Mental Health Act. Institute of Psychiatry, Psychology & Neuroscience

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1 Institute of Psychiatry, Psychology & Neuroscience South London and Maudsley NHS Foundation Trust in association with reliable and up-to-date information about psychosis for family members and friends 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. The Mental Health Act also allows people to be put on Community Treatment Orders (CTOs), following a period of compulsory treatment in hospital. 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. 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, a mental health nurse, a learning disability nurse, an occupational therapist or a psychologist who has received special training to help decide whether people need to be admitted to hospital. They are then 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, a learning disability 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 Community Treatment Order (CTO), and act as their responsible clinician (see Responsible clinician on page 2). 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.

2 Mental Health Act page 2 Responsible clinician People who are detained under the Mental Health Act, or who are on Community Treatment Orders (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. 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 came into force on 1 April The new iteration reflects changes in the law and developments in professional practice that have happened since the last update in The Code of Practice lists guiding principles that must be considered by mental health professionals 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. Hospital managers Under the Mental Health Act, the term hospital managers describes the organisation that is in charge of the hospital an NHS foundation 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; 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 staff and sometimes other people. An NHS foundation 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. 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.

3 Mental Health Act page 3 People who have 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. 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 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 Community Treatment Orders on page 4). 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. 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. 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.

4 Mental Health Act page 4 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. 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. The number of detentions in a police cell under Section 136 has been decreasing since 2014 following concerns about the continued use of police cells as places of safety, particularly for young people and children. 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. 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 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. 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. 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).

5 Mental Health Act page 5 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. 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. 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 (CTO) 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. 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 shortterm 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 the Mental 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 (

6 Mental Health Act page 6 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. 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. Monitoring the use of the Mental Health Act The Quality Commission 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 use of Mental Health Act. Their Mental Health Act reviewers visit psychiatric wards and meet patients placed on supervised community treatment. Resources l Mental Health Code of Practice, updated version, January l Reference Guide to the Mental Health Act 1983 published by the Department of Health, hment_data/file/417412/reference_guide.pdf This information appeared on the website mentalhealthcare and was last updated in February 2015.

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