Mental health act summary

Know your rights bookThe mental health act 1983 - some important information in summary

Please note: this section will apply to only a very small percentage of those experiencing mental health problems, and for them and their family and friends this information is very relevant. Some of the information below may worry some people but an outline of the law and our rights under that law is helpful. The Mental Health Act is aimed at trying to help people regain their health as well as reduce the risk to themselves and others. The Mental Health Act 1983 is currently under review and at the time of writing a new Mental Health Act is being proposed, although details are as yet unclear.

Most people who have mental health problems are treated in the community or in hospital on a voluntary basis and have the same rights as everyone else. They are sometimes called 'informal' patients. A small number of people are compulsorily detained under a section of the Mental Health Act 1983, and they have different rights. People who are compulsorily detained are referred to as 'formal' patients. Informal patients can sometimes find that when they attempt to leave they are held under section five and then become formal patients.

The Mental Health Act of 1983 is very complex and covers many different areas, including compulsory admission to hospital, consent to treatment and the right to appeal, guardianship, and patients' involvement in criminal proceedings. There is also a separately published Code of Practice, which is regularly updated. This gives a guide to the implementation of the Act. It is only possible to give a very brief guide here to the most commonly used sections two, three, four, five, 135 and 136. Please note that you will need advice in interpreting the Act and should consult your local Citizens Advice Bureau, Cambridgeshire Independent Advocacy Service or West Norfolk & Wisbech Mental Health Advocacy Service.

What follows is not an authoritative statement of the law.

To be assessed for compulsory admission under the Act, the person must firstly be suffering from a mental disorder. This is defined by the Act to mean 'mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind.'

Section 2: Admission for assessment (28 days)

A person may be detained for assessment purposes for up to 28 days. The grounds for this are that the patient is: 'suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

'He ought to be so detained in the interests of his own health or safety, or with a view to the protection of other persons.

Section 3: Admission for treatment (six months)

A person can be detained for treatment for up to six months (and this period can be renewed). The grounds for this are that the patient is:

'Suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; and

'In the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

'It is necessary for the health or safety of the patient or for the protection of other persons, that he should receive such treatment and it cannot be provided unless he is detained under this section.'

Procedure

With Sections 2 and 3 either an Approved Social Worker (ASW) or, if necessary and appropriate, a person's 'nearest relative' can make an application. Two medical practitioners must support this application. In addition, under Section 3 the ASW must seek the consent of the 'nearest relative' to the admission. The application cannot proceed if the nearest relative objects, although court proceedings can be taken to overrule a nearest relative who objects unreasonably.

I f a patient's nearest relative unreasonably objects to admission under section 3, an application could be made to the County Court under section 29 of the act for the functions of the nearest relative to be transferred to the local Social Services or another person.

Discharge

With both Sections 2 and 3, the patient may be discharged by one of the following

  • The Responsible Medical Officer (RMO)
  • The Hospital Managers

The nearest relative

The nearest relative must give 72 hours notice to the hospital managers, who in turn may overrule the request. The RMO can refuse the request on the grounds that discharge would be dangerous to the patient or to others. The nearest relative can then bring the case before a Mental Health Review Tribunal. The onus of proof is then on the RMO.

Appeal

The patient may appeal to the Mental Health Review Tribunal. Under Section 2 this appeal must be made within 14 days of detention. Under Section 3 one appeal can be made within the six-month period. Legal Aid (not means tested) is available to pay a solicitor to represent someone at a Tribunal. Patients may also appeal to the Hospital Managers. It is important to get advice (from the Citizens Advice Bureau, Cambridgeshire Independent Advocacy Service or West Norfolk & Wisbech Mental Health Advocacy Service) about the wording of a letter to the managers and about representation at managers' meeting or a Tribunal.

Section 4:Admission for assessment in an emergency (72 hours)

A person may be detained for assessment purposes for up to 72 hours ‘in any case of urgent necessity.’ In this case the application is supported by the recommendation of one registered medical practitioner.

Section 5: Compulsory detentions of informal patients

Informal patients can sometimes find that when they attempt to leave hospital they are held under Section 5 (2) or 5 (4) then become formal patients.

Section 5 (2): Doctor’s holding power

This authorises the detention of a person for up to 72 hours.

Section 5 (4): Nurse’s holding power

The holding power may only be applied for up to 6 hours or until the arrival of a doctor with the authority to exercise doctors holding power - whoever is earlier.

Section 135: Police, 72 hours

A police constable may enter premises, and remove a person to a place of safety for up to 72 hours, using force if need be.
This may only be used when an approved social worker has obtained a warrant from the magistrate's court, when there is reasonable reason to suspect that a person in the premises is being ill treated, neglected, or not being kept under proper control or is living alone and unable to care for themselves.

Section 136: The police power to remove to a place of safety

A police constable can remove someone from a place to which the public have access to a place of safety for up to 72 hours, if the constable thinks that person is ‘suffering from mental disorder and to be in immediate need of care or control…in the interests of that person or for the protection of other persons.’

Police and mental health

There are occasions when the police may act if they think that someone is in need of immediate care and/or control. They have the power to remove someone to a ‘place of safety’ for their own protection, or the protection of others.

Part of the Mental Health Act 1983 (section 136) details removing a mentally ill person from a public place to a place of safety. It details police powers and the rights of someone in this position.

There should be a local policy – agreed between the local police, health authority and social services authority - for putting into practice section 136 of the Act. For example, police officers should know who to contact at both the local hospital and social services department

Place of safety

A place of safety could be a hospital or a police station.

Taking someone to a place of safety will allow that person to be assessed by a doctor and interviewed by an ‘approved social worker’.

Approved social workers are specially trained in both mental health and the law relating to it. They are appointed by local authorities to interview people and assess their well-being.

The maximum time some one can be detained is 72 hours (three days). By then, any necessary arrangements for the person’s treatment and care should have been made. After the 72 hour detention period, the authority to detain the person ends.

Rights of the person detained

If the police remove someone under section 136 of the Act to a police station, the person being removed:

  • Is entitled to have another person, of their choice, informed of their whereabouts.
  • hould have access to legal advice.
  • Is entitled to the support of an appropriate adult.
  • Is entitled to medical treatment from an appropriate healthcare professional if required.


An 'appropriate adult' should not be employed by the police and should be experienced in dealing with people with mental health problems. It could be a relative of the person or someone responsible for their care.

The police should not interview you until an appropriate adult is present unless delay would result in a risk of injury or harm to property or people.

Further information