Article updated 11 October 2018
The Mental Health Act 1983 regulates the control and compulsory treatment of people in England and Wales who suffer from mental disorder. It does this by authorising compulsory admission to hospital, and compulsory treatment in hospital, if strict conditions are met. The act also provides for community-based controls in the form of supervised community treatment and guardianship.
It was amended by the Mental Health Act 2007, which introduced supervised community treatment (otherwise known as ‘community treatment orders’), and replaced the previous four separate classes of mental disorder with a single definition. The 2007 act also removed the previous ‘treatability test’ as a criterion for detention and replaced it with an ‘appropriate available treatment’ condition. In addition, it renamed and reconceptualised some of the key professional roles: the approved social worker (ASW) became the approved mental health professional (AMHP), reflecting the opening up of the role to nurses, occupational therapists and psychologists; and the responsible medical officer became the responsible clinician.
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More than a decade later the act is being looked at again, through a government-commissioned independent review of the act. This was announced in October 2017 by prime minister Theresa May and its remit includes tackling rising rates of detention and the persistent problem of the over-representation of some black Asian and minority ethnic groups in the compulsory treatment system.
Users of Community Care Inform Adults can get a full digest of the Mental Health Act as part of their licence, as well as guides to the role of the approved mental health professional and other relevant issues. For others, the below provides a summary of some of the key aspects of the legislation.
Compulsory admissions to hospital
Adults requiring inpatient treatment can be informally admitted of their own accord, or detained under sections 2, 3 and 4 of the MHA.
An AMHP or the person’s nearest relative can apply for admission for assessment, which can last up to 28 days. The applicant, who will usually be the AMHP, must have seen the person in the previous 14 days (this is set out in section 11). The application must be supported by the written recommendations of two doctors, who should both agree that:
a) The patient is suffering from a mental disorder of a nature or degree that warrants detention in hospital for assessment; and
b) The patient ought to be detained for his or her own health or safety, or the protection of others.
The patient can be discharged by a responsible clinician, hospital managers, the nearest relative, or a tribunal (following application by the patient).
As with section 2, the applicant can be either an AMHP, as is mostly the case, or the person’s nearest relative.
Detention can last for up to six months after two doctors have confirmed that:
a) The patient is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital; and
b) The treatment is in the interests of his or her health and safety and the protection of others; and
c) Appropriate treatment is available for the patient.
Section 3 admissions can be renewed for a further six months and thereafter for periods of 12 months at a time. The patient can be discharged by the responsible clinician, hospital managers, the nearest relative (if the responsible clinician refuses, the nearest relative can apply to a tribunal within 28 days), or a tribunal.
An approved mental health professional or nearest relative can apply for admission, having seen the patient in the previous 24 hours. A patient can be detained for up to 72 hours, after one doctor has confirmed that:
a) The detention is of “urgent necessity”; and
b) That waiting for a second doctor to approve the detention under section 2 would cause an “undesirable delay”.
Guardianship is a form of community-based control of a person suffering from mental disorder but it does not authorise compulsory treatment or detention. It is only available for patients aged 16 and over. Most guardians are local authorities.
Section 7 of the act governs applications for guardianship, which, as with section 2, 3 and 4 applications, are mostly made by AMHPs but can also be made by the nearest relative.
A guardianship application may be made in respect of a patient on the grounds that:
(a) he or she is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.
As with admission for assessment or treatment, the application must be founded on the written recommendations of two doctors.
Community treatment orders
Community treatment orders (CTOs) were inserted into the 1983 act by the Mental Health Act 2007.
As set out in section 17A and subsequent sections, CTOs enable the responsible clinician to discharge a person detained under section 3 from hospital but with the power to recall them.
The responsible clinician may not make a CTO unless the relevant criteria are met and an AMHP agrees, in writing, that this is the case and the CTO is appropriate. The relevant criteria are that:
(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him or her to receive medical treatment;
(b) it is necessary for his or her health or safety or for the protection of other persons that he or she should receive such treatment;
(c) subject to his or her being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his or her continuing to be detained in a hospital;
(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and
(e) appropriate medical treatment is available for him or her.
Under section 17B, CTOs set conditions for the person for the duration of the order. There are two mandatory conditions, including that the person should make him or herself available for medical examinations to determine whether the CTO should be extended, while other conditions must be considered by the responsible clinician and an AMHP to be necessary or appropriate to ensure the person receives treatment, prevent risk of harm to the person or protect other people.
Section 17E authorises a community patient’s responsible clinician (RC) to recall the patient to hospital if the RC decides that the patient needs to receive treatment for his or her mental disorder in a hospital and that, without this treatment, there would be a risk of harm to the patient’s health or safety, or to other people.
The RC also has the power to recall where the patient fails to comply with the standard section 17B(3) condition that patients must make themselves available for examination (subsection (2)). However, the Mental Health Act code of practice for England states that “refusal to consent to treatment in itself does not justify a recall to hospital and fuller consideration of the patient’s presentation and circumstances is required when considering whether a recall to hospital is warranted” (paragraph 25.26).