Mental Health legislation
The Mental Health Act
The Mental Health Act 1983 (MHA) provides the legal framework that allows some people who are unwell to be admitted to hospital and have the appropriate care and treatment, including medication.
Sections
There are lots of different sections under the MHA but the most used ones for adult mental health patients are:
Section 2: This allows someone who is at risk of either harm to themselves or others to be admitted to hospital for up to 28 days. During this time, they will be assessed, and treatment and medication may be given.
Section 3: This allows someone who is at risk of either harm to themselves or to others, to be admitted for up to six months. During this time, they will be assessed and treatment and medication may be given.
Section 136: This allows someone to be taken to a place of safety by police (which might be a designated area on one of our wards or a police station) if it is felt they might have a mental illness and need care or support. Someone can be on this section for up to 24 hours to allow them to be assessed and might then be admitted to hospital or referred to one of our services for ongoing support.
Section 5(2) is a temporary holding power which gives doctors the ability to detain a service user for up to 72 hours. This would be used when the person is already accessing mental health care on an informal or voluntary basis and there is increased concern about a deterioration in their mental health.
It could be that they no longer have capacity to remain informally or that they have become a risk to themselves, or others and it would not be safe for them to leave the ward. During these 72 hours a Mental Health Act assessment will be completed by an Approved Mental Health Professional and Doctors who will decide if the person needs further detention under Section 2 or 3 of the Mental Health Act or whether the section 5(2) can be rescinded, and the service-user can remain in hospital on a voluntary basis.
Informal admission / voluntary admission
A voluntary, or informal admission as it is sometimes known, is an admission under a person’s own free will. Usually, a person will be assessed by their mental health team before an informal admission is offered, however this will depend on how unwell they are.
People offered a voluntary admission commonly have the capacity to make their own decisions to consent to treatment. A person can only be admitted on a voluntary basis by going through the correct process.
Community Treatment Order (CTO)
This allows some people who have been detained on an eligible section of the MHA to be discharged back to the community with conditions in place.
Community Treatment Order (CTO) recall
If the conditions of the CTO are not followed, the responsible clinician for the service user can recall them back to hospital. The service user can be held for up to 72 hours. During this time their responsible clinician will decide what will be the best care approach for the service user.
This can include staying in hospital on a voluntary basis to receive the required treatment for their mental disorder or to be allowed back into the community to continue their treatment.
But if it is decided the service user requires further compulsory hospital admission, their CTO will be revoked and they will be detained under their original section of the Mental Health Act.
Nearest Relative
The MHA gives rights to the “Nearest Relative” of the person who has been detained. The nearest relative is not the same as a Next of Kin. They must be over the age of 18, legally reside in the UK and follow the below hierarchy which is set out in the MHA:
- Spouse or Civil Partner (or partner if living together for over six months)
- Son or Daughter
- Father or Mother
- Brother or Sister
- Grandparent
- Grandchild
- Uncle or Aunt
- Nephew or Niece
- People who have lived with the detained person for over five years
The Nearest Relative can delegate the role to someone else, and if the person receiving care has no-one that fits the above criteria the courts can appoint someone to act in this role.
The MHA is a very complex area of the law, especially around the role of the Nearest Relative when there may be another family member or person who you may feel is better placed to fulfil this role.
If you require detailed information or have any questions, please contact Oxford Health’s Mental Health Act Administration Office on 01865 902 036.
What is Guardianship?
Guardianship Orders are rarely used. They help support people suffering from a mental disorder to live outside of hospital. A patient can only be placed under Guardianship if two doctors say that the requirements in the Act are met and an Approved Mental Health Professional makes an application.
For more detailed information regarding Guardianship Orders, please contact the Oxford Health’s Mental Health Act Office on 01865 902 036 or the Local Authority.
Page last reviewed: 29 February, 2024