The process by which a person can be detained in hospital is currently referred to as ‘sectioning’. The term refers to the sections of the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The main provisions are set out below.
Section 1 – Any disorder or disability of the mind. A person with learning disability does not come within the act, other than in Section 2, unless the disability is associated with abnormally aggressive or seriously irresponsible conduct. Note, also, that a dependence on alcohol or drugs is not, of itself, covered by the act.
A ‘learning disability’ means an arrested or incomplete development of the mind which significantly impairs intelligence and social functioning.
Section 2 – if the mental disorder is certified as being of a nature or degree requiring assessment which can only take place in hospital because of risks to the patient’s health, safety or others, then detention for up to 28 days is authorised. The patient can be treated compulsorily. An appeal to the Mental Health Tribunal can be made by the patient. The application must be lodged within the first 14 days.
Section 3 – This applies where the nature or degree of the disorder requires treatment and detention in hospital is necessary to safeguard the patient’s health, safety, or to protect others. It can last for up to 6 months but can be extended under Section 20. Treatment, other than ECT, can be given without the patient’s consent.
Section 4 – Lasts for up to 72 hours and needs only one doctor for the application but it can be converted to Section 2 if a second medical opinion is obtained. A patient cannot be compulsorily treated but does have a right to lodge an appeal to the Tribunal.
Section 37 – This is a hospital order made by a criminal court instead of passing a sentence. The criteria are essentially the same as Section 3 but a patient cannot apply for a Tribunal within the first six months.
Section 20 – Section 3 or 37 can be extended beyond the initial 6 months for a further 6 months and then in subsequent periods of 12 months. An appeal to the Tribunal can be made in each of these extended periods.
Section 37/41 – If a Section 37 is made by the Crown Court they can add restrictions under Section 41. Such patients are then under the authority of the Ministry of Justice, who must consent to any request by the treating doctor to discharge, grant leave or transfer the patient to another hospital. The patient is, therefore, considered to be ‘restricted’, which is further reinforced by the power to discharge with conditions, the breach of which could lead to recall.
Section 47/49 – A prisoner can be transferred to hospital under Section 47. Restrictions under Section 49 are usually imposed. The patient is in a similar position to a Section 37/41, with an important difference. If they are no longer detainable in a hospital then they will return to prison unless their prison release date has passed. In practice, if hospital is no longer needed, the prisoner will usually remain there until the Parole Board can meet or they pass the prison release date.
Section 7 – Guardianship. Involves being required to live in a certain place in order to safeguard their welfare rather than for assessment or treatment. Renewals of guardianship and appeals to the Tribunal apply similarly to Section 3.
Section 17A – Community Treatment Orders. Can be made for Section 3 or Section 37 (but not 37/41 patients who are subject to the forensic conditional discharge provisions). The patient is discharged subject to two standard conditions, namely that the patient must be available for examination for the purposes of renewing under Section 20 and for the purposes of a second opinion in relation to treatment. Other conditions may be imposed to ensure the patient receives treatment or to prevent risks to self or others.
Section 17E – A patient subject to a CTO can be recalled for failure to comply with the conditions. Detention for up to 72 hours is then authorised, but medication cannot be enforced. However :
Section 17F – After recall the CTO can be revoked, whereupon the patient is back on Section 3 or Section 37 as before.
Section 17 – While detained, the patient is not allowed out of the hospital without the written consent of the Responsible Clinician.
Section 117 – Gives a patient discharged from Section 3 or Section 37 a right to aftercare services. No charge can be made for these services.
Responsible Clinician (RC) – The person responsible for the patient’s care while detained. Must be approved. Usually a psychiatrist, but could be from another discipline.
MHT – The Mental Health Tribunal is a completely independent judicial body which examines whether or not the detention criteria are met. It consists of a lawyer in the chair, a psychiatrist (who will see the patient before the meeting) and a lay person. They meet at the hospital because this is more convenient for the patient. Written reports by the RC, from the Community Team and a ward nurse are prepared. The hearing is kept as informal as possible. Witnesses can be asked questions. The patient can have a say. Representation by a specialist mental health lawyer is strongly recommended because the law is complex. Legal Aid is available regardless of means. Representation is entirely free of charge.
Section 72 Detention Criteria – It is for the hospital to prove the case for detention. They must prove a mental disorder of a nature or degree requiring detention without which the patient’s health or safety or others would be at risk. Appropriate medical treatment must be available for detention under Section 3 or Section 37.
Section 73 – For a Section 37/41 restricted patient, there can be a conditional discharge. This applies where the detention criteria under Section 72 are not met but it is appropriate that the patient remains liable to recall.
Section 75 – After a period of 12 months, and then once every two years, a conditionally discharged patient can apply for an absolute discharge.
Section 26 – The nearest relative is identified in accordance with a strict pecking order within the act. They can initiate the process by which a patient is sectioned and can block an admission under Section 3. If used unreasonably without regard to the patient’s health or the risks, an application can be made to the County Court under s29 to remove the nearest relative. The nearest relative can discharge a Section 3 (but not a Section 37) patient under Section 23 by giving written notice. The discharge is delayed for 72 hours as the RC can block it by certifying that the patient is likely to act in a dangerous manner. The NR then has a right to apply to the Tribunal.
Treatment – Very widely defined in Section 145 to include nursing or care in an appropriate environment under the supervision of an approved clinician.