MHA 1983 s12
Changes made by Mental Health Act 2007
- Responsible Clinician/Approved Clinician replaces Responsible Medical Officer 3/11/08
- New regulations on conflicts of interest 3/11/08
- Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability 3/11/08
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- TTM v LB Hackney  EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be ..→
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 2. Compulsory admission to hospital under Part 2 of the Act [Note that the chapter number relates to the old Reference Guide], 19. Guardianship and guardianship orders [Note that the chapter number relates to the old Reference Guide], 32. Approval of practitioners to carry out functions under the Act [Note that the chapter number relates to the old Reference Guide] — paragraphs 2.38 to 2.45 (detention), 19.35 to 19.41 (guardianship), 32.33 to 32.37 (approval)
- Mental Health Act 1983 Code Of Practice for England, 4. Applications for detention in hospital
General provisions as to medical recommendations
12.—(1) The recommendations required for the purpose of an application for the admission of a patient under this Part of this Act [or a guardianship application] (in this Act referred to as "medical recommendations") shall be signed on or before the date of the application, and shall he given by practitioners who have personally examined the patient either together or separately, but where they have examined the patient separately not more than five days must have elapsed between the days on which the separate examinations took place.
(2) Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance.
[(2A) A registered medical practitioner who is an approved clinician shall be treated as also approved for the purposes of this section under subsection (2) above as having special experience as mentioned there.]
[(3) No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.]
- Mental Health Act 2007, s16, s22, s23; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 wef 3/11/08