Summary of the Mental Health Act (UK)

The Mental Health Act 1983 (as amended by the Mental Health Act 2007) is the key piece of legislation that governs the treatment, assessment, and rights of individuals with mental disorders in England and Wales. The Act primarily outlines the circumstances under which a person can be detained and treated against their will for their own protection or for the safety of others.

1. Overview of the Mental Health Act

The Mental Health Act sets out:

  • The criteria for detaining someone under different legal sections.

  • The rights of detained individuals, including appeal processes.

  • The responsibilities of mental health professionals in assessment and treatment.

  • The roles of different authorities, such as Approved Mental Health Professionals (AMHPs), doctors, and the Mental Health Tribunal.

  • Safeguards to prevent the misuse of detention powers.

It applies only to England and Wales. Scotland and Northern Ireland have their own mental health legislation (Mental Health (Care and Treatment) (Scotland) Act 2003 and Mental Health (Northern Ireland) Order 1986 respectively).

2. Key Principles of the Act

  • Least Restriction: Patients should be treated with the minimum necessary restriction of their liberty.

  • Patient Involvement: The views and wishes of the patient should be considered in treatment decisions.

  • Respect for Autonomy: Where possible, individuals should be able to make decisions about their treatment.

  • Use of Community-Based Treatment: Hospital detention should be a last resort when less restrictive alternatives are not sufficient.

  • Safeguarding and Protection: The Act provides protections for vulnerable individuals, ensuring they receive appropriate treatment while balancing the rights of the individual and public safety.

3. Key Sections of the Mental Health Act

a) Voluntary Admission (Informal Patients)

  • A person can voluntarily admit themselves to hospital for mental health treatment under Section 131.

  • They can leave at any time unless a clinician believes they meet the criteria for detention.

b) Detention Under the Act (Compulsory Admission)

A person can be detained (sectioned) if:

  • They have a mental disorder of a nature or degree that requires hospital treatment.

  • They pose a risk to themselves or others.

  • There is no suitable alternative treatment outside the hospital.

Common Sections of the Mental Health Act:

Section / Purpose / Who Can Authorise? / Duration

Section 2 - Assessment AMHP + 2 doctors Up to 28 days

Section 3 - Treatment AMHP + 2 doctors Up to 6 months (renewable)

Section 4 - Emergency admission AMHP + 1 doctor Up to 72 hours

Section 5(2) - Holding power (doctors) Doctor (in hospital) Up to 72 hours

Section 5(4) - Holding power (nurses) Mental health nurse Up to 6 hours

Section 135 - Police power (with warrant) Magistrate’s warrant Up to 72 hours

Section 136 - Police power (without warrant) Police officer Up to 24 hours (extendable to 36 hours)

c) Section 2: Admission for Assessment

  • Used when a person requires a short-term hospital stay for assessment and treatment.

  • Requires two doctors and an AMHP to approve.

  • Can last up to 28 days and cannot be renewed. If continued treatment is required, the patient may be transferred to Section 3.

d) Section 3: Admission for Treatment

  • Used when a person needs longer-term treatment for a mental disorder.

  • Requires approval from two doctors and an AMHP.

  • Can last up to 6 months initially, then be renewed for another 6 months, and then annually thereafter.

e) Section 4: Emergency Admission

  • Used when urgent detention is needed but there is only one doctor available.

  • Lasts for up to 72 hours.

  • A second doctor must assess the patient before upgrading to Section 2 or 3.

f) Section 5: Holding Powers

  • Section 5(2): A doctor can detain a voluntary inpatient for up to 72 hours if they need further assessment.

  • Section 5(4): A nurse can hold a voluntary inpatient for up to 6 hours until a doctor assesses them.

g) Sections 135 & 136: Police Powers

  • Section 135: Allows police to enter private property (with a magistrate’s warrant) to remove a person with a suspected mental disorder to a place of safety.

  • Section 136: Allows police to detain someone found in a public place if they appear to have a mental disorder and pose a danger to themselves or others.

4. Rights of Detained Patients

  • Right to Information: Patients must be informed about why they are detained and their rights.

  • Right to Appeal: Patients can challenge detention through the Mental Health Tribunal.

  • Right to Advocacy: Patients have access to an Independent Mental Health Advocate (IMHA).

  • Right to Consent: While some treatments can be given without consent, long-term treatments (like Electroconvulsive Therapy) require safeguards.

5. Treatment Without Consent

  • Under Section 63, treatment can be given without consent if it is necessary for the patient’s mental disorder.

  • However, some treatments (e.g., Electroconvulsive Therapy) require additional safeguards under Section 58A.

6. Community-Based Treatment Under the Mental Health Act

6.1 What is a Community Treatment Order (CTO)?

A Community Treatment Order (CTO) (under Section 17A of the Mental Health Act) allows patients who have been detained under Section 3 (long-term treatment) to be discharged from the hospital under certain conditions. CTOs aim to provide continued treatment while allowing patients more independence.

6.2 Who Can Be Placed on a CTO?

  • A person must have previously been detained under Section 3.

  • Their responsible clinician (RC) and an Approved Mental Health Professional (AMHP) must agree that they can be treated safely in the community with conditions in place.

  • The clinician must believe that without the CTO, the patient would likely relapse and require readmission.

6.3 Conditions of a CTO

A CTO can include conditions such as:

  • Taking prescribed medication regularly.

  • Attending scheduled medical reviews.

  • Living in a specific place, such as supported accommodation.

  • Avoiding certain activities or people that could trigger a relapse.

6.4 Can a CTO Be Revoked?

Yes. If a patient fails to meet the conditions, their responsible clinician can recall them to the hospital for assessment and possible re-detention under Section 3.

6.5 How Long Does a CTO Last?

  • Initially, a CTO lasts for 6 months.

  • It can be renewed for another 6 months and then annually thereafter.

  • If a CTO is not renewed, it automatically expires.

7. Mental Capacity and Deprivation of Liberty (DoLS)

7.1 The Mental Capacity Act (MCA) 2005 vs. the Mental Health Act (MHA) 1983

The Mental Capacity Act 2005 (MCA) applies to people who lack capacity to make decisions about their treatment or care due to conditions such as dementia, brain injury, or learning disabilities.

  • The MHA applies when a person has a mental disorder and needs treatment, even if they object to it.

  • The MCA applies when a person lacks the mental capacity to decide on their treatment and is not objecting.

7.2 Deprivation of Liberty Safeguards (DoLS)

If a person lacks capacity and requires restrictions on their freedom (e.g., being confined to a care home or hospital for their safety), this may be a deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR).

  • In such cases, the hospital or care home must apply for a DoLS authorisation.

  • DoLS ensures that a person is only deprived of liberty when necessary and that safeguards (such as regular reviews and legal representation) are in place.

7.3 Key Differences Between MHA and DoLS

Feature Mental Health Act (MHA) Deprivation of Liberty Safeguards (DoLS)

Applies to People with a mental disorder who may need detention for treatment People lacking capacity who need restrictions for care

Consent Can be applied even if the person objects Only applies if the person does not object

Purpose Treatment for a mental disorder Care for a wider range of conditions

Legal Safeguards Mental Health Tribunal, Independent Mental Health Advocate (IMHA) DoLS review, legal representation, appeal rights

Duration Initial period (28 days/6 months) and renewable 12-month review required

8. Criminal Justice and the Mental Health Act

The Mental Health Act also applies to individuals involved in the criminal justice system who have mental health conditions.

8.1 Hospital Orders (Section 37)

  • A judge can issue a hospital order (instead of a prison sentence) under Section 37 if a person is convicted of a crime but has a serious mental disorder that requires hospital treatment.

  • The court must receive two medical reports confirming that hospital treatment is appropriate.

8.2 Hospital and Restriction Orders (Section 41)

  • If a person is considered a serious risk to the public, a Section 41 restriction order can be added to a Section 37 hospital order.

  • This means the patient cannot be discharged without Ministry of Justice approval.

8.3 Transfer of Prisoners to Hospital (Section 47 and 48)

  • Section 47 allows prisoners who develop a serious mental disorder to be transferred to a hospital for treatment.

  • Section 48 applies to remand prisoners (those awaiting trial or sentencing).

8.4 Mental Health Act and Court Diversion Schemes

  • Diversion schemes identify offenders with mental health needs and seek alternatives to imprisonment, such as community treatment or hospital orders.

9. Mental Health Act Reform (Proposed Changes)

The UK government has proposed reforms to modernise the Mental Health Act and improve patient rights and safeguards.

9.1 Key Proposed Reforms

  • Reducing detentions: Reducing unnecessary use of the Act, particularly in minority communities.

  • Stronger patient rights: Greater emphasis on patient choice and consent.

  • Reforming CTOs: Making it harder to issue CTOs to prevent overuse.

  • Advance Choice Documents (ACDs): Giving people more power to set out their treatment preferences before they become unwell.

  • Reforming ‘learning disability’ classification: Removing learning disability and autism from the definition of ‘mental disorder’ unless the individual has a co-occurring condition that requires treatment.

  • Addressing racial disparities: Ensuring better cultural competency training for clinicians and improved safeguards for ethnic minority groups, who are disproportionately detained.

9.2 Current Status of Reforms

  • In 2021, the UK government published a White Paper on reforming the MHA.

  • In 2022, a draft Mental Health Bill was introduced, but as of 2024, implementation remains pending.

Summary

The Mental Health Act (1983, as amended 2007) provides

the legal framework for assessing, treating, and detaining

individuals with serious mental health conditions.

  • It allows for voluntary and involuntary treatment.

  • It includes safeguards such as appeal rights, independent advocacy, and mental health tribunals.

  • The police and courts can use the Act to divert individuals into mental health treatment instead of custody.

  • The Mental Capacity Act and DoLS complement the MHA for people who lack decision-making ability.

  • Proposed reforms aim to modernise the Act, strengthen patient rights, and reduce racial disparities.