The Mental Health Act 1983

Abstract

Mental health problems constitute a significant demand on the caseload of GPs. Although most patients can be managed with joint understanding and agreement as to treatment, GPs will encounter patients deemed to have mental illness of such severity that the patients’ ability to consent to treatment, admission or ongoing management in the community is brought into question. Patients may refuse necessary treatment, or lack insight into their condition and the necessary treatment. The patient may not accept that they are unwell. This can put great demands on caregivers and also requires knowledge of the legal framework necessary to ensure treatment of patients safely, legally and ethically. This article aims to outline the Mental Health Act 1983 as it applies in England and Wales, and to give advice on its practical application.

The GP curriculum and the Mental Health Act 1983

Clinical module 3.10: Care of people with mental health problems requires GPs to:

Be aware of The Mental Health Act

Be able to assess and manage risk/suicidal ideation

Be able to co-create and implement an immediate safety plan with a suicidal patient

Be able to work in partnership with other agencies to offer appropriate social interventions for individuals

Be able to work in partnership with other agencies to secure wider public health for your local population

Clinical module 3.14: Care of people who misuse drugs and alcohol requires GPs to:

Be aware of urgent and important issues of safety including risks to self or others and the need for urgent medical or psychiatric care

Introduction

Mental health legislation has existed in various forms for over 200 years, with a Royal College of Physicians commission granting licenses to places housing ‘lunatics’ under the Madhouses Act 1774, where a doctor was required to admit individuals thought to be suffering from mental health difficulties . The Lunacy Act 1845 authorised asylums to detain ‘lunatics, idiots and persons of unsound mind’, with the later Lunacy Act of 1890 allowing review of detention at regular intervals (Hunter and Macalpine, 1974). The Mental Health Act 1959 sought to provide informal treatment in the first instance, but allowed an individual to be detained against their will, and increased responsibility on local authorities to provide care for those with mental illness who did not require hospitalisation (Killaspy, 2006). The Mental Health Act 1983, which applies to England and Wales, provided clarity that was lacking in previous legislation on the extent a hospital can provide medical treatment against the wishes of an individual. An individual has to have a mental disorder (defined as any disorder or disability of mind) in order to be detained, and pose a risk to their own health and safety, or that of others. Additional changes were made in the 2007, amendments including the role of professionals, the definition of mental disorder, and the introduction of appropriate medical treatment and Community Treatment Orders, among others, were made. Table 1 outlines different sections, their purpose, who initiated them and their duration. In Scotland, the Mental Health (Care and Treatment) (Scotland) Act 2003 applies, and is due to be replaced by a 2015 update. In Northern Ireland, the Mental Health (Northern Ireland) Order 1986 applies. Although the Scottish and Northern Ireland mental health acts are not discussed, the principles are broadly similar.

Table 1.

Mental health Act sections.

Section	Duration	Authorised by	Purpose
Section 2	Up to 28 days	Two doctors (one Section 12 approved) and an approved mental health practitioner (AMHP) or nearest relative	Assessment
Section 3	Up to 6 months, a further 6 months at first renewal then 12 months thereafter	Two doctors (one Section 12 approved) and an AMHP or nearest relative	Treatment
Section 4	Up to 72 hours	One doctor and an AMHP or nearest relative	Assessment and emergency hospital transfer
Section 5(2)	Up to 72 hours	Responsible clinician or their nominated deputy	Holding power
Section 5(4)	Up to 6 hours	Registered mental health nurse or learning disabilities nurse	Holding power
Section 7	Up to 6 months, can be renewed	Two doctors (one Section 12 approved) and an AMHP or nearest relative	Guardianship

Section 2

A patient can be detained under a Section 2, for up to 28 days following assessment by two doctors (one must be Section 12 approved) and an approved mental health practitioner (AMHP) or the person’s nearest relative. The AMHP is authorised by a local authority, and aims to provide a counterbalance to the mental model of mental health, ensuring those being assessed are properly interviewed, know their rights should they be detained, and are also the legal ‘applicant’ in the majority of Mental Health Act applications. Box 1 outlines their role. This assessment can take place anywhere, including in the person’s home. This order (section) is for assessment to help formulate a working diagnosis, although treatment can be given as this can justifiably form part of the assessment process. It is not renewable and a patient can appeal the decision either at a mental health review tribunal (MHRT) within the first 14 days, or at a hospital managers hearing which can result in discharge from the section. The nearest relative can also discharge the person from the section, although if the responsible clinician (RC) feels strongly that detention is required this can be overruled (via a barring order). The patients RC can discharge the patient at any time after the section is commenced. The patient can be granted Section 17 leave, where the patient remains on section, but can have periods of leave from the ward and the section can be ended early if appropriate. Towards the end of the section, the RC must decide whether to discharge from the Section 2, or apply for a Section 3.

Box 1.

Approved mental health practitioner.

• The AMHP role was developed by a 2007 Mental Health Act amendment. Where the role used to be held by an ‘Approved Social Worker’, the amendment enabled other registered mental health professionals such as mental health nurses and occupational therapists with appropriate training to fulfil the role

• Authorised by the local authority, they ensure those assessed under the Mental Health Act are properly interviewed, aware of their rights, and have nearest relatives involved. They are the ‘applicant’ for the majority of Mental Health Act applications

• The AMHP co-ordinates an assessment, demonstrating the least restrictive principles and that those assessed have their rights upheld

• The AMHP may also ensure those assessed have access to a Mental Health Advocate

Section 3

Section 3 is a treatment section, lasting up to 6 months initially, and can be extended a further 6 months initially before subsequent renewals lasting up to 1 year each time. It requires two doctors (again, one must be Section 12 approved) and an AMHP (or nearest relative application). There is a right of appeal to the MHRT and hospital managers’ panel, who can discharge from the section. Section 3 requires a diagnosis and treatment plan, where ‘appropriate medical treatment’ is available; this is defined very broadly (Phull and Bartlett, 2012). Treatments can be given under Section 3, including depot injections of psychotropic medication for up to 3 months without additional certification. After 3 months, the patient must then give consent, or an independent doctor is required to give a second opinion that treatment is in the patient’s best interests. Electroconvulsive therapy (ECT) can only be given twice in an emergency (powers under Section 62), and there is separate legislation covering this option (involving second opinion doctor review). Patients can be given Section 17 leave, and be discharged from Section 3 by their RC. When a patient is discharged, there are aftercare arrangements that legally must occur (Section 117). It is important for a GP to know that patients who have been placed under Section 3 are barred from entering certain countries including the USA, thus it can be restrictive long after discharge from hospital.

Section 4

Section 4 is an emergency order lasting up to 72 hours, requiring one doctor and an AMHP or nearest relative. The criteria for detention under Section 4 are the same as for Section 2. It is rarely used, but is for situations where the requirements for the appropriate doctors for an assessment under Section 2 or treatment order under Section 3 cannot be found. This is typically what a GP may use in the community in order to facilitate either a Section 2 or a Section 3 assessment. It is not renewable, and treatment cannot be forced on a patient. It is for the AMHP to decide whether waiting for a second doctor to become available would create an undesirable delay. For a GP wishing to apply for a Section 4, the Mental Health Act forms are usually available from a local NHS Trust where they have a Mental Health Act Office. It is useful for GPs to have their number, although if needing to arrange an assessment, AMHPs will usually have the necessary forms for an emergency assessment, including claim forms for any fee due.

Section 5(2)

Section 5(2) is an emergency holding power for up to 72 hours for those who are already inpatients and requires one doctor only. It does not allow treatment, and allows up to 72 hours for either a Section 2 or Section 3 assessment or discharge to occur if deemed appropriate. It cannot be renewed, and this can occur in medical or surgical inpatient settings as well as psychiatric hospitals, as long as the acute hospital has such protocols in place. ‘Back to back’ Section 5(2) sections could result in legal challenge; however, in 12.36 of the Code it is noted that: ‘Detention under section 5(2) or 5(4) cannot be renewed but that does not prevent it from being used again on a future occasion if necessary’.

Section 5(4)

Like a Section 5(2), Section 5(4) is an emergency holding power for up to 6 hours and is initiated by registered mental health or learning disability nurses. It is a holding power that allows an assessment by a doctor (or approved clinician) for a Section 5(2), and if a Section 5(2) is applied, the time on this section is included within the 72 hours of a Section 5(2); i.e. the patient can only be detained up to 72 hours, not 78 hours.

Section 7

A GP may have patients who are subject to Section 7, which is for ‘guardianship’ and requires the person to reside at a specific address, attend therapeutic establishments (such as a clinic, workplace or educational facility) on a regular basis, and lasts up to 6 months and can be renewed. If the person leaves the area they live, they can be brought back against their will, however, the individual does not have to comply with or accept other requirements on attending appointments or seeing professionals and this act cannot be enforced. This requires two medical practitioners and an AMHP or nearest relative to agree, and only applies to over 16 year olds.

Section 17

Section 17 allows for the RC to give specific time, conditions and situation criteria for a patient to have ‘leave’ from the section (but not Sections 5(2), 5(4), or 7), such as attending routine appointments, or time away from the inpatient ward as part of their recovery and therapeutic development. If a patient suffers a medical emergency while being detained, Section 17 approval of leave can be granted on a retrospective basis.

Section 58

When a patient has received treatment in the first 3 months of their section, Section 58 enables ongoing treatment. After 3 months, if a patient has capacity and consents to treatment, a ‘Form T2’ is completed. If they do not consent, or lack capacity a ‘Form T3’ is initiated following second opinion appointed doctor (SOAD) approval of the RC’s treatment plan. This section also enables ECT to be given with agreement of a SOAD where a patient refuses (Section 58A).

Section 62

Section 62 is for emergency treatment where a patient refuses, lacks capacity to consent to a specific treatment or has withdrawn consent from a T2. This treatment must be urgent and necessary to save their life, and is authorised by an approved clinician.

Section 63

Section 63 allows detained patients to be treated with or without their consent in the first 3 months of a section, before a SOAD is required to concur with ongoing treatment. It does not enable ECT, psychosurgery or hormonal implants to be given. After the first 3 months, Section 58 applies (which covers medication and related treatment).

Section 135

Section 135 is an order from a magistrate that enables entry to a property to allow the occupier to be taken to a place of safety (usually defined as a police station, A&E or a psychiatric place of safety among others), where a mental disorder is suspected and they are refusing entry to the premises. As a GP, you may be required to provide information to support or refute such an application.

Section 136

Section 136 enables police officers to take someone who is out in public (i.e. not in a private property) to a place of safety to enable an assessment of their mental health to take place within a suitable place of safety. Case study 1 outlines a case where various sections of the Mental Health Act are applied.

Case study 1.

Mr Smith is detained by police under Section 136 having been acting erratically in public. He is assessed by two approved Mental Health Act clinicians and an AMHP who admit him under Section 2 for assessment. Over the next 2 weeks, a diagnosis of bipolar affective disorder is made, and he improves with mood stabilisers which he has accepted, and the decision is made to discharge him from Section 2. He is then managed informally on the ward and makes a good improvement before being discharged back home.

Community treatment order

A Community Treatment Order (CTO) is a subsection of Section 17, and GPs may have patients who are subject to this part of the Act. Patients need to have been detained under a treatment section of the Mental Health Act (typically, but not exclusively Section 3), with a diagnosis and treatment plan, but their condition does not require continuing inpatient admission, however, they need to be subject to recall to hospital. Patients subject to this must be available for review by their RC for consideration of renewal and a SOAD, and may be subject to other non-mandatory conditions, e.g. attending appointments, meeting community staff. It enables a patient to be recalled to hospital if they are not complying with a treatment regimen in the community. In this sense, CTOs are in place to offer supervised treatment in the community, and are initiated at the time of discharge and may be considered a ‘hovering section’; if conditions are not met, the patient can be recalled back to hospital if necessary. Treatment cannot be enforced in the community, but the individual can be required to go to hospital for initial recall then revocation, at which point their original section is automatically triggered. A typical example in general practice may be a patient who has a depot psychotropic medication, but with poor compliance, who refuses to see a community psychiatric nurse, and subsequently suffers a relapse in their mental health. Since their introduction in 2007, their use continues to grow as the number of inpatient beds has reduced (Wood, Wood, Falkowski, & Butler, 2015). Case study 2 outlines a further case where various sections of the Mental Health Act are applied.

Case study 2.

Mr Jones has a known diagnosis of paranoid schizophrenia. His neighbours are concerned and contact the police, but he will not let them into his house. A Section 135 is applied for at the Magistrates court, and police are able to enter his property, having spoken to his GP who confirms he has not been collecting medication. He is later assessed and detained under Section 3 after review by two approved clinicians and an AMHP. He has had multiple admissions, exacerbated by substance misuse and non-compliance with medication. He is then started on a depot antipsychotic, although he does not want this course of action. After 3 months, a SOAD is contacted, who agrees with the diagnosis and proposed ongoing antipsychotic treatment. Mr Jones makes an improvement and is nearly ready for discharge. His RC decides a CTO is needed to prevent relapse in the community, with conditions of attending clinic and regular depot medication for at least an initial 6 months before reviewing whether the CTO should continue.

Second opinion appointed doctors

SOADs are independent of the treating team and RC. They are appointed and regulated by the Care Quality Commission, and where the law indicates, they have a duty to assess a patient; discuss and authorise treatments with their RC and another healthcare professional. The RC needs to specify a proposed treatment plan (e.g. medication or ECT), and the SOAD needs to decide whether the patient can consent, and whether treatment should be given. They may outline limits as to what can be given, such as upper limits on medication doses, or number of ECT sessions. If such treatments limits agreed are reached, the SOAD can reassess again and agree to a new treatment plan.

Independent Mental Health Advocates

Access to an Independent Mental Health Advocate (IMHA) is a statutory right under the Mental Health ACT for patients, providing support and information about treatment and their condition. IMHAs can give greater voice to the care and treatment received (Newbigging, Ridley, McKeown, Machin, and Poursanidou, 2015).

Mental health review tribunal

A MHRT is an independent judicial body, set up under the Mental Health Act, to review the cases of patients who are compulsorily detained or are subject to guardianship, a restriction order or CTO. The MHRT must include a legal member, medical member and a specialist member. The MHRT makes the decision (rather than individual members) on whether to uphold the section, or discharge the individual from it. The MHRT can also make recommendations. Although there are criticisms surrounding the MHRT process (Thom and Nakarada-Kordic, 2014), the MHRT is set-up to assess the legal grounds of a case rather than the medical details per se.

Nearest relative

There is a defined order of what constitutes the ‘nearest relative’, for example a patient’s sibling would have the legal say ahead of their aunt. The Mental Health Act gives the nearest relative certain responsibilities, such that they can agree to a section alongside the two appropriate doctors. If the nearest relative disagrees to a section, the RC needs to provide strong grounds to whether discharge is unsafe.

Section 12 approved doctor

A Section 12 approved doctor is one who has trained and qualified in the use and application of the Mental Health Act. Although most will be psychiatrists, there are many Section 12 approved doctors who are GPs and forensic medical examiners. There are criteria for how a clinician can gain Section 12 approval. Individuals benefit from the perspective of experienced primary care physicians and GPs should be encouraged to gain approval (Brown and Humphreys, 2003). Different localities will offer training and outline the requirements and processes to gain Section 12 approval.

Informal patient

Also may be called a voluntary patient, these are patients who have had a period in a psychiatric hospital but consent to an admission and are not subject to detention under the Mental Health Act. Patients managed ‘informally’ may discharge themselves and refuse treatments, even if against medical advice, assuming they have the capacity to make these decisions.

Exclusions to the Mental Health Act

The Mental Health Act does not allow provisions for substance misuse and dependency or for intellectual disabilities, unless they are associated with abnormally aggressive or seriously irresponsible conduct. Thus, a patient cannot be detained under the Mental Health Act simply because they have a drug addiction or intellectual disability. However, a patient who is psychotic as a result of their substance misuse, who at the time poses a risk to themselves or others, can be detained for the duration of such a psychotic episode.

Can I treat a physical illness under the Mental Health Act?

The Mental Health Act allows assessment and treatment of mental disorders, but not physical disorders, and significant case law has confirmed this point. If a patient is refusing treatment for a physical illness, they cannot be treated for this against their wishes under the Mental Health Act. However, if a patient is deemed to lack capacity to consent to treatment of a physical illness, and such treatment is deemed in their best interests, treatment can be given under the Mental Capacity Act 2005. However, there are caveats that if physical illness is causing a mental disorder, or the physical illness is a direct consequence of the mental disorder then physical treatment can be given. An example where this is permitted would be nasogastric tube feeding in a patient with anorexia nervosa, or a patient with delirium as a result of an infection treatment who could legally be given antibiotics, as treatment of the physical illness would improve the mental disorder. Such treatment would have to be directed by the RC, and coordinated using local protocols. Where there are doubts, discussing with a mental health clinician and seeking medico-legal advice would be recommended.

Key points

The Mental Health Act is a significant piece of legislation that GPs may frequently encounter directly or indirectly in their work

Knowledge of what a patient has experienced, their rights and the legal frameworks in which they have been treated is important to understand for any clinician

There may be cases where a GP needs to admit a patient to a psychiatric hospital, but they are not consenting, or a patient has died under a Mental Health Act section and a Coroner or Procurator Fiscal opens an Inquest as a result

GPs who wish to gain Section 12 approval as part of their skillset, may find this work intellectually stimulating and financially rewarding

GPs need to be aware of the different sections and the duration and purpose of each of these sections

References

Brown

Humphreys

(2003) Training for approval under section 12 (2) of the Mental Health Act 1983. Advances in Psychiatric Treatment 9(1): 38–43. doi: 10.1192/apt.9.1.38.

Hunter

R. A.

Macalpine

(1974) Psychiatry for the poor: 1851 Colney Hatch Asylum–Friern Hospital 1973: A medical and social history, Folkestone, UK: Dawsons Pall Mall.

Killaspy

(2006) From the asylum to community care: Learning from experience. British Medical Bulletin 79-80(1): 245–258. doi: 10.1093/bmb/ldl017.

Mental Health Act 1983. Retrieved from www.mentalhealthlaw.co.uk/Mental_Health_Act_1983.

Newbigging

Ridley

McKeown

Machin

Poursanidou

(2015) ‘When you haven't got much of a voice’: An evaluation of the quality of independent mental health advocate (IMHA) services in England. Health & Social Care in the Community 23(3): 313–324. doi: 10.1111/hsc.12153.

Phull, J., and Bartlett, P. (2012). ‘Appropriate’ medical treatment: What’s in a word? Medicine, Science and the Law, 52(2), 71–74. doi: 10.1258/msl.2011.011023.

RCGP. Clinical module 3.10: Care of people with mental health problems. Retrieved from www.rcgp.org.uk/training-exams/gp-curriculum-overview/online-curriculum/managing-complex-care/3-10-mental-health-problems.aspx.

RCGP. Clinical module 3.14: Care of people who misuse drugs and alcohol. Retrieved from www.rcgp.org.uk/training-exams/gp-curriculum-overview/online-curriculum/managing-complex-care/3-14-drugs-and-alcohol-misuse.aspx.

Rethink Mental Illness. Mental Health Act 1983. Retrieved from www.rethink.org/living-with-mental-illness/mental-health-laws.

10.

The Mental Health Act Guide. http://mentalhealthact.weebly.com.

11.

Thom

Nakarada-Kordic

(2014) Mental health review tribunals in action: A systematic review of the empirical literature. Psychiatry, Psychology and Law 21(1): 112–126. doi: 10.1080/13218719.2013.790004.

12.

Wood

Falkowski

Butler

(2015) Community treatment orders: Implications of the drafting of the Mental Health Act 2007 for emergency detention of community patients. Medicine, Science and the Law 55(1): 2–5. doi: 10.1177/0025802414523406.