Understanding the Mental Health Act 1983

1. Using this Guidance

This guidance will support practitioners across adult social care to understand some of the key provisions of the Mental Health Act 1983 (amended in 2007) in relation to adults.

Note: The Mental Health Act 1983 is an extremely complex piece of legislation surrounded by vast amounts of case law. It is therefore essential that, if you work with the Act, you have full regard to the legislation, case law and Code of Practice, as well as available local processes and guidance setting out the requirements of the Local Authority and Mental Health Trust.

Mental Health Act 1983

Mental Health Act 2007

Mental Health Act 1983: Code of Practice

Mental Health Law Online: Mental Health Case Law

2. Introduction and Key Points

2.1 Introduction

The Mental Health Act (1983) is the main piece of legislation that covers the assessment, treatment, and rights of all people with a ‘mental disorder’.

The Act defines a ‘mental disorder’ as ‘any disorder or disability of the mind’.

The following are just a few examples of mental disorders under the Act:

• Schizophrenia;
• Bipolar Disorder;
• Anxiety or Depression;
• Personality Disorders;
• Eating Disorders;
• Learning Disability (see note below);
• Autism Spectrum Disorder.

2.2 Key points about the Act

The Act cannot be used simply because a person has a mental disorder. It can only be applied when:

1. The person with the mental disorder needs to be assessed or treated for their mental disorder; and
2. Their health would be at risk of deteriorating without assessment or treatment; or
3. Their safety or the safety of others are at risk without assessment or treatment; and
4. A doctor believes that an assessment or treatment is required.

In most cases, people are assessed and/or treated voluntarily/informally. These people have the same rights as anyone going into hospital for treatment and can leave at any time.

On occasion, it is necessary to compulsorily detain someone in hospital against their will but there are strict criteria that must be met before this can happen. All periods of detention are not indefinite and are only permitted for certain lengths of time. Any extension to a period of detention can only be granted by way of a statutory process of assessment and review.

Treatment can only be provided against a person’s will or without their consent if they are compulsorily detained. In any other situation, consent must be provided.

3. Key Individuals

This section explains some of the key individuals with defined roles and responsibilities for implementing the different provisions of the Mental Health Act 1983. Further information about these individuals is provided in the relevant sections of this guidance where they have a role.

Approved Clinician (AC) - An Approved Clinician (AC) is a mental health professional who is specially trained and approved to use the Mental Health Act 1983. They are usually a psychiatrist or other doctor, but the Act does not prevent nurses, social workers, psychologists, and occupational therapists from receiving the specialist training required and making an application for approval.

Approved Mental Health Professional (AMHP) - An Approved Mental Health Professional (AMHP) is specially trained and approved to make the decision about the need to admit (or not admit) someone into hospital for assessment and treatment. To make this decision, an AMHP must assess all available information, including clinical factors/recommendations, social and cultural circumstances, and risk. Social workers, occupational therapists, nurses, and psychologists can all train to be an AMHP. A doctor is not permitted to be an AMHP.

Section 12 Doctor – A Section 12 Doctor is an Approved Clinician (AC) with specialist experience in the treatment or diagnosis of mental disorders. Part of their role is to make a medical recommendation to the Approved Mental Health Professional (AMHP) about the clinical need to admit (or not admit) someone in hospital. When acting as a Responsible Clinician (RC) after admission, they are also responsible for making a medical recommendation about the need for compulsory detention under Section 3. Section 12 doctors are usually psychiatrists but can also be GP’s or forensic medical examiners.

Responsible Clinician (RC) - The Responsible Clinician (RC) is the Approved Clinician (AC) with overall responsibility for a person’s care or treatment. They make key decisions, such as whether the person can leave the hospital (under Section 17), be discharged from hospital or whether a Section 3 Treatment Order needs to be renewed. The RC is usually a Section 12 approved psychiatrist, but the Act does not prevent nurses, social workers, psychologists, and occupational therapists from being the RC, as long as they are an Approved Clinician (AC).

Nearest Relative (NR) - The Nearest Relative (NR) is a family member who has certain responsibilities and powers under Section 26 of the Mental Health Act, when the person they are NR to is either subject to Section 2, 3, 4 or 37, or when they are under a Community Treatment Order (Section 17A) or have a Guardian (Section 7).

Independent Mental Health Advocate (IMHA) - An Independent Mental Health Advocate (IMHA) is a specialist advocate, trained under the Mental Health Act 1983. They support people to understand and exercise their rights and to participate in decisions around their treatment and care. People under certain Sections of the Act have a legal entitlement to IMHA representation.

Second Opinion Appointed Doctor (SOAD) - A Second Opinion Appointed Doctor (SOAD) is an independent consultant psychiatrist and part of the SOAD service, one of the safeguards under the Act. A SOAD is appointed in certain circumstances to review clinical decisions and make sure that the person’s views and rights have been considered. For example, if a person is given medication without consent for 3 months, a SOAD must be appointed.

4. Sections of the Mental Health Act 1983

The table below explains what some of the key provisions (Sections) of the Mental Health Act 1983 mean.

Further information about how and when some of the Sections can be used is provided in other areas of this guidance.

4.1 Key provisions (Sections) of the Mental Health Act

The police response under Section 135 and Section 136 (Right Care Right Person)

Right Care Right Person (RCRP) is a toolkit developed by the College of Policing to help the police make decisions about how best to respond to any call to use their powers under either Section 135 or Section 136 of the Mental Health Act.

Based on legal advice, RCRP helps ensure that vulnerable people get the right support from the right emergency service. It recognises that police attendance can sometimes have a negative impact on the person and acknowledges that they are not trained mental health professionals and, in some cases, a response by a more specialist service may be more appropriate,

The police should use RCRP to triage requests and decide the appropriateness of their response.

For RCRP to be implemented successfully, there needs to be partnership between the police and other agencies.

See: Right Care Right Person Toolkit.

4.2 Hospital Orders

The following are Sections of the Mental Health Act used by the Courts when the person with the mental disorder has committed a criminal offence. These are called ‘Hospital Orders’.

5. Admission under the Mental Health Act 1983

5.1 Deciding whether admission is needed

It is the responsibility of an Approved Mental Health Professional (AMHP) to decide whether (or not) a person needs to be admitted to hospital. To make this decision, the AMHP must assess all available information, including clinical factors, social and cultural circumstances, and risk. This decision is made in whichever environment the person is in – this could be at home, in a place of safety, in A & E etc.

If admission is needed, the AMHP will make the necessary application. This will either be a voluntary/informal admission, or compulsory admission under Section 2 or Section 4 of the Mental Health Act.

For further information about the role of the AMHP, see: AMHP Service - see AMHP and Mental Health in Local Resources.

5.2 Voluntary or informal admission

The person can agree to be admitted to hospital. This is called a voluntary or informal admission.

A person that has been admitted on a voluntary or informal basis can choose to leave at any time and the hospital has no power to detain them. However, if the person attempts to leave and the hospital feels they are at risk of harming themselves or others, the powers under Section 5 (2) and 5 (4) may be used to prevent them from doing so.

5.3 Section 2 Order

A Section 2 Order is used when a person needs to be admitted to hospital but refuses to do so on a voluntary or informal basis.

For a Section 2 application to be made, a Section 12 Doctor and another doctor must provide the Approved Mental Health Professional (AMHP) with a medical recommendation to this effect. Without these medical recommendations, a Section 2 Order cannot be granted.

It is important to note that, even if there are two medical recommendations that the person needs to be admitted, the AMHP can disagree and does not have to make the application if they feel that other less restrictive measures can be put in place.

A Section 2 Order permits the person to be compulsorily detained for up to 28 days but can end at any point if assessment is completed sooner and a decision is subsequently made about discharge or treatment.

5.4 Section 4

Section 4 can be used when the need to detain a person in hospital under the Mental Health Act is urgent, but it has not been possible to arrange admission under Section 2 (usually because it has not been possible to identify a second doctor).

To use this Section, one doctor must provide a medical recommendation to the Approved Mental Health Professional (AMHP) that admission is necessary. A person can only be detained under Section 4 for 72 hours.

6. Treatment in Hospital

6.1 Voluntary or informal treatment

If the outcome of assessment is that inpatient treatment is required, the person can agree to remain in hospital and to receive that treatment as a voluntary or informal patient (even if they were previously detained under Section 2). In this situation, a Section 3 Treatment Order is not required.

A person that has been admitted on a voluntary or informal basis can choose to leave at any time and the hospital has no power to detain them. However, if the person attempts to leave and the hospital believe they are at risk of harming themselves or others, the powers under Section 5 (2) and 5 (4) may be used to prevent them from doing so. Depending on the circumstances, the Responsible Clinician (RC) may then look to use Section 3.

6.2 Section 3 Treatment Order

A Section 3 Treatment Order authorises a person to be compulsorily detained in hospital and for treatment to be administered to them, regardless of their consent.

A person can be detained under a Section 3 Treatment Order for up to 6 months, with the option for further renewals if required. However, the Order cannot be used to detain someone indefinitely, as this is unlawful.

A Section 3 Treatment Order is a clear deprivation of a person’s liberty, so there are rightly safeguards in place to ensure its appropriate use:

• Two independent medical professionals must recommend a Section 3 Treatment Order as an appropriate and proportionate way of providing treatment:
  • One of these medical professionals must be a psychiatrist who is approved under Section 12 of the Mental Health Act (often the Responsible Clinician); and
  • The other medical professional should, wherever possible, already know the person (usually their GP). If the GP cannot do this, then the recommendation of an independent Section 12 Doctor must be sought.
• Anyone subject to a Section 3 Treatment Order qualifies for an Independent Mental Health Advocate (IMHA);
• Anyone subject to a Section 3 Treatment Order can appeal against their detention to the Mental Health Tribunal;
• A doctor from the Second Opinion Appointed Doctor (SOAD) service will be appointed to review clinical decisions in line with the requirements of the Act.

Additionally, during the period of detention, assessments will be regularly carried out by the Responsible Clinician (RC) to make sure that both the treatment being provided, and the Section 3 Treatment Order itself are still appropriate.

The Section 3 Treatment Order can and should be rescinded at any point that the person no longer requires treatment or no longer objects to treatment (and can therefore be treated on a voluntary or informal basis).

6.3 Court Orders (Hospital Orders)

In certain circumstances, a Court can detain a person accused or convicted of a criminal offence in hospital rather than prison.

Please see the table in 4: The Sections of the Mental Health Act (above) which details the different Orders and the circumstances when these can be used.

7. Consent to Treatment in Hospital

7.1 Seeking consent

Regardless of the circumstances, consent should be sought before medication or treatment is given, or other intervention carried out (for example, therapy).

7.2 If consent is not given

Voluntary or informal patients

If a person who is detained on a voluntary or informal basis withholds consent, the treatment cannot be given.

Depending on the circumstances, the Responsible Clinician may evaluate whether to use Section 3.

Compulsorily detained patients

If the person is compulsorily detained for treatment under a Treatment Order or Hospital Order, medication or treatment can be administered to them even if they withhold consent.

As a safeguard, if a person is administered medication on a compulsory basis without their consent for three months, the Act requires a Second Opinion Doctor is appointed (SOAD) to review clinical decisions and decide whether (or not) the medication is appropriate to be given. The SOAD must also be satisfied that the person’s views and rights have been considered.

7.3 The use of restraint or force to administer treatment

Mental Health Units (Use of Force) Act 2018

The use of restraint or force for any purpose (not just when administering treatment) is subject to the legal requirements set out in the Mental Health Units (Use of Force) Act 2018 and accompanying statutory guidance.

The purpose of the Mental Health Units (Use of Force) Act 2018 is to reduce the use of force and ensure accountability and transparency about how and when it is used.

Under the Act, force is defined as:

• The use of physical, mechanical, or chemical restraint on a patient; or
• The isolation of a patient.

For further information see: Mental Health Units (Use of Force) Act 2018: statutory guidance for NHS organisations in England, and police forces in England and Wales.

Psychological restraint

Psychological Restraint is any kind of communication strategy that puts psychological pressure on a person to do something they don’t want to do or stop them from doing something they do want to do.

Communication strategies may include verbal (written and spoken communication) and non-verbal (facial expressions, hand gestures, smiles, head nodding, eyebrow raising).

Communication pressure becomes restraint when a person feels they have no choice but to comply.

The use of psychological restraint should be avoided.

The Restraint Reduction Network (RRN) has developed a suite of resources to support those working in mental health settings to recognise and prevent psychological restraint.

See: RRN Psychological Restraint Resources.

Patients that lack capacity

Restraint is defined under the Mental Capacity Act as:

• Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
• Any act that restricts the person's freedom of movement, whether or not they resist.

The routine or pre-planned use of restraint is not permissible under the Mental Capacity Act 2005.

The only occasion where the use of restraint could be used is if the Decision Maker (Responsible Clinician) believes that in that moment, the use of restraint is necessary to prevent harm and where the level of restraint they have used is proportionate to the likelihood and seriousness of harm.

Even if the Responsible Clinician uses the Mental Capacity Act 2005, they will still need to have regard to the Mental Health Units (Use of Force) Act 2018.

7.4 Consent to Electroconvulsive Therapy (Section 58a)

Electroconvulsive therapy (ECT) is a treatment that involves sending an electric current through the person’s brain. It is administered under general anaesthetic.

All clinicians must have regard to the NICE Guidelines:

Guidance on the use of electroconvulsive therapy

Depression in adults: treatment and management

ECT can normally only be given with consent. A consent form needs to be signed, and the consent needs to be certified by an Approved Clinician, who must also certify that the person has capacity to give such consent.

ECT in an emergency

Under the Mental Health Act 1983, ECT can be given without the person’s consent in an emergency. An emergency is defined as “treatment that is immediately necessary to save the person’s life or the prevent their condition seriously worsening”. In the case of the latter, the clinician authorising the use of ECT must be satisfied that administering it will not have negative irreversible physical or psychological consequences.

ECT if the person lacks capacity to consent

If the person that lacks capacity to consent to ECT is compulsorily detained, it can still be administered to them under the Mental Health Act 1983 when all the following apply:

1. They are detained under any Section apart from Sections 4, 5(2) or 5(4); and
2. They are unable to give informed consent; and
3. They have not previously made an advance decision to refuse treatment for ECT; and
4. There is not a decision made by a Donee of a Lasting Power of Attorney, Deputy of Court of Protection refusing ECT treatment; and
5. A Second Opinion Appointed Doctor (SOAD) consults with 2 professionals involved in the persons care and subsequently then agrees that ECT should be given.

If the person that lacks capacity to consent to ECT is not compulsorily detained, it may be possible to apply the Mental Capacity Act 2005 and, if ECT treatment is deemed to be in their Best Interests, to administer it. Where there is disagreement about ECT being in the Best Interests of the person, a Court application may be necessary.

8. Discharge from Hospital

8.1 Who can discharge the person?

The person can be discharged from hospital by either their Responsible Clinician or by the Mental Health Tribunal.

If they are detained under a Hospital Order that is subject to restrictions, any discharge must also be agreed by the Secretary of State of Ministry of Justice, depending on the nature of the restriction.

8.2. Types of discharge

There are two types of discharge:

1. Conditional discharge; or
2. Absolute discharge.

Conditional discharge

A conditional discharge places certain conditions upon the person that if they fail to meet can result in a recall to hospital.

Conditions can be things like meeting with professionals, taking medication or living in a certain place.

After 12 months, a person that is conditionally discharged can appeal to the Mental Health Tribunal for an absolute discharge. If this is not agreed, they can appeal again after 2 further years.

Conditional Discharge after Section 37/41

If a person was detained under a Section 37/41 Hospital Order and is conditionally discharged into the community, a Social Supervisor will be appointed to support the person, but also to assess and monitor any ongoing risks to others.

A Social Supervisor prepares reports for the Ministry of Justice at regular intervals (28 days after discharge and then quarterly). The report considers the care being received, rehabilitation and risk. The report is also shared with the Responsible Clinician (RC).

If a Social Supervisor perceives the person to pose a risk to the public, they have the power to seek permission from the Ministry of Justice to recall the person to prison.

Absolute discharge

Absolute discharge is a full discharge without conditions. The person is no longer subject to any of the provisions (Sections) of the Mental Health Act 1983. Should the person’s mental health deteriorate, there are no powers of recall, and any need for admission to hospital would need to be assessed again.

8.3 Discharge planning

Discharge plans should be made in line with the Community Mental Health Framework.

See: Community Mental Health Framework.

Section 117 of the Mental Health Act 1983 requires the Local Authority, along with the ICB, to provide services and support to some people following their discharge from hospital (Aftercare).

For further information see: Section 117 Aftercare.

9. Treatment and Support in the Community

9.1 Community Treatment Orders

Under Section 17A of the Act, a Community Treatment Order (CTO) allows some people with a mental disorder to leave hospital and receive the treatment they need in the community.

It is the responsibility of the Responsible Clinician (RC) to decide whether (or not) a CTO is appropriate.

All the following must apply:

1. The person is subject to either a Section 3 Treatment Order or a Section 37 Hospital Order (without restrictions); and
2. The Responsible Clinician (RC) believes that they can safely receive the treatment they need outside of hospital; and
3. The treatment is available in the community; and
4. An Approved Mental Health Professional (AMHP) agrees that it is appropriate to make a CTO.

Conditions

A Community Treatment Order (CTO) will have conditions attached that the person must adhere to. If they fail to do so, they can be recalled back into hospital.

Mandatory conditions

There are two mandatory conditions that apply to all CTO’s:

1. The person must make themselves available for examination in relation to the renewal of the CTO; and
2. The person must make themselves available for examination by a Second Opinion Approved Doctor (SOAD).

Discretionary conditions

Discretionary conditions are case specific. The Responsible Clinician (RC) and Approved Mental Health Professional (AMHP) must both agree them to be necessary or proportionate to ensure that the person receives the medical treatment they need, to prevent risk of harm to the person or to protect other people.

Discretionary conditions may include taking medication, living in a certain place, engaging with community mental health services, conditions relating to alcohol or illegal drugs etc.

Amending discretionary conditions

Once the CTO is in place, the RC can decide to vary, add to or remove discretionary conditions without the need to consult any other professional.

Duration of a Community Treatment Order

The duration of a Community Treatment Order (CTO) is the same as a Section 3 Treatment Order. Initially the duration is up to 6 months, after which it can be renewed (through a renewal process) for a further 6 months and then for periods of 12 months thereafter.

Monitoring a Community Treatment Order

After the person has left hospital, routine monitoring of the Community Treatment Order (CTO) usually falls to community mental health services. They will apply the Community Mental Health Framework to support the person to access the treatment and support identified in the CTO, as well as any additional health or social care services they may need.

The Responsible Clinician (RC) remains the professional with overall responsibility and should be informed by community mental health services of any concerns about the effectiveness of the CTO, the person’s compliance with conditions or any decline in their mental disorder.

Recall back to hospital

The person can be recalled back to hospital if they fail to comply with any of the conditions or if their mental disorder deteriorates.

Whether (or not) to recall a person back to hospital is the decision of the Responsible Clinician (RC).

Once recalled back to hospital, the RC can detain the person there for 72 hours. During this time, they must decide whether to revoke the Community Treatment Order (CTO) (and readmit the person for treatment under Section 3) or release the person back onto the CTO.

The RC can only revoke the CTO if the criteria for a Section 3 Treatment Order have been met, and an Approved Mental Health Professional (AMHP) agrees.

Consent to treatment

When a person is under a Community Treatment Order (CTO), medication and treatment can only be given with their consent. If medication or treatment is a discretionary condition of the CTO and the person does not give consent to receive it, their Responsible Clinician (RC) should be informed so that any need to recall them to hospital can be considered.

If the person lacks capacity to consent, medication and treatment can be given if the RC has deemed it in their Best Interests under the Mental Capacity Act 2005. However, if the medication or treatment cannot be given because the person does not comply, the RC should be informed.

9.2 Guardianship

Under Section 7 of the Act, a person with a mental disorder living in the community can be given a Guardian for their own welfare or to protect other people.

A Guardian has 3 specific legal powers under the Act:

1. To decide where the person should live; and
2. To require the person to attend a certain place at a certain time for treatment, work, training, or education; and
3. To require the person to allow a named doctor or other professional to see them at home.

Note: A Guardian cannot make decisions about treatment.

The Guardian is usually the Local Authority, who will appoint an agent to act on its behalf (e, g., a mental health team/practitioner). On occasion the Local Authority can approve someone else to act, for example, a relative of the person. This is called a ‘private guardian’.

Applying for Guardianship

Unlike a Community Treatment Order (CTO), a Guardianship application can be made if the person has not already been admitted to hospital for treatment under Section 3 or Section 37. In practice, they are often made as a way of supporting the person to stay well in the community and prevent the need for admission to hospital.

Prior to using a Guardianship Order, 2 doctors must agree that it is needed.

A Guardianship Order application is usually made by an Approved Mental Health Professional (AMHP), but it can also be made by the person’s Nearest Relative (NR).

Note: The use of Guardianship Orders has reduced greatly over the last few years.

Duration of a Guardianship

A Guardianship Order lasts initially for 6 months, then can be renewed for a further 6 months. Any further renewals can last for 12 months after this.

Where the Local Authority is the Guardian, the Order can only be renewed if the person’s Responsible Clinician (RC) believes it is necessary.

Where the Local Authority has approved a ‘private guardian’, a doctor called a Nominated Medical Attendant (NMA) will decide if it should be renewed.

Ending a Guardianship

A person can be discharged from a Guardianship Order at any time. There are a number of ways this can happen:

• The Local Authority can discharge the Guardianship and should consider doing so if they receive a request from the person or their Nearest Relative (NR) to this effect, or a report from a mental health clinician/professional supporting this decision; or
• The person’s Responsible Clinician (RC) can discharge the Guardianship; or
• The person can apply to the Mental Health Tribunal for a discharge; or
• The person’s Nearest Relative (NR) can ask the Local Authority to discharge the Guardianship (if the Local Authority declines to do so, the NR can ask the Mental Health Tribunal).

9.4 Section 117 Aftercare

Section 117 of the Mental Health Act 1983 requires the Local Authority, along with the ICB, to provide services and support to some people following their discharge from hospital (Aftercare).

A person is entitled to Section 117 Aftercare if they were detained in hospital under Sections 3, 37, 45A, 47 or 48.

Section 117 Aftercare is free for the person receiving it.

The duty to provide aftercare services exists until both the Integrated Care Board (ICB) and local authority are satisfied that their mental health has improved to the point where they no longer need aftercare services.

For further information see: Section 117 Aftercare.

10. Safeguards under the Mental Health Act 1983

A number of safeguards are embedded into the Mental Health Act 1983 to uphold the person’s rights and ensure that any admission, detention and/or treatment is necessary.

10.1 Nearest Relative

The Nearest Relative (NR) is a position and role set out in Section 26 of the Mental Health Act. It isn’t the same as the Next of Kin.

Everybody has a Nearest Relative for the purpose of the Mental Health Act. However, the role only has rights and responsibilities when the person with the mental disorder is:

• Detained in hospital under Sections 2, 3, 4 or 37; or
• Under a Community Treatment Order (CTO); or
• Under a Guardianship.

Who is the Nearest Relative?

The Act provides a strict hierarchical list of individuals who are permitted to act as Nearest Relative (NR).

In most cases, the individual that appears highest on the list would be the NR:

1. Husband, wife or civil partner (including cohabitee for more than 6 months);
2. Son or daughter;
3. Father or mother (an unmarried father must have parental responsibility in order to be nearest relative);
4. Brother or sister;
5. Grandparent;
6. Grandchild;
7. Uncle or aunt;
8. Nephew or niece.

Other things to note

The NR must be 18 years old or above.

The NR must live in the UK, Channel Islands, or Isle of Man (unless the person with the mental disorder normally lives with them elsewhere).

If there are two or more people in any one group, the elder would be the NR.

If the person is permanently separated from their husband, wife or partner they cannot be the NR, even if any divorce or separation is not yet final.

If the person lives with a relative, or are cared for by a relative, that individual will take precedent over someone higher up the list who does not have this role. For example, if a person lives with their sister who supports them, she would be the NR over any parent that lived elsewhere.

Half-blood relatives are included in the list, but whole blood relatives would take precedent.

Adoptive relatives are included in the list (adoptive mother, father, son, daughter).

Step-relationships are excluded from the list.

The role and rights of the Nearest Relative

The main role of the Nearest Relative (NR) is to help protect the person’s rights.

To do this, the NR has a number of rights under the Mental Health Act 1983.

They can:

• Request (or apply) to have the person admitted to hospital (for example, if their mental health deteriorates or they are under a Community Treatment Order but not complying with the conditions);
• Object to a person being compulsorily admitted or detained in hospital;
• Ask for the person to be discharged from a Section (and apply to the Mental Health Tribunal if their request is refused);
• Request (or apply) for a Guardianship Order;
• Object to a Guardianship Order;
• Ask for the person to be discharged from a Guardianship Order (and apply to the Mental Health Tribunal if their request is refused);
• Ask for an Independent Mental Health Advocate (IMHA) to support the person;

Where the person is living in the community, the NR should also be consulted and given information if they are admitted to hospital under a Section.

Declining to act

If the person’s Nearest Relative (NR) does not wish to assume the role, they are permitted to delegate it to someone else.

10.2 Independent Mental Health Advocates

An Independent Mental Health Advocate (IMHA) is an advocate that has received specialist training to support people subject to certain provisions of the Mental Health Act 1983.

Qualifying for an Independent Mental Health Advocate

A person ‘qualifies’ for the support of an Independent Mental Health Advocate (IMHA) if any of the following applies:

• They are compulsorily detained for assessment or treatment (excluding under Section 4);
• They are liable to be detained (on leave of absence, are absent without leave or where an application for admission has been made);
• They are subject to a Community Treatment Order;
• They are subject to Guardianship;
• They are a conditionally discharged restricted patient (Section 37/41).

A person does not qualify for IMHA support if they are detained or held under Section 5(2), 5(4), 135 or 136.

Currently, the only time a person who is in hospital on a voluntary or informal basis qualifies for IMHA support is if neurosurgery is being considered as treatment.

Note: The person must be informed of their right to an IMHA and be automatically referred unless they object.

The role of an Independent Mental Health Advocate

The role of an Independent Mental Health Advocate (IMHA) is to support the person to understand their rights, and, with the person’s consent, support them to exercise them.

On a practical level, an IMHA can help a person to:

• Express their views about care and treatment;
• Mmake a complaint about care or treatment;
• Enforce their rights and get what they are entitled to;
• Make an application to the Mental Health Tribunal;
• Present the person’s views and support them at a Mental Health Tribunal hearing;
• Access legal advice.

IMHA’s can also represent the person and speak on their behalf at meetings or hearings where the person cannot or chooses not to attend.

The rights of an Independent Mental Health Advocate

To ensure they can fulfil their role effectively, the Independent Mental Health Advocate (IMHA) has a number of rights:

• To access the ward or unit where the person is staying;
• To meet with the person in private (unless the person objects or it is otherwise inappropriate or unsafe);
• At the person’s request, to accompany them to meetings with professionals;
• With the persons consent, see any medical, social care or other records about their detention, treatment and aftercare;
• To meet and talk to anyone who is professionally involved with the person’s medical treatment.

10.3 First Tier Tribunal (Mental Health Tribunal)

The First Tier Tribunal, more commonly referred to as the Mental Health Tribunal (MHT) is an independent panel that hears appeals from (or on behalf of) a person who is detained under a section of the Mental Health Act.

Note: The only sections where an application to the MHT cannot be made are Sections 5, 135 and 136. Applications also cannot be made when the Section is a Hospital Order, and the person is on remand.

Who can make an application?

In all circumstances the person is able to make an application directly. If they find this difficult, an Independent Mental Health Advocate (IMHA) can support them or make the application on their behalf. They can also request their legal representative make the application.

The Nearest Relative (NR) can make an application – this can be done on behalf of the person but can also be made independently of the person.

The Hospital Manager can also apply to the Mental Health Tribunal (MHT), and should do so if any of the following applies, the person has not made the application and the person consents (or lacks capacity to consent):

• Six months have passed since the person was first detained, and an application to the MHT has not been made during that time;
• Three years have passed since the last MHT hearing;
• Admission was following the revocation of a Guardianship Order, six months has passed, and an application to the MHT has not yet been made;
• Admission was following the revocation of a Community Treatment Order (CTO). This should be referred to the tribunal as soon as possible after the Responsible Clinician (RC) has revoked the CTO.

When can an application be made?

The point in time when an application can and cannot be made is determined by the type of Section the person is under. This does differ significantly, hence the importance of the Independent Mental Health Advocate (IMHA) to support the person to understand when they can apply and to exercise their right to do so.

About the hearing

The hearing will usually take place in the hospital where the person is detained, as this facilitates their attendance. However, it is important to note that, even though it takes place at the hospital where the person is detained, the Mental Health Tribunal is independent and none of the panel members will be based at that hospital or involved in the person’s care or treatment.

The panel is made up of three members:

1. A Judge;
2. A Psychiatrist;
3. A lay member (a professional with relevant experience).

The purpose of the MHT is to decide:

• Whether a person should remain on the Section;
• Whether the person should be discharged from the Section; and
• If discharged, whether they should leave hospital.

The panel will hear from the person and professionals in attendance, as well as considering any information provided to them in writing. For example, a Social Circumstances Report.

For further information and guidance on preparing a Social Circumstances Report see: Social Circumstances Report.

The panel is governed by the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.

10.4 Second Opinion Appointed Doctor (SOAD) Service

A Second Opinion Appointed Doctor (SOAD) from the independent SOAD service must be appointed in certain circumstances to review clinical decisions and make sure that the person’s views and rights have been considered.

For example, if a person is given medication without consent for 3 months, a SOAD must be appointed. Likewise, if consent is not given to electroconvulsive therapy.

11. Further information

Mental Health Law and Policy

NHS: Mental Health Act

MIND: Mental Health Act 1983

Rethink: The Mental Health Act

Skills for Care: NICE social care mental health guidance

12. The Future of the Mental Health Act 1983

In 2017 the government commissioned an independent review of the Mental Health Act 1983, to look at how it was used and to suggest ways to improve it.

The review said that the Mental Health Act 1983 does not always work as well as it should for patients, their families, and their carers. This is particularly the case for certain ethnic minority communities and those with a learning disability or Autism. Greater safeguards, a greater respect for wishes and preferences and changes to accountability, challenges, and transparency were all recommendations made by the review.

Following the review, in June 2022 the government published the draft Mental Health Bill. When passed into law, this will become the Mental Health Act 2022 and several key amendments to the current law will be made.

The Joint Committee inquiry has reviewed the Bill and made several recommendations to strengthen it, which the government is now considering. There is currently no timeframe for a revised bill to be introduced.

When passed, implementation of the Mental Health Act 2022 will be staggered over time.

For further information about the new Act, and the amendments being proposed see Get in on the Act: Mental Health Act 2022.

13. The Interface between the Mental Health Act 1983 and the Mental Capacity Act 2005

Subject to certain conditions, Part 4 of the Mental Health Act allows medical treatment for a mental disorder to be administered regardless of whether the person has the capacity to consent to it or not.

In circumstances where consent (and therefore capacity) is relevant, there can be an overlap between the Mental Health Act 1983 and the Mental Capacity Act 2005.

This section contains only summary information and does not reflect the complexity in this area. In all cases, legal advice should be sought as necessary.

If the person has capacity

In cases where a person can consent on the matter upon which their consent is being sought, the Mental Capacity Act 2005 does not apply and only the Mental Health Act is available.

If the person lacks capacity

In cases where the person lacks the capacity to consent, either piece of legislation could be used, and it is the responsibility of the Responsible Clinician to make this decision. When deciding which piece of legislation to use, the Responsible Clinician should seek the views of any Lasting Power of Attorney (LPA), or Deputy appointed by the Court of Protection.

• In cases where the person lacking capacity clearly objects to their assessment and/or treatment, a Section 2 or Section 3 Order under the Mental Health Act would likely be used.
• In cases where the person lacking capacity is showing no objection to their assessment and/or treatment, the Responsible Clinician must decide which piece of legislation is most appropriate to the circumstances. This could be informal admission and treatment under the Mental Health Act, or a Deprivation of Liberty Safeguards (DoLS) authorisation under the Mental Capacity Act.

Where the Responsible Clinician decides to use the Mental Health Act and the person has made an Advance Decision to Refuse Treatment, the treatment provided should reflect this wherever possible. For example, they should consider whether they could use a different type of treatment which the person has not refused in advance.

In all circumstances, if a person has been found to lack capacity to consent to matters relating to their mental disorder, no assumptions about their capacity to make decisions in relation to other matters should be made. For example, decisions relating to physical health or finances etc. The Mental Capacity Act still applies.

Hospital admissions for physical illness

If a person that is subject to the Mental Health Act 1983 requires admission to hospital for treatment unrelated to their mental disorder, their consent must always be sought.

It is the responsibility of the health professional responsible for their physical treatment to determine if they have the capacity to consent.

If the person lacks capacity to consent, it is possible for either Act to be used:

• In cases where the physical illness is having no impact on the mental disorder, the health professional can apply the Mental Capacity Act to decide whether the treatment is in the person’s Best Interests and then take any action required to authorise a deprivation of liberty.
• In cases where the physical illness is having a direct negative impact on the person’s mental disorder, the Responsible Clinician can use the Mental Health Act to authorise the treatment as a means of preventing a deterioration in their mental disorder.