Some people who have been kept in hospital under the Mental Health Act can get free help and support after they leave hospital.
The law that gives this right is section 117 of the Mental Health Act, and is often referred to as 'section 117 aftercare'.
We have more information on section 117 aftercare in our Leaving Hospital section.
What is section 17 leave?
Your responsible clinician may let you leave hospital for a certain time even though you are detained under section. This is often called 'section 17 leave', because it is section 17 of the Mental Health Act that allows this.
Your leave could be:
- very short (e.g. for half an hour or a few hours)
- for a weekend (to go home, for example)
- for longer (up to a week)
Your responsible clinician can place certain conditions on you, such as telling you where you have to stay while you are on leave. The responsible clinician can make you go back (recall you) to hospital at any time.
What is guardianship?
Section 7 of the Mental Health Act says that a guardian can be appointed to you if you:
- are 16 or over, and
- have a mental disorder of a nature or degree that warrants guardianship, and
- need a guardian for your welfare or to protect other people.
Guardianship is used to encourage people who live in the community to use services or to live in a particular place. It is often used with people who lack the mental capacity to avoid danger or being exploited, but can also be used for people with mental capacity who are considered to be vulnerable because of their mental health problems.
You can only be placed under guardianship if two doctors recommend this and another person then applies for you to be placed under guardianship. The application can be made by your nearest relative, but in most cases is made by an Approved Mental Health Professional (AMHP). The application is made to the local social services authority.
The guardian can require you to do certain things, e.g. live at a specified place, or attend particular places and times for treatment, occupation, education or training. But being under guardianship is not the same as being detained under a section of the MHA and you should still be free to come and go.
Even if you are under guardianship, you should be consulted about where you are required to live under the guardianship conditions, unless you are unable to make the decision at that particular time. If your guardianship follows a section 3, you should not be charged for services as they should be free under section 117 aftercare. If in doubt about whether you need to pay for services, you should seek advice.
Objecting to guardianship
You cannot prevent a guardian being appointed under section 7 of the MHA, but your nearest relative can object. Before applying for you to be placed under guardianship, an AMHP must consult your nearest relative, as long as this is reasonably practicable and would not involve unreasonable delay. If your nearest relative objects, the AMHP cannot apply for you to be under guardianship without taking legal proceedings to remove (displace) your relative from acting as nearest relative.
The Mental Health Act contains rules for deciding who your is. If you do not wish this person to act as your nearest relative, you can apply to the County Court to remove (displace) this person and to appoint someone else. However, you would need to show a good reason why the person who is nearest relative under the rules is unsuitable to act as such, or is not physically or mentally capable. You might need help from a legal adviser to do this.
Guardianship lasts for up to six months and can be renewed: initially for a further six months, and then for a year at a time.
- If you have been placed under guardianship, you can apply to the Mental Health Tribunal for discharge from guardianship.
- Your nearest relative can also discharge you from guardianship, unless he or she has been displaced (see above), in which case he or she can apply to the tribunal instead.
- The local social services authority can also discharge you from guardianship at any time.
- The guardianship will end automatically if you are detained in hospital under section 3 of the MHA.
This information was published in March 2017. We will revise it in 2019.