Explains the rights you have to get your section lifted if you are being detained in hospital under the Mental Health Act, and your rights to care and support after leaving hospital.
There are a few ways in which this can happen, and you may be able to choose several options at the same time. How many options you have depends on which section of the Mental Health Act you are under.
If you want to have your section lifted, you can:
- ask your responsible clinician to lift your section and discharge you.
- ask your Hospital Managers who will agree to have a meeting with you if you ask for one. Your IMHA could help you arrange this.
- ask for a Mental Health Tribunal at a tribunal hearing. You have the right to ask for this if you are sectioned under certain sections of the Mental Health Act. The Tribunal will look at how you are now and whether you should continue to be sectioned. Legal aid will always be available for a mental health solicitor to represent you at this hearing, if you have a right to the hearing at the time you are applying.
- ask your nearest relative, who has the right to apply to take you out of hospital.
- (if you are under a restriction order or restriction direction) ask the Secretary of State for Justice, who must give their permission before your responsible clinician or the managers can discharge you from hospital.
If you want to challenge the fact that you have been sectioned at all, you will need to go to the High Court (not the Mental Health Tribunal), and show:
- specific reasons why you should not have been sectioned
- medical evidence for your opinion
Legal aid will not always be available for this kind of challenge.
Disagreeing with your medical diagnosis will not always be enough to successfully challenge the fact you were sectioned in the first place. You will need to get legal advice about the possible success of your case, and your mental health solicitor will be able to tell you about whether you are likely to get legal aid.
NHS Complaints procedure
Alternatively, you could use the NHS Complaints procedure to argue that you should not have been sectioned. This would be free, but you are unlikely to get compensation even if your complaint is successful.
Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.Visit our full listing of Legal Terms
Mental Health Act 1983 (MHA)
This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.Visit our full listing of Legal Terms
Independent mental health advocate (IMHA)
- You have a right to an IMHA if you are:
detained in hospital under a section of the Mental Health Act, but not if you are under sections 4, 5, 135 and 136
- under Mental Health Act guardianship, conditional discharge and community treatment orders (CTOs)
- discussing having certain treatments, such as electroconvulsive therapy (ECT).
In Wales, voluntary patients can also have an IMHA.Visit our full listing of Legal Terms
Restriction order or restriction direction
This is an order made by the court when it has made a hospital order under section 37 to put restrictions on your discharge, transfer or leave from hospital. The Secretary of State's consent must be obtained in order to do these. This means it will be harder to get discharged by the tribunal or you might have to comply with certain conditions.
It can only be made if it is necessary to protect the public from serious harm.Visit our full listing of Legal Terms
Mental Health Tribunal (MHT)
This is a special court that deals with cases relating to the Mental Health Act 1983. The Tribunal decides whether you can be discharged from your section. It can sometimes make recommendations about matters such as hospital leave, transfer to another hospital, guardianship and community treatment orders (CTOs).
The court is made of a panel, which normally includes:
- a legally qualified chairperson
- a ‘lay member’ who has appropriate experience and qualifications in the area of mental health
- an independent psychiatrist, who will speak to you and examine you before the tribunal hearing in certain circumstances, and when you request to see them
Where you see a reference to the Mental Health Tribunal in this guide, it means:
- First Tier Tribunal (Mental Health), if you live in England, or
- Mental Health Review Tribunal for Wales, if you live in Wales.
This information was published in July 2020. We will revise it in 2023.
References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.