General Points about the Mental Health Act
What is the Mental Health Act 2007?
This is legislation that provides power to formally admit people with a mental disorder in the community or forensic settings to hospital. This can be necessary when an individual has a mental disorder and needs hospital for assessment or treatment and either refuses to be admitted or lacks capacity to agree to admission. It is used within England and Wales.
What is a Mental Disorder?
This is defined as 'any disorder or disability of the mind.' Although learning disabilities are included in the definition of mental disorder, it must be 'associated with abnormally aggressive or seriously irresponsible conduct' for detention to occur.
Examples of a mental disorder include: personality disorder, schizophrenia or depressive disorders.
Are there any exclusions to the Mental Health Act?
Alcohol and drug dependency are excluded from the Mental Health Act.
What does detention under the Mental Health Act mean?
It means that a person has been placed (usually) in hospital in order to receive appropriate treatment for a mental disorder.
What are the criteria to become subject to the Mental Health Act?
Firstly, the person needs to be suffering from a mental disorder.
This needs to be of a nature (its likely duration and outcome) or degree (the current effect on the individual) to require detention in hospital for treatment or assessment.
There also needs to be concern over the risks of the person to themselves or others.
For the longer lasting sections, there is a requirement that appropriate medical treatment is available for an individual for their mental disorder.
Who can detain people under the Mental Health Act?
For Section 4 - one doctor + an approved mental health professional or nearest relative
For Section 5(2) - one doctor. For Section 5(4) - one registered mental health nurse
For Sections 2, 3, 7- two doctors + an approved mental health professional or nearest relative
For Section 136 - a police officer. For Section 135 - a magistrate.
For the forensic sections (Sections 35, 36, 37, 37/41, 47, 47/49, 48, 48/49) there is a requirement for the Court to make the order and that medical evidence is provided by one or two doctors.
What is the nearest relative and their powers?
The Mental Health Act gives certain powers and responsibilities to the nearest relative. Not every patient will have a nearest relative. If there is one, the approved mental health professional would have informed the person of this at the time of the section. For non forensic sections, the nearest relative has the right to discharge the patient. If they do so, the Responsible Clinician will have 72 hours to consider whether it is safe to allow the discharge.
What rights do people have under the Mental Health Act?
People detained under the Mental Health Act have the right to access appeal via a Mental Health Review Tribunal or Hospital managers panel. These bodies can review whether the detention criteria are met. Detained individuals can access an Independent Mental Health Advocate (IMCA) who can offer support. The Care Quality Commission has an independent role to monitor the use of the Act as well as the care that people are offered.
How long does each Section last?
6 hours - Section 5(4) within hospital
72 hours - Section 5(2), Section 4, Section 135, Section 136, Recall of Community Treatment Order
28 days - Section 2, Section 35, Section 36
6 months - Section 3, Section 37, Section 47, Community Treatment Order (S17A-G) and Section 7 (Guardianship)
How can people appeal against their detention?
The appeal can be done through:
1. Mental Health Review Tribunal or
2. Hospital Managers panel
The Mental Health Review Tribunal is independent of the hospital and patients are entitled to legal aid. A patient can also appeal against their section to the Hospital Managers. Frequently, the managers are appointed by the Trust Board.
What about treatment under the Mental Health Act?
The Mental Health Act is used for the treatment of mental disorders not usually physical health problems.
This is covered by Section 57 (Neurosurgery - rarely used), Section 58 (Medication), Section 58A (ECT), Section 62 (Urgent treatment).
Treatment (usually medication) under the Mental Health Act can be given for the first three months to detained individuals with / without their consent. (Under Section 63).
After three months and if the individual refuses treatment or lacks capacity: a Second Opinion Approved Doctor is required to authorise further medical treatment. There are different rules about treatment for community patients and for ECT (Electroconvulsive Therapy).
What about leave from psychiatric hospital?
This can be arranged for non restricted (long term) sections via Section 17. If leave is to be for 7 days or more, a Community Treatment Order should be considered by the Responsible Clinician.
For restricted patients, leave has to be applied via the Ministry of Justice by the Responsible Clinician.
How does discharge take place?
For non offender patients (Section 2, Section 3 or CTO): discharge can usually take place by the responsible clinician, managers panel, mental health review tribunal or nearest relative. The section could also expire after elapsing or in section 3: this can be converted to a Community Treatment Order. A CTO can be revoked when an individual is admitted to hospital, into the original detaining section (e.g. section 3).
For forensic patients (where there is no nearest relative in the statute): discharge can be discharged by a number of methods (including the above):
- court making a decision to discharge (usually supported by medical recommendation)
- medical recommendation that an individual does not require further assessment
In restricted patients (S49 or 41), the powers of discharge are limited by the Ministry of Justice.