First, If you believe that yourself or someone you know has been wrongfully detained under the Mental Health Act, enquire about a free consultation.
What is the Mental Health Act, and How Does it Affect the Individual Subject to it?
The Mental Health Act was passed into law in 1983 and it’s the main piece of legislation that covers the assessment, treatment, and rights of people with a mental health disorder. Usually, when people are treated for a medical condition, they’ve agreed to do so themselves voluntarily. However, under the Mental Health Act it is possible for a person in need of help but unwilling to get that help, to be detained and treated without their agreement also known as sectioning.
Section 2 & 3 of the act says that a patient subject to the orders of the Mental Health Act will be deprived of their liberty in accordance with the law, and that they’ll have no choice but to accept treatment. There are a number of ways that an order under section 2 & 3 can come to an end:
- The patient’s Responsible Clinician can end the order
- The Hospital Managers can end the order
- The patient’s Nearest Relative can end the order
- The Mental Health Tribunal can end the order
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Section 23 and the Responsible Clinician
Section 23 of the Mental Health Act gives the Responsible Clinician, Hospital Managers, and the Nearest Relative the power to discharge these orders, and Section 72 gives the tribunal the power to discharge these orders.
The Responsible Clinician is the person who’s in charge of the patient’s treatment, they can end the order at any time and they’re responsible for granting leave. There are no standard criteria that the Responsible Clinician has to consider when deciding to end the section, it’s down to clinical judgement. If the Responsible Clinician forms an opinion that the grounds for detention are no longer met, they must discharge the patient and not leave them sectioned until the order expires or for the tribunal to make that decision.
A patient can apply to the Hospital Manager as many times as they like, but unlike the tribunal, legal aid is not automatically available. The Hospital Manager will normally hold reviews when:
- The patient requests one
- When a decision is made by the Responsible Clinician to renew the order
- When the Responsible Clinician bars a Nearest Relative’s application for discharge.
They will conduct hearings similar to tribunals, but unlike tribunals they are not a recognised court as they’re not judicially appointed and they’re not independent. When holding reviews, they must abide with the rules of natural justice, they must ensure that article 6 of ECHR is complied with (the right to a fair and proper hearing), and they must ensure that there is no bias. Whatever their decision is, they must provide full written reasons for that decision.
The Nearest Relative
The person identified as the Nearest Relative can order the patient’s discharge. If a Nearest Relative wishes to order discharge of their relative, then they must do this in writing and hand it to an officer of the hospital. There is no statutory form to be completed, one simply has to write down who they are and make it clear that they are the Nearest Relative and also the name of the patient they would like to discharge. It’s strongly advisable, not to use fax or email as this does not guarantee its delivery and it doesn’t guarantee that it has been received by the hospital.
Letter of Discharge
The best person to hand a letter of discharge to is the Mental Health Act Administrator, they will know exactly what to do with it. If that person isn’t available, then a member of the nursing staff will be able to take it instead. Once the letter has been served, a notice of the intention to discharge will be given, and the discharge will be delayed for 72 hours. This 72 hour period allows the Responsible Clinician to consider whether it is safe to discharge the patient. They can prevent the discharge by completing a Barring Order under section 25. The Responsible Clinician can only complete a Barring Order if they form an opinion that if discharged, the patient is likely to act in a manner that’s dangerous to either themselves or others.
In these circumstances, it’s quite normal for the Hospital Managers to hold a review to decide whether the Responsible Clinician was correct. If a Nearest Relative has been barred from discharging a patient from section 3, then upon receiving notice they can make their own application to the Mental Health Tribunal. They must do this within 28 days. Most importantly, the Nearest Relative will be entitled to free, non-means tested legal representation. If the Nearest Relative gives a proper notice of discharge and no Barring Order is made, then the authority to detain will end upon reaching 72 hours.
The Tribunal
The tribunal is seen by many as the independent protector of patient’s rights. It’s a court, and its primary purpose is to consider the continuing lawfulness of a patient’s detention. Hearings tend to be held in private.
If the Tribunal makes a finding that the legal grounds for detention are no longer met, then it’s obligated to order discharge. Every eligible patient is allowed one application to the tribunal during each period of their detention. For patients subject to section 2 that eligibility period is 14 days from the date of admission. An eligible patient is entitled to free non-means tested legal representation. Each ward should have details of a local law firm who have a mental health contract, but this may not always be the case. A patient can only be represented by a representative who is a member of the Law Society’s Accreditation Scheme.
The Referral Mechanism
Even if patients don’t make their own applications for whatever reason, there is a referral mechanism built into the act which means that patients who are detained for longer periods will at some stage have access to a Tribunal. This referral mechanism replaces the old and outdated system of mental asylums, an era where mental health was very poorly understood.
A patient can make the application themselves or they can ask someone like a nurse or their legal representative to do it on their behalf, however there is a caveat. The patient must have the requisite capacity.
How We Can Help
Being detained under the mental health act can be a very difficult and stressful time, but it’s important to know that help is available and that you don’t have to tackle it alone. You can call Broudie Jackson Canter for a free consultation on 0151 227 1429 or email at enquiry@jacksonlees.co.uk. Remember that you can get through this and that professional help is there to support you.