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Mind rights guide 1: Civil admission to hospital
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Introduction
What is sectioning?
What is the process for detaining someone under a civil section?
What do the different civil sections mean?
The professionals want to assess me for detention - can I have a solicitor or advocate?
What information should I be given by the professionals?
Who else will be involved in the assessment process?
Does my NR have to be involved?
What if my NR does not want to be involved?
Do I have to be detained to get treatment in hospital?
If I am an informal patient and try to leave hospital, will I be sectioned?
If I'm at home, can I stop them sectioning and admitting me?
What if I avoid the professionals?
What happens if they detain me?
How do I make a complaint?
Are there other effects of being detained?
What if I think I should never have been detained in hospital?
Legal definitions
Useful organisations
Further reading
Introduction
This booklet is designed to answer some of the more common questions concerning civil (compulsory) admission to a psychiatric hospital, or ward, under the Mental Health Act 1983. It should be helpful to users of mental health services, their relatives and friends, as well as to service-providers working in the statutory and voluntary sectors. It is, however, no substitute for a statement of the law or for legal advice.
If you want advice from a solicitor who has a knowledge of mental health law and issues, contact Mind, which has a directory of mental health solicitors. Alternatively, you could get in touch with the Law Society, which has a list of solicitors who are suitably experienced to advise on the Mental Health Review Tribunal. A booklet containing the list should also be available on the hospital ward. A booklet containing the list should also be available on the hospital ward. Mental health solicitors are also listed in the CLS legal adviser directory, available in libraries or through the internet. (For details of this, and the organisations mentioned in this booklet, see Useful Organisations.)
Public funding (legal aid) may be available to pay for professional advice from a solicitor. This is means-tested (it depends on your income and savings) for most purposes. For appeals to the Mental Health Review Tribunal, public funding is available regardless of means.
Legal terms, as they appear in the Mental Health Act 1983, are printed in bold when they are used for the first time in this booklet (subsequently, they appear in ordinary type). Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy. Any definitions are set out at the end of the booklet, under Legal definitions. To keep the guide as straightforward as possible, the booklet keeps technical terms to a minimum and summarises the effects of the law and good practice, where appropriate. Where section numbers appear, in brackets, they are taken from the Mental Health Act 1983.
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What is sectioning?
Most patients in hospital wards cannot be prevented from leaving when they wish, and their consent must be obtained before treatment is given. The same applies to most patients who are in hospital for psychiatric treatment. They do not object to being in
hospital or being treated and are referred to as 'informal' patients. However, the Mental Health Act 1983 allows some people to be detained in hospital. When this happens, they are called 'detained' patients and their consent to treatment may no longer be required. This is often known as being 'sectioned'.
Some people are detained in hospital by the courts after being charged with a crime. (See Mind rights guide 5: mental health and the courts.) However, most people are detained under the 'civil sections' of the Mental Health Act, which does not involve a court at all. This booklet sets out what must happen before someone can be detained under a civil section, and outlines some of the effects. Mind rights guides 2-5 describe, in more detail, other relevant information about consent to treatment and what to do if you are being detained and you want to leave hospital. (Details of these and other booklets mentioned can be found under Further reading.)
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What is the process for detaining someone under a civil section?
There are two main civil sections of the Mental Health Act 1983, which are used to detain someone: section 2 and section 3. For each section, three people must agree that the individual needs to be detained. Usually, they would be an Approved Social Worker (ASW), a section 12 approved doctor and a registered medical practitioner.
The two doctors must agree the person needs to be in hospital and recommend detention. Then, the ASW decides whether or not to make an application for the person's compulsory admission to hospital. The Nearest Relative (NR) has the right to make an application. However, the Mental Health Act Code of Practice makes it clear that an ASW is the preferred applicant and applications by an NR are very rare. It does not matter where the person is at the time. They may be at home, in hospital, in a place of safety, or in a police station following an arrest for an alleged criminal offence.
In an urgent situation, someone may be admitted to hospital compulsorily, with only one medical recommendation to support an application (section 4). This is allowed if it is felt the criteria for section 2 (see below) are met, but there is no time to wait for another medical recommendation. The second medical recommendation must be obtained within 72 hours.
It is important to note that people need not have committed a crime to be detained under a civil section. The law allows anyone to be detained under the procedure described above.
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What do the different civil sections mean?
Section 2 allows for a person to be detained if they are suffering from a mental disorder and they need to be detained, at least for a limited period, for assessment (or for assessment followed by medical treatment) for their own health or safety, or for the protection of other people.
Detention can last up to 28 days. The section can't be renewed, but you may be assessed before the 28 days expires to see if detention under section 3 is necessary.
Section 3 allows for a person to be detained if they have a mental illness, mental impairment, severe mental impairment or a psychopathic disorder, and it is necessary for their own health or safety, or for the protection of other people, and treatment cannot be provided unless they are detained in hospital. A patient classified as having a mental impairment or psychopathic disorder cannot be detained unless the doctors also agree that they will benefit from treatment.
Detention can last up to six months. The section can then be renewed by six months, initially, and by a year at a time, subsequently.
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The professionals want to assess me for detention – can I have a solicitor or advocate?
You are entitled to consult a solicitor about your rights, although the professionals do not have to wait for this to happen before they decide whether to section you or not.
A solicitor will not be able to stop you from being detained, but can advise you on how to apply for discharge. (See above for how to find a mental health solicitor.)
An advocate may be available to help you to express your wishes, but the professionals have the right to insist on speaking to you without an advocate being present.
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What information should I be given by the professionals?
All professionals involved should keep you fully informed of what is happening. They should answer any specific questions you have. Health information on your records can only be withheld from you if it is likely to cause serious harm to you or someone else.
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Who else will be involved in the assessment process?
The ASW may contact friends and family to find out more information about you. If you do not want them to do this, tell them.
However, the Mental Health Act states that your Nearest Relative (NR) should be involved, and that your ASW must, if 'practicable', inform your NR if your are admitted to hospital under section 2. Where admission under section 3 is being considered, the ASW must consult your NR if this is 'reasonably practicable'. The NR has the right to object to the use of section 3 and if they do, the ASW must consider what to do next. In any case, they should offer some practical arrangements to you, if section 3 is not used, in order to meet your needs.
They may decide to pursue a further legal avenue. The local authority has the right to seek the displacement of the NR in the County Court. The rules for this are complex but, broadly, they allow the removal of a NR who is using their powers unreasonably.
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Does my NR have to be involved?
It is the responsibility of the ASW to decide who your NR is, according to the rules set out in section 26 of the Mental Health Act 1983. If you have reasons for not wanting your NR involved, tell your ASW. The ASW may still decide to identify and trace your NR, and they may ask other people to help them, but they cannot oblige you to give them information.
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What if my NR does not want to be involved?
It may be, for example, that your relative finds it hard to cope with making decisions and asserting her or his rights as NR. They can, if they want to, nominate another person to act in their place. This can be anybody they choose. You do not necessarily have a choice, but the NR can consult you, if they wish. If they do want to nominate another person, they can write to the hospital (and preferably the social services department, too) informing them of what they are doing and who they wish to act as NR. They can revoke this in writing, at any time.
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Do I have to be detained to get treatment in hospital?
No. If you have agreed to go into hospital you are known as an 'informal' patient and are not subject to detention. Most patients are informal.
If I am an informal patient and try to leave hospital, will I be sectioned?
If you are an informal patient, you can leave when you want. But a doctor can stop you leaving the ward if she or he thinks that an application for detention ought to be made. This is a 'holding power' and lasts up to 72 hours, during which a full assessment should be made (section 5 (2)). If a doctor is not available, a psychiatric nurse can hold you until a doctor arrives, but for no more than six hours. The nurse can do this if it is felt that you are suffering from a mental disorder and it is necessary for your health or safety, or for the protection of others to stop you leaving (section 5 (4)).
Once the doctor arrives, he or she can extend the holding power to 72 hours or let you leave. Holding powers must not be used as a threat by a nurse or a doctor. They cannot detain you beyond the holding period and they cannot use the Mental Health Act to treat you against your wishes during this time. You can only be detained for longer if a team of professionals decides this is necessary after a proper assessment (see below). If these professionals decide that you should not be detained you are free to leave. The holding period does not have to last 72 hours and ends once you have been assessed.
You may be able to avoid being detained if you agree to stay informally. Ask why you have been told that you will be detained, and tell professionals why you want to leave if you wish.
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If I'm at home, can I stop them sectioning and admitting me?
There are no legal means of preventing detention. As long as the section papers are properly completed, detention is lawful. If you are being assessed for detention, the most practical thing you can do is to ensure that the professionals feel you are coping, or can cope, in the community. Ask them exactly why they are assessing you and what concerns they have about you. Make sure they know your views, how you manage your situation, and any support network you have, such as friends or relatives.
If you wish to have a friend or an advocate with you at this time, ask the ASW in charge of your assessment to contact them. This could be helpful in making sure your views are listened to.
The professionals involved should follow the guidance contained in the Mental Health Act Code of Practice. The Code says that all relevant factors should be taken into account, and that any possible alternatives to compulsory admission should be considered.
In law, even if the ASW has two medical recommendations to support compulsory admission, they do not have to make an application. The ASW has up to 14 days from seeing you to consider the possible alternatives.
Professionals must be careful not to make incorrect assumptions based on gender, race and cultural background. If your first language is not English, the ASW should organise a trained interpreter to be present to assist you.
You may have strong views on what medical treatment you do, or do not want; professionals should listen to them. However, the effects of the Mental Health Act 1983 are that your wishes do not bind professionals. (See Mind rights guide 3.)
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What if I avoid the professionals?
If professionals are very concerned about you, and want to assess you, they have various powers that will allow them to do this. Under section 135, there are two grounds on which an ASW can obtain a warrant to enter your home. The first is if you are living alone and not caring for yourself. The second is if you are cared for by someone else, but not being kept 'under proper care or control'. The police also have the power to remove, from a public place to a place of safety (under section 136), someone who is suffering from a mental disorder and is in need of care or control, in order to have them assessed.
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What happens if they detain me?
The ASW is responsible for ensuring that the patient is conveyed safely to hospital, if they are not already there. Once the hospital manager, or a designated officer, has scrutinised and accepted the section papers, then the person is lawfully detained in hospital.
Under both section 2 and section 3 of the MHA, you can be prevented from leaving the ward, but the Responsible Medical Officer (RMO) can give you leave to do so. Your consent to treatment should be sought, but if you do not give consent, certain treatments can still be given to you. (See Mind rights guide 3: Consent to treatment.)
As mentioned before, whereas section 2 cannot be renewed, section 3 can. The other differences are connected with the Mental Health Act Review Tribunal and aftercare. (See Mind rights guide 4: Discharge from hospital.)
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How do I make a complaint?
All detained patients are entitled to complain about any aspect of their care to the Mental Health Act Commission, which is a Special Health Authority, but is independent of your hospital. The Commission will probably require you to complain through the hospital complaints procedure first.
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Are there other effects of being detained?
Being detained, in itself, does not mean that you lose the rights enjoyed by other people. It does not necessarily mean that you cannot manage your own financial or legal affairs.
Your right to vote is not affected, provided your name is on the electoral register, either at your old address, or at the hospital. It is your responsibility to get your name on the register at the hospital. You can use a postal vote, or leave the ward with permission from your RMO.
If, on the day of the election, you lack the mental capacity to choose a candidate, you may be prevented from voting.
People who have had psychiatric treatment often face discrimination, for example in employment or when taking out insurance. If the discriminatory treatment takes place in the UK, and is connected with a mental health disability that is substantial and long term, it may be unlawful under the Disability Discrimination Act. Time limits for taking action under the DDA are very short, so you should seek advice, as soon as possible, from a solicitor, advice centre or from Mind's Legal Unit.
If you have been detained in hospital, you may have problems in obtaining a visa to visit certain countries. You will need to take it up with the embassy of the country concerned, as the DDA does not apply overseas.
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What if I think I should never have been detained in hospital?
It is important to know the reasons why you have been detained. Remember, you can examine your medical records. Your RMO should explain to you, personally, why you are detained, and ensure that ward staff discuss your situation with you.
There is no appeal against your original detention, but you have the right to apply to a Mental Health Review Tribunal, asking them to consider discharging you. (See Mind rights guide 4: Discharge from hospital.)
It is not, generally, possible to challenge the decision of the professionals who arranged your detention, even if you strongly disagree with it. However, if you believe that their assessment of you cannot be justified, or that they did not follow the sectioning process properly, you should consult a specialist mental health solicitor, as soon as possible (see above).
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Legal definitions back
Advocate – a person who can listen to what you want and speak for you. back
Approved Social Worker (ASW) – a social worker specially trained and qualified under the Mental Health Act 1983. He or she assesses a person's needs, care and treatment, under the Act, and plays a central role in deciding whether the person should stay in the community or be admitted to hospital. back
Hospital – for the purposes of this booklet, this includes a private hospital and any accommodation provided by a local authority and used as a hospital. back
Hospital manager – responsible for administering the Mental Health Act 1983 in the hospital. back
Mental disorder – defined in section 1 of the Mental Health Act as, 'mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind'. The four forms are: mental illness, mental impairment, psychopathic disorder and severe mental impairment (see individual entries). back
Mental illness – one of the four forms of mental disorder. It is not defined. back
Mental impairment – 'a state of arrested or incomplete development of mind (not amounting to severe mental impairment), which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned' (section 1). back
Mental Health Act (MHA) 1983 – the main Act of Parliament that restricts the liberty of individuals with a mental disorder, and sets out their rights. back
Mental Health Act Code of Practice – the statutory Code guiding professionals in the use of the Mental Health Act 1983. back
Mental Health Act Commission (MHAC) – the statutory body responsible for the welfare of detained patients. back
Mental Health Review Tribunal – an independent panel that decides if a patient should remain subject to detention. back
Nearest Relative (NR) – section 26 of the Mental Health Act 1983 sets out a list of people who may be considered as your nearest relative, and the person who is highest on the list is your NR. The list is in strict order and starts with spouse/co-habitee, then children, then parents. back
Place of safety – a locally agreed place to where the police may remove someone, usually a police station or hospital. back
Psychopathic disorder – 'a persistent disorder or disability of mind (whether or not including significant impairment of intelligence), which results in abnormally aggressive or irresponsible conduct on the part of the person concerned' (section 1).back
Registered medical practitioner – a qualified doctor, for example a GP or a psychiatrist. back
Responsible Medical Officer (RMO) – the doctor responsible for the care of a detained patient. back
Section 12 approved doctor – a doctor trained and qualified in the Mental Health Act 1983; may also be the Responsible Medical Officer. back
Severe mental impairment – 'a state of arrested or incomplete development of mind, which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned' (section 1). back
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Useful organisations
Citizens Advice Bureaux (CABx)
web: www.citizensadvice.org.uk or www.adviceguide.org.uk
Provides free, confidential and independent advice from over 3,000 locations, including GP surgeries, hospitals and prisons. See website or the phone book for your local office
Community Legal Service Direct
tel: 0845 345 4345
web: www.clsdirect.org.uk
Their directory is available in local libraries and on their website, listing publicly funded lawyers and advice agencies in your area
The Law Society
tel: 0870 606 6575
web: www.lawsociety.org.uk (to find a solicitor)
Publishes a list of specialists in mental health law who can represent you at a Mental Health Review Tribunal and Managers' Review
Mental Health Act Commission
tel: 0115 943 7100
web: www.mhac.org.uk
A statutory government body to ensure that patients are properly detained, aware of their rights and are properly cared for by the hospital
UK Advocacy Network (UKAN)
14–18 West Bar Green, Sheffield S1 2DA
web: www.u-kan.co.uk
Can assist you to locate a local advocacy service
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Further reading
How to cope with hospital admission (Mind 2004)
Legal rights and mental health: the Mind manual (Mind 2007) (ask about updates)
The Mental Health Act 1983: an outline guide (Mind 2006)
Mental illness: a handbook for carers eds. R. Ramsay, C. Gerada, S. Mars, G. Szmukler (JKP 2001)
The Mind guide to advocacy (Mind 2006)
The Mind guide to surviving working life (Mind 2006)
Mind rights guide 2: mental health and the police (Mind 2006)
Mind rights guide 3: consent to medical treatment (Mind 2007)
Mind rights guide 4: discharge from hospital (Mind 2005)
Mind rights guide 5: mental health and the courts (Mind 2007)
Mind rights guide 6: community care and aftercare (Mind 2005)
A shattered world: the mental health needs of refugees and newly arrived communities CVS Consultants and Migrant and Refugee Communities Forum (CVS 2000)
For a catalogue of publications from Mind, send an A4 SAE to:
Mind Publications
15–19 Broadway
London E15 4BQ
tel. 0844 448 4448
fax: 020 8534 6399
email: publications@mind.org.uk
Visit the online shop to see details of all the publications stocked.
This booklet was originally written by Rhys Davies and was revised by Keith Dawson
First published by Mind 1995
Revised edition © Mind 2007
ISBN 9781874690375
No reproduction without permission
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