A brief summary

The principal legislation which governs the formal detention and care of “mentally disordered” people in hospital in England and Wales, is the Mental Health Act 1983.

On 3rd November 2008, a number of changes were made to the 1983 Act by the Mental Health Act 2007: these are reflected in what follows.

The 8 guiding principles of the 1983 Act are grouped under the following headings -empowerment, equity, effectiveness and efficiency. Further details can be found in the Mental Health Act 1983 Code of Practice for Wales.

The Language used in the Mental Health Act

The term “mental disorder” which is used throughout the Act means “any disorder or disability of the mind”. An “Approved Mental Health Professional” is a professional who has undertaken training and acts on behalf of the local authority, for the purposes of the Mental Health Act. A “Responsible Clinician” is a professional who has undertaken training and been approved to act as such, who is in charge of the care and treatment of a person detained under the Act.

Admission to Hospital

It is the intention of the Act that, wherever possible, people are admitted to hospital “informally”, i.e. without using the formal powers of the Act [Section 131]. In the event of a person being unwilling to go into hospital it may be possible to compulsorily detain them for assessment and/or treatment in the interests of their own health or safety, or for the protection of others. The grounds for compulsory admission, assessment or treatment are that the person is suffering from a mental disorder of a nature or degree that warrants his/her detention in hospital for assessment and/or treatment and that such admission is necessary in the interests of the health and safety of the person and/or the protection of other people. Where the detention in hospital is for treatment, there must be appropriate medical treatment available.

The Approved Mental Health Professional has responsibility for co-ordinating the process of Mental Health Act assessment and must be satisfied that compulsory detention is the most appropriate way of providing care and medical treatment. In reaching this decision they will interview the patient in a ‘suitable manner’, which should take into account language and cultural needs of the individual, consider the social circumstances of the case, take account of any previous psychiatric history and consider alternative resources to detention in hospital. The application by the Approved Mental Health Professional must be supported by two medical recommendations.

The patient in hospital

In principle, the informal psychiatric patient is in a similar legal position to the patient in a general hospital. However, in an emergency, if it becomes necessary to undertake a Mental Health Act assessment on an informal inpatient, the Act allows for a doctor to hold the patient for a period of up to 72 hours to give time for completion of Section 2 or 3. It is also possible for a nurse of the “prescribed class” to hold a patient for period of up to 6 hours to enable a patient to be examined by a doctor.

It is the responsibility of the Hospital Managers to make sure that a detained patient receives information about the powers of detention, their right of appeal to the Hospital Managers, and to the Mental Health Review Tribunal, their right to access an Independent Mental Health Advocate and their right to refuse certain types of treatment.

In-patients who are receiving treatment for mental health issues (whether they are on a mental health ward or not) are entitled to be given information about Independent Mental Health Advocacy (IMHA) and can be assisted to access the IMHA service.

Consent to treatment

For patients detained under the Mental Health Act 1983, Part IV of the Act goes to some lengths to ensure that patients comprehend the nature of planned treatment programmes. Drug treatment for mental disorder may be given to a patient with or without the patient’s consent during the first three months of detention in hospital. (This does not apply to medical treatment for physical illness – this is governed by the Mental Capacity Act 2005.) At the end of the 3 month period, the patient’s consent or a second opinion will be required to continue with further administration of treatment. A patient who has capacity cannot be given ECT [Electro Convulsive Therapy] if s/he does not want it, even if s/he is detained under the Mental Health Act. These safeguards can be set aside where the need for treatment is both serious and urgent – for example, to save a patient’s life.

Mental Health Review Tribunals

The Mental Health Review Tribunal is a part of the Court system and is responsible for hearing patient appeals against detention.

Tribunal panel members consist of a legal member, a medical member, and a lay member. All have experience considered suitable by the Lord Chancellor.

Patients detained under Section 2, 3, 7 [Guardianship] and 17 [Supervised Community Treatment] have the right of appeal to a Tribunal as do patients detained under hospital orders. Appeals can be made by the patient or their nearest relative. Information on how this can be done may be obtained from the Hospital Managers, or from staff on the hospital ward where the patient is detained.

All detained patients who appeal to the Tribunal are entitled to free legal representation. The Law Society issues a list of solicitors and their employees who are competent to represent patients at a Mental Health Review Tribunal.

Discharge from Hospital

Informal patients may discharge themselves at any time. Patients detained under compulsory orders may be discharged when their ‘Section’ expires, or prior to this at the discretion of the Responsible Clinician. The patient’s nearest relative may apply to discharge a detained patient by giving 72 hours notice in writing to the Hospital Managers. This notice can be overruled by the Responsible Clinician, if, in their opinion the patient, if discharged, would be likely to act in a manner dangerous to themselves or others.

Supervised Community Treatment

Patients who have been detained in hospital for treatment (mainly under Section 3) can, if their Responsible Clinician and Approved Mental Health Professional agree, be placed on a Community Treatment Order. This allows the patient to live in the community subject to certain conditions. If the Responsible Clinician thinks that the patient’s mental health is deteriorating and that they need treatment in hospital, then the Responsible Clinician can recall the patient to hospital for up to 72 hours. Patients on Supervised Community Treatment can ask their Responsible Clinician, the Hospital Managers and the Mental Health Review Tribunal to discharge them from this section. The patient’s nearest relative may also ask for the patient’s discharge. Patients also have a right to access the Independent Mental Health Advocacy service, if they wish.

After Care [s.117]

It is the joint responsibility of both the Health Service and the Local Authority to provide aftercare for discharged patients previously detained under a treatment [not assessment] order. The form and extent of this aftercare is not defined by the legislation, but should be based on the patient’s needs. The patient and/or their family cannot be charged for aftercare given under section 117. Aftercare should continue to be provided for as long as the patient needs it and can only end with the joint agreement of both the Health and the Local Authority.

Though not a legal requirement, where some care input from a voluntary organisation [e.g. voluntary housing agency] is an element of the S117 discharge plan, that organisation should be included in discussions of an individual’s aftercare needs.

Last Updated: July 11, 2016
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