Mental Health Act

The Mental Health Act 1983 is  the main law relating to mental health disorders. It was amended most notably in 2007, but both the act and these changes focus on how people suffering from poor mental health are assessed by medical experts and treated – whilst ensuring that their rights are respected and protected, but not at the expense of the safety of others. There are also clauses that caveat that their own safety may be prioritised above their rights or wishes, based on potential incapacity to make proper judgements or decisions.

This is called ‘sectioning’, and any person may be sectioned under the Mental Health Act if they are deemed a serious risk to themselves or others.  We expand on this later in the article, because there are rules and safeguards in place. Our Rio electronic patient record software supports legal detention, and has a dedicated Mental Health Act screen for full end-to-end management of the Sectioning process to ensure accuracy, transparency, and proper communication between clinical parties.

If that all sounds wordy then you’re going to love reading the entire Mental Health Act 1983 over on the UK Government’s legislation page.

The short version is that the 1983 Mental Health Act was the first serious enshrining of proper responsibility from the state to protect citizens from more than just physical harm. It lasted in this form until amended in 2003, and again in 2005, 2007 and 2010.

This, of course, is effectively the Mental Health Act England since devolution in 1998 for Scotland established their own takes on legislature. 

 

Mental Health Act Scotland

Mental Health Act (Scotland) 1984 mirrored the Mental Health Act 1983, but due to partial devolution it was in effect an overhaul of the pre-existing Mental Health (Scotland) Act 1960.  This act was then superseded in 2003 when Scotland amended the act with the Mental Health Care and Treatment Act 2003.

This was then amended again by the Mental Health (Scotland) Act 2015, with alterations to the rules on emergency detention, short term detention, compulsory treatment orders, and the rights of carers – to name a few amendments.

More information on the Mental Health Act Scotland can be found via the Mental Welfare Commission (MWC) for Scotland website. Additional information on the core components of the parent Mental Health Act can be found on the NHS website’s dedicated Mental Health Act page. 

England and Wales would follow up on Scotland’s proactive amendment in 2003 with their own Mental Health Capacity Act two years later. The Mental Health Act 2005 focused on capacity, as the name suggests. The official UK Government document for the Mental Capacity Act reads as follows:

“An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.”

Thus the Mental Health and Capacity Act was created, and came into effect in 2007, with two remits:

1. To empower people to make decision about their own health and wellbeing OR to protect those lacking the capacity to do so by finding more ways to be inclusive of said people during the decision-making process;
2. To allow people to plan ahead for a time when they may not have the capacity to take required actions. 

The Mental Health Act 2007 is another amendment to the 1983 act and the more recent 2005 amendment. In terms of Mental Health Act reform, the legislature broadened the amount of health and care professionals who could be part of the care process – as well as introducing more personal choice and safeguarding measures.  Following parliamentary discussion and Royal Ascent (part of the approval process), the amendments were introduced as of September 2009.

Mental Health Act 2007 summary

• NEW: Supervised Community Treatment. Powers were introduced to apply Community Treatment Orders. This means that if a patient does not stick to their medication plan they can be returned to hospital – and potentially forcibly given medication. 
• NEW: Approved Clinician. These are healthcare professionals like nurses, psychologists, or social workers who have been approved regards the Mental Health Act as having the appropriate skills and experience to take action on behalf of a patient.
• CHANGE: Professional roles. A great range of mental health professionals can be involved in patient responsibility. One such example is the Approved Mental Health Professional, which previously the law required strictly social workers for certain duties.
• NEW: Independent mental health advocates (IMHAs). Available for qualifying patients. VoiceAbility has a helpful guide about who can get an advocate.
• NEW: Civil Partners. With the steady advancement in LGBT+ rights in the early 2000s, some patients were now permitted to appoint a civil partner as their nearest relative for the sake of decision-making. For context, same-sex marriage wasn’t legalised in the UK until 2014, and thus certain innate permissions or responsibilities weren’t present prior.

Dubbed the mental health at work act 2010, the equality act 2010 properly defined protected characteristics. One of these is disability, and mental health problems can be defined as a disability if they are deemed sufficiently impactful on day to day life.

MIND the mental health charity states that “You don't have to have a particular mental health condition to get protection under the Equality Act. And you don't need a diagnosis. But you will need to show that your mental health problem is a disability.”

This means that people suffering with longer term issues such as depression, anxiety, bipolar disorder, or schizophrenia (to name a few) are given legal reassurances to avoid discrimination.

Within the Mental Health Act are specific sections which detail the powers or rules being implemented by the 1983 act and the 2005 and 2007 amendments.

Section 1 Mental Health Act

Section 1 of the Mental Health Act defines what a mental disorder is. The 1983 Mental Health Act states that there are four categories:

• Psychopathic disorder
• Mental illness
• Mental impairment
• Severe mental impairment

The 2007 act altered the definition of ‘mental disorder’ to be any disorder or disability of the mind. Importantly, it also limited powers to detain people with learning disabilities; distinguishing that now only “abnormally aggressive or seriously irresponsible conduct” will warrant detention.

Section 2 Mental Health Act

Section 2 of the Mental Health Act focuses on the hospital admission of a person with a mental health disorder, for their own wellbeing. It allows stays of up to 28 days to assess whether an individual is suffering and if so what type of mental disorder they are experiencing and what treatment they should receive.

Mental Health Act section 2 states that it is for use on patients who have not been assessed by either a hospital or mental health services before, or have been but not in a long time.

Patients admitted under Section 2 have the right to appeal against admission, the right to refuse treatment, and the right to a mental health advocate. They can also be discharged before the 28 days are up by their doctor, a mental health tribunal, mental health act managers, or their nearest relative – who then assumes a duty of care and responsibility for the person’s wellbeing.

Section 3 Mental Health Act

Section 3 of the Mental Health Act differs from Section 2 because it is for people already known to psychiatric services or whom have been assessed under Section 2 and adjudged in need of treatment for their health, safety, or the protection of others.

Section 4 Mental Health Act

Section 4 of the Mental Health Act is rarely used because it is an emergency application for 72 hours detention.

It is not popular due to the fact it only requires one medical recommendation, usually an Approved Mental Health Professional but sometimes the nearest relative.

A second assessment might then take place of the individual in hospital, which could allow for conversion to Section 2 and thus access to patient advocacy and the rights to appeal or refuse.

Section 5 Mental Health Act

Section 5 of the Mental Health Act is all about holding powers – maintaining patient detention for those already receiving inpatient care.

Mental Health Act Section 5 (2) gives a doctor or approved clinician the power to hold a person for 72 hours in hospital care.

Mental Health Act Section 5 (4) gives these same permissions to an approved nurse, with the caveat of no available doctor or approved clinician.

Section 17 Mental Health Act

Section 17 of the Mental Health Act focuses on recovery from hospital and allowing mental health patients to leave and adjust back to daily life.

Section 17 leave is often given with conditions.  This can be done via a Community Treatment Order, demanding a person sticks to a medication plan else faces re-admission, but S17 also covers standard leave from the ward for detained individuals. This means overnight home visits and other escorted or unescorted leave – again, within hospital grounds or beyond. It is the means to authorisation.

In the event of CTOs, the responsible clinician has the power under these orders to revoke the leave if the patient isn’t following instructions or their behaviour deteriorates.

Access Rio electronic patient records software supports Section 17 leave and coordinates all relevant information about the patient and any CTO back to their patient record so it is visible for relevant clinical access in future.

Section 37 Mental Health Act

Also known as a ‘hospital order’, Section 37 of the Mental Health Act states that a person convicted of a crime – who has an existing mental disorder – can be sent to hospital rather than prison if it is appropriate to do so.

In modern TV and film culture there have been false references to people faking mental illness to avoid prison, but Section 37 states that it is still a sentence but with no end date. There is also no ability to refuse treatment for the first three months of detention.

Section 41 Mental Health Act

Section 41 of the Mental Health Act is very closely tied in with Section 37, so much so that they are often just written as section 37 41 to start with.

Once the S37 part ends, the S41 remains. This restriction order is a conditional discharge, approved by either a Mental Health Tribunal or the Ministry of Justice. It can be indefinite, or it can have a time limit placed upon it.

The patient still retains the right to refuse treatment, but the MoJ has the power to reinstate the s37/41 order previously and to bring a person back into hospital care and detention, so it’s expected that a person will adhere to the conditions of their discharge: things such as living at a specified address, taking prescribed medication, or attending sessions for mental health support.

Section 47 Mental Health Act

Section 47 of the Mental Health Act is similar to 37 in that it deal with conviction. In this case, it is article that allows the transfer of a prisoner to hospital for treatment.

The prison does not have the power to action this on their own. They must cite S47 Mental Health Act and provide two reports, detailing a person’s mental disorder and the availability of treatment at a nearby hospital.

Section 48 Mental Health Act

Section 48 of the Mental Health Act is almost identical to S47 but for people in remand in prison – aka people detained before conviction.

S48 allows these detainees to be sent to hospital for treatment. It also applies to people held in immigration removal centres.

Section 49 Mental Health Act

Just to make things more confusing, section 47 49 mental health act is also a double-up of sub-sections, like with S37/41.

Section 49 deals with the restriction on discharge of prisoners removed to hospital. To paraphrase, the section states that the Secretary of State (for Justice) has the power to add further, special restrictions – such as those set out in Section 41 and 48. This in particular has application with Section 47 cases: prisoner transfers to hospital.

Should the prisoner be subject to these special restrictions it is required that the Secretary of State sees updated no less than annually, to evaluate the case.

Section 117 Mental Health Act

Section 117 of the Mental Health Act 1983 covers the availability and right to access free help and support for people after leaving hospital for mental health care.

s.117 mental health act offers free aftercare for those who received treatment under sections 3, 37, 47, 48, or 45A.

Section 132 Mental Health Act

Mental Health Act section 132 handles the administrative side of admission to hospital. It states that as soon as a patient is detained under the 1983 Act, they must be informed of their rights both orally (by spoken word) and in writing.

It is acceptable that both aren’t practical at the time, but such instances must be documented in the individual’s electronic patient record (EPR).

Section 135 Mental Health Act

s.135 mental health act is a serious article of the 1983 Act that allows the police to enter a person’s home and take them to a place of safety and even to keep them at that place.

Once there, a mental health assessment can and will be performed in due course, but the police must have a warrant from a magistrate’s court to allow them access.

Section 136 Mental Health Act

Section 136 of the Mental Health Act is very similar to Section 135, but is for use when a person is experiencing mental disorder and distress in a public setting, rather than their own home.

Like with the previous act, s136 mental health act gives the police the power to remove or detain a person, and to then move them and keep them at a safe location for assessment while further decisions are taken.  

Safe places are areas such as residential accommodation owned by local social services, a police station, independent hospitals, or care homes for people with mental disorders – just to name a few examples.

The Code of Practice Mental Health Act was introduced 10 years after the Mental Health Act, going live in 1993.

Like many codes of practice, the framework and guidelines were introduced to help professionals with their interpretation of the MHA so they can make the fairest and most beneficial decisions in daily mental health care.

Safeguards were included in the code regards personal liberty and decision-making, and amendments were made in 1999, 2008, and 2015 to further enhance the code based on legal and cultural changes regards, especially considering the newer community treatment orders and police powers.

The Care Quality Commission issued a report into the Mental Health Act code of practice in 2019. In their words “the MHA Code of Practice guidance and best practice expectations are not well understood or consistently being translated into practice, oversight or decision-making.”

Our own Rio electronic patient records software is approved by the Gov.uk Digital Marketplace and confirmed to be compliant with the Mental Health Act. Our solution has a dedicated Mental Health Act module, which covers both inpatients and outpatients and provides quick and easy form filling for those patients in need of remand under the act.

The primary Rio software coordinates all pertinent information back and forth regards patient history and this latest incident,  but the mental health module is especially helpful for aspects of the law such as Consent to Treatment, Appeals, Renewals & Tribunals, Section 132 Rights, and Section 17 Leave, as well as Section 117 Aftercare . Renewals, appeals and tribunals can all be scheduled, and the MHA module also allows the recording of attendees, panel members, hospital managers, and review outcomes.

The Mental Health Act To Do List, a tool designed to assist Mental Health Act Managers in relation to MHA events, provides reminders on actions such as section renewals, automatic tribunals, and consent to treatment. 

The Mental Health Act is a key piece of legislation that helps protect individuals and the wider public from harm caused by mental disorder. While it’s not a constant occurrence, it’s not uncommon for those in distress to become erratic and even dangerous, and there has to be intervention when people become a risk to themselves or others.

The Mental Health Act was an important piece of legislature, but its amendments have been arguably the areas of most impactful change – providing new safeguards for the citizens of the United Kingdom  should they experience mental disorder or be accused of it.

It’s crucial to have robust action available for wider safety, and detention short-term or long can be a necessary evil, but by utilising proper healthcare software solutions there can be much more done to  treat patients and minimise their stays in hospital.

If you enjoyed this article, why not read our partner piece on community mental health services, focusing on community care for mental health and the benefits of early intervention and preventative measures; both for the individual and for the NHS.