Mental Health Legislation—The Mental Health Act

Mental Health Act 2007

The Mental Health Act 2007 amends the Mental Health Act 1983 and The Mental Capacity Act 2005. It was given the Royal Assent in July 2007 and most of the amendments will come into force in October 2008. This is to allow time for secondary legislation to be drafted, the code of practice to be completed, consultation to take place, staff to be trained etc.

The major amendments made by the 2007 act will be:

  • A single definition of mental disorder.
  • Statutory advocacy for detained patients.
  • Introduces a requirement that patients aged under 18 are accommodated in an age-appropriate setting, subject to their needs.
  • A new “appropriate medical treatment” test which will apply to all the longer-term powers of detention.
  • Broadening the group of practitioners who can take on the functions currently performed by the approved social worker (ASW) and
    responsible medical officer (RMO).
  • Gives patients the right to make an application to displace their nearest relative.
  • The introduction of supervised community treatment for patients following a period of detention in hospital.
  • A single Mental Health Review Tribunal for England, and a reduction in the time before cases have to be referred to the MHRT by
    hospital managers.
  • Introduces new safeguards for the use of electro-convulsive therapy.

For a more detailed summary of the effects of the Act see the briefing (http://www.mhac.org.uk/files/POLICY BRIEFING issue 17 July 2007.pdf) from the Mental Health Act Commission.

The Mental Health Act 1983 an outline guide produced by Mind

The Mental Health Act of 1983 is very complex and covers many different areas, including compulsory admission to hospital, consent to treatment and the right to appeal, guardianship, and patients’ involvement in criminal proceedings. There is also a separately published Code of Practice, which is regularly updated. This gives a guide to the implementation of the Act. It is only possible to give a very brief guide here to the most commonly used sections (2, 3, 4, 135 and 136). Please note that you will need advice in interpreting the Act and should consult your local Citizens Advice Bureau or the Cambridgeshire Independent Advocacy Service or a solicitor specialising in mental health. What follows is not an authoritative statement of the law.

Section 1: Definitions

To be assessed for compulsory admission under the Act, the person must firstly be suffering from a mental disorder. This is defined by the Act to mean ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.’

Section 2: Admission for assessment

A person may be detained for assessment purposes for up to 28 days. The grounds for this are that the patient is: ‘suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and ‘he ought to be so detained in the interests of his own health or safety, or with a view to the protection of other persons.’

Section 3: Admission for Treatment

A person can be detained for treatment for up to six months (and this period can be renewed). The grounds for this are that the patient is:

‘suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in hospital’ and

‘in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition’ and

‘it is necessary for the health or safety of the patient or for the protection of other persons, that he should receive such treatment and it cannot be provided unless he is detained under this section.’

Procedure

With Sections 2 and 3 either an approved social worker (ASW) or, if necessary and appropriate, a person’s ‘nearest relative’ can make an application. This application must be supported by the recommendations of two registered medical practitioners. In addition, under Section 3 the ASW must consult the ‘nearest relative’. The application cannot proceed if the nearest relative objects, although court proceedings can be taken to overrule a nearest relative who objects unreasonably.

If a patient’s nearest relative unreasonably objects to admission under Section 3, an application could be made to the county court under Section 29 of the act for the functions of the nearest relative to be transferred to the local social services or another person.

Discharge

With both Section 2 or 3, the patient may be discharged by one of the following:

  • The responsible medical officer (RMO)
  • The hospital managers
  • The nearest relative – who must give 72 hours notice to the hospital managers. The RMO can refuse the request on the grounds that discharge would be dangerous to the patient or to others. The nearest relative can then bring the case before a mental health review tribunal. The onus of proof is then on the RMO.

Appeal

The patient may appeal to the mental health review tribunal. Under Section 2 this appeal must be made within 14 days of detention. Under Section 3 one appeal can be made within the six month period. Community Legal Service funding (not means tested) is available to pay a solicitor to represent someone at a tribunal. Patients may also appeal to the hospital managers. It is important to get advice (from the Citizens Advice Bureau or Cambridgeshire Independent Advocacy Service) about the wording of a letter to the managers and about representation at a managers’ meeting or a tribunal.

Section 4: Admission for assessment in an emergency

A person may be detained for assessment purposes for up to 72 hours ‘in any case of urgent necessity.’ In this case the application is supported by the recommendation of one registered medical practitioner.

Section 5: Compulsory detentions of informal patients

Informal patients can sometimes find that when they attempt to leave hospital they are held under Section 5 (2) or 5 (4) until further assessment takes place. This further assessment will be undertaken by two doctors and an approved social worker (as outlined earlier).

Section 5 (2): Doctor’s holding power- This authorises the detentions of a person for up to 72 hours.
Section 5 (4): Nurse’s holding power - The holding power may only be applied for up to 6 hours or until the arrival of a doctor with the authority to exercise doctors’ holding power whoever is earlier.

Section 136: The Police power to remove to a place of safety

A police constable can remove someone from a place to which the public have access to a place of safety for up to 72 hours, if the constable thinks that person is ‘suffering from mental disorder and to be in immediate need of care or control…in the interests of that person or for the protection of other persons.’

Consent to treatment

Informal patients over the age of 16 have the right to refuse treatment except in the case of an emergency. Formal (detained, ‘sectioned’) patients under Sections 2 and 3 can be given treatment without their consent in certain circumstances. Special rules apply to specific treatments such as electro-convulsive treatment (ECT) and psychosurgery.

Rights of the nearest relative

If you are the nearest relative of someone affected by a mental disorder you have certain rights:

  • The right to ask an approved social worker to assess your relative for compulsory admission to psychiatric hospital.
  • The right to apply for your relative to be admitted compulsorily to psychiatric hospital. This application must be accompanied by two medical recommendations, one at least from a psychiatrist.
  • The right to refuse consent for your relative to be compulsorily admitted to hospital under Section 3 (though this right can be removed by the courts).
  • The right to discharge your relative if they are compulsorily detained in psychiatric hospital.

The Mental Health Act lists, in order of priority, who is considered to be the nearest relative under the law.

Your right to information

Under Section 132 the managers of a hospital have the duty to provide a formal patient with information on:

  • The section she or he is detained under
  • His or her right to apply to a mental health review tribunal and/or appeal to the hospital managers
  • His or her right to be discharged
  • Consent to treatment rules
  • Correspondence rules
  • The Mental Health Act Commission, its obligation to protect detained patients and its codes of practice

Mental Health Review Tribunals – for patients in the Cambridgeshire and Peterborough Mental Health Trust area should contact:

Block 2, Spur Q North
Canon’s Park
Government Buildings
Honeypot Lane
Stanmore
Middlesex
HA7 1AY

Tel: 020 7972 1002

These independent tribunals, which hear patients’ appeals, are made up of three people, a lawyer, a psychiatrist and a lay person with relevant qualification or skills. Patients can either make their own case or have the right to representation. Anyone can act as a representative for the patient, though special skills would clearly be an advantage and some solicitors are experienced in this area. Legal Aid (not means tested) is available to employ a solicitor and this is usually advisable. On hearing the evidence the tribunal decides whether to discharge the patient.

Managers Appeals

Under section 23 of the Mental Health Act patients who are detained in hospital have a right to appeal to the hospital managers. The hospital managers have the power to discharge the person from the detention order if it is considered the criteria for detention are no longer met. When someone is detained, rights of appeal will be given both verbally and in writing and more than once if necessary.  If you need more information, speak to the nursing staff on the ward or to Cambridgeshire Independent Advocacy Service, the Citizens Advice Bureau or medical records staff.

Mental Health Act Commission
Maid Marion House
56 Hounds Gate
Nottingham
NG1 6BG

Tel 0115 943 7100

This is a special health authority authorised to keep under review all aspects of the care of patients detained under the Mental Health Act. It can investigate complaints, arrange second opinions under the Mental Health Act on consent to treatment provisions and is responsible for monitoring the Mental Health Act code of practice. It cannot discharge a patient from hospital. A patient can make a complaint to the commission about anything that has happened to him or her while detained. The complaint should be made to the hospital management in the first instance. However, when a complaint is about being compulsorily detained it can be made directly to the commission.  In both instances the commission will decide whether to investigate the complaint.

Hunts.Mind and Cambridgeshire Independent Advocacy Service (CIAS) have booklets about the Mental Health Act, copies of the Act itself and the Code of Practice.

Legal Advice, Solicitors and Advocates

If you need legal advice on the Mental Health Act or would like a list of solicitors in the Huntingdonshire area who deal with Tribunals and other mental health matters, contact Huntingdon Citizens Advice Bureau, CIAS or Hunts.Mind.

Local Contacts

Cambridgeshire Independent Advocacy Service
Box 322
Patients Resource Centre
Fulbourn Hospital
Cambridge
CB21 5EF

Tel: 01223 246683
Email: enquiries@cias.org.uk
Website: www.disabilitycambridgeshire.org.uk

 

National Contacts

Mind: National Association for Mental Health
Granta House
15-19 Broadway
Stratford
London
E15 4BQ

Tel: 020 8519 2122
Email: contact@mind.org.uk
Website: www.mind.org.uk

The leading mental health charity, providing information, mail-order books and leaflets, legal advice. Information helpline Mindinfoline -08457 660 163 open 9.15am – 5.15pm Mondays to Fridays. Mindlink is the Mind group for users and ex-users of mental health services, providing newsletter and contact lists.