The full text of the Act is available here: Mental Health Act 1983.
This overview page should be useful for trainee solicitors and paralegals in obtaining a basic knowledge of the Act. Some of the minutiae are glossed over in this overview, for simplicity’s sake: see the main articles for further details. This article takes account of the changes made to the Mental Health Act 1983 by the Mental Health Act 2007 which come into force on 3/11/08.
The following are commonly-used terms:
Patients can be detained under civil sections (by AMHPs and doctors) or under criminal sections (by the courts or after transfer from prison). Criminal sections can be sub-divided into restricted and unrestricted sections.
The following are the commonest sections:
In-patients not detained under the MHA are called “informal” patients; they are staying in hospital “informally”.
This is a civil admission for assessment (or assessment followed by treatment) and lasts for a maximum of 28 days. It cannot be renewed, so will lapse at the end of the period; however, the patient can at any time be placed under section 3 instead. The patient can be discharged by the following routes:
This is a civil admission for treatment. The initial duration is for a maximum of 6 months. It can be renewed for a further period of 6 months; after that, for further periods of 12 months. At any time the patient can be discharged by the following routes:
This is a court order imposed instead of a prison sentence, if the offender is sufficiently mentally unwell at the time of sentencing to require hospitalisation. It has the same duration as a section 3, and in many ways operates exactly the same way. One difference is the routes to discharge:
This is a court order, which can only be made by the Crown Court, which imposes a s37 hospital order together with a s41 restriction order. The restriction order is imposed to protect the public from serious harm. The restrictions affect leave of absence, transfer between hospitals, and discharge, all of which require Ministry of Justice permission. There is no NR. The following are the routes to discharge:
This is called a transfer direction, and is used by the Ministry of Justice to transfer a serving prisoner to hospital. It operates just like s37 so is often called a “notional section 37”. The patient cannot be returned to prison unless he breaches his licence conditions. The following are the routes to discharge:
This is a transfer direction under s47 together with a restriction direction under s49. The restrictions are the same as those in s41. The prisoner can be transferred back to prison at any time, on medical advice or the advice of the MHT. In theory these patients can be discharged directly into the community, but in practice (except for a minority called “technical lifers”) they are returned to prison when the MHA is not necessary. These are the routes to discharge:
Restricted hospital order patients can be “conditionally discharged” or “absolutely discharged”. From hospital, they are usually conditionally discharged; they can apply for an absolute discharge later. A conditional discharge carries with it conditions (e.g residence, treatment, supervision) and the risk of being recalled to hospital by the Ministry of Justice. Only the conditional discharge can be deferred – a “deferred conditional discharge” – this is not to a specified future date, but until the Tribunal are satisfied that the conditions can be met.
Restricted transfer direction patients either (a) become unrestricted patients on their release date or (b) are discharged via the Parole Board if eligible. See s74.
Civil, and unrestricted criminal, patients are either discharged completely (just called “discharged”) or not; however, the patient can be made subject to a Community Treatment Order (also called Supervised Community Treatment). The ordinary discharge can be deferred by the MHT (or HMH) until a specified future date. The Tribunal can recommend a CTO.
The nearest relative can request the discharge of a s2 or s3 patient. This request is made directly to the hospital, rather than involving the MHT. It can be barred by the RC, but only on grounds of dangerousness. If barred, the case will be considered by a HMH, and can be considered by the MHT in s3 cases. As it introduces a stricter test to justify detention, the correct nearest relative should always be identified and, if practicable, canvassed for his views on discharge.
The patient can apply to for a HMH at any time, but if there has recently been a review, or will be one shortly, there is no guarantee that a hearing will be held.
The rules for applying to the MHT vary:
In preparing for the Tribunal, it is important to bear in mind the relevant detention criteria.
Note that HMHs do not have statutory criteria which they must consider. They have an unfettered discretion, but must be reasonable in their decision and therefore do ask similar questions. See the Code of Practice for details.
(i) “Degree” refers to the severity of the condition at the time of the hearing. “Nature” involves a longer-term view of the condition: it can involve a consideration of whether the patient, if discharged, would be likely to relapse in the near future. For “nature” you can consider issues such as insight into the need for treatment in the future. The Tribunal only need to be satisfied of nature OR degree.
(ii) The second limb (“health”, “safety”, “protection of other persons”) is self-explanatory. Any of the three is sufficient. Note that the Tribunal need to be satisfied of limbs (i) AND (ii).
(iii) Where it applies, the dangerousness criterion is stricter than the other criteria; if the Tribunal are not satisfied of dangerousness then they must discharge.
The consent to treatment provisions can be found in Parts 4 and 4A.
Some rare treatments require consent AND the agreement of other professionals including a second opinion appointed doctor (SOAD). This includes any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue (s57).
Other common treatments require the patient’s consent OR the agreement of a SOAD. This includes medication after the first three months of its first administration. (During the first three months neither consent nor SOAD agreement is necessary.) (s58)
In certain urgent cases, the above provisions can be ignored (s62).
If a patient is being treated with his consent then that would be a relevant factor to raise at a Tribunal hearing.
All patients subject to the long-term sections (s3, s37, s37/41, s45A, s47, s47/49) are entitled to be provided with appropriate “aftercare”, at no charge, when they leave hospital: see s117. The aftercare can, in appropriate cases, include specialist accommodation.