Mental Health Act 1983
Encyclopedia
The Mental Health Act 1983 (c.20) is an Act
of the Parliament of the United Kingdom
which applies to people in England and Wales
. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters. In particular, it provides the legislation
by which people diagnosed with a mental disorder can be detained in hospital or police custody and have their disorder assessed or treated against their wishes, unofficially known as "sectioning". Its use is reviewed and regulated by the Care Quality Commission
. The Act has been significantly amended by the Mental Health Act 2007
.
created a Commission of the Royal College of Physicians
with powers to grant licences to premises housing "lunatics" in London
; Justices of the Peace were given these powers elsewhere in England and Wales. Failure to gain a licence resulted in a hefty fine. Admission to a "madhouse" required certification signed by a doctor, and lists of detained residents became available for public inspection. This Act was later considered ineffectual and was repealed by the Madhouses Act 1828, itself repealed shortly afterwards by the Madhouses Act 1832. These Acts altered the composition of the Commission in several ways, such as including barristers in addition to doctors.
The Lunacy Act 1845 and the County Asylums Act 1845 together gave mental hospitals or "asylums" the authority to detain "lunatics, idiots and persons of unsound mind". Each county was compelled to provide an asylum for "pauper lunatics", who were removed from workhouses into the aforementioned asylums. The "Lunatic Commission" was established to monitor asylums, their admissions, treatments and discharges.
Both these acts were repealed by the Lunacy Act 1890. This introduced "reception orders", authorising detention in asylums. These orders had to be made by a specialised Justice of the Peace and lasted one year. Thereafter, detention could be renewed at regular intervals by submission of a medical report to the Lunacy Commission. The Mental Deficiency Act 1913 renamed the Lunacy Commission the "Board of Control" and increased the scope of its powers. The functions of the Board of Control were subsequently altered by the Mental Treatment Act 1930
and the National Health Service Act 1946
.
The Lunacy Act 1890 was repealed following World War II
by the Mental Health Act 1959. This Act abolished the Board of Control, and aimed to provide informal treatment for the majority of people suffering from mental disorders, whilst providing a legal framework such that such people could, if necessary, be detained in hospital against their will. It also aimed to make local councils responsible for the care of mentally disordered people who did not require hospital admission.
However, like its predecessors, the 1959 Act did not provide clarity as to whether a legal order to detain a mentally disordered person in hospital also empowered the hospital to impose medical treatment against the person's wishes. It had become clear by the 1970s that a specific legal framework for medical treatments such as psychiatric medication
s, electroconvulsive therapy
and psychosurgery
was needed in order to balance the rights of detained persons with society as a whole.
The Mental Health Act 1983 came into effect in September that year, and was amended in 1995 and 2007.
Each of these ten parts are divided into "sections", which are numbered continuously throughout the Act. In total, there are 149 sections in the Act.
and Canada
. Under the Act, mental disorder is defined as "any disorder or disability of mind". The concept of mental disorder as defined by the Act does not necessarily correspond to medical categories of mental disorder such as those outlined in ICD-10
or DSM-IV. However, mental disorder is thought by most psychiatrists to cover schizophrenia
, anorexia nervosa
, major depression
, bipolar disorder
and other similar illnesses, learning disability
and personality disorders.
Committee for Privileges accepted the advice of the law lords that the statute would prevail against any privilege of Parliament or of peerage
.
(AMHP) is defined in the Act as a practitioner who has extensive knowledge and experience of working with people with mental disorders. Until the 2007 amendments
, this role was restricted to social workers
, but other professionals such as nurses are now permitted to perform this role. AMHPs receive specialised training in mental disorder and the application of mental health law, particularly the Mental Health Act. Training involves both academic work and apprenticeship and lasts one year. The AMHP has a key role in the organisation and application of Mental Health Act assessments and provides a valuable non-medical perspective in ensuring legal process and accountability.
, they would almost exclusively have been a consultant psychiatrist, but other professionals, such as social workers, clinical psychologists and nurse specialists, are being encouraged to take on the role. Once an AC takes over the care of a specific patient, they are known as the Responsible Clinician (RC) for that patient.
is a relative of a mentally disordered person. There is a strict hierarchy of types of relationship that needs to be followed in order to determine a particular person's Nearest Relative: husband, wife, or civil partner; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; lastly, an unrelated person who resides with the mentally disordered person. Thus a person's Nearest Relative under the Act is not necessarily their "next of kin".
A mentally disordered person is not usually able to choose their Nearest Relative but under some circumstances they can apply to a County Court
to have a Nearest Relative replaced. In practice, such applications are more commonly made by Social Services Departments. The Nearest Relative has the power to discharge the mentally disordered person from some sections of the Act.
Trust and appointed lay 'Associate Managers'. Hospital Managers will hear appeals from patients against their detention and review renewals of lengthy detentions. Cases are heard in similar settings to those heard by the Mental Health Review Tribunal outlined below.
s (MHRTs) hear appeals against detention under the Act. Their members are appointed by the Lord Chancellor
and include a doctor
, a lawyer and a lay person (i.e. neither a doctor nor a lawyer). Detained persons have the right to be represented at MHRTs by a solicitor
. Discharge from hospital as a result of an MHRT hearing is the exception to the rule, occurring in around 5% of cases, when the Tribunal judges that the conditions for detention are not met.
are detained under one of the civil sections of the Act.
These sections are implemented following an assessment of the person suspected to be suffering from a mental disorder. These assessments can be performed by various professional groups, depending upon the particular section of the Act being considered. These professional groups include AMHPs, Section 12 approved doctors, other doctors, registered mental nurses (RMNs) and police officers.
will perform a joint assessment with a general practitioner
(GP). A Mental Health Act assessment can take place anywhere, but commonly occurs in a hospital, at a police station, or in a person’s home.
If the two doctors agree that the person is suffering from a mental disorder, and that this is of a nature or to a degree that, despite his refusal to go to hospital, he ought to be detained in hospital in the interest of his own health, his safety, or for the protection of others, they complete a medical recommendation form and give this to the AMHP. If the AMHP agrees that there is no viable alternative to detaining the person in hospital, she will complete an application form requesting that the hospital managers detain the person. He will then be transported to hospital and the period of assessment begins. Treatment, such as medication, can be given against the person’s wishes under Section 2 assessment orders, as observation of response to treatment constitutes part of the assessment process.
Most treatments for mental disorder can be given under Section 3 treatment orders, including injections of psychotropic medication such as antipsychotics. However, after three months of detention, either the person has to consent to their treatment or an independent doctor has to give a second opinion to confirm that the treatment being given remains in the person’s best interests. A similar safeguard is used for electroconvulsive therapy
(ECT), although the RC can authorise two ECT treatments in an emergency situation for people detained under Section 3 treatment orders. ECT may not be given to a refusing patient who has the capacity to refuse it, and may only be given to an incapacitated patient where it does not conflict with any advance directive
, decision of a donor
or deputy
, or decision of the Court of Protection
.
Section 5(4) is a nurse's holding power. It can be applied to the same group of patients as those that may be detained under Section 5(2) as outlined above. It is implemented by a first or second level Mental Health Nurse. Section 5(4) lasts up to 6 hours and is often converted to Section 5(2) upon assessment by a doctor.
Time spent by a patient under Section 5(4) is included in the 72 hours of any subsequent Section 5(2). Additionally, Section 5(4) ends at the time the patient is seen by the doctor assessing the patient under Section 5(2), irrespective of the outcome of the doctor's assessment.
The Care Quality Commission
consider it to be extremely poor practice to allow a Section 5(2) to simply "lapse". There is a clear duty on the part of the patient's RC to make a decision as to whether any further action, such as a Section 2 assessment order or a Section 3 treatment order, should be implemented, or whether the patient should be regraded to "informal" legal status.
s' order. It can be applied for by an AMHP in the best interests of a person who is thought to be mentally disordered, but who is refusing to allow mental health professionals into their residence for the purposes of a Mental Health Act assessment. Section 135 magistrates' orders give police officers the right to enter the property and to take the person to a “place of safety
”, which is locally defined and usually either a police station or a psychiatric hospital ward.
Section 136 is a similar order that allows a police officer to take a person whom they consider to be mentally disordered to a “place of safety” as defined above. This only applies to a person found in a public place. Once a person subject to a Section 135 magistrates' order or Section 136 police officers' order is at a place of safety, they are further assessed and, in some cases, a Section 2 assessment order or Section 3 treatment order implemented.
or Magistrates' Court
, whilst Section 36 can be enacted only by a Crown Court. Courts can enact either of these sections on the medical recommendation of one Section 12 approved doctor. Both these sections are rarely used in practice.
by imprisonment or otherwise. It is enacted by a Crown Court
or Magistrates' Court
on the recommendation of two approved doctors. However, the court is able to exercise discretion in this regard and can impose a prison sentence despite medical recommendations for Section 37.
A person detained under Section 37 can appeal to the Mental Health Review Tribunal after a period of six months; if he or she is no longer suffering from symptoms of mental disorder, the person can be discharged by the Tribunal, even if there is a strong possibility that the person might relapse and re-offend. Furthermore, a person on Section 37 alone, who may have been convicted of a serious violent crime, can be discharged in the community at any time by his or her Responsible Clinician (RC).
For these reasons, people who either are deemed by the court to pose a particularly high risk to other people if released, have a pronounced history of dangerous behaviour, or have committed a particularly serious offence, usually have Section 41 used in conjunction with Section 37. Section 41 imposes “restrictions” upon the terms of Section 37. In summary, this means that the Home Office
and, ultimately, the Home Secretary
, rather than the RC, decides when the person can leave hospital, either temporarily (“leave”) or permanently (“discharge”). Indeed, most people are ultimately given a "conditional discharge", which sets a statutory framework for psychiatric follow-up in the community upon release and provides for recall into hospital if, for instance, a person disengages from mental health services.
Only a Crown Court can impose Section 41, but a judge can do so without a doctor's recommendation. Although persons on Section 41 can appeal against their detention to the Mental Health Review Tribunal, their cases are heard by a Special Tribunal, chaired by a High Court
judge. Since the 2007 amendments
have been implented, Section 41 is universally imposed without limit of time.
Section 38 is an interim order, used in similar circumstances to Section 37, when it is likely, but not wholly clear, that a Section 37 will be appropriate.
and those convicted but awaiting sentence; it provides for temporary treatment out of prison. Section 48 can be used only for prisoners in need of urgent treatment for mental illness or severe mental impairment, whilst Section 47 can be used to treat any category of mental disorder. The Home Office
is required to approve applications for these sections and decides what level of security in hospital is necessary for a particular prisoner.
Section 49 provides for “restrictions” to Section 47, in the same way that Section 41 provides for “restrictions” to Section 37.
to confirm this interpretation. Thus, a person who has a mental illness as well as an unrelated physical illness for which he is refusing treatment, cannot be treated for his physical illness against his wishes under the Act. In such cases, however, it might be deemed that the person lacks the mental capacity to consent to treatment of the physical illness, in which case treatment could be given, in the person’s best interests, under the Mental Capacity Act 2005
.
However, if the physical illness is causing the mental disorder, or if the physical illness is a direct consequence of the mental disorder, treatment of the physical illness is permitted under the Act.
A common example of this is a person who has a short-lived confused state
as a result of a physical illness such as an infection or a heart attack
, but who is refusing assessment or treatment of the underlying condition. It is legal to treat such a physical illness under Section 2 of the Mental Health Act, on the grounds that treatment of the physical illness will alleviate symptoms of the mental disorder. However, this is rarely carried out in practice, given that the mental disorder is likely to be extremely transitory and emergency treatment is often necessary. It is more usual for physical illnesses to be treated under the Mental Capacity Act 2005
where appropriate in these circumstances.
On the other hand, enforced re-feeding of severely emaciated people with anorexia nervosa
is more likely to take place under the Act, because treatment is likely to be prolonged and is rarely an emergency. Treatment is allowed because anorexia nervosa is classed as a mental disorder, whilst re-feeding is seen to constitute the first stage in treatment for severe cases of that mental disorder.
Lastly, treatment of an attempted suicide, which has been made as a direct result of a mental disorder, can be given under the Act. Again, in practice, this is unusual, as the emergency nature of the situation and the brief timeframe of treatment required usually dictate that treatment is given under the Mental Capacity Act
instead.
. Since the 1980s, there has been a huge shift in emphasis of mental health care away from inpatient treatment.
Under Sections 7 and 8 of the Act, “guardianship” allows for a mentally disordered person to be required to reside at a specific address, to attend a specific clinic on a regular basis for medical treatment, or to attend various other stipulated venues such as workplaces or educational establishments. However, there is no power to actually enforce the person to comply with these requirements. Indeed, although guardianship can require a person to attend a clinic for treatment, there is no requirement for the person to accept that treatment.
Supervised Community Treatment orders, under Section 17A of the Act, provide the power to return a patient to hospital if a specified treatment regime is not being complied with in the community. However, treatment cannot be enforced in the community. These orders are applied to the person at the time of her discharge from Section 3, and replace “supervised discharge” arrangements under Section 20A which were used until the 2007 amendments
came into force.
have been based more upon tabloid stories on the danger presented by mentally disordered people, especially people with personality disorder such as Michael Stone
, than on the practical shortcomings of the unamended Act. Critics asserted that it would mean mental health professionals being "suborned as agents of social control
" . Supporters of more restrictive legislation insisted that dangerous people must be detained in hospital by doctors in their own interests and for public protection, regardless of whether they can be treated .
England and Wales
The entire Act applies to England and Wales.
Scotland
Only the parts of the Act defined in s.146 have effect in Scotland. The care of mentally disordered people in Scotland is covered by the Mental Health (Care and Treatment) (Scotland) Act 2003
.
Northern Ireland
Only the parts of the Act defined in s.147 have effect in Northern Ireland. The care of mentally disordered people in Northern Ireland is covered by the Mental Health (Northern Ireland) Order 1986, as amended by the Mental Health (Amendment) (Northern Ireland) Order 2004.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
which applies to people in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters. In particular, it provides the legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
by which people diagnosed with a mental disorder can be detained in hospital or police custody and have their disorder assessed or treated against their wishes, unofficially known as "sectioning". Its use is reviewed and regulated by the Care Quality Commission
Care Quality Commission
The Care Quality Commission is a non-departmental public body of the United Kingdom government established in 2009 to regulate and inspect health and social care services in England. This includes services provided by the NHS, local authorities, private companies and voluntary organisations -...
. The Act has been significantly amended by the Mental Health Act 2007
Mental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
.
History
The Madhouses Act 1774Madhouses Act 1774
The Madhouses Act 1774 was an Act of the Parliament of Great Britain, which set out a legal framework for regulating "madhouses" .-Background:...
created a Commission of the Royal College of Physicians
Royal College of Physicians
The Royal College of Physicians of London was founded in 1518 as the College of Physicians by royal charter of King Henry VIII in 1518 - the first medical institution in England to receive a royal charter...
with powers to grant licences to premises housing "lunatics" in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
; Justices of the Peace were given these powers elsewhere in England and Wales. Failure to gain a licence resulted in a hefty fine. Admission to a "madhouse" required certification signed by a doctor, and lists of detained residents became available for public inspection. This Act was later considered ineffectual and was repealed by the Madhouses Act 1828, itself repealed shortly afterwards by the Madhouses Act 1832. These Acts altered the composition of the Commission in several ways, such as including barristers in addition to doctors.
The Lunacy Act 1845 and the County Asylums Act 1845 together gave mental hospitals or "asylums" the authority to detain "lunatics, idiots and persons of unsound mind". Each county was compelled to provide an asylum for "pauper lunatics", who were removed from workhouses into the aforementioned asylums. The "Lunatic Commission" was established to monitor asylums, their admissions, treatments and discharges.
Both these acts were repealed by the Lunacy Act 1890. This introduced "reception orders", authorising detention in asylums. These orders had to be made by a specialised Justice of the Peace and lasted one year. Thereafter, detention could be renewed at regular intervals by submission of a medical report to the Lunacy Commission. The Mental Deficiency Act 1913 renamed the Lunacy Commission the "Board of Control" and increased the scope of its powers. The functions of the Board of Control were subsequently altered by the Mental Treatment Act 1930
Mental Treatment Act 1930
The Mental Treatment Act 1930 was an Act of the Parliament of the United Kingdom that permitted voluntary admission to, and outpatient treatment within, psychiatric hospitals. It also replaced the term "asylum" with "mental hospital".- See also :...
and the National Health Service Act 1946
National Health Service Act 1946
The National Health Service Act 1946 came into effect on 5 July 1948 and created the National Health Service in England and Wales. Though the title 'National Health Service' implies one health service for the United Kingdom, in reality a separate NHS was created for England and Wales accountable to...
.
The Lunacy Act 1890 was repealed following World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
by the Mental Health Act 1959. This Act abolished the Board of Control, and aimed to provide informal treatment for the majority of people suffering from mental disorders, whilst providing a legal framework such that such people could, if necessary, be detained in hospital against their will. It also aimed to make local councils responsible for the care of mentally disordered people who did not require hospital admission.
However, like its predecessors, the 1959 Act did not provide clarity as to whether a legal order to detain a mentally disordered person in hospital also empowered the hospital to impose medical treatment against the person's wishes. It had become clear by the 1970s that a specific legal framework for medical treatments such as psychiatric medication
Psychiatric medication
A psychiatric medication is a licensed psychoactive drug taken to exert an effect on the mental state and used to treat mental disorders. Usually prescribed in psychiatric settings, these medications are typically made of synthetic chemical compounds, although some are naturally occurring, or at...
s, electroconvulsive therapy
Electroconvulsive therapy
Electroconvulsive therapy , formerly known as electroshock, is a psychiatric treatment in which seizures are electrically induced in anesthetized patients for therapeutic effect. Its mode of action is unknown...
and psychosurgery
Psychosurgery
Psychosurgery, also called neurosurgery for mental disorder , is the neurosurgical treatment of mental disorder. Psychosurgery has always been a controversial medical field. The modern history of psychosurgery begins in the 1880s under the Swiss psychiatrist Gottlieb Burckhardt...
was needed in order to balance the rights of detained persons with society as a whole.
The Mental Health Act 1983 came into effect in September that year, and was amended in 1995 and 2007.
Overview
The Act is divided into ten "parts":- Application of the Act
- Compulsory admission to hospital and guardianship
- Patients concerned in criminal proceedings or under sentence
- Consent to treatment
- Mental Health Review Tribunal
- Removal and return of patients within the United Kingdom
- Management of property and affairs of patients
- Miscellaneous functions of Local Authorities and the Secretary of State
- Offences
- Miscellaneous and supplementary
Each of these ten parts are divided into "sections", which are numbered continuously throughout the Act. In total, there are 149 sections in the Act.
Definition of mental disorder
The term "mental disorder" is very loosely defined under the Act, in contrast to legislation in other countries such as AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. Under the Act, mental disorder is defined as "any disorder or disability of mind". The concept of mental disorder as defined by the Act does not necessarily correspond to medical categories of mental disorder such as those outlined in ICD-10
ICD
The International Statistical Classification of Diseases and Related Health Problems is a medical classification that provides codes to classify diseases and a wide variety of signs, symptoms, abnormal findings, complaints, social circumstances, and external causes of injury or disease...
or DSM-IV. However, mental disorder is thought by most psychiatrists to cover schizophrenia
Schizophrenia
Schizophrenia is a mental disorder characterized by a disintegration of thought processes and of emotional responsiveness. It most commonly manifests itself as auditory hallucinations, paranoid or bizarre delusions, or disorganized speech and thinking, and it is accompanied by significant social...
, anorexia nervosa
Anorexia nervosa
Anorexia nervosa is an eating disorder characterized by refusal to maintain a healthy body weight and an obsessive fear of gaining weight. Although commonly called "anorexia", that term on its own denotes any symptomatic loss of appetite and is not strictly accurate...
, major depression
Clinical depression
Major depressive disorder is a mental disorder characterized by an all-encompassing low mood accompanied by low self-esteem, and by loss of interest or pleasure in normally enjoyable activities...
, bipolar disorder
Bipolar disorder
Bipolar disorder or bipolar affective disorder, historically known as manic–depressive disorder, is a psychiatric diagnosis that describes a category of mood disorders defined by the presence of one or more episodes of abnormally elevated energy levels, cognition, and mood with or without one or...
and other similar illnesses, learning disability
Mental retardation
Mental retardation is a generalized disorder appearing before adulthood, characterized by significantly impaired cognitive functioning and deficits in two or more adaptive behaviors...
and personality disorders.
Subjects
Most people are subject to the Act, and section 141 even makes provision for members of the House of Commons. In 1983-84 the House of LordsHouse of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
Committee for Privileges accepted the advice of the law lords that the statute would prevail against any privilege of Parliament or of peerage
Parliamentary privilege
Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitutions are...
.
Approved Mental Health Professionals
An Approved Mental Health ProfessionalApproved Mental Health Professional
The role of approved social worker, or ASW, has now been replaced by that of approved mental health professional, or AMHP, in England and Wales....
(AMHP) is defined in the Act as a practitioner who has extensive knowledge and experience of working with people with mental disorders. Until the 2007 amendments
Mental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
, this role was restricted to social workers
Approved Social Worker
Under the Mental Health Act 2007, the role of approved social worker has been abolished and replaced by that of Approved Mental Health Professional in England and Wales....
, but other professionals such as nurses are now permitted to perform this role. AMHPs receive specialised training in mental disorder and the application of mental health law, particularly the Mental Health Act. Training involves both academic work and apprenticeship and lasts one year. The AMHP has a key role in the organisation and application of Mental Health Act assessments and provides a valuable non-medical perspective in ensuring legal process and accountability.
Section 12 approved doctors
A section 12 approved doctor is a medically qualified doctor who has been recognised under section 12(2) of the Act. They have specific expertise in mental disorder and have additionally received training in the application of the Act. They are usually psychiatrists, although some are general practitioners (GPs) who have a special interest in psychiatry.Approved Clinicians and Responsible Clinicians
An Approved Clinician (AC) is a healthcare professional who is competent to become responsible for the treatment of mentally disordered people compulsorily detained under the Act. A clinician must complete special training and demonstrate competence in their professional portfolio in order to be approved as an AC. Until the 2007 amendmentsMental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
, they would almost exclusively have been a consultant psychiatrist, but other professionals, such as social workers, clinical psychologists and nurse specialists, are being encouraged to take on the role. Once an AC takes over the care of a specific patient, they are known as the Responsible Clinician (RC) for that patient.
Nearest Relatives
A Nearest RelativeNearest relative
The 'nearest relative' is a designated relationship defined in the legislation of England and Wales through the Mental Health Act 1983, as amended by the Mental Health Act 2007...
is a relative of a mentally disordered person. There is a strict hierarchy of types of relationship that needs to be followed in order to determine a particular person's Nearest Relative: husband, wife, or civil partner; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; lastly, an unrelated person who resides with the mentally disordered person. Thus a person's Nearest Relative under the Act is not necessarily their "next of kin".
A mentally disordered person is not usually able to choose their Nearest Relative but under some circumstances they can apply to a County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
to have a Nearest Relative replaced. In practice, such applications are more commonly made by Social Services Departments. The Nearest Relative has the power to discharge the mentally disordered person from some sections of the Act.
Mental Health Act Managers
Mental Health Act Managers represent the management of the NHS Trust or independent hospital with responsibility for a detained patient. These are usually non-executive members of the board of the relevant National Health ServiceNational Health Service
The National Health Service is the shared name of three of the four publicly funded healthcare systems in the United Kingdom. They provide a comprehensive range of health services, the vast majority of which are free at the point of use to residents of the United Kingdom...
Trust and appointed lay 'Associate Managers'. Hospital Managers will hear appeals from patients against their detention and review renewals of lengthy detentions. Cases are heard in similar settings to those heard by the Mental Health Review Tribunal outlined below.
Mental Health Review Tribunals
Mental Health Review TribunalMental Health Review Tribunal
The Mental Health Review Tribunal consists of two distinct bodies, within a single non-departmental public body, which exist to protect the rights of persons subject to the Mental Health Act 1983 in England and Wales in the United Kingdom...
s (MHRTs) hear appeals against detention under the Act. Their members are appointed by the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
and include a doctor
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
, a lawyer and a lay person (i.e. neither a doctor nor a lawyer). Detained persons have the right to be represented at MHRTs by a solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
. Discharge from hospital as a result of an MHRT hearing is the exception to the rule, occurring in around 5% of cases, when the Tribunal judges that the conditions for detention are not met.
Civil sections
Part II of the Act applies to any mentally disordered person who is not subject to the Criminal Justice System. The vast majority of people detained in psychiatric hospitals in England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
are detained under one of the civil sections of the Act.
These sections are implemented following an assessment of the person suspected to be suffering from a mental disorder. These assessments can be performed by various professional groups, depending upon the particular section of the Act being considered. These professional groups include AMHPs, Section 12 approved doctors, other doctors, registered mental nurses (RMNs) and police officers.
Assessment orders
Section 2 is an assessment order and lasts up to 28 days; it cannot be renewed. It can be instituted following an assessment under the Act by two doctors and an AMHP. At least one of these doctors must be a Section 12 approved doctor. The other must either have had previous acquaintance with the person under assessment, or also be a Section 12 approved doctor. This latter rule can be broken in an emergency situation where the person is not known to any available doctors and two Section 12 approved doctors cannot be found. In any case, the two doctors must not be employed in the same service, to ensure independence. Commonly, in order to satisfy this requirement, a psychiatristPsychiatrist
A psychiatrist is a physician who specializes in the diagnosis and treatment of mental disorders. All psychiatrists are trained in diagnostic evaluation and in psychotherapy...
will perform a joint assessment with a general practitioner
General practitioner
A general practitioner is a medical practitioner who treats acute and chronic illnesses and provides preventive care and health education for all ages and both sexes. They have particular skills in treating people with multiple health issues and comorbidities...
(GP). A Mental Health Act assessment can take place anywhere, but commonly occurs in a hospital, at a police station, or in a person’s home.
If the two doctors agree that the person is suffering from a mental disorder, and that this is of a nature or to a degree that, despite his refusal to go to hospital, he ought to be detained in hospital in the interest of his own health, his safety, or for the protection of others, they complete a medical recommendation form and give this to the AMHP. If the AMHP agrees that there is no viable alternative to detaining the person in hospital, she will complete an application form requesting that the hospital managers detain the person. He will then be transported to hospital and the period of assessment begins. Treatment, such as medication, can be given against the person’s wishes under Section 2 assessment orders, as observation of response to treatment constitutes part of the assessment process.
Treatment orders
Section 3 is a treatment order and can initially last up to six months; if renewed, the next order lasts up to six months and each subsequent order lasts up to one year. It is instituted in the same manner as Section 2, following an assessment by two doctors and an AMHP. One major difference, however, is that for Section 3 treatment orders, the doctors must be clear about the diagnosis and proposed treatment plan, and be confident that “appropriate medical treatment” is available for the patient. The definition of “appropriate medical treatment” is wide and may constitute basic nursing care alone.Most treatments for mental disorder can be given under Section 3 treatment orders, including injections of psychotropic medication such as antipsychotics. However, after three months of detention, either the person has to consent to their treatment or an independent doctor has to give a second opinion to confirm that the treatment being given remains in the person’s best interests. A similar safeguard is used for electroconvulsive therapy
Electroconvulsive therapy
Electroconvulsive therapy , formerly known as electroshock, is a psychiatric treatment in which seizures are electrically induced in anesthetized patients for therapeutic effect. Its mode of action is unknown...
(ECT), although the RC can authorise two ECT treatments in an emergency situation for people detained under Section 3 treatment orders. ECT may not be given to a refusing patient who has the capacity to refuse it, and may only be given to an incapacitated patient where it does not conflict with any advance directive
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
, decision of a donor
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
or deputy
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
, or decision of the Court of Protection
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
.
Leave and Discharge
Absence or “leave” from hospital can be granted by the RC for a patient detained under either a Section 2 assessment order or Section 3 treatment order, and the RC will ultimately be responsible for discharging a patient under such an order. Following discharge from a Section 3 treatment order, the person remains subject to the after-care provisions of Section 117 indefinitely. These provisions include a formal discharge planning meeting, and provision of personal care if necessary.Emergency orders
Section 4 is an emergency order that lasts up to 72 hours. It is implemented by just one doctor and an AMHP, in an emergency in which there is not time to summon a second suitable doctor in order to implement a Section 2 assessment order or Section 3 treatment order. Once in hospital, a further medical recommendation from a second doctor would convert the order from a Section 4 emergency order to a Section 2 assessment order. Section 4 emergency orders are not commonly used.Holding powers
Section 5(2) is a doctor’s holding power. It can only be used to detain in hospital a person who has agreed to informal (wilful) admission but then changed his mind and wishes to leave. It can be implemented following a (usually brief) assessment by the RC or his deputy, which, in effect, means any hospital doctor, including psychiatrists but also those based on medical or surgical wards. It lasts up to 72 hours, during which time a further assessment may result in either discharge from the Section or detention under a Section 2 assessment order or Section 3 treatment order.Section 5(4) is a nurse's holding power. It can be applied to the same group of patients as those that may be detained under Section 5(2) as outlined above. It is implemented by a first or second level Mental Health Nurse. Section 5(4) lasts up to 6 hours and is often converted to Section 5(2) upon assessment by a doctor.
Time spent by a patient under Section 5(4) is included in the 72 hours of any subsequent Section 5(2). Additionally, Section 5(4) ends at the time the patient is seen by the doctor assessing the patient under Section 5(2), irrespective of the outcome of the doctor's assessment.
The Care Quality Commission
Care Quality Commission
The Care Quality Commission is a non-departmental public body of the United Kingdom government established in 2009 to regulate and inspect health and social care services in England. This includes services provided by the NHS, local authorities, private companies and voluntary organisations -...
consider it to be extremely poor practice to allow a Section 5(2) to simply "lapse". There is a clear duty on the part of the patient's RC to make a decision as to whether any further action, such as a Section 2 assessment order or a Section 3 treatment order, should be implemented, or whether the patient should be regraded to "informal" legal status.
Magistrates' and police officers' orders
Section 135 is a magistrateMagistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
s' order. It can be applied for by an AMHP in the best interests of a person who is thought to be mentally disordered, but who is refusing to allow mental health professionals into their residence for the purposes of a Mental Health Act assessment. Section 135 magistrates' orders give police officers the right to enter the property and to take the person to a “place of safety
Place of safety
The term "place of safety" is used in the Mental Health Act 1983, an Act of the Parliament of the United Kingdom.Section 136 of the Act gives police officers the power to remove an apparently mentally disordered person who is in a public place and is apparently a danger to himself or to other...
”, which is locally defined and usually either a police station or a psychiatric hospital ward.
Section 136 is a similar order that allows a police officer to take a person whom they consider to be mentally disordered to a “place of safety” as defined above. This only applies to a person found in a public place. Once a person subject to a Section 135 magistrates' order or Section 136 police officers' order is at a place of safety, they are further assessed and, in some cases, a Section 2 assessment order or Section 3 treatment order implemented.
Criminal sections
Part III and other various criminal sections of the Act apply to sentenced prisoners and persons subject to proceedings of the criminal justice System. Although they are invariably implemented by a court, often upon the recommendations of one or more psychiatrists, some of these sections largely mirror the civil sections of the Act.Pre-trial orders
Section 35 and Section 36 are similar in their powers to Section 2 assessment orders and Section 3 treatment orders respectively, but are used for persons awaiting trial for a serious crime and provide courts with an alternative to remanding a mentally disordered person in prison. The order for Section 35 can be made by a Crown CourtCrown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
or Magistrates' Court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
, whilst Section 36 can be enacted only by a Crown Court. Courts can enact either of these sections on the medical recommendation of one Section 12 approved doctor. Both these sections are rarely used in practice.
Post-trial orders
Section 37 is a treatment order, similar in many regards to the civil treatment order under Section 3, and is fairly frequently used. It is applied to persons recently convicted of a serious crime, which is punishable by imprisonment. Thus it represents an alternative to a mentally disordered person being punishedPunishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
by imprisonment or otherwise. It is enacted by a Crown Court
Crown Court
The Crown Court of England and Wales is, together with the High Court of Justice and the Court of Appeal, one of the constituent parts of the Senior Courts of England and Wales...
or Magistrates' Court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
on the recommendation of two approved doctors. However, the court is able to exercise discretion in this regard and can impose a prison sentence despite medical recommendations for Section 37.
A person detained under Section 37 can appeal to the Mental Health Review Tribunal after a period of six months; if he or she is no longer suffering from symptoms of mental disorder, the person can be discharged by the Tribunal, even if there is a strong possibility that the person might relapse and re-offend. Furthermore, a person on Section 37 alone, who may have been convicted of a serious violent crime, can be discharged in the community at any time by his or her Responsible Clinician (RC).
For these reasons, people who either are deemed by the court to pose a particularly high risk to other people if released, have a pronounced history of dangerous behaviour, or have committed a particularly serious offence, usually have Section 41 used in conjunction with Section 37. Section 41 imposes “restrictions” upon the terms of Section 37. In summary, this means that the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
and, ultimately, the Home Secretary
Home Secretary
The Secretary of State for the Home Department, commonly known as the Home Secretary, is the minister in charge of the Home Office of the United Kingdom, and one of the country's four Great Offices of State...
, rather than the RC, decides when the person can leave hospital, either temporarily (“leave”) or permanently (“discharge”). Indeed, most people are ultimately given a "conditional discharge", which sets a statutory framework for psychiatric follow-up in the community upon release and provides for recall into hospital if, for instance, a person disengages from mental health services.
Only a Crown Court can impose Section 41, but a judge can do so without a doctor's recommendation. Although persons on Section 41 can appeal against their detention to the Mental Health Review Tribunal, their cases are heard by a Special Tribunal, chaired by a High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
judge. Since the 2007 amendments
Mental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
have been implented, Section 41 is universally imposed without limit of time.
Section 38 is an interim order, used in similar circumstances to Section 37, when it is likely, but not wholly clear, that a Section 37 will be appropriate.
Transfer orders
It is noteworthy that the Act only provides for enforced treatment of mental disorder in a hospital. As a prison is not defined as a "hospital" by the Act, no prisoner can be treated against his or her wishes under the Act in prison, even in a prison healthcare wing. Instead, Sections 47 and 48 provide for prisoners to be transferred to a hospital for treatment of a mental disorder. Section 47 applies to sentenced prisoners, whilst Section 48 applies to those on remandDetention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
and those convicted but awaiting sentence; it provides for temporary treatment out of prison. Section 48 can be used only for prisoners in need of urgent treatment for mental illness or severe mental impairment, whilst Section 47 can be used to treat any category of mental disorder. The Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
is required to approve applications for these sections and decides what level of security in hospital is necessary for a particular prisoner.
Section 49 provides for “restrictions” to Section 47, in the same way that Section 41 provides for “restrictions” to Section 37.
Physical illness
The Act provides the legal framework for the assessment and treatment of mental disorders. It does not provide for the assessment or treatment of physical illnesses. There has been substantial case lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
to confirm this interpretation. Thus, a person who has a mental illness as well as an unrelated physical illness for which he is refusing treatment, cannot be treated for his physical illness against his wishes under the Act. In such cases, however, it might be deemed that the person lacks the mental capacity to consent to treatment of the physical illness, in which case treatment could be given, in the person’s best interests, under the Mental Capacity Act 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
.
However, if the physical illness is causing the mental disorder, or if the physical illness is a direct consequence of the mental disorder, treatment of the physical illness is permitted under the Act.
A common example of this is a person who has a short-lived confused state
Delirium
Delirium or acute confusional state is a common and severe neuropsychiatric syndrome with core features of acute onset and fluctuating course, attentional deficits and generalized severe disorganization of behavior...
as a result of a physical illness such as an infection or a heart attack
Myocardial infarction
Myocardial infarction or acute myocardial infarction , commonly known as a heart attack, results from the interruption of blood supply to a part of the heart, causing heart cells to die...
, but who is refusing assessment or treatment of the underlying condition. It is legal to treat such a physical illness under Section 2 of the Mental Health Act, on the grounds that treatment of the physical illness will alleviate symptoms of the mental disorder. However, this is rarely carried out in practice, given that the mental disorder is likely to be extremely transitory and emergency treatment is often necessary. It is more usual for physical illnesses to be treated under the Mental Capacity Act 2005
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
where appropriate in these circumstances.
On the other hand, enforced re-feeding of severely emaciated people with anorexia nervosa
Anorexia nervosa
Anorexia nervosa is an eating disorder characterized by refusal to maintain a healthy body weight and an obsessive fear of gaining weight. Although commonly called "anorexia", that term on its own denotes any symptomatic loss of appetite and is not strictly accurate...
is more likely to take place under the Act, because treatment is likely to be prolonged and is rarely an emergency. Treatment is allowed because anorexia nervosa is classed as a mental disorder, whilst re-feeding is seen to constitute the first stage in treatment for severe cases of that mental disorder.
Lastly, treatment of an attempted suicide, which has been made as a direct result of a mental disorder, can be given under the Act. Again, in practice, this is unusual, as the emergency nature of the situation and the brief timeframe of treatment required usually dictate that treatment is given under the Mental Capacity Act
Mental Capacity Act 2005
The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves....
instead.
Community Care and Treatment
The main thrust of the Act provides the power to detain a person in hospital to treat their mental disorder. There is currently no provision allowing compulsory treatment of mentally disorder people in the community. Indeed, the Act was drafted at a time when mental health care was focused on institutions rather than Care in the CommunityCare in the Community
Care in the Community is the British policy of deinstitutionalization, treating and caring for physically and mentally disabled people in their homes rather than in an institution...
. Since the 1980s, there has been a huge shift in emphasis of mental health care away from inpatient treatment.
Under Sections 7 and 8 of the Act, “guardianship” allows for a mentally disordered person to be required to reside at a specific address, to attend a specific clinic on a regular basis for medical treatment, or to attend various other stipulated venues such as workplaces or educational establishments. However, there is no power to actually enforce the person to comply with these requirements. Indeed, although guardianship can require a person to attend a clinic for treatment, there is no requirement for the person to accept that treatment.
Supervised Community Treatment orders, under Section 17A of the Act, provide the power to return a patient to hospital if a specified treatment regime is not being complied with in the community. However, treatment cannot be enforced in the community. These orders are applied to the person at the time of her discharge from Section 3, and replace “supervised discharge” arrangements under Section 20A which were used until the 2007 amendments
Mental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
came into force.
Criticisms
There have been concerns amongst mental health professionals that the 2007 amendmentsMental Health Act 2007
The Mental Act 2007 is an Act of the Parliament of the United Kingdom. It amends the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people in England and Wales. Most of the Act was implemented on 3 November 2008....
have been based more upon tabloid stories on the danger presented by mentally disordered people, especially people with personality disorder such as Michael Stone
Michael Stone (Russell murder case)
Michael Stone is a British criminal who was convicted of a notorious double-murder in 1998. He has continued to assert his innocence. His original conviction was overturned on appeal but a second trial resulted in another verdict of guilty after another prisoner claimed that Stone had confessed to...
, than on the practical shortcomings of the unamended Act. Critics asserted that it would mean mental health professionals being "suborned as agents of social control
Social control
Social control refers generally to societal and political mechanisms or processes that regulate individual and group behavior, leading to conformity and compliance to the rules of a given society, state, or social group. Many mechanisms of social control are cross-cultural, if only in the control...
" . Supporters of more restrictive legislation insisted that dangerous people must be detained in hospital by doctors in their own interests and for public protection, regardless of whether they can be treated .
Repeals and extent
This Act did not repeal any other Acts in totality. Schedule 6 lists 28 other Acts which had individual sections repealed. These include the Mental Health Act 1959, the majority of which was repealed by this Act .England and Wales
The entire Act applies to England and Wales.
Scotland
Only the parts of the Act defined in s.146 have effect in Scotland. The care of mentally disordered people in Scotland is covered by the Mental Health (Care and Treatment) (Scotland) Act 2003
Mental Health (Care and Treatment) (Scotland) Act 2003
The Mental Health Act 2003, which came into effect on 5 October 2005, enables medical professionals to detain and treat people against their will on grounds of mental disorder, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against...
.
Northern Ireland
Only the parts of the Act defined in s.147 have effect in Northern Ireland. The care of mentally disordered people in Northern Ireland is covered by the Mental Health (Northern Ireland) Order 1986, as amended by the Mental Health (Amendment) (Northern Ireland) Order 2004.
External links
- Mental Health Act 1983: an outline guide Useful summary of the Act from 'MindMindThe concept of mind is understood in many different ways by many different traditions, ranging from panpsychism and animism to traditional and organized religious views, as well as secular and materialist philosophies. Most agree that minds are constituted by conscious experience and intelligent...
including updated material to take account of the Mental Health Act 2007
UK Legislation
- Mental Health Act 1983 The complete text of the Act including Mental Health Act 2007 amendments.
- CSIP Implementation programme for the amended Mental Health Act
- Mental Health Act 1983 from WikiMentalHealth Fully amended to take account of the and related legislation