Mental Health Act 1983

The term "mental disorder" is very loosely defined under the Act, in contrast to legislation in other countries such as Australia and Canada. Under the Act, mental disorder is defined as "any disorder or disability of mind". The concept of mental disorder as defined by the Act does not necessarily correspond to medical categories of mental disorder such as those outlined in ICD-10 or DSM-IV. However, mental disorder is thought by most psychiatrists to cover schizophrenia, anorexia nervosa, major depression, bipolar disorder and other similar illnesses, learning disability and personality disorders.

Most people are subject to the Act, and section 141 even makes provision for members of the House of Commons, until it was repealed by the Mental Health (Discrimination) Act 2013. In 1983–84, the House of Lords Committee for Privileges accepted the advice of the law lords that the statute would prevail against any privilege of Parliament or of peerage.[9]

An Approved Mental Health Professional (AMHP) is defined in the Act as a practitioner who has extensive knowledge and experience of working with people with mental disorders. Until the 2007 amendments, this role was restricted to social workers, but other professionals such as nurses, clinical psychologists and occupational therapists are now permitted to perform this role. AMHPs receive specialised training in mental disorder and the application of mental health law, particularly the Mental Health Act. Training involves both academic work and apprenticeship and lasts one year. The AMHP has a key role in the organisation and application of Mental Health Act assessments and provides a valuable non-medical perspective in ensuring legal process and accountability.

(For further aspects on the role of the AMHP see also: Involuntary commitment in the United Kingdom.)

A section 12 approved doctor is a medically qualified doctor who has been recognised under section 12(2) of the Act. They have specific expertise in mental disorder and have additionally received training in the application of the Act. They are usually psychiatrists, although some are general practitioners (GPs) who have a special interest in psychiatry.

An Approved Clinician (AC) is a healthcare professional who is competent to become responsible for the treatment of mentally disordered people compulsorily detained under the Act. A clinician must complete special training and demonstrate competence in their professional portfolio in order to be approved as an AC. Until the 2007 amendments, they would almost exclusively have been a consultant psychiatrist, but other professionals, such as social workers, clinical psychologists and nurse specialists, are being encouraged to take on the role. Once an AC takes over the care of a specific patient, they are known as the Responsible Clinician (RC) for that patient.

A Nearest Relative is a relative of a mentally disordered person. There is a strict hierarchy of types of relationship that needs to be followed in order to determine a particular person's Nearest Relative: husband, wife, or civil partner; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; lastly, an unrelated person who resides with the mentally disordered person. Thus a person's Nearest Relative under the Act is not necessarily their "next of kin".

A mentally disordered person is not usually able to choose their Nearest Relative but under some circumstances they can apply to a County Court to have a Nearest Relative replaced. In practice, such applications are more commonly made by Social Services Departments. The Nearest Relative has the power to discharge the mentally disordered person from some sections of the Act.

Hospital Managers represent the management of the NHS Trust or independent hospital and have the responsibility for a detained patient. On their behalf, the non-executive members of the board of the relevant National Health Service Trust and appointed lay 'Associate Managers' may hear appeals from patients against their detention, Community Treatment Order and upon those detentions being renewed and extended. Cases are heard in similar settings to those heard by the First-Tier Tribunal (Mental Health) outlined below.

Mental Health Review Tribunals (MHRTs) hear appeals against detention under the Act. Their members are appointed by the Lord Chancellor and include a doctor, a lawyer and a lay person[10] (i.e. neither a doctor nor a lawyer). Detained persons have the right to be represented at MHRTs by a solicitor. Discharge from hospital as a result of an MHRT hearing is the exception to the rule, occurring in around 5% of cases, when the Tribunal judges that the conditions for detention are not met.

Part II of the Act applies to any mentally disordered person who is not subject to the Criminal Justice System. The vast majority of people detained in psychiatric hospitals in England and Wales are detained under one of the civil sections of the Act.

These sections are implemented following an assessment of the person suspected to be suffering from a mental disorder. These assessments can be performed by various professional groups, depending upon the particular section of the Act being considered. These professional groups include AMHPs, Section 12 approved doctors, other doctors, registered mental health nurses (RMNs) and police officers.

Section 2 is an assessment order and lasts up to 28 days;[11] it cannot be renewed. It can be instituted following an assessment under the Act by two doctors and an AMHP. At least one of these doctors must be a Section 12 approved doctor. The other must either have had previous acquaintance with the person under assessment, or also be a Section 12 approved doctor. This latter rule can be broken in an emergency where the person is not known to any available doctors and two Section 12 approved doctors cannot be found. In any case, the two doctors must not be employed in the same service, to ensure independence (this 'rule' was removed in the 2007 MHA amendment). Commonly, in order to satisfy this requirement, a psychiatrist will perform a joint assessment with a general practitioner (GP). A Mental Health Act assessment can take place anywhere, but commonly occurs in a hospital, at a police station, or in a person's home.

If the two doctors agree that the person is suffering from a mental disorder, and that this is of a nature or to a degree that, despite his refusal to go to hospital, he ought to be detained in hospital in the interest of his own health, his safety, or for the protection of others, they complete a medical recommendation form and give this to the AMHP. If the AMHP agrees that there is no viable alternative to detaining the person in hospital, they will complete an application form requesting that the hospital managers detain the person. They will then be transported to hospital and the period of assessment begins. Treatment, such as medication, can be given against the person's wishes under Section 2 assessment orders, as observation of response to treatment constitutes part of the assessment process.

Section 3 is a treatment order and can initially last up to six months;[11] if renewed, the next order lasts up to six months and each subsequent order lasts up to one year. It is instituted in the same manner as Section 2, following an assessment by two doctors and an AMHP. One major difference, however, is that for Section 3 treatment orders, the doctors must be clear about the diagnosis and proposed treatment plan, and be confident that “appropriate medical treatment” is available for the patient. The definition of “appropriate medical treatment” is wide and may constitute basic nursing care alone.

Most treatments for mental disorder can be given under Section 3 treatment orders, including injections of psychotropic medication such as antipsychotics. However, after three months of detention, either the person has to consent to their treatment or an independent doctor has to give a second opinion to confirm that the treatment being given remains in the person's best interests. A similar safeguard is used for electroconvulsive therapy (ECT), although the RC can authorise two ECT treatments in the event of an emergency for people detained under Section 3 treatment orders. ECT may not be given to a refusing patient who has the capacity to refuse it, and may only be given to an incapacitated patient where it does not conflict with any advance directive, decision of a donor or deputy, or decision of the Court of Protection.

Absence or “leave” from hospital can be granted by the RC for a patient detained under either a Section 2 assessment order or Section 3 treatment order, and the RC will ultimately be responsible for discharging a patient under such an order. Following discharge from a Section 3 treatment order, the person remains subject to the after-care provisions of Section 117 indefinitely. These provisions include a formal discharge planning meeting, and provision of personal care if necessary.

Section 4 is an emergency order that lasts up to 72 hours. It is implemented by just one doctor and an AMHP, in an emergency in which there is not time to summon a second suitable doctor in order to implement a Section 2 assessment order or Section 3 treatment order. Once in hospital, a further medical recommendation from a second doctor would convert the order from a Section 4 emergency order to a Section 2 assessment order. Section 4 emergency orders are not commonly used.

Section 5(2) is a doctor's holding power. It can only be used to detain in hospital a person who has consented to admission on an informal basis (i.e. not detained under the Act) but then changed their mind and wishes to leave. It can be implemented following a (usually brief) assessment by the RC or his deputy, which, in effect, means any hospital doctor, including psychiatrists but also those based on medical or surgical wards. It lasts up to 72 hours, during which time a further assessment may result in either discharge from the section or detention under section 2 for assessment or section 3 for treatment.

Section 5(4) is a nurse's holding power. It can be applied to the same group of patients as those that may be detained under section 5(2) as outlined above. It is implemented by a first or second level Mental Health or Learning Disability Nurse. Section 5(4) lasts up to 6 hours[11] and ends at the time the patient is seen by the doctor assessing the patient under Section 5(2), irrespective of the outcome of the doctor's assessment. Time spent by a patient under section 5(4) is included in the 72 hours of any subsequent Section 5(2).

The Care Quality Commission consider it to be extremely poor practice to allow a section 5(2) to simply "lapse". There is a clear duty on the part of the patient's RC to make a decision as to whether any further action, such as detention under section 2 for assessment or detention under section 3 for treatment should be implemented, or whether the patient should be regraded to "informal" legal status.

Section 135 is a magistrates' order. It can be applied for by an AMHP in the best interests of a person who is thought to be mentally disordered, but who is refusing to allow mental health professionals into their residence for the purposes of a Mental Health Act assessment. Section 135 magistrates' orders give police officers the right to enter the property and to take the person to a “place of safety”,[11] which is locally defined and usually either a police station or a psychiatric hospital ward.

Section 136 is a similar order that allows a police officer to take a person whom they consider to be mentally disordered to a “place of safety” as defined above. This only applies to a person found in a public place.[11] Once a person subject to a Section 135 magistrates' order or Section 136 police officers' order is at a place of safety, they are further assessed and, in some cases, a Section 2 assessment order or Section 3 treatment order implemented.

Part III and other various criminal sections of the Act apply to sentenced prisoners and persons subject to proceedings of the criminal justice System. Although they are invariably implemented by a court, often upon the recommendations of one or more psychiatrists, some of these sections largely mirror the civil sections of the Act.

Section 35 and Section 36 are similar in their powers to Section 2 assessment orders and Section 3 treatment orders respectively, but are used for persons awaiting trial for a serious crime and provide courts with an alternative to remanding a mentally disordered person in prison. The order for Section 35 can be made by a Crown Court or Magistrates' Court,[12] whilst Section 36 can be enacted only by a Crown Court.[13] Courts can enact either of these sections on the medical recommendation of one Section 12 approved doctor. Both these sections are rarely used in practice.

Section 37 is a treatment order, similar in many regards to the civil treatment order under Section 3, and is fairly frequently used. It is applied to persons recently convicted of a serious crime, which is punishable by imprisonment. Thus it represents an alternative to a mentally disordered person being punished by imprisonment or otherwise. It is enacted by a Crown Court or Magistrates' Court on the recommendation of two approved doctors. However, the court is able to exercise discretion in this regard and can impose a prison sentence despite medical recommendations for Section 37.

A person detained under Section 37 can appeal to the Mental Health Review Tribunal after a period of six months; if he or she is no longer suffering from symptoms of mental disorder, the person can be discharged by the Tribunal, even if there is a strong possibility that the person might relapse and re-offend. Furthermore, a person on Section 37 alone, who may have been convicted of a serious violent crime, can be discharged in the community at any time by his or her Responsible Clinician (RC).

For these reasons, people who either are deemed by the court to pose a particularly high risk to other people if released, have a pronounced history of dangerous behaviour, or have committed a particularly serious offence, usually have Section 41 used in conjunction with Section 37. Section 41 imposes “restrictions” upon the terms of Section 37. In summary, this means that the Home Office and, ultimately, the Home Secretary, rather than the RC, decides when the person can leave hospital, either temporarily (“leave”) or permanently (“discharge”). Indeed, most people are ultimately given a "conditional discharge", which sets a statutory framework for psychiatric follow-up in the community upon release and provides for recall into hospital if, for instance, a person disengages from mental health services.

Only a Crown Court can impose Section 41, but a judge can do so without a doctor's recommendation. Although persons on Section 41 can appeal against their detention to the Mental Health Review Tribunal, their cases are heard by a Special Tribunal, chaired by a High Court judge. Since the 2007 amendments have been implemented, Section 41 is universally imposed without limit of time.

Section 38 is an interim order, used in similar circumstances to Section 37, when it is likely, but not wholly clear, that a Section 37 will be appropriate.

It is noteworthy that the Act only provides for enforced treatment of mental disorder in a hospital. As a prison is not defined as a "hospital" by the Act, no prisoner can be treated against his or her wishes under the Act in prison, even in a prison healthcare wing. Instead, Sections 47 and 48 provide for prisoners to be transferred to a hospital for treatment of a mental disorder. Section 47 applies to sentenced prisoners, whilst Section 48 applies to those on remand and those convicted but awaiting sentence; it provides for temporary treatment out of prison. Section 48 can be used only for prisoners in need of urgent treatment for mental illness or severe mental impairment, whilst Section 47 can be used to treat any category of mental disorder. The Home Office is required to approve applications for these sections and decides what level of security in hospital is necessary for a particular prisoner.

Section 49 provides for “restrictions” to Section 47, in the same way that Section 41 provides for “restrictions” to Section 37.

The Act provides the legal framework for the assessment and treatment of mental disorders. It does not provide for the assessment or treatment of physical illnesses. There has been substantial case law to confirm this interpretation. Thus, a person who has a mental illness as well as an unrelated physical illness for which he is refusing treatment, cannot be treated for his physical illness against his wishes under the Act.[14] In such cases, however, it might be deemed that the person lacks the mental capacity to consent to treatment of the physical illness, in which case treatment could be given, in the person's best interests, under the Mental Capacity Act 2005.

However, if the physical illness is causing the mental disorder, or if the physical illness is a direct consequence of the mental disorder, treatment of the physical illness is permitted under the Act.

A common example of this is a person who has a short-lived confused state as a result of a physical illness such as an infection or a heart attack, but who is refusing assessment or treatment of the underlying condition. It is legal to treat such a physical illness under Section 2 of the Mental Health Act, on the grounds that treatment of the physical illness will alleviate symptoms of the mental disorder. However, this is rarely carried out in practice, given that the mental disorder is likely to be extremely transitory and emergency treatment is often necessary. It is more usual for physical illnesses to be treated under the Mental Capacity Act 2005 where appropriate in these circumstances.

On the other hand, enforced re-feeding of severely emaciated people with anorexia nervosa is more likely to take place under the Act, because treatment is likely to be prolonged and is rarely an emergency. Treatment is allowed because anorexia nervosa is classed as a mental disorder, whilst re-feeding is seen to constitute the first stage in treatment for severe cases of that mental disorder.

Lastly, treatment of an attempted suicide, which has been made as a direct result of a mental disorder, can be given under the Act. Again, in practice, this is unusual, as the emergency nature of the situation and the brief timeframe of treatment required usually dictate that treatment is given under the Mental Capacity Act instead.

The main thrust of the Act provides the power to detain a person in hospital to treat their mental disorder. There is currently no provision allowing compulsory treatment of mentally disordered people in the community. Indeed, the Act was drafted at a time when mental health care was focused on institutions rather than Care in the Community. Since the 1980s, there has been a huge shift in emphasis of mental health care away from inpatient treatment.

Under Sections 7 and 8 of the Act, “guardianship” allows for a mentally disordered person to be required to reside at a specific address, to attend a specific clinic on a regular basis for medical treatment, or to attend various other stipulated venues such as workplaces or educational establishments. However, there is no power to actually enforce the person to comply with these requirements. Indeed, although guardianship can require a person to attend a clinic for treatment, there is no requirement for the person to accept that treatment.

Supervised Community Treatment orders, a form of outpatient commitment, provider the power to return a patient to hospital if a specified treatment regime is not being complied with in the community under Section 17A of the Act. However, treatment cannot be enforced in the community. These orders are applied to the person at the time of his/her discharge from Section 3, and replace “supervised discharge” arrangements under Section 20A which were used until the 2007 amendments came into force. 2018 amendments also strictly limit the use of force while restraining a patient.[15]

• Text of the Mental Health Act 1983 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.
• Mental Health Act 1983 The complete text of the Act including Mental Health Act 2007 amendments.
• CSIP Implementation programme for the amended Mental Health Act
• Mental Health Act 1983 from WikiMentalHealth Fully amended to take account of the related legislation