RELEVANT CHAPTERS

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

Section 117 Aftercare

RELEVANT INFORMATION

Mental Health Act 1983

Mental Health Act 1983 Code of Practice

This chapter was added to the APP in January 2019.

Please note: The MHA is currently being reviewed. This chapter will be updated, and other relevant mental health chapters in this APPP, should any legal changes to the Act be passed by Parliament and come into force.

1. Introduction

The Mental Health Act (MHA) is the current law which provides legal powers for the admission, detention and treatment of a person against their will in respect of mental illness. Where a person is detained against their will this is commonly known as ‘being sectioned’.

The Act is an extensive legislative framework about which this chapter provides an introduction and basic details of the most commonly known and used sections within the adult social care remit.

The Mental Health Act 1983 was reformed in 2007 which saw a number of key changes to the original Act which placed a larger focus on public protection and risk management. The 2007 amendments were exactly that and the main body of the 1983 Act remains in place, as such the MHA may be referred to as the Mental Health Act 1983 (2007). See Appendix 1: 2007 Amendments to the 1983 Act, for information about changes to the original legislation.

2. Who does the Mental Health Act 1983 apply to?

The MHA provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

  • people with mental disorders can be detained in hospital for assessment or treatment;
  • people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
  • people with mental disorders can be made subject to guardianship or after-care, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or MCA to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguards in place; otherwise a person cannot be subject to the two frameworks at the same time. See Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.

3. Parts of the Act

The Mental Health Act 1983 is split into ten parts:

  1. The Application of the Act
  2. Compulsory Admission to Hospital and Guardianship
  3. Patients Concerned in Criminal Proceedings or Under Sentence
  4. Consent to Treatment
  5. Treatment of Community Patients not Recalled to Hospital
  6. Mental Health Review Tribunals
  7. Removal and Return of Patients Within the United Kingdom
  8. Management of Property and Affairs of Patients
  9. Miscellaneous Functions of Local Authorities and Secretary of State
  10. Offences
  11. Miscellaneous and Supplementary

The Mental Health Act 1983 was reformed in 2007 when a number of key amendments were made placing a greater focus on public protection and risk management. See Appendix 1: 2007 Amendments to the 1983 Act.

These parts are the ones most commonly used and key to adult social care practice:

  • Compulsory Admission to Hospital and Guardianship;
  • Miscellaneous Functions of Local Authorities and Secretary of State;
  • Miscellaneous and Supplementary.

Further detail about each section is outlined below.

4. Part 2: Compulsory Admission to Hospital and Guardianship

4.1. Section 2 Admission for Assessment

Allows for:

  • a person to be detained in hospital for assessment of their mental health;
  • treatment to be forcibly administered as part of the assessment period (excluding use of Electro-Convulsive Therapy (ECT);
  • a detention period of up to 28 days, however discharge can be arranged sooner.

Section 2 cannot be renewed. If further detention is required beyond the 28 day period, assessment under section 3 should be considered. In certain cases where there may be issues relating to a person’s nearest relative, Section 2 can be extended by the powers of the Court until such decision regarding the nearest relative are resolved.

4.1.1 Criteria

For a person to be detained under section 2 they must have:

  • been assessed by two doctors – one of whom must be section 12 approved. It is preferable that at least one of the doctors involved in the assessment has previous acquaintance with the person being assessed;
  • both doctors need to be of the opinion that compulsory admission is required and must complete a medical recommendation;
  • there must be no longer than five clear days between each of the medical assessments, for example if an examination is completed on a Monday, the five days are not inclusive of this day (meaning Tuesday to Saturday are clear days therefore Sunday is the last possible day for the second medical examination);
  • the Approved Mental Health Professional (AMHP) must be in agreement with the two doctors’ recommendations and have completed a valid application for admission;
  • the AMHP must complete the application for admission within 14 days of the latter dated medical recommendation;
  • a person’s nearest relative is also able to make an application for admission.

4.1.2 Appeal

Patients have the right to appeal against the detention within the first 14 days.

4.2 Section 3: Admission for treatment

For a person to be detained under section 3 the criteria for section 2 must all be met. Section 3 can be used where a person is well known to mental health services and it is clear what illness is to be treated and therefore no assessment period is required.

Alternatively, it may be used due to the need for continued detention after the 28 day period of section 2.

4.2.1 Provisions

The Act allows the following provisions:

  • a person to be detained in hospital for treatment of their mental health. Appropriate medical treatment must be available;
  • forcible administration of treatment (excluding use of ECT. Where there is non-compliance with medication this will need to be reviewed by a second opinion appointed doctor (SOAD) after three months.;
  • a detention period of up to six months, after which it can be renewed for a further six months and on a 12 monthly basis thereafter.

4.2.2 Appeal

Patients have the right to appeal against the detention within the first six months.

Please also see Section 117 Aftercare.

4.3 Section 4 – Admission for Assessment in case of emergency

4.3.1 Criteria

Section 4 is used in emergency situations where is it deemed not practicable to arrange two doctors and assess under section 2.

Unlike assessment for sections 2 and 3 there needs only to be one doctor involved – preferably one whom previous acquaintance. An AMHP is still required to make an application.

4.3.2 Provisions

The Act allows the following provisions:

  • detention period of up to 72 hours following which further assessment by a second doctor should be arranged and the decision made whether to detain under section 2 or to arrange discharge;
  • treatment can be refused, however where there is concern regarding capacity to consent, treatment can be provided in the best interests of the individual detained. It can also be provided where it is necessary to prevent harm to themselves or to others.

4.3.3 Appeal

There is no right of appeal against section 4.

4.4 Section 5: Application in respect of a patient already in hospital (holding powers)

The Act:

  • provides powers to doctors and nurses to prevent a person from leaving hospital where by doing so there may be a risk posed to the individual themselves or to others as a result of the individuals mental health;
  • may be used to prevent informal patients from leaving a mental health ward or prevent a person from leaving a general ward where they may be receiving treatment for a physical condition.

There are two parts to section 5 which are outlined below.

4.4.1 Section 5 (2)

This is often referred to as doctor’s holding powers. The provisions are:

  • it gives the doctor in charge of the individuals the power to detain for up to 72 hours;
  • further assessment by an AMHP and second doctor should be arranged as soon as possible and the decision made whether to detain under a section of the M HA or to arrange discharge;
  • section 5 (2) cannot be renewed.

4.4.2 Section 5 (4)

This is often referred to as nurse’s holding powers. The provisions are:

  • it gives certain nurses the power to detain for up to six hours;
  • a doctor should be requested to attend as soon as possible;
  • section 5(4) ends when the doctor arrives. The doctor must assess if the person can be transferred onto section 5(2) or whether the person can remain on an informal basis;
  • section 5(4) cannot be renewed.

4.5 Section 7: Application of Guardianship Order

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live. However in doing so they cannot unlawfully deprive the person of their liberty. Where restrictions amount to a deprivation, authorities should seek to apply for a DoLS authoriationt to run concurrent with the Guardianship Order (see Deprivation of Liberty Safeguards).

The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved mental health professional or another relevant person have access to the person wherever they live.

Guardianship can apply whether or not the person has the capacity to make decisions about care and treatment.

It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf (see also Interface between Mental Capacity Act and Mental Health Act)

4.6 Section 17: Leave of absence from hospital

The Act makes the following provisions:

  • the Responsible Clinician (RC) to grant a detained patient leave of absence from hospital;
  • leave can be provided as escorted or unescorted and the time allowed is controlled by the RC;
  • leave can be used to allow a person to have home leave including overnight stays and can often be useful to trial how a person is likely to function in the community when discharged from hospital.

A person is still a detained patient when section 17 is in place.

4.7 Section 17A: Community Treatment Orders

Community Treatment Orders (CTO’s) are used to support people in the community that have mental health needs and require continued treatment under supervision.

The aim of the community treatment or was to reduce the number of ‘revolving door’ patients who would typically become non-compliant with treatment once discharged from hospital, and as a result experience deterioration in their mental state often resulting in further admission.

The provisions are:

  • CTO’s can only be used where a person is detained under section 3, 37, 45A, 47 or 48;
  • a CTO allows for conditions to be attached to a person’s discharge;
  • any individual considered for a CTO should have a degree of understanding in relation to the conditions attached as they must comply with these conditions in order to avoid recall to hospital;
  • CTO timeframes mirror those of Section 3, that is six months, six months, annual;
  • an AMHP needs to be in agreement with the proposal of a CTO before it can be enforced.

4.8 Section 26: Nearest Relative

The MHA provides safeguards to those who are detained, one of these being the role of the nearest relative (NR).

The NR is different from next of kin and is identified using the list below:

  • husband, wife or civil partner;
  • son or daughter;
  • father or mother;
  • brother or sister;
  • grandparent;
  • grandchild;
  • uncle or aunt;
  • niece or nephew.

Determining a person’s NR can at times be complex, however to simplify it whoever appears first in the above list in defaults to the role.

The NR must be over 18 (unless husband, wife or civil partner) and where there are both parties available, for example mother and father, the eldest would fulfil the role.

The NR has the right to request that a MHA assessment is completed; they are able to make an application for detention and can also request that their relative is discharged from hospital.

An identified NR can be displaced by the courts if it is deemed that they are unsuitable. The NR is also able to delegate the role and function.

5. Part 9: Miscellaneous Functions of Local Authorities and the Secretary of State

5.1 Section 117 Aftercare – Introduction

See also Section 117 Aftercare

Section 117 of the Mental Health Act 1983 (2007) imposes a duty upon local authorities and Clinical Commissioning Groups (CCG) to provide aftercare services for anybody who has been detained under Sections 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA). This includes patients granted leave of absence under section 17 and patients being discharged on community treatment orders (CTOs). The Care Act 2014 implemented some changes to the MHA (see Section 7, Care Act Amendments to Aftercare under the Mental Health Act 1983).

As Section 117 enforces a duty on the local health authority and adult social care services to provide care to meet eligible needs, Section 117 needs that arise directly because of or from the person’s mental disorder and are likely to prevent a deterioration in their condition and therefore lead to a readmission. If a person has additional social care needs, such as a physical disability, that do not arise because of a mental disorder, the usual social care eligibility criteria under the Care and Support Statutory Guidance would need to be applied to these needs.

If, at any point, it becomes apparent that a person who is be eligible for Section 117 aftercare has been paying for services, they can reclaim these payments as long as with clear evidence is provided of their detention.

6. Part 11: Miscellaneous and Supplementary

6.1 Section 135 – Warrant to search and remove to a place of safety

6.1.1 Section 135 (1)

The provisions are:

  • professionals have the power of entry to a person’s private dwelling for the purpose of assessment under the MHA;
  • for entry to be gained by force if required under the powers of a warrant issued by the county court;
  • for a person to be removed to a place of safety for the purpose of assessment or where appropriate, remain in their own home.
  • An AMHP, a police officer and a doctor is required to be present for the execution of a 135 (1) warrant.

6.1.2 Section 135 (2)

The provisions are:

  • for forcible entry if required to access a person who is liable to be detained under the MHA or who need to be retaken to hospital (for example if they have gone absent without leave from the ward when detained and have returned home and refusing to allow entry);
  • a warrant is again required to act out these powers of entry, however an AMHP or doctor is not required to execute the warrant under this section.

6.1.3 Section 136 – Removal of Mentally Disordered Persons Without a Warrant – Police Powers of detention

The provisions are:

  • section 136 is an emergency power which allows police officers to remove a person from a public place to a place of safety for the purpose of further assessment under the MHA where there are concerns that a person may be suffering from mental illness and in need of immediate care and / or control. The timeframes of section 136 were reduced from 72 to 24 hours in December 2017;
  • if a person is initially seen by a doctor before the AMHP has coordinated a full assessment and it is deemed that there is no evidence of mental illness, the person must be discharged from the 136 immediately;
  • a person can be discharged with or without follow up from services once assessed or may be detained under the MHA.

Appendix 1: 2007 Amendments to the Mental Health Act 1983

The key amendments to the Act were as follows.

The Fundamental Principles – Section 118 of the Act says that the Code of Practice (which was given legal stature as part of the reform) must provide a statement of principles to inform all decision making within the remit of the mental health act.

Chapter 1 of the Code of Practice for England outlines the following guiding principles:

  • purpose principle;
  • least restriction principle;
  • respect principle;
  • participation principle;
  • effectiveness, efficiency and equity principle.

Section 1: Definition of mental disorder – The definition of mental disorder in Section 1 of the Act was split into 4 classifications; psychopathic disorder, mental illness, mental impairment and severe mental impairment.

The 2007 Act broadened the term of mental disorder as below:

“mental disorder” means any disorder or disability of the mind.

Prior to the changes to the Act there were grounds to detain those with Learning Disability under mental impairment and severe mental impairment. The amendment now makes clear that the disability itself does not meet the criteria for detention unless it is:

“associated with abnormally aggressive or seriously irresponsible conduct on his part”

Professional roles – The role of the Approved Social Worker (ASW) was opened up to healthcare professionals including nurses, occupational therapists and psychologists. It was renamed the Approved Mental Health Professional (AMHP).

The role of the Responsible Medical Officer (RMO) became that of the Responsible Clinician (RC).

Supervised Discharge /Community treatment Orders – Section 25A Supervised Discharge of the 1983 Act was abolished other than for those already subject to it and was replaced with the introduction of section 17A Community Treatment Orders (CTO’s).

Introduction of Appropriate Medical Treatment – The 1983 Act stated that treatment had to be likely to be effective upon a person’s condition which allowed for a greater degree of detentions to take place, whereas the Act now concurs that treatment is only to be provided where there is purpose outlining that the purpose of any treatment is to:

“alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations” (section 145).

The definition of medical treatment was also changed itself to outline that medical treatment can be provided in the absence of medical supervision.

Those of 16 and 17 years of age and Parental Responsibility – The 2007 Act introduced the notion that any person aged 16 or 17 who is deemed to have capacity cannot be detained on basis of parental consent – outlined in section 131 MHA.

Appendix 2: The Policing and Crime Act 2017

Further to the 2007 Amendments to the MHA 1983, the introduction of the Policing and Crime Act 2017 has more recently had an impact on the application of the Act. The

Guidance for the implementation of changes to police powers and places of safety provisions in the mental health act 1983 published by the Home Office and Department of Health usefully outlines these changes as below:

  • section 136 powers may now be exercised anywhere other than in a private dwelling;
  • it is now unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances;
  • a police station can now only be used as a place of safety for adults in specific circumstances, which are set out in regulations;
  • the previous maximum detention period of up to 72 hours has been reduced to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary);
  • before exercising a section 136 power police officers must, where practicable, consult one of the health professionals listed in section 136(1C), or in regulations made under that provision;
  • a person subject to section 135 or 136 can be kept at, as well as removed to, a place of safety. Therefore, where a section 135 warrant has been executed, a person may be kept at their home (if it is a place of safety) for the purposes of an assessment rather than being removed to another place of safety;
  • a new search power allows police officers to search persons subject to section 135 or 136 powers for protective purposes.