6.5 Mental Health Act 1983

1. Introduction

The Mental Health Act 1983 (MHA covers the assessment, treatment and rights of people with a mental health disorder.

In most cases when people are treated in hospital or a mental health facility, they will have agreed or volunteered to be there. However, under the Mental Health Act, a person can be detained and treated without their agreement.

This chapter provides an overview of the most commonly known and used sections of the Mental Health Act (MHA).

2. Who does the Mental Health Act 1983 apply to?

The MHA provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

• people with mental disorders can be detained in hospital for assessment or treatment;
• people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards which apply in this situation); and
• people with mental disorders can be made subject to guardianship or after-care, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the mental capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or MCA to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks mental capacity, they may be subject to a deprivation of liberty under the Deprivation of Liberty Safeguards (see Deprivation of Liberty Safeguards chapter). A person cannot be deprived of their liberty under both frameworks at the same time whilst in hospital; however, when in the community, for example, for a person subject to CTO or Guardianship or conditionally discharged and lacking capacity, both the MHA and DoLS can be in place.

3. Part 2: Compulsory admission to hospital and guardianship

3.1 Section 2: Admission for assessment

Under section 2,

• a person can be detained in hospital for assessment of their mental health;
• treatment can be forcibly administered as part of the assessment period (excluding use of Electro-Convulsive Therapy (ECT);
• the detention period can be for up to 28 days, however discharge can be arranged sooner.

Section 2 cannot be renewed. If further detention is required beyond the 28 day period, assessment under section 3 should be considered. In certain cases where there may be issues relating to a person’s nearest relative, Section 2 can be extended by the powers of the County Court until decisions regarding the nearest relative are resolved.

3.1.1 Criteria

For a person to be detained under section 2 they must have:

• been assessed by two doctors – one of whom must be approved and have special experience in the diagnosis or treatment of mental disorder. It is preferable that at least one of the doctors involved in the assessment has already met / knows the person being assessed;
• both doctors need to be of the opinion that compulsory admission is required and must complete a medical recommendation;
• there must be no longer than five clear days between each of the medical assessments, for example if an examination is completed on a Monday, Sunday is the last possible day for the second medical examination;
• an Approved Mental Health Professional (AMHP) must be in agreement with the two doctors’ recommendations and have completed a valid application for admission;
• the AMHP must complete the application for admission within 14 days of the latest dated medical recommendation;
• a person’s nearest relative is also able to make an application for admission.

3.1.2 Appeal

Patients have the right to appeal against the detention within the first 14 days.

3.2 Section 3: Admission for treatment

Under section 3:

• a person can  be detained in hospital for treatment of their mental health. Appropriate medical treatment must be available;
• forcible administration of treatment (excluding use of ECT). Where there is non-compliance with medication this will need to be reviewed by a second opinion appointed doctor (SOAD) after three months;
• a detention period of up to six months, after which it can be renewed for a further six months and on a 12 monthly basis thereafter.

3.2.1 Criteria

For a person to be detained under section 3, the criteria for section 2 must all be met and the treatment must be available at the specified hospital. Section 3 can be used where a person is already known to mental health services and it is clear what illness is to be treated and therefore no assessment period is required. The nearest relative must be consulted and can object to the application for detention

3.2.2 Appeal

Patients have the right to appeal against the detention within the first six months.

3.3 Section 4: Admission for assessment in case of emergency

Section 4 is used in emergency situations where is it deemed not practicable to arrange two doctors and assess under section 2.

Unlike assessment for sections 2 and 3 there needs only to be one doctor involved – preferably one who already knows / has met the person concerned. An AMHP is still required to make the application.

Under section 4:

• a detention period of up to 72 hours following which further assessment by a second doctor should be arranged, and the decision made whether to detain under section 2 or to arrange discharge;
• treatment can be refused, however where there is concern regarding capacity to consent, treatment can be provided in the best interests of the individual detained. It can also be provided where it is necessary to prevent harm to themselves or to others.

3.3.1 Appeal

There is no right of appeal against section 4.

3.4 Section 5: Application in respect of a patient already in hospital (holding powers)

Under section 5:

• doctors and nurses are given the powers to prevent a person from leaving hospital where doing so means there may be a risk posed to the individual themselves or to others as a result of the individuals mental health;
• informal patients from can be prevented from leaving a mental health ward or prevent a person from leaving a general ward where they may be receiving treatment for a physical condition.

There are two parts to section 5:

3.4.1 Section 5(2)

This is often referred to as doctor’s holding powers. Under section 5(2):

• the doctor in charge of the individual is given the power to detain them for up to 72 hours;
• further assessment by an AMHP and second doctor should be arranged as soon as possible and the decision made whether to detain under a section of the MHA or to arrange discharge;
• section 5(2) cannot be renewed.

3.4.2 Section 5(4)

This is often referred to as nurses’ holding powers. Under section 5(4):

• certain nurses are given the power to detain for up to six hours;
• a doctor should be requested to attend as soon as possible;
• section 5(4) ends when the doctor arrives. The doctor must assess if the person can be transferred onto section 5(2) or whether the person can remain on an informal basis;
• section 5(4) cannot be renewed.

3.5 Section 7: Application of Guardianship Order

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live. However in doing so they cannot unlawfully deprive the person of their liberty. Where restrictions amount to a deprivation, authorities should seek to apply for a DoLS authorisation to run concurrent with the Guardianship Order (see Deprivation of Liberty Safeguards).

The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live.

Guardianship can apply whether or not the person has the capacity to make decisions about care and treatment.

It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf (see also Interface between Mental Capacity Act and Mental Health Act).

3.6 Section 17: Leave of absence from hospital

Under section 17:

• the Responsible Clinician (RC) can grant a detained patient leave of absence from hospital;
• leave can be provided as escorted or unescorted and the time allowed is controlled by the RC;
• leave can be used to allow a person to have home leave including overnight stays and can often be useful to trial how a person is likely to function in the community when discharged from hospital.

A person is still a detained patient when section 17 is in place.

3.7 Section 17A: Community Treatment Orders

Community Treatment Orders (CTO’s) are used to support people in the community who have mental health needs and require continued treatment under supervision.

Under section 17A:

• CTO’s can only be used where a person is detained under section 3, 37, 45A, 47 or 48;
• a CTO allows for conditions to be attached to a person’s discharge;
• any individual considered for a CTO should have a degree of understanding in relation to the conditions attached as they must comply with these conditions in order to avoid recall to hospital;
• CTO timeframes mirror those of Section 3, that is six months, six months, annual;
• an AMHP needs to be in agreement with the proposal of a CTO before it can be enforced.

3.8 Section 26: Nearest Relative

The MHA provides safeguards to those who are detained, one of these being the role of the nearest relative (NR).

The NR is different from next of kin and is defined in the MHA as:

• husband, wife or civil partner;
• son or daughter;
• father or mother;
• brother or sister;
• grandparent;
• grandchild;
• uncle or aunt;
• niece or nephew.

Determining a person’s NR can at times be complex, but the general rule is that the NR will be the person who is highest on this list.

The NR must be over 18 (unless husband, wife or civil partner) and where there are both parties available, for example mother and father, the eldest would fulfil the role.

The NR has the right to request that an MHA assessment is completed; they are able to make an application for detention and can also request that their relative is discharged from hospital.

An identified NR can be displaced by a County Court if it is deemed that they are unsuitable.

4. Part 9: Miscellaneous Functions of Local Authorities and the Secretary of State

4.1 Section 117 Aftercare: introduction

See also Section 117 Aftercare

Section 117 of the Mental Health Act 1983 (2007) imposes a duty upon local authorities and Integrated Care Boards (ICBs) to provide aftercare services for anybody who has been detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). This includes patients granted leave of absence under section 17 and patients being discharged on community treatment orders (CTOs).

Section 117 covers needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition and therefore lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of a mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance would need to be applied to these needs.

5. Part 11: Miscellaneous and Supplementary

5.1 Section 135: Warrant to search and remove to a place of safety

Under section 135(1)

• professionals have the power of entry to a person’s private dwelling for the purpose of assessment under the MHA;
• entry can be gained by force if required under the powers of a warrant issued by the county court;
• a person can be removed to a place of safety for the purpose of assessment or where appropriate, remain in their own home.
• an AMHP, a police officer and a doctor is required to be present for the execution of a 135 (1) warrant.

Under Section 135(2)

• forcible entry if required to access a person who is liable to be detained under the MHA or who need to be retaken to hospital (for example if they have gone absent without leave from the ward when detained and have returned home and refusing to allow entry);
• a warrant is required to act out these powers of entry, however an AMHP or doctor is not required to execute the warrant under this section.

5.2 Section 136: Removal of mentally disordered persons without a warrant – police powers of detention

Under section 136:

• an emergency power allows police officers to remove a person from a public place to a place of safety for the purpose of further assessment under the MHA where there are concerns that a person may be suffering from mental illness and in need of immediate care and / or control;
• if a person is initially seen by a doctor before the AMHP has coordinated a full assessment and it is deemed that there is no evidence of mental illness, the person must be discharged from the 136 immediately;
• a person can be discharged with or without follow up from services once assessed or may be detained under the MHA.

6. Further Reading

6.1 Relevant chapters

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

Section 117 Aftercare

Defining Mental Disorder

6.2 Relevant information

Mental Health Act 1983

Mental Health Act 1983 Code of Practice