Mental Health Act

• Mental Health Act
• How is someone admitted to hospital under the Mental Health Act?
• In an emergency
• Mental Health Act Code of Practice
• Community Treatment Orders/Supervised Community Treatment
• Crown and Magistrates’ Court powers
• Guardians
• Police powers
• Compulsory treatment
• Right to appeal against decisions made under the Mental Health Act
• Independent Mental Health Advocates
• The Care Quality Commission

Mental Health Act

The Mental Health Act 2007 (formerly 1983, but amended in 2007) is the law that allows people with a ‘mental disorder’ to be admitted and treated in hospital without their consent – either for their own health and safety, or for the protection of other people.

People can be admitted and treated under different sections of the 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 go to hospital voluntarily when they are unwell are called ‘informal’ patients.

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How is someone admitted to hospital under the Mental Health Act?

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

Section 2 is an ‘assessment’ order. Under Section 2, an ‘Approved Mental Health Professional’ or someone’s ‘nearest relative’ can apply for someone to be admitted to hospital so health professionals can find out what is wrong and recommend how to help. People admitted under Section 2 can stay in hospital for up to 28 days. A decision to apply for someone to be admitted under Section 2 is usually one taken jointly with doctors.

The law says the ‘nearest relative’ is someone’s husband, wife, 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 5 years. People with mental health problems can apply to change their nearest relative if they think the person named by law is unsuitable.

An ‘Approved Mental Health Professional’ is a social worker, mental health nurse, occupational therapist or psychologist who has received special training to help decide whether people need to be kept in hospital. They are ‘approved’ by a local authority social services department to carry out duties under the Mental Health Act. Most Approved Mental Health Professionals are social workers.

Under section 2 of the Act, two doctors must agree that someone should be detained in hospital, and one of them must be an ‘Approved’ Doctor – approved to take this decision under the law.

Section 3 is a ‘treatment’ order. This section allows people to be admitted for treatment for up to 6 months. A nearest relative or Approved Mental Health Professional can apply for admission, and 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.

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In an emergency

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. It is rarely used.

Section 4 allows people to be admitted to hospital and detained for up to 72 hours following an ‘application’ from an Approved Mental Health Professional or nearest relative and after one doctor has said that urgent admission is needed. A second doctor should say the decision to keep someone in hospital is correct within that time period.

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Mental Health Act Code of Practice

This gives guidance to mental health professionals about good practice when treating people under the Mental Health Act and to make sure they stay within the law.

The Mental Health Act Code of Practice includes ‘Guiding Principles’ that mental health professionals must consider when they take a decision to detain someone under the Mental Health Act. These include involving family members and other carers in a decision to admit someone to hospital compulsorily, unless there are specific reasons why family members should not be involved.

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Community Treatment Orders/Supervised Community Treatment

People can be discharged from hospital after being on a Section 3 onto ‘Supervised Community Treatment.’ This means they can return home but continue to be treated without their consent. A Community Treatment Order is the name of the order that says someone should go onto Supervised Community Treatment.

There are conditions attached to a Community Treatment Order – 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 may result in the individual being called back into hospital as an involuntary patient.

The decision to discharge someone onto a Community Treatment Order is taken by the ‘Responsible Clinician’, with a supporting recommendation from an Approved Mental Health Professional. The Responsible Clinician is what the Mental Health Act calls the senior professional in charge of someone’s care and treatment.

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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 on their mental health.

A court can also rule that someone convicted of an offence should be detained in hospital to receive the treatment that two doctors say he or she needs. In some cases involving very serious offences, a long term ‘restriction order’ may also be imposed which will remain in force after discharge from hospital.

The Mental Health Act also allows prisoners to be transferred to hospital for treatment.

A court may use the Act to appoint a social services authority or an individual to act as a ‘guardian’.

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Guardians

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 needs 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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Police powers

Section 136 of the Mental Health Act allows the police to take someone to a place of safety if they think he or she needs immediate care or control. A place of safety can be a hospital, or a police station. Nowadays this is mostly a hospital. People can be held under this Section for up to 72 hours, within which time they should be seen by a doctor and an Approved Mental Health Professional. They may then be placed on a Section 2 or 3 of the Mental Health Act, or they may be discharged.

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Compulsory treatment

Treatment can mostly be given to people detained in hospital under a Section without their agreement. However, some types of treatment have to be approved first of all by an independent doctor. He or she is called a Second Opinion Appointed Doctor (SOAD): they are appointed by the Care Quality Commission, the organisation that is responsible for monitoring the way the Mental Health Act is used in England.

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

Second Opinion Appointed Doctors also have to agree certain types of treatment given to people who have been discharged from hospital onto Supervised Community Treatment.

People on Supervised Community Treatment cannot be treated against their wishes with the use of force unless they are recalled to hospital.

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Right to appeal against decisions made under the Mental Health Act

Most patients detained in hospital can ask the ‘Hospital Managers’ to let them leave.

The Hospital Managers are a special committee of people. ‘Nearest relatives’ can also ask Hospital Managers to discharge someone.

People who are detained in hospital under the Mental Health Act, placed on a Community Treatment Order, or under guardianship, have the right to appeal to an independent Mental Health Tribunal against the decision.

The Mental Health Tribunal is at: The Tribunals Service, PO Box 8793, 5th Floor, Leicester LE1 8BN, telephone 0845 223 2022.

People can ask a solicitor to write to the Tribunal for them, and help them with an appeal. Help from a solicitor is free under the Legal Aid scheme. The Law Society has a list of solicitors who specialise in mental health law.

People can also ask for the help of an Independent Mental Health Advocate.

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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. Independent Mental Health Advocates can also help if someone wants to appeal to a Mental Health Review Tribunal.

Your local primary care trust is responsible for organising Independent Mental Health Advocacy services for people detained under the Mental Health Act.

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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. It makes sure that the Mental Health Act is used correctly, and that patients are cared for properly while they are kept in hospital, are on supervised community treatment or on guardianship. It does this by monitoring the use of the Mental Health Act and by visiting hospitals and speaking to patients.

People who have a complaint about treatment under the Mental Health Act that cannot be dealt with by a Mental Health Tribunal can ask the Care Quality Commission to help by writing to them at: Care Quality Commission, The Belgrave Centre, Stanley Place, Talbot Street, Nottingham NG1 5GG, telephone 0115 873 6250.