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debs · Special Site Friend Joined: 01 Mar 2007 Posts: 48

The Mental Health Act 1983 has been a source of contention for almost a decade. The Government drafted a new mental health bill that was eventually withdrawn in March 2006 after protests from a broad coalition of more than 50 organisations, including the mental health charities Mind and Rethink, the Law Society and the Royal College of Psychiatrists.

But in the Queen's Speech on 15 November 2006, the Government revived its plans to update the current act.

Please note that the information contained on this page is a brief introduction to the Mental Health Act 1983 in England. There are slightly different arrangements in Scotland. You can find out more about the Mental Health Bill in Scotland by visiting NHS Scotland.

Decisions made under the Mental Health Act are reviewed by:

The Mental Health Act Managers' hearings
The Mental Health Review Tribunal
The Mental Health Act Commission

The Mental Health Act Managers
These are a group of independent people from the local community, usually without any qualifications in the mental health field. They oversee the administration of the Mental Health Act to ensure it's used in a fair and reasonable way. They can hold hearings and release people held under section 2 or section 3 (see below) of the act.

To check that no one is detained wrongly, various bodies have been set up to oversee the judgements made under the Mental Health Act and listen to appeals.

The Mental Health Review Tribunal
This consists of a doctor, a solicitor or barrister and a lay person, and is appointed by the Lord Chancellor. Any person making an application to the Mental Health Review Tribunal has the right to legal aid and can be represented by a lawyer. The tribunal can discharge a person held under section 2 or section 3.

The Mental Health Act Commission
The Mental Health Act Commission deals mostly with consent to treatment. It inspects hospitals to ensure they're applying the act correctly and provides doctors to give second opinions where a person held under the section continues to refuse treatment. Any person refusing consent for electro-convulsive therapy (ECT, or 'electric shock treatment') must be seen by a Mental Health Act Commission doctor.

The people who can institute a section of the Mental Health Act are:

Approved social workers
The patient's nearest relative - in order of preference:
Husband or wife
Son or daughter
Father or mother
Brother or sister
Grandparent
Grandchild
Uncle or aunt
Nephew or niece

Approved doctors - doctors specially trained in psychiatry who've been licensed by the Home Secretary for this job. Where two doctors are required, the second doctor doesn't have to be approved but must know the patient.
Qualified mental health or learning disabilities nurses - nurses with three years' training who've specialised in mental health and learning difficulties.
Police officers.

Each of these has different powers depending on the circumstances - as described below.

Sections
The act contains various sections under which patients can be held. Here follows a questions and answers guide to these sections:

Section 2: Admission for assessment
How long can you be admitted for?
Up to 28 days. It isn't renewable.

Who has the power to admit you?
This has to be applied for by an approved social worker or the patient's nearest relative. The Mental Health Act code of practice makes it clear that an approved social worker is the preferred applicant and it is rare that a nearest relative makes an application. An application must be recommended by two doctors.

Is there any right of appeal?
The patient may appeal to a Mental Health Act Managers' hearing within 14 days. The nearest relative may discharge the patient following three days' notice, though a consultant can block this. If this happens, the Mental Health Act Managers group automatically reviews the case.

Is there anything else that I should know about section 2?
You can only be given treatment with your consent unless, under extreme circumstances, it's considered necessary to save your life.

Section 3: Admission for treatment
How long can you be admitted for?
Up to six months for treatment in the first place. It can then be renewed for another six months. Any renewals after this would be for one year.

Who has the power to admit you?
This has to be applied for by an approved social worker or the patient's nearest relative. The Mental Health Act code of practice makes it clear that an approved social worker is the preferred applicant and it is rare that a nearest relative makes an application. An application must be recommended by two doctors.

Is there any right of appeal?
Renewal cases are routinely reviewed by the Mental Health Review Tribunal on the first renewal, and every three years after that. The reality is that most people recover within six months of first being put under section 3. The nearest relative may discharge the patient following three days' notice, although a consultant can block this. If this happens, the Mental Health Act Managers automatically review the case. The nearest relative can also apply to the Mental Health Review Tribunal within 28 days of them being informed that the section has been started.

Is there anything else that I should know about section 3?
Although this is a section for treatment, and it can last up to six months, medication can be given without consent for up to three months. After this, if the patient still doesn't consent, their doctor must contact the Mental Health Act Commission, which will provide an independent doctor to assess the situation. If that doctor believes it's necessary to continue the treatment, then it can be continued without consent.

Section 4: Emergency admission for assessment
How long can you be admitted for?
Up to three days - not renewable.

Who has the power to admit you?
This has to be applied for by an approved social worker or the patient's nearest relative. An application must be recommended by two doctors.

Is there any right of appeal?
No, only a consultant psychiatrist may discharge a patient.

Is there anything else that I should know about section 4?
You can only be given treatment with your consent - unless under extreme circumstances it is considered necessary to save your life. You can be transferred to a section 2 by a second doctor making a recommendation.

Section 5: Holding a person already admitted voluntarily
How long can you be admitted for?
There are two versions of this section: 5(4) -for up to six hours and 5(2) -for up to three days

If you've been registered under section 5(4) and then transferred to 5(2) - the three days count from the beginning of the section 5(4). Neither are renewable, although you can be transferred to a section 2 or section 3.

Who has the power to admit you?
For section 5(4), the opinion of one qualified mental health or learning disabilities nurse is required. For section 5(2) the opinion of one approved doctor is required.

Is there any right of appeal?
No.

Is there anything else that I should know about section 5?
See section 4.

Section 135: Warrant to search for and remove a patient
How long can you be admitted for?
Up to three days in a place of safety. In exceptional circumstances, this can include a police station. It isn't renewable.

Who has the power to admit you?
If the person isn't already under a section of the Mental Health Act, an approved social worker must apply to a magistrate. If the person is already under a section and has absconded, a hospital employee or police officer can apply to a magistrate.

Is there any right of appeal?
No.

Is there anything else that I should know about section 135?
Effectively, this allows mental health staff and/or police to enter a house and take a person to hospital. This may be necessary because a person with a mental illness is being neglected, or because a person living alone is no longer able to care for themselves because of a mental illness.

Section 136: Removing a mentally ill person from a public place to a place of safety
How long can you be admitted for?
Up to three days in a place of safety. In exceptional circumstances, this can include a police station. It isn't renewable.

Who has the power to admit you?
A police officer can use the section, but it doesn't mean that a doctor will admit the person to hospital.

Is there any right of appeal?
No.

Is there anything else that I should know about section 136?
You have to be in a public place before it can be used. Therefore, if you are in your own home, section 135 is required. You have to be acting in a way that is a danger to yourself or to the public as a result of what appears to be a mental illness.
As well as compulsory detention and treatment, there are limited powers for people to be treated compulsorily in the community.

Section 7: Guardianship
How long does it run for?
Up to six months in the first place. It can then be renewed for another six months. Any renewals after this would be for one year.

Who has the power to use this?
Two doctors must make the recommendation, one of these must be approved, the other must have known the person previously. Then, either the approved social worker or the nearest relative must apply to the local social services department.

Is there any right of appeal?
The person can object and put their own case to the local social services department.

Is there anything else that I should know about guardianship?
Usually an approved social worker is appointed guardian. They can ensure a person lives at a particular address and attends certain places for treatment, education or work. They can also have access to where that person lives.

Mental Health (Patients in the Community Act) 1995, Section 25: Supervised Discharge
How long does it run for?
It's an open-ended order.

Who has the power to use this?
The following people all have to approve the use of supervised discharge.

the person's consultant psychiatrist
the person's GP
an approved social worker

The order is instituted by the consultant who should consult first with the ward team, relatives and other lay carers involved.

Is there any right of appeal?
The person and their nearest relative can both appeal to the Mental Health Review Tribunal.

Is there anything else that I should know about Supervised Discharge?
A supervisor is appointed, this could be a community psychiatric nurse, an approved social worker or a doctor. They're responsible for coordinating the care given to the person by all services. They also have the power to convey the person to a place of safety or to a place for treatment. However, they can't force an entry into a person's home without using section 135 - and once they've conveyed the person, they can't treat them without their consent - unless section 3 is used.