Mind Rights Guide 1. Civil admission to hospital

Transcription

1 Mind Rights Guide 1 1 Civil admission to hospital

2 Introduction This booklet is designed to answer some of the more common questions concerning civil (compulsory) admission to a psychiatric hospital, or ward, under the Mental Health Act It should be helpful to users of mental health services, their relatives and friends, as well as to service providers working in the statutory and voluntary sectors. It is, however, no substitute for a statement of the law or for legal advice. If you want advice from a solicitor who has a knowledge of mental health law and issues, contact Mind s Legal Advice Service for information about mental health solicitors. Alternatively, you could get in touch with the Law Society, which has a list of solicitors who are suitably experienced to advise on the Mental Health Tribunal. A booklet containing the list should also be available on the hospital ward. Mental health solicitors are also listed on the Community Legal Advice website. (For details of this, and the organisations mentioned in this booklet, see p. 13.) Public funding (legal aid) may be available to pay for professional advice from a solicitor. This is means-tested (it depends on your income and savings) for most purposes. For appeals to the Mental Health Tribunal, Legal aid is available regardless of means, so advice about how to appeal to the tribunal and representation at the tribunal hearing are free. Legal terms, as they appear in the Mental Health Act 1983, are printed in bold when they are used for the first time in this booklet (subsequently, they appear in ordinary type). Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy. Any definitions are set out on pp To keep the guide as straightforward as possible, the booklet keeps technical terms to a minimum and summarises the effects of the law and good practice, where appropriate. Where section numbers appear, in brackets, they are taken from the Mental Health Act

3 Legal definitions Appropriate medical treatment medical treatment which is appropriate taking into account the nature and degree of the person s mental disorder and all the other circumstances of their case. Approved clinician a mental health professional approved to carry out certain duties under the Mental Health Act by the Secretary of State for Health (England) or by Welsh Ministers (Wales), who also has the power to make decisions about a detained person s treatment. Approved Mental Health Professional (AMHP) Approved Social Workers have been replaced by Appr oved Mental Health Professionals. An AMHP is a social worker, nurse, occupational therapist, psychologist or other professional approved by a local social services authority to carry out certain functions under the Mental Health Act Care Quality Commission (CQC) the government agency responsible for the welfare of detained patients in England. Healthcare Inspectorate Wales (HIW) the agency responsible for welfare of detained patients in Wales. Hospital for the purposes of this booklet, this includes a private hospital and any accommodation provided by a local authority and used as a hospital. Hospital managers have duties under the Mental Health Act and are responsible for administering the Mental Health Act 1983 in the hospital. Independent Mental Health Advocate a person who can listen to what you want and speak for you. An independent mental health advocate is an advocate available to offer help to certain qualifying patients, such as detained patients, informal patients who have been offered certain serious forms of treatment, or patients under Guardianship or Supervised Community Treatment. Mental disorder defined in section 1 of the Mental Health Act now amended by the Mental Health Act 2007, as any disorder or disability of the mind. As well as mental illnesses, mental disorder includes conditions like personality 3

4 disorders, autistic spectrum disorders and learning disabilities. However, for the purposes of section 1, those suffering from learning disability are only considered to have a mental disorder if their disability is associated with abnormally aggressive or seriously irresponsible behaviour.mental Health Act (MHA) 1983 the main Act of Parliament covering the care and treatment of people with mental health problems. This has been amended by the Mental Health Act Mental Health Act Code of Practice the statutory Code guiding professionals in the use of the Mental Health Act Mental Health Tribunal an independent panel that decides if a patient should remain subject to compulsory detention or supervision. The tribunal forms part of a new two-tier system of tribunals, with an initial tribunal and then appeals to an Upper Tribunal on points of law. Nearest Relative (NR) section 26 of the Mental Health Act 1983 sets out a list of people who may be considered as your nearest relative, and the person who is highest on the list is your NR. The list is in strict order and starts with spouse/co-habitee, then children, then parents. The Nearest Relative has certain rights and powers in relation to admission under the MHA, including the right to be consulted. Place of safety a locally agreed place to where the police may remove someone, usually a police station or hospital. Registered medical practitioner a qualified doctor, for example a GP or a psychiatrist. Responsible Clinician (RC) the approved clinician with overall responsibility for the care of the patient. This role has been introduced by the Mental Health Act 2007, replacing the Responsible Medical Officer, and does not have to be held by a doctor; although in practice, most RCs are doctors. 4 Section 12 approved doctor a doctor trained and qualified in the Mental Health Act 1983; may also be the Responsible Clinician, if the RC is a doctor.

5 What is sectioning? Most patients in hospital wards cannot be prevented from leaving when they wish, and their consent must be obtained before treatment is given. The same applies to most patients who are in hospital for psychiatric treatment. They are referred to as informal patients'. Usually they do not object to being in hospital or to being treated and, if they have mental capacity, their cooperation should be voluntary (see p 6).However, the Mental Health Act 1983 allows some people to be detained in hospital. When this happens, they are called detained patients and their consent to treatment may no longer be required. This is often known as being sectioned. Some people are detained in hospital by the courts after being charged with a crime. (See Mind rights guide 5: mental health and the courts.) However, most people are detained under the civil sections of the Mental Health Act, which does not involve a court at all. This booklet sets out what must happen before someone can be detained under a civil section, and outlines some of the effects. Mind rights guides 2 5 describe, in more detail, other relevant information about consent to treatment and what to do if you are being detained and you want to leave hospital. What is the process for detaining someone under a civil section? There are two main civil sections of the Mental Health Act 1983, which are used to detain someone: section 2 and section 3. For each section, three people must agree that the individual needs to be detained. Usually, they would be an Approved Mental Health Professional (AMHP), a section 12 approved doctor and a registered medical practitioner. The two doctors must agree the person needs to be in hospital and recommend detention. Then, the AMHP decides whether or not to make an application for the person s compulsory admission to hospital. The Nearest Relative (NR) (see p. 7) also has the right to make an application. However, the Mental Health Act Code of Practice makes it clear that an AMHP is the preferred applicant and applications by an NR are very rare. The AMHP is likely to contact the person's NR before the person is admitted under section. It does not matter where the person is at 5

6 6 the time. They may be at home, in hospital, in a place of safety, or in a police station following an arrest for an alleged criminal offence. In an urgent situation, someone may be admitted to hospital compulsorily, with only one medical recommendation to support an application (section 4). This is allowed if it is felt the criteria for section 2, (see below) are met, but there is no time to wait for another medical recommendation. The second medical recommendation must be obtained within 72 hours. It is important to note that people need not have committed a crime to be detained under a civil section. The law allows anyone to be detained under the procedure described above, if they meet the criteria of a detention section. What do the different civil sections mean? Section 2 allows for a person to be detained if they are suffering from a mental disorder and they need to be detained, at least for a limited period, for assessment (or for assessment followed by medical treatment) for their own health or safety, or for the protection of other people. Detention can last for up to 28 days. The section normally can t be renewed (it can only be extended in certain circumstances), but you may be assessed before the 28 days expires to see if detention under section 3 is necessary. Section 3 allows for a person to be detained if they have a mental disorder, and it is necessary for their own health or safety, or for the protection of other people, and treatment cannot be provided unless they are detained in hospital. A patient cannot be detained under this section unless the doctors also agree that appropriate medical treatment is available for him or her. Detention can last for up to six months. The section can then be renewed by six months, initially, and by a year at a time, subsequently. Alternatively, a person can be discharged from a section before it comes to an end. The professionals want to assess me for detention can I have a solicitor or advocate? You are entitled to consult a solicitor about your rights, although the professionals do not have to wait for this to happen before they decide whether to section you or not.

7 A solicitor will not be able to stop you from being detained, but can advise you on how to apply for discharge. (See p. 2 for how to find a mental health solicitor.) An independent mental health advocate may be available to help you to express your wishes. Guidance says that the AMHP should arrange for a familiar person, such as a solicitor, advocate or someone else, to be present, if that is what you want. However, in an urgent situation, the professionals do not have to wait for such a person to arrive before they can assess you. You may not wish to answer questions if your chosen person is not present, but the professionals may still make decisions even if you decide not to answer. What information should I be given by the professionals? All professionals involved should keep you fully informed of what is happening. They should answer any specific questions you have. Health information on your records can only be withheld from you if it is likely to cause serious harm to you or someone else. Who else will be involved in the assessment process? The AMHP may contact friends and family to find out more information about you. If you do not want them to do this, tell them. However, the Mental Health Act states that your Nearest Relative (NR) should be involved, and that your AMHP must, if practicable, inform your NR if you are admitted to hospital under section 2. Where admission under section 3 is being considered, the AMHP must consult your NR if this is reasonably practicable. The NR has the right to object to the use of section 3 and if they do, the AMHP must consider what to do next. In any case, they should offer some practical arrangements to you, if section 3 is not used, in order to meet your needs. If the NR objects to the use of section 3, the local authority may decide to take further legal steps. The local authority has the right to seek the displacement of the NR in the County Court. The rules for this are complex but, broadly, they allow the removal of an NR who is using their powers unreasonably, such as objecting to an application for section 3 admission. 7

8 Does my NR have to be involved? It is the responsibility of the AMHP to decide who your NR is, according to the rules set out in section 26 of the Mental Health Act If you have reasons for not wanting your NR involved, tell your AMHP. The AMHP may still decide to identify and trace your NR, and they may ask other people to help them, but they cannot oblige you to give them information. You can ask the AMHP to contact another person instead of your NR, but the AMHP is not legally bound to follow your wishes. Your wishes will only be binding if you displace your NR. The MHA now makes it possible for you to remove ('displace') your NR from being your NR through the court system, but you may need to seek advice about how to do this from a mental health solicitor or advice organisation such as Citizens Advice Bureau. What if my NR does not want to be involved? It may be, for example, that your relative finds it hard to cope with making decisions and asserting her or his rights as NR. They can, if they want to, nominate another person to act in their place. This can be anybody they choose. You do not necessarily have a choice, but the NR can consult you, if they wish. If they do want to nominate another person, they can write to the hospital (and preferably the social services department, too) informing them of what they are doing and who they wish to act as NR. They can revoke this in writing, at any time. Do I have to be detained to get treatment in hospital? No. If you have agreed to go into hospital you are known as an informal patient and are not subject to detention. Most patients are informal. 8

9 If I am an informal patient and try to leave hospital, will I be sectioned? If you are an informal patient, you can leave when you want. But a doctor can stop you leaving the ward if she or he thinks that an application for detention ought to be made. This is a holding power and lasts up to 72 hours, during which a full assessment should be made (section 5(2)). If a doctor is not available, a psychiatric nurse can hold you until a doctor arrives, but for no more than six hours. The nurse can do this if it is felt that you are suffering from a mental disorder and it is necessary for your health or safety, or for the protection of others to stop you leaving (section 5(4)). Once the doctor arrives, he or she can extend the holding power to 72 hours or let you leave. Holding powers must not be used as a threat by a nurse or a doctor. They cannot detain you beyond the holding period and they cannot use the Mental Health Act to treat you against your wishes during this time. You can only be detained for longer if a team of professionals decides this is necessary after a proper assessment. If these professionals decide that you should not be detained you are free to leave. The holding period does not have to last 72 hours and ends once you have been assessed. You may be able to avoid being detained if you agree to stay informally. Ask why you have been told that you will be detained, and tell professionals why you want to leave if you wish. If I'm at home, can I stop them sectioning and admitting me? There are no legal means of preventing detention. As long as the section papers are properly completed, detention is lawful. If you are being assessed for detention, the most practical thing you can do is to ensure that the professionals feel you are coping, or can cope, in the community. Ask them exactly why they are assessing you and what concerns they have about you. Make sure they know your views, how you manage your situation, and any support network you have, such as friends or relatives. If you wish to have a friend or an advocate with you at this time, ask the AMHP in charge of your 9

10 10 assessment to contact them. This could be helpful in making sure your views are listened to. The professionals involved should follow the guidance contained in the Mental Health Act Code of Practice. The Code says that all relevant factors should be taken into account, and that any possible alternatives to compulsory admission should be considered. In law, even if the AMHP has two medical recommendations to support compulsory admission, they do not have to make an application. The AMHP has up to 14 days from seeing you to consider the possible alternatives. An AMHP co-ordinating your assessment for possible compulsory admission should be sensitive to factors such as your age, gender, social, cultural, racial and religious background and sexual orientation, and how any disability you may have may affect the way the assessment needs to be carried out. If your first language is not English, the AMHP should organise a trained interpreter to be present to assist you. You may have strong views on what medical treatment you do, or do not want; professionals should listen to them. However, the effects of the Mental Health Act 1983 are that your wishes do not usually bind professionals, although there are some exceptions. (See Mind rights guide 3: consent to medical treatment.) What if I avoid the professionals? If professionals are very concerned about you, and want to assess you, they have various powers that will allow them to do this. Under section 135, there are two grounds on which an AMHP can obtain a warrant to enter your home. The first is if you are living alone and not caring for yourself. The second is if you are cared for by someone else, but not being kept under proper care or control. The police also have the power to remove, from a public place to a place of safety (under section 136), someone who is suffering from a mental disorder and is in need of care or control, in order to have them assessed.

11 What happens if they detain me? The AMHP is responsible for ensuring that you are taken safely to hospital, if you are not already there. Once the hospital manager, or a designated officer, has scrutinised and accepted the section papers, then you are lawfully detained in hospital. Under both section 2 and section 3 of the MHA, you can be prevented from leaving the ward, but the Responsible Clinician (RC) can give you leave to do so. Your consent to treatment should be sought, but if you do not give consent, certain treatments can still be given to you. (See Mind rights guide 3: consent to medical treatment.) As mentioned before, whereas section 2 cannot be renewed, and normally lasts for a maximum of 28 days, section 3 can be renewed a number of times. The other differences are connected with the Mental Health Tribunal and aftercare. (See Mind rights guide 4: discharge from hospital) How do I make a complaint? All detained patients are entitled to complain about any aspect of their care to the Care Quality Commission (the Healthcare Inspectorate in Wales), which is independent of your hospital. They may ask that you complain through the hospital complaints procedure first. The Care Quality Commission (in England) and the Healthcare Inspectorate Wales have taken over the functions of the Mental Health Act Commission in relation to dealing with complaints from detained patients. Are there other effects of being detained? Being detained, in itself, does not mean that you lose the rights enjoyed by other people. It does not necessarily mean that you cannot manage your own financial or legal affairs. Your right to vote is not affected, provided your name is on the electoral register, either at your old address, or at the hospital. It is your responsibility to get your name on the register at the hospital. You can use a postal vote, or leave the ward with permission from your RC. If, on the day of the 11

12 12 election, you lack the mental capacity to choose a candidate, you may be prevented from voting. People who have had psychiatric treatment often face discrimination, for example in employment or when taking out insurance. If the discriminatory treatment takes place in the UK, and is connected with a mental health disability that is substantial and long-term, it may be unlawful under the Equality Act (EA). Time limits for taking action under the EA are very short, so you should seek advice, as soon as possible, from a solicitor, advice centre or from Mind s Legal Advice Service. If you have been detained in hospital, you may have problems in obtaining a visa to visit certain countries. You will need to consult the embassy of the country concerned, as the EA does not apply overseas. Being detained does not of itself prevent a person from holding a driving licence. However, being diagnosed with certain severe mental health conditions and taking certain types of medication may result in a temporary bar to driving. Visit the DVLA website for more information (see p. 13). What if I think I should never have been detained in hospital? It is important to know the reasons why you have been detained. Remember, you can examine your medical records. Your RC should explain to you, personally, why you are detained, and ensure that ward staff discuss your situation with you. There is no appeal against your original detention, but you have the right to apply to a Mental Health Tribunal, asking them to consider discharging you now. If you are detained under section 2, you must apply within 14 days of being detained. (See Mind rights guide 4: discharge from hospital.) It is not, generally, possible to challenge the decision of the professionals who arranged your detention, even if you strongly disagree with it. However, if you believe that their assessment of you cannot be justified, or that they did not follow the sectioning process properly, you should consult a specialist mental health solicitor, as soon as possible (see p. 2). Alternatively, instead of taking legal action, you may wish to bring a complaint. An Independent Mental Health Advocate or other

13 advocate may be able to help you to do this. For complaints about MHA detention in England, contact the Care Quality Commission (details below). However, you should be aware that you may be asked to use the NHS complaints procedure first. Useful organisations Mind s Legal Advice Service PO Box 277, Manchester M60 3XN tel (Monday to Friday, 9am to 5pm legal@mind.org.uk Care Quality Commission The Belgrave Centre, Stanley Place, Talbot Street, Nottingham NG1 5GG tel (for complaints about MHA detention) (for complaints other than MHA detention) web: The Care Quality Commission improves and regulates the quality of health and social care in England and looks after the interests of people detained under the Mental Health Act; taking over from Commission for Social Care Inspection, Health Care Commission and Mental Health Act Commission Citizens Advice Bureaux (CABx) web: or Provides free, confidential and independent advice from over 400 branches in England, Wales and Northern Ireland, including GP surgeries, hospitals and prisons. See website or the phone book for your local office. Community Legal Advice tel web: A free and confidential service to help people with legal problems. See website for the CLA Legal Adviser Directory to find a legal adviser in your area. Driver and Vehicle Licensing Agency (DVLA) Drivers Customer Services (DCS) Correspondance Team, DVLA, Swansea, SA6 7JL tel web: 13

14 Healthcare Inspectorate Wales Bevan House, Caerphilly Business Park, Van Road, Caerphilly CF83 3ED tel web: Looks after the interests of detained people in Wales and regulates and improves health care and social care in Wales. The Law Society tel (for regional offices) (London) (Wales) web: Publishes a list of specialists in mental health law who can represent you at a Mental Health Tribunal and Managers Review. 14 UK Advocacy Network (UKAN) c/o 8 Beulah View LEEDS LS6 2LA office@u-kan.co.uk web: Coordinating group for user-led patients' councils, advocacy projects and mental health forums. If you need help in finding a local advocacy service, call the advocacy finder helpline on , or search the database on the Action for Advocacy website,

15 Further information Mind offers a range of mental health information, covering: Diagnoses Treatments Wellbeing Mind s information is ideal for anyone looking for further information on any of these topics. For more details, contact us on: tel fax publications@mind.org.uk web: Support Mind Providing information costs money. We really value donations, which enable us to get our information to more people who need it. Just 5 could help another 15 people in need receive practical essential information booklets. If you would like to support our work with a donation, please contact us on: tel dons@mind.org.uk web: 15

16 Mind s mission Our vision is of a society that promotes and protects good mental health for all, and that treats people with experience of mental distress fairly, positively, and with respect. The needs and experiences of people with mental distress drive our work and we make sure their voice is heard by those who influence change. Our independence gives us the freedom to stand up and speak out on the real issues that affect daily lives. We provide information and support, campaign to improve policy and attitudes and, in partnership with independent local Mind associations, develop local services. This booklet was originally written by Rhys Davies This edition was written for Mind by Joanna Sulek First published by Mind 1995 Revised Edition 2011 ISBN No reproduction without permission Mind is a registered charity No Mind (National Association for Mental Health) Broadway London E15 4BQ tel fax web: We do all this to make it possible for people who experience mental distress to live full lives, and play their full part in society. Contact us using Mind Infoline on or info@mind.org.uk Monday to Friday 9am to 5pm. We can give you details of Mind and other services local to you. We use Language Line if you want to talk to us in a language other than English. Mind covers England and Wales. For Scotland call the Scottish Association for Mental Health tel or for Northern Ireland contact the Northern Ireland Association for Mental Health tel