The Mental Health Act 1983 as amended by the Mental Health Act 2007 is the primary legislative statute governing detention in hospital.
The law in relation to detention is complex and cannot easily be summarised briefly, but as a general guide you may find the following of some assistance. Please call us for a more detailed appraisal of your position.
What does it mean to be ‘detained’ or ‘sectioned’ under the Mental Health Act?
This essentially means that you have been detained against your will in hospital for assessment and/or treatment without your consent (usually) for a specified period of time. You may be said to be suffering from mental disorder and that it is necessary for your health, your safety or for the protection of others that you are so detained.
If you are detained under a civil section, your Responsible Clinician (RC) will have the power to discharge your section and must keep your detention under regular review. The Hospital Managers and the Mental Health Tribunal (since November 2007 now known as The First Tier Tribunal) also have the power to discharge the section and make certain statutory recommendations.
A detained patient’s freedom can be restricted during detention and the RC may allow periods of escorted or unescorted leave from the hospital under section 17 of the Mental Health Act.
What do I do if I don’t wish to remain detained?
Any detained patient has the right to have their detention reviewed by a Tribunal and/or the Hospital Managers. We can advise you about this and complete the necessary forms for you. You will be entitled to public funding (previously known as legal aid) for this.
What happens at a Hospital Managers’ hearing?
Hospital Managers are independent lay people appointed by (but independent of) the Trust. Reports will be prepared by your consultant psychiatrist (the Responsible Clinician) or another doctor under their supervision, a nurse and a social worker or community psychiatric nurse (CPN)and you will be able to see these and discuss them with your solicitor in advance of the hearing.
At the hearing, the Managers will hear evidence about your detention and have the power to discharge the section if they feel this is appropriate.
You can be legally represented at this hearing. We can guide you through this process and question the witnesses on your behalf.
What happens at a Tribunal hearing?
The Tribunal is entirely independent of the hospital and is made up of a panel of three members: the medical member (a consultant psychiatrist), the tribunal Judge (a lawyer) and a lay member.
You will receive a visit from the medical member (usually a couple of days before the hearing but occasionally this will be immediately before the hearing). This is known as the preliminary examination, the purpose of which is to assess your mental state. The doctor’s findings will be relayed back to you and your solicitor at the beginning of the hearing.
The Tribunal will have been given the reports in your case which you will have had an opportunity to discuss with your solicitor. The hearing will hear evidence from your doctor, the nursing staff, and your social worker or a CPN.
The Tribunal has the power to discharge the section. In certain circumstances (section 37/41 restriction orders), conditions can be attached to the discharge.
The Tribunal also has the power to make recommendations for section 17 leave and for transfer to another hospital (for example, for more appropriate treatment or to be closer to your family).
Throughout this process the Tribunal has the power under the Tribunal rules to make directions in order to manage the hearing of your case effectively and efficiently. For example, if you have been placed at an ‘out of area’ hospital, they can direct that a representative from your locality attend the hearing. Your solicitor can guide you as to what can be appropriate to assist progressing your case.
What do all the different sections mean?
Section 2.
Detention under section 2 is for assessment and treatment if necessary and can last for a period of up to 28 days. It cannot be renewed.
During this period you will be assessed and if felt necessary your doctor will have the power to treat you without your consent.
Can my solicitor help me on a section 2?
Yes. You have the right to appeal against the section and we can see you very quickly (usually on the same day that you call us) to help you complete the necessary forms and submit your appeal to the Tribunal and ensure your hearing is listed without delay.
Your appeal to the Tribunal must be sent within 14 days of your initial detention in hospital. It will be listed within 7 days of the Tribunal receiving your application, so it is important to submit the application early if you wish to have an early hearing.
We can make sure all your views are made known to the Tribunal. We can challenge factual evidence that you disagree with and challenge the legal criteria for your continued detention.
We can represent you, both at your hearing and throughout the process. We can explain the Tribunal’s decision to you.
Whatever the decision of the Tribunal, we shall continue to provide you with advice about your stay in hospital and the treatment that you receive.
Representation at your hearing is free of charge, as you will be entitled to non-means tested public funding.
Section 3 and section 37.
Section 3 is a treatment order, which allows for you to be detained for a period of up to 6 months. The section can be renewed for a further 6 months and then annually. You may be treated without your consent during this period.
Can my solicitor help me on a section 3 or 37?
Yes. You have the right to appeal against the section and we can see you very quickly to help you complete the necessary forms and submit your appeal straightaway to the Tribunal to ensure your hearing is listed without delay. Your hearing will usually be listed within 8 weeks of the Tribunal receiving your application.
Throughout the process we can ensure your case progresses and can correspond with the different members of your care team about issues that concern you, for example, about your medication and about section 17 leave. We can make sure all your views are made known to the Tribunal. We can challenge factual evidence that you disagree with and challenge the legal criteria for your continued detention.
We can represent you, both at your hearing and throughout the process. We can explain the Tribunal’s decision to you.
Whatever the decision of the Tribunal, we shall continue to provide you with advice about your stay in hospital and the treatment that you receive.
Representation at your hearing is free of charge, as you will be entitled to non-means tested public funding.
Section 37/41 (restriction order) and Section 47/49 (transfer from prison).
Can my solicitor help me on a section 37/41 or 47/49?
Yes. You have the right to appeal against the section and we can see you very quickly to help you complete the necessary forms and submit your appeal to the Tribunal and ensure your hearing is listed without delay. Your hearing will usually be listed within 16-20 weeks of the Tribunal receiving your application.
Throughout the process, we can ensure your case progresses and can correspond with the different members of your care team about issues that concern you, for example, about your medication and about section 17 leave. This may involve us contacting the Ministry of Justice on your behalf. We can make sure all your views are made known to the Tribunal. We can challenge factual evidence that you disagree with and challenge the legal criteria for your continued detention.
We can represent you, both at your hearing and throughout the process. We can explain the Tribunal’s decision to you.
Whatever the decision of the Tribunal we shall continue to provide you with advice about your stay in hospital and the treatment that you receive.
Representation at your hearing is free of charge as you will be entitled to non-means tested public funding.
The Tribunal process can be utilised for a number of different purposes including seeking:
- Absolute discharge
- Conditional discharge
- A recommendation for transfer to conditions of lower security
- A recommendation for the Ministry of Justice to grant escorted or unescorted ground or community leave.
Section 17A Community Treatment Order
A Community Treatment Order (CTO) is an order whereby you may be discharged from a section 3 or 37 (but not if a restricted patient). It means that you will receive supervised treatment in the community. It lasts for an initial period of 6 months and can be renewed for a further period of 6 months after which it may be renewed annually.
A number of conditions may be attached to your discharge. There will be 2 mandatory conditions:
- You will be required to make yourself available for a medical examination as to whether the CTO should be extended.
- You will be required to make yourself available for examination by a SOAD (Care Quality Commission Second Opinion Appointed Doctor) in respect of authorisation of treatment.
Discretionary conditions may also be attached but only if their purpose is to ensure you receive medical treatment or to prevent harm to your health or safety or to protect other persons.
We can advise you about any proposed conditions and about variation of these conditions.
You may appeal to the Tribunal when a CTO is imposed and your case will be automatically referred to the Tribunal if your CTO is revoked.
The RC (Responsible Clinician) may recall a community patient under a CTO to hospital if the patient is said to require medical treatment in hospital for mental disorder and there would be a risk of harm to the patients health or safety or the safety of others if the patient were not to be recalled.
This may result in further compulsory treatment in hospital and possible revocation of the CTO. This is a complex area of law introduced by the Mental Health Act 2007 and we would urge you to call us should you need any advice in relation to community treatment.
Can my solicitor help me on a section 17A CTO?
Yes. You have the right to appeal against the section. we can see you quickly to help you complete the necessary forms and submit your appeal to the Tribunal and ensure your hearing is listed without any delay. Your hearing will usually be listed within 8 weeks of the Tribunal receiving your application. If appropriate, we can meet you in the community to discuss your case or at your Community Mental Health Centre if you prefer.
Throughout the process, we can ensure your case progresses and can correspond with the different members of your care team about issues that concern you, for example, about your medication and any conditions that have been imposed. We can make sure all your views are made known to the Tribunal. We can challenge factual evidence that you disagree with and challenge the legal criteria for your continued detention.
We can represent you, both at your hearing and throughout the process. We can explain the Tribunal’s decision to you.
Whatever the decision of the Tribunal, we shall continue to provide you with advice about your position in a community setting or concerning any continued stay in hospital and the treatment that you receive.
Representation at your hearing is free of charge, as you will be entitled to non-means tested public funding.
Who is my ‘Nearest Relative’ under the Mental Health Act and what can they do?
Your Nearest Relative has the power to object to your initial detention and following detention they can apply for your discharge. We can represent you and/or your nearest relative. Please call us for advice.
Under the Mental Health Act here is a strict order in which the Nearest relative is which is generally as follows:
- Spouse/civil partner (or cohabitee with whom you have resided for at least six months)
- Child (if over 18)
- Father or mother (oldest)
- Brother or sister
- Grandparent
- Uncle or aunt
- Nephew or niece.
In certain circumstances, it is possible for your nearest relative to be displaced if they are unsuitable or to appoint someone else to take over the role of nearest relative. This is however a complex area of law and we can advise you fully on this.
I am detained but I do not want a Tribunal hearing, I just want advice. Can my solicitor help me?
Yes. We can advise you about any legal aspect of your inpatient care or about your aftercare (including any proposals for a Community Treatment Order) when you will be leaving hospital. You will be entitled to free legal advice if you are detained and qualify on means.
I am an informal patient (not detained), can I get any legal advice?
If you are in hospital as an inpatient but are not detained, you may have questions about your treatment, your discharge, aftercare accommodation, your rights to decline medication or to insist on periods out of hospital. Please call us if you need any advice about any aspect of your inpatient stay in hospital. You may be eligible for means tested public funding.
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