will be entitled to free aftercare services. The law defines these aftercare services as services that meet a need which arises from or is related to the patient’s mental disorder. They are aimed at reducing the risk of a deterioration of the patient’s mental condition and to reduce the need for the patient to be readmitted back into hospital again for treatment of their mental disorder. 

Who can get section 117 aftercare?

A patient can get free aftercare under section 117 if they have been detained:

  • for treatment under section 3
  • under a hospital order under section 37
  • following transfer from prison under section 47 or 48
  • under a hospital direction under section 45A

Qualifying patients have the right to section 117 aftercare during leave from hospital and following discharge from their detention.

Medication

Medication can come under section 117, which means that it should be provided free. If a patient generally pays for their prescriptions, their Care Coordinator can advise and help claim free prescriptions for any medication that is part of a patient’s section 117 aftercare.

The second opinion appointed doctor (SOAD) service safeguards the rights of patients subject to the Mental Health Act.

SOADs are consulted in certain circumstances when a patient refuses treatment or is too ill or otherwise incapable of giving consent.

They'll check whether the recommended treatment is clinically appropriate, and that the patient’s views and rights have been considered.

For example:

If a detained patient has received medication/treatment for 3 months without consent under the Mental Health Act, the Mental Health Act requires that a SOAD must review the appropriateness of ongoing treatment beyond the 3-month period. 

If a patient subject to the Mental Health Act is too poorly and is incapable of to giving valid consent to electroconvulsive therapy (ECT) and the Responsible Clinician considers the treatment is necessary, the SOAD has to review whether it's appropriate for the treatment to be given. Electroconvulsive therapy cannot be given to a patient who's able to give consent but refuses to do so, except in urgent situations.

An approved mental health professional (AMHP) is a qualified mental health professional who has received special training to provide help and give assistance to people who are being treated under the Mental Health Act.

Their functions are wide ranging and they have the legal duty to determine whether a person needs to be compulsorily detained under the Mental Health Act to be admitted to hospital for assessment and/or treatment; or to be placed on a CTO or Guardianship.

Alongside the Trust as the detaining authority, an Approved Mental Health professional is also responsible for ensuring that the human and civil rights of a person being detained are upheld and respected at the time an application is made under the Mental Health Act.

A patient detained in accordance with the Mental Health Act can be treated against their will. However wherever possible, the views and best interests of the patient’s wishes should be considered.

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