What is the Purpose of the Mental Health Act?

The Mental Health Act allows people with a ‘mental disorder’ to be detained (held, usually in a hospital); and given treatment without their permission.
The term mental disorder includes mental illness, which covers conditions such as schizophrenia and depression; and ‘any other disorder or disability of the mind’. However, you can be detained under the Mental Health Act only if other conditions are met.

Who decides if I should be detained in hospital?

The decision is normally made by two doctors and a third person, who must all agree that it is necessary for you to be detained. At least one of the doctors must have experience with mental disorders and, if possible, one of the doctors should know you such as your GP.
The third person is called an Approved Mental Health Practitioner (AMHP), who need not be a social worker and can be a nurse, psychologist or occupational Therapist with specialist training and experience in dealing with people with a mental disorder. A close relative, called your Nearest Relative, can also apply for you to be detained, but this doesn’t happen very often.

The two doctors and the AMPH must assess your needs and decide whether the conditions for detaining you are met. They should make sure that you have the chance to explain your views.
What help you need to manage your mental health problems; and what help you need with your social problems

If you would like to have a friend or someone else to help you during the assessment, you can ask the AMHP to contact them for you. However, in some cases the doctors and the AMHP may want to speak to you on your own. If you need an interpreter, one should be provided for you. After assessing your mental health needs, the doctors and the AMHP must each make their own decision about whether you need to be detained in hospital and you should be detained in hospital only if this is the best thing for you. If the doctors and the AMHP decide that you don’t need to be detained, then they can make other care arrangements for you.

What about people who lack the capacity for treatment under the Mental Health Act

If you lack the mental capacity to make an informed decision about treatment but you still agree to the treatment the doctor can treat you provided it is in your best interests. A second opinion is usually required. If you do not consent and are suffering from a mental disorder the doctor may section you under the Mental Health Act.  Once under the Mental Health Act you may be treated for a mental disorder or any physical condition resulting from your mental disorder against your wishes provided the treatment is in your best interests. If the doctor wishes to treat you for a physical condition not related to your mental disorder, s/he must get permission to do so.
An Independent Mental Health Advocate (IMHA) may be appointed to help you when doctors are proposing to give you serious medical treatment.

When can I leave hospital?

If you are detained in hospital you have the right to appeal against you detention. You can appeal to the Mental Health Review Tribunal and to the Hospital Managers who can decide if your detention is necessary or not and has the power to discharge you. Your Nearest Relative can also ask for you to be released from hospital into their care but your RC may oppose this and the Hospital Mangers will want to hear why the RC has opposed your discharge.

Will I get help when I leave hospital?

Before you leave hospital, your Responsible Clinician (RC) should make sure that your health and social care needs are assessed and that there is a care plan for you. The RC and other people who have been caring for you, such as a social worker and community psychiatric nurse, will look at what you will need when you leave hospital. They will hold an aftercare planning or care programme approach’ (CPA) meeting to discuss your needs when you are discharged from hospital. If you have been detained under section 3 of the Mental Health Act, you have the right to the health and social care services that you have been assessed as needing when you leave
hospital (section 117 of the Act).
These aftercare services can include:

• somewhere to live;
• social care support;
• home help; and
• using a resource centre.
  

The people who assess you should talk to you before they decide what support you should get. You should let people know what you think your needs are. If a friend or relative regularly supports you, they could also take part in these discussions. Under the Carers and Disabled Children Act 2000, someone who is 16 or older and spends a lot of time caring for you can also be assessed to see if they need any help. Your lawyer or other representatives, could also be involved in planning your aftercare. This would be useful if you are not happy with what is being suggested, or if those that are arranging your aftercare are taking too long.

What controls can there be on me when I am in the community?

Your Responsible Clinician may let you leave the hospital for a certain time, for example for a couple of hours, a weekend or a longer period. But they may let you leave only if you meet certain conditions, such as staying at a particular place. Your RC may also recall you back to hospital at any time.

Supervised discharge

If you are detained under section 3 of the Mental Health Act and you are 16 or over, your RC may apply for a supervised community treatment order, often called a CTO, when you leave hospital.
This means that a person such as a social worker or psychiatric nurse will be named as your supervisor and will keep in touch with you after you leave hospital. You may also have to meet certain conditions, such as:

• living at a particular place; and
• going to an out patients clinic for treatment
  

However, even though your supervisor can take you to a place where you must go under one of these conditions, they cannot make you have a treatment if you do not want it. The doctor in charge of your aftercare may end the CTO at any time. You can also apply to a mental health review tribunal if you want to end the CTO.

Guardianship

Guardianship is a scheme used mostly for people with learning disabilities and elderly people with mental health problems such as dementia. You must be 16 or over and must need a guardian for your welfare or to protect other people. Your guardian can be a local council or a person. As with a CTO, you may have to:

• live at a particular place; and
• go to a particular place for treatment, work, education or training ,though they cannot force you to go there if you
• don’t want to..
  

Your nearest relative can object to the guardianship if they don’t agree with it, and can end it. If you don’t agree with the guardianship, you can ask a mental health review tribunal to end it.
What powers have the police against people with mental health problems?
In some situations, the police can remove someone with a mental health problem to a place of safety usually a police station or a hospital, for up to 72 hours. During this time they should arrange for your treatment and care. These situations arise if you are:
in a public place and appear to suffer from a mental disorder and need urgent care and control; or
in private premises  such as your house or someone else’s,  and the police believe that you are suffering from a mental disorder and are not being properly cared for.
In this case a magistrate may grant a warrant, which gives a police officer and an AMHP the power to take you to a place of safety.

What if I am arrested?

If the police have arrested you and they later find out that you have mental health problems, they can do one of two things:

If the offence was not a serious one, they may take no further action. They may then, with your permission, refer you to the local health or social service agencies so that your needs can be assessed.

If the police decide to question you, they should make sure you have help from an appropriate adult a person who will support you while you are at the police station You also have the right to a solicitor so that you have proper legal advice; in particular on how your mental health problems may affect any action the police take against you.

Mental health and the Human Rights Act

The Human Rights Act 1998 states that all public authorities must act in accordance with the European Convention of Human Rights. Among the rights that could affect you are the:

• ‘right to liberty’,
• the ‘right to respect for private and family life’ and
• the right to a fair trial
  

The Act applies to NHS trusts and also to independent hospitals where people are detained
under the Mental Health Act. The Human Rights Act has brought important changes and when identifying the nearest relative, it states that gay and lesbian partners are treated in
the same way as people who are married or in heterosexual relationships.

Further Help

Addison Oliver Moore Solicitors LLP
Experts in Mental Health Law
01923 238 427
01268 833 020
01604 622 331
www.aomsolicitors.co.uk

Community Legal Services Direct
They provide information direct to the public
Call 0845 345 4 345
www.clsdirect.org.uk