Mental Health Act: Training and Resource Guide Page 1 of 19

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1 Mental Health Act: Training and Resource Guide 2018 Page 1 of 19 1

2 FOREWORD This booklet is designed for professionals who need reference to the day to day requirements of the Mental Health Act It reflects the changes made by the MHA 1983 (Amended) 2007 and the Mental Health Act Code of Practice (2008) that was revised and republished in 2015 The following gives guidance on some of the important sections of the Mental Health Act and in particular those that affect the professional responsibilities of staff employed within the Trust. Further information about the Act and its use can be obtained from the Mental Health Act 1983 (Amended) 2007i, the MHA Code of Practice, the MHA Reference Guide, or a Mental Health Act Administrator CONTENTS Page Introduction 5 Principles of Mental Health 5 The Mental Health Act Code of Practice 5 The Five Overarching Principles 5 The Mental Health Act 6 Definition of Mental Disorder 6 Learning Disabilities 6 Personality Disorder 7 Professional Roles 7 The Nearest Relative 7 Methods by which a person may enter hospital for psychiatric treatment Informal Admission, Section Section 2 8 Sections 3 8 Section 4 9 Emergency holding powers Section 5(2) 9 Section5 (4) 9 Section Guardianship Section 7 Guardianship 11 Section 8 Power of Guardians 12 Section 17 Leave 12 Section 20 Renewal 12 Section 23 Discharge 12 2

3 Forensic Sections Section Section Section Section Community Treatment Order Section 17A: Community Treatment Orders 14 Recall and Revocation 14 Medical treatment under the Act Consent to Treatment 14 Section Section Section 58A 15 Section Receipt & scrutiny of documents Scrutiny and Rectification of Documents 16 Information for Patients, Nearest Relatives & Others Information to Patients Section Independent Mental Health Advocates 17 Section Transfers of Patients 18 The Tribunal The Tribunal 18 Duties of the Hospital Managers Section Absence Without Leave Section Section Section Care Quality Commission 20 T2/T3 Completion 20 Other Sections / Status 21 Contact Information 22 3

4 Other Relevant Legislation 22 Declaration 25 Appendices Quick Reference Guide 26 Common Sections 27 Certification of treatment of adults 28 Supervised Community Treatment: Part 4A Rules 29 4

5 MENTAL HEALTH ACT 1983 Introduction The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom which applies to people in England and Wales. It covers the reception, care and treatment of mentally disordered persons, the management of their property and other related matters. In particular, it provides the legislation by which people diagnosed with a mental disorder can be detained in hospital or police custody and have their disorder assessed or treated against their wishes, unofficially known as sectioning. Its use is reviewed and regulated by the Care Quality Commission. The Act has been significantly amended by the Mental Health Act 2007 The MHA provides the legal framework for the detention in hospital of people who are deemed to be suffering from mental disorder. The powers within the Act are used mainly to assess and treat these disorders. The Act contains a number of safeguards for anyone who is detained including the role of the Mental Health Tribunal, the Care Quality Commission and the Hospital Managers. The main powers within the Act can be used to detain people in hospital. This is often referred to as when a person is sectioned. The main powers are used either to bring a person into hospital or to detain someone who is already in hospital as a voluntary or informal patient. Other powers within the Act provide a framework for patients to receive treatment in the community. The main powers within the Act are exercised by Approved mental health professionals (AMHPs) and Approved/Responsible Clinician (RCs) Doctors also have other important roles, such as to make recommendations. Principles of Mental Health While carrying out functions of the Act there are certain values and principles that must be considered and applied as far as possible. The Code states that everyone has a legal duty to have regard to the guidance given in the Code but they must comply with the Mental Health Act as this is the law, you may not be able to apply the guiding principles all the time but you should consider them when making decisions under the Act. In principle the following applies The MHA tells us what to do (The Law) The Code explains how to do it; The Mental Health Act Code of Practice 2015 The 2008 Code of Practice was revised and republished on 1st April 2015 following extensive consultation, collaboration and engagement. It provides statutory guidance to registered medical practitioners, approved clinicians, managers and staff of providers and approved mental health professionals on how they should carry out functions under the Mental Health Act in practice. It is the authoritative guide to the MHA and departing from the Code could give rise to legal challenges. The code states that everyone who is working with the MHA must have regard to the guiding principles. The five overarching principles from the Code are: Least restrictive option and maximizing independence Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient s independence should be encouraged and supported with a focus on promoting recovery wherever possible. 5

6 Empowerment and involvement Patients should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered when taking decisions. Where decisions are taken which are contradictory to views expressed, professionals should explain the reasons for this. Respect and dignity Patients, their families and carers should be treated with respect and dignity and listened to by professionals. Purpose and effectiveness Decisions about care and treatment should be appropriate to the patient, with clear therapeutic aims, promote recovery and should be performed to current national guidelines and/or current, available best practice guidelines. Efficiency and equity Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental healthcare services are of high quality and are given equal priority to physical health and social care services. All relevant services should work together to facilitate timely, safe and supportive discharge from detention. Mental Health Act 1983 SECTION 1: Definition of Mental Disorder (CoP chapter 2) The 2007 Act abolished the categories of mental disorder and redefined it as any disorder or disability of the mind. Below are examples of disorders that could fall within this definition (the list is not exhaustive): affective disorders, such as depression and bipolar disorder schizophrenia and delusional disorders neurotic, stress-related and somatoform disorders, such as anxiety, phobic disorders, obsessive compulsive disorders, post-traumatic stress disorder and hypochondriacal disorders organic mental disorders such as dementia and delirium (however caused) personality and behavioural changes caused by brain injury or damage (however acquired) personality disorders mental and behavioural disorders caused by psychoactive substance use (but see the exclusions) eating disorders, non-organic sleep disorders and non-organic sexual disorders learning disabilities (but see the note on this) autistic spectrum disorders (including Asperger s syndrome) (but see note on this) behavioural and emotional disorders of children and adolescents Learning Disabilities (CoP ) Someone with a learning disability and no other form of mental disorder may not be detained for treatment or made subject to guardianship or Community Treatment Orders unless their learning disability is accompanied by abnormally aggressive or seriously irresponsible conduct on their part. 6

7 The learning disability qualification does not apply to autistic spectrum disorders (including Asperger s syndrome). It is possible for someone with an autistic spectrum disorder to meet the criteria for detention under the Act without having any other form of mental disorder, even if their autistic spectrum disorder is not associated with abnormally aggressive or seriously irresponsible behaviour. Personality disorders (CoP ) The Act applies to personality disorders (of all types) in exactly the same way as it applies to mental illness and other mental disorders. (CoP chapter 21 for further guidance on personality disorders) Professional Roles: the Approved Clinician (AC) and the Responsible Clinician (RC) (CoP chapter 36) The Responsible Clinician (RC) is the approved clinician who has overall responsibility for the care of a patient. Only a doctor may make recommendations for detention in hospital under section 2, 3 or 4. The law still requires that one of the two doctors is approved under section 12 of the Act. It is only after the patient has been admitted that an approved clinician from a different professional background would be able to take responsibility for a patient s care and make decisions about the continued use, or the ending of, compulsion. Nearest Relative (CoP chapter 5) Unlike a person s next of kin, the Nearest Relative (NR) is defined by Section 26 of the MHA. There is no choice about who the nearest relative is. It is the person who comes highest on the list below: Husband, wife or civil partner or a partner who has lived with the patient for more than six months Eldest child Eldest parent Eldest brother or sister Eldest grandparent Eldest grandchild Eldest aunt or uncle Eldest nephew or niece Someone who has ordinarily resided with the patient for at least five years. An illegitimate person is treated as if they were the legitimate child of Their mother Their father only if he has parental responsibility within the meaning of s3 Children Act 1989 Full-blood relatives are preferred to half-blood relatives. Adoptive relationships are included but step-relationships are not. The NR must be resident in the UK unless the patient is a foreign national who does not reside in the UK. A NR will cease to be nearest relative only if they choose to delegate their powers or the Court displaces them. 7

8 A patient s NR will naturally change, if for example a family member reaches the age of 18, dies, marries or if the patient moves and lives with a relative. It is therefore vital that this is assessed every time that the patient is assessed under the Act. The County Court can appoint someone a NR if the patient does not have one. The patient can nominate someone they would like to be the NR. However it will be up to the court to decide who the most suitable person is. Methods by Which a Person May Enter a Hospital for Psychiatric Treatment SECTION 131: Informal Admission Any person having attained the age of 16 years, or a competent child under 16, may request admission and can be admitted without any legal formalities Whilst in hospital staff have a duty of care towards the patient, meaning that their wellbeing is central to all treatment given and must be beneficial. They cannot be legally held in hospital against their will without good reason, being protected under the Human Rights Act (1998), and can leave at any time. Under Section 5 of the Mental Health Act doctors and nurses can stop the patient from leaving if they are worried that the patient may harm themselves or others. Where a patient appears to lack capacity/competence, consideration of a DoLS application may be required. The acid test for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave (Cheshire West and Cheshire Council v P 2014) Compulsory Admission and Detention SECTION 2: Admission for Assessment (CoP chapter 14) An application for the admission of the patient must be made by either an Approved Mental Health Professional (AMHP) or the Nearest Relative, based on medical recommendations from two doctors one of whom must be approved under section 12. One doctor shall, if practicable, have previous acquaintance with the patient. The applicant must have seen the patient within the last 14 days. The doctors must have personally examined the patient, and if separate examinations have taken place, they must be at an interval of no more than 5 clear days apart. The patient must be admitted to hospital within 14 days of the last medical examination. The section lasts for up to 28 days Rights of Review the patient may apply to the Tribunal within the first 14 days of the section. Nearest Relative can discharge the patient, but must give 72 hours notice and the Responsible Clinician (RC) may bar the discharge within this time. The Hospital managers should consider reviewing the case following a barring order made by the RC under S25. SECTION 3: Detention for Treatment (CoP chapter 14) This admission is for up to 6 months which is then renewable initially for a further 6 months followed by periods of one year at a time for treatment of patient suffering from a mental disorder that makes it appropriate for them to receive treatment in hospital. It must also be necessary for the health and safety of the patient or for the protection of other persons that they should receive treatment and that appropriate treatment is available for them. An Approved Mental Health Practitioner (AMHP) makes an application and two doctors need to complete medical recommendations (one must be section 12 approved). Rights of Review Patients may appeal to the Hospital Managers at any time during the period of detention but they can only appeal once in each period of detention to the First Tier Tribunal, the patient may apply to the Tribunal once during each period of detention. Nearest 8

9 Relative can order the discharge of the patient but must give 72 hours notice and the RC can bar the discharge within this time. If the RC bars their discharge order, the nearest relative may apply to the Tribunal. Following a barring order by the RC under S25, the Hospital managers should consider reviewing the case SECTION 4: Emergency Admission for Assessment (CoP chapter 15) This section lasts for a maximum of 72 hours. The application must be made either by an AMHP or the Nearest Relative based on a recommendation from a medical practitioner who must have seen the patient within the last 24 hours, the patient must be admitted to hospital within 24 hours of the medical examination. This section can be converted into section 2 if a second medical recommendation is received within 72 hours. The 28 day period of the section 2 runs from the start of the section 4. Emergency Holding Powers SECTION 5(2): Emergency Holding Power - For Patients Already in Hospital (CoP para 18) This section allows the doctor or approved clinician in charge of the treatment of a patient or a doctor or approved clinician nominated to act in their absence, to detain an informal patient who is already in hospital for up to 72 hours TREATMENT MAY ONLY BE GIVEN WITH THE PATIENT S CONSENT. Emergency treatment can only be given in the principles of common law and the Mental Capacity Act, that is to say if the patient lacks capacity and treatment is immediately necessary to save life, prevent a serious deterioration in the patient s health, alleviate serious suffering or prevent the patient acting violently and being a danger to themselves or others. SECTION 5(4): Nurses Emergency Holding Power For Patients Already in Hospital (CoP para 18) This section allows a first level mental health or learning disability nurse, to detain an informal patient who is already being treated for mental disorder, as an inpatient in hospital for up to six hours if it appears to them that: i ii The patient is suffering from mental disorder to such a degree that it is necessary for their health and safety, or for the protection of others, for them to be immediately prevented from leaving the hospital. It is not practicable to secure the immediate attendance of a medical practitioner for the purpose of furnishing a report under section 5(2). The holding power starts after the nurse has recorded their opinion on the prescribed form (Form H2) and ends either six hours later or on the arrival, of a doctors or approved clinician who is entitled to make such a report under section 5(2). The doctor is free either to make such a report or to decide not to detain the patient further. The written record made by the nurse must be delivered to the a member of staff who is authorised to receive section papers on behalf of the Hospital Managers (Mental Health Act Administrator or the Nurse in Charge of the ward). The six hours holding period counts as part of the 72 hours, if the doctor concerned decided to make a report under section 5(2). TREATMENT MAY ONLY BE GIVEN WITH THE PATIENT S CONSENT. (See section 5(2) above) 9

10 Section 136 removal of mentally disordered persons without warrant. If a person appears to a police officer to be suffering from mental disorder and to be in immediate need of care or control, may if he thinks it necessary to do so, in the interests of that person or for the protection of other persons (a) Remove the person to a place of safety within the meaning of section 136, or (b) If the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety. The power of a police officer may be exercised where the mentally disordered person is at any place, other than: (a) Any house, flat or room where that person, or any other person, is living, or (b) Any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms. A police officer may enter any place where the power may be exercised, if need be by force. Before deciding to remove a person to, or to keep a person at, a place of safety, the police officer must, if it is practicable to do so, consult (a) A registered medical practitioner, (b) A registered nurse, (c) An approved mental health professional, or (d) A person of a description specified in regulations made by the Secretary of State. A person removed to or kept at a place of safety may be detained there for a period not exceeding the permitted period of detention to enable them to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional The permitted period of detention is 24hours (Implementation of the revision of the MHA and the Policing and Crime Act 2017 introduce a detention period of 24 hours, prior to this it was a maximum of 72 hours) The period begins with in a case where the person is removed to a place of safety, the time when the person arrives at that place; in a case where the person being kept at a place of safety, the time when the police officer decides to keep the person at that place Section 136B extension of detention The registered medical practitioner who is responsible for the examination of a person detained under section 135 or 136 may, at any time before the expiry of the period of 24 hours, authorise the detention of the person for a further period not exceeding 12 hours (beginning immediately at the end of the period of 24 hours). An authorisation may be given only if the registered medical 10

11 practitioner considers that the extension is necessary because the condition of the person detained is such that it would not be practicable for the assessment of the them Section 136C protective searches (1) Where a warrant is issued under section 135 a police officer may search the person they have reasonable grounds for believing that the person (a) May present a danger to themselves or others, and (b) Is concealing their person an item that could be used to cause physical injury to themselves or others. (2) The power to search may be exercised (a) in a case where a warrant is issued under section 135(1), at any time during the period beginning with the time when a police officer enters the premises specified in the warrant and ending when the person ceases to be detained under section 135; (b) In a case where a warrant is issued under section 135(2), at any time while the person is being removed under the authority of the warrant. (3) Where a person is detained under section 136 a police officer may search the person, at any time while the person is so detained, if they have reasonable grounds for believing that the person (a) May present a danger to themselves or others, and (b) Is concealing on their person an item that could be used to cause physical injury to themselves or others. (4) The power to search is only a power to search to the extent that is reasonably required for the purpose of discovering the item that the police officer believes the person to be concealing. (5) The power to search (a) Does not authorise a police officer to require a person to remove any of his or her clothing other than an outer coat, jacket or gloves, but (b) Does authorise a search of a person s mouth. GUARDIANSHIP (CoP chapter 30) SECTION 7: Application for Guardianship This section allows a patient who has attained the age of sixteen years to be placed under the supervision of a guardian. The applicant may be the Nearest Relative or an AMHP (who must have seen the patient within the last 14 days) and is made to the local Social Services Authority. The application must be based on medical recommendations from two doctors (one Section 12 approved) who have examined the patient together or within five clear days of each other. The patient must be agreed to suffer from a mental disorder and agreed that it is necessary in the interests of the patient that they should be received into the guardianship of an individual or of the 11

12 local Social Services Authority. The order is for six months unless renewed for a further six months and then annually. Rights of Review - the patient may apply to a Tribunal once within each period of detention. The patient may be discharged by the RC, the social services authority or the Nearest Relative. TREATMENT MAY NOT BE IMPOSED WITHOUT CONSENT. SECTION 8: Powers of Guardians The Guardian has the power to: i To require the patient to reside at a specified place. ii To require the patient to attend at specified places and times for medical treatment, occupation, education or training. iii To require access to the patient to be given at the patient s residence, to any doctor, Approved Mental Health Professional or other specified person. The guardian has no other statutory powers. Section 17 Leave of Absence Section 17 allows the Responsible Clinician (RC) to grant a detained patient leave of absence from hospital. It is the only legal means by which a detained patient may leave the hospital site. It applies to patients detained under Sections 2, 3, 37 and 47.It does not apply to patients detained under Sections 4, 5(2), 5(4), 135 or 136.Patients detained under Sections 35, 36 and 38 cannot be granted leave without the permission of the court involved. Patients subject to a restriction order cannot be granted leave without the permission of the Home Office. The RC may place any conditions upon the granting of leave considered to be in the interests of the patient or for the protection of others, e.g. residing with a particular person or at a specified place, taking medication, remaining in the custody of a member of staff during the leave. The Nurse in charge is responsible for ensuring that a Section 17 form has been completed before the patient is allowed to leave hospital. Nursing staff should assess the patient s clinical state before each instance of leave, even if it is not stated to be contingent upon their approval. Particular attention should be paid to risk posed to the patient or to others. Nursing staff may withhold the leave if they consider the patient not well enough. However, it is bad practice for nurses to withhold leave for any reason other than deterioration in the mental state of the patient. Patients should also be given copies of the forms. Only the Responsible Clinician may grant leave. Section 20 Renewal Sections 3, 37, 17A and 47 require the Responsible Clinician to complete a renewal form before the expiry of the section. This allows for the section to continue for a further period of either six or twelve months, dependent upon the length of time they have already been detained. Once a form has been completed the Hospital Managers are then obliged to review the continued detention. Section 23 Discharge This section empowers the Hospital Managers, the Responsible Clinician and the Nearest Relative to discharge a patient. The nearest relative's powers are limited by the provisions of s25. For restricted patients, the person who would be nearest relative has no power of discharge, and all other discharges can only take place with Home Office 12

13 Forensic Sections (CoP chapter 22) SECTION 35: Remand to Hospital for a Report Empowers a Crown Court or a Magistrates Court to remand an accused person (awaiting trial and accused of an offence punishable by imprisonment or awaiting sentence) to a specified hospital for a report. The Court must receive written or oral evidence from one registered medical practitioner that there is reason to suspect that the person is suffering from a mental disorder and that it would be impracticable to obtain a medical report on bail. The Court must hear from a doctor or representative of the Hospital Managers that arrangements for admission to hospital within seven days have been made. The order lasts for 28 days initially, renewable at 28 day for intervals up to 12 weeks, by application to the Court. The patient need not be present. The Court may terminate the remand at any time. The Act authorises that an independent report may be obtained if it is needed. TREATMENT MAY ONLY BE GIVEN WITH THE PATIENT S CONSENT. SECTION 36: Remand to Hospital for Treatment Empowers the Crown Court (only) to remand a person awaiting trial before a Crown Court, accused of an offence punishable by imprisonment (other than murder) to a hospital for treatment. Two reports are required (one from a section 12 approved doctor) and also evidence from the doctor who will be in charge of the treatment that arrangements have been made for admission within seven days. The person must be suffering from a mental disorder. The order is for 28 days initially and may be renewed at 28 day intervals for up to 12 weeks. It may be terminated at any time by the Court. An independent examination may be obtained. SECTION 37: Crown Court or Magistrate s Hospital Order This is used when a Court orders an offender, who is suffering from a mental disorder and has committed an offence punishable by imprisonment, to be detained in hospital so that the patient can receive treatment likely to alleviate or prevent a deterioration of their condition. The patient should be treated as if admitted for treatment under section 3, but the six months detention starts from the date of the Hospital Order. The patient may appeal to the Tribunal during the second six months if the order is renewed and in each subsequent renewal period. The Nearest Relative may apply to the Tribunal between six and twelve months after the order and thereafter annually. SECTION 41: Restriction Order This is used by a Crown Court as an addition to a Hospital Order when it appears to the court, having regard to: i The nature of the offence ii The antecedents of the offender iii The risk of committing a further offence if discharged That restriction order is necessary for the protection of the public from serious harm and that at least one of the registered medical practitioners whose evidence is taken into account, has given oral evidence to the court. Any restriction order may be either for a specified period or without limit of time, in the latter case it may be terminated at any time by the Secretary of State for Justice under section 42(1). 13

14 SECTION 17A: Community Treatment Orders (CTOs) (CoP chapter 29) CTOs were introduced by the 2007 Act to replace section 25A Supervised Discharge. CTOs should be considered for any patient who is granted section 17 leave for more than seven consecutive days. A CTO gives the Responsible Clinician the ability to recall the patient to hospital and if necessary to revoke the order, which has the effect of re-detaining the patient on section 3 or 37. A CTO is only available for patients who are on treatment orders (i.e. sections 3 and 37) (not for restricted patients). The responsible clinician makes a recommendation for a CTO and the patient is then assessed by an AMHP. The RC and AMHP will agree conditions that may be attached to the order, for example, place of residence, avoidance of certain places, and abstinence from drugs. There are two automatic conditions attached to any order: 1) that an incapacitated patient makes himself available for examination by a SOAD for the purposes of Part 4A of the Act and 2) that the patient makes himself available for examination in the renewal process. CTOs initially last for 6 months, are then extended for a further six months and annually thereafter. CTO patients have rights of appeal to the hospital managers and to the Tribunal. Recall and Revocation The RC can, by giving written notice, recall the patient to hospital. This has the effect of detaining the patient in hospital for up to 72 hours to allow for assessment. If the RC and AMHP agree the CTO should be revoked the patient would once again be detained in hospital under the original order. A six month period of detention starts again when the CTO is revoked. If the order is not revoked or cancelled the patient may leave hospital, but is still subject to the CTO. Treatment on CTO (CoP chapter 24) Patients on CTOs who have the capacity to consent to a treatment may not be given treatment unless they consent. There are no exceptions to this rule, even in emergencies. Treatment can only be given without their consent if they are recalled to hospital. Patients who do not have the capacity to consent to their treatment can be treated if an attorney or deputy consents on their behalf For non capacitated patients a SOAD must approve treatment that is given whilst a patient is on a CTO. The SOAD completes the usual process and provides a certificate CTO11 that authorises treatment. The RC completes a Form CTO12 for capacitated patients. Medical Treatment Under The Act (CoP chapter 24) SECTIONS 56-64: Consent to Treatment of Patients in Hospital These sections are concerned with the consent of treatment for long term detained patients, but certain safeguards also apply to informal patients. There are three levels of safeguard. The first level applies to the most serious treatments which require a patient s consent and a second opinion (it is these safeguards which apply to informal patients). 14

15 The second level, section 58A type treatments includes ECT only. These treatments may not be given if a patient with capacity refuses it. A patient without capacity must have the treatment approved with a second opinion. The third type of treatment applies to other treatments which require a patient s consent or a second opinion. The safeguards for the second and third types of treatment can be set aside where the need for treatment is urgent. SECTION 57: Treatment Requiring Consent and a Second Opinion This section applies to any psychosurgery, including the surgical implantation of hormones for the purpose of reducing male sexual drive and such other forms of treatment as may be specified by the Secretary of State for Justice. If the patient does not consent or cannot give informed consent, the treatment cannot be given. SECTION 58: Treatment Requiring Consent or a Second Opinion (CoP chapter 24) Applies to drug treatment if three months or more have elapsed since drugs were first given, during the period of detention, If a person consents to a treatment which comes under section 58, the RC (or a doctor appointed by the Care Quality Commission) must certify in writing that the patient is capable of understanding the nature, purpose and likely effect of the treatment and has consented to it. He must use Form T2 for this purpose. If a detained patient does not consent to a treatment included under this section, and the RC, having considered the alternatives, continues to feel that the patient needs that particular form of treatment, he should submit a request to the Care Quality Commission for a Second Opinion Appointed Doctor (SOAD) to review the case. The SOAD will consult with two professionals who are concerned with the treatment of the patient: a nurse and another professional who is neither a nurse nor a doctor (e.g. Social Worker, OT, Physiotherapist, etc.) and will complete a form T3 If the patient withdraws consent, the treatment must cease immediately and the RC must again arrange for the Care Quality Commission to be contacted so that section 58 can be complied with before proceeding with the treatment. The address of the Commission is: Care Quality Commission, Citygate, Gallowgate Newcastle upon Tyne, NE1 4PA SECTION 58A: Electro Convulsive Therapy (ECT) The key differences between section 58 treatments and section 58A treatment are that: a) Patients who have the capacity to consent may not be given treatment under section 58A unless they do in fact consent. b) No patient under the age of 18 (regardless of legal status) can be given treatment under section 58A unless a SOAD has certified that the treatment is appropriate, and; c) There is no initial three month periods during which a certificate is not needed. This includes medication administered as part of the ECT. If the patient consents then the RC can provide a Form T4. If a patient is incapable of consenting (and has made no advance decision about this) then a SOAD must approve the treatment providing a Form T5 (for patients under 18) or Form T6 for adult patients. SECTION 62: Urgent Treatment A treatment otherwise restricted by section 57 or section 58 may be given without the patient s consent, or to a patient who is not capable of giving consent, if: 15

16 i It is immediately necessary to save the patient s life. ii The treatment is not irreversible and is immediately necessary to prevent serious deterioration of the patient s condition. iii The treatment is not irreversible or hazardous and is immediately necessary to alleviate serious suffering by the patient. iv The treatment is not irreversible or hazardous and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others. If it is proposed to continue treatment after the initial urgent administration, it will be necessary for the RC to contact the Care Quality Commission. Section 58A type treatments can only be given in an emergency if one of the first two criteria is met, even though the patient may be objecting or have a valid advance decision refusing treatment. SECTION 15: Scrutiny and Rectification of Documents (CoP chapter 35) Receipt and Scrutiny is the process of checking that the section papers for patients who are to be detained under the MHA or subject to CTO,s are legally correct Receipt of documents may be undertaken by the practitioner (most likely a nurse) in charge of the ward. If the documents appear to the member of staff receiving them to be completed accurately, the member of staff will complete Form H3 (Record of detention in hospital) or CT04 (record of detention after recall) whichever is appropriate in the circumstances. With the exception of Section 5(4), a patient s detention commences only when the papers have been accepted by or on behalf of the Hospital Managers and the Form H3 has been completed. In the event that the section papers appear not to be valid, the Mental Health Act Administration Team must be contacted immediately. If this occurs out of office hours, assistance should be sought from the relevant AMHP team. When detention papers are incorrectly completed, most errors can be corrected under Section 15 of the Act within 14 days of formal admission and the patient can continue to be legally detained for this period. Certain faults cannot be corrected and in those cases the section may have to be considered as invalid and a fresh application made. The following errors will invalidate a document and/or a section: The wrong form has been used The form has not been signed The statutory timescales have not been complied with Neither of the doctors was approved under section 12 of the Act or that the doctor was not entitled to make a recommendation That the patient was not admitted to a hospital or unit named in both medical recommendations (for section 3 only) A document cannot be regarded as an application or medical recommendation if it is not signed or is signed by a person who is not empowered to do so under the Act. This means that a check should be made to confirm that an application is signed by an Approved Mental Health Professional, in the case of an application made by the Nearest Relative the patient s Nearest Relative or and that at least one of the medical recommendations is signed by a practitioner who is approved by the Secretary of State under section 12. In doing so the Officer scrutinising the forms may take statements at face value. For example they need not check that the doctor who states they are a registered medical practitioner is registered. 16

17 The dates on the section papers must be checked carefully. There must not be more than five clear days between the two recommendations and they must be used by the applicant within fourteen days. The Mental Health Act Administration Team have developed a checklist that assists in ensuring paperwork is fit for purpose and is available from Mental Health Act Administration and should be returned to the team with completed section papers. Information for Patients, Nearest Relatives & Others (CoP chapter 4) SECTION 132: Information All patients should be given throughout their stay in hospital as much information as possible about their care, treatment and rights of appeal. In particular it is important that Informal patients understand their right to leave hospital and to be advised of their right to withdraw consent to treatment at any time before its completion and of the need for them to give fresh consent to treatment thereafter. The person giving the information to a patient, regarding detention, should record on the appropriate form the various attempts to give the information, the patient s reactions and an assessment at every stage in the procedure. The Mental Health Act leaflets giving the information to detained patients are available in different languages and can be obtained from the Trust Intranet. Help can also be arranged for patients with difficulties with speech or hearing. The notification in writing will be sent out by the MHA Admin Team and should be given to the patient as soon as possible after the start of the section; every assistance must be given to help them understand the information. Explanation should be given regularly until the patient understand and recorded appropriately on the correct form Best practice dictates that the information is given: At regular intervals thereafter (three monthly as a guide) When the patient requests it The Act also requires hospital managers to take such steps as are practicable to give the patient s nearest relative a copy of any information given to the patient in writing, unless the patient requests otherwise. The information should be given to the nearest relative when the information is given to the patient, or within a reasonable time afterwards. Independent Mental Health Advocates (IMHA) (CoP chapter 6) This statutory new provision was introduced 1 April 2009 as a important safeguard that will help and support qualifying patients (see CoP ) All qualifying patents are entitled to access the help of an IMHA and named nurses are required to provide information about the role of the IMHA in line with the standards for s132. The role of the IMHA (CoP ) The Act says that the support which IMHAs provide must include helping patients to obtain information about and understand the following: their rights under the Act; the rights which other people have in relation to them under the Act; the particular parts of the Act which apply to them (e.g. the basis on which they are detained) and which therefore make them eligible for advocacy; any conditions or restrictions to which they are subject 17

18 any medical treatment that they are receiving or might be given; the reasons for that treatment (or proposed treatment), the legal authority for providing that treatment, and the safeguards and other requirements of the Act which would apply to that treatment. Section 140 Notification of hospitals having arrangements for special cases (CoP 14.78) Clinical commissioning groups (CCGs) are responsible for commissioning mental health services to meet the needs of their areas. Under section 140 of the Act, CCGs have a duty to notify local authorities in their areas of arrangements which are in force for the reception of patients in cases of special urgency or the provision of appropriate accommodation or facilities specifically designed for patients under the age of 18. The arrangements should include details of which providers in their area can receive patients in cases of special urgency and provide accommodation or facilities designed to be specifically suitable for patients under the age of 18. CCGs should provide a list of hospitals and their specialisms to local authorities which will help inform AMHPs as to where these hospitals are. This should in turn help inform AMHPs as to where beds are available in these circumstances if they are needed. Transfer of Patients Between Hospitals (CoP ) A patient can be transferred between hospitals under the MHA, other than those subject to holding powers under S5 (4) & S5 (2). If the hospital is under the same NHS Trust then no formal paperwork is required. The MHA Team (MHAT) must be informed of transfers of detained patients (either incoming or outgoing) as soon as they are agreed. Best practice dictates that papers should be faxed before the transfer to ensure they are valid. The MHAT, during core hours, will also ensure that the transfer form is completed. Out of hours the nurse in charge must sign the transfer form when the patient is admitted to their unit. The Tribunal (CoP chapter 12) The Tribunal is an independent judicial body. Its main purpose is to review the cases of detained, conditionally discharged and Community Treatment Orders (CTO) patients under the Act and to direct the discharge of any patients where it thinks appropriate. It also considers applications for discharge from guardianship. Patients have opportunities to apply to the First-tier Tribunal (Health, Education and Social Care Chamber) as mentioned in earlier chapters. There is one Tribunal for England, its address is The Tribunal PO Box th Floor Leicester LE1 8BN SECTION 68: Hospital Manager s Duty to Refer Cases to a Tribunal CoP ) MHA Reference Guide chapter 23 Patients detained under Part 2 of the Mental Health Act for six months, or transferred to hospital under Guardianship Order (section 19) or is subject to a CTO and who has not applied for a Tribunal, or had an application made on their behalf by their nearest relative or had his case referred by the Secretary of State, must be referred to a Tribunal by the Hospital Managers. This period includes any time spent on section 2 and discounts any Tribunals that reviewed that detention under section 2. 18

19 The Hospital Managers must also refer a patient s case to the Tribunal if it has not heard the case for three years (or one year if the patient is under 18). The hospital managers must also refer a patient to the Tribunal where they were subject to a CTO but that has been revoked. Any Part 3 patient (one who has been detained in hospital through the criminal justice system) detained under section 37 who has not had a Tribunal for three years must also be referred by the hospital managers. The Secretary of State for Justice will refer any conditionally discharged patient who has been recalled to hospital within one month after the recall. The Secretary of State for Justice will also refer Section 37/41 patients who have not had a Tribunal for three years. Absence Without Leave Section 18: (CoP chapter 28) This section provides powers for retaking detained patients who are absent without leave from hospital or who fail to return from leave either at the end of leave or when recalled. A patient who is liable to be detained in hospital may be retaken by any Approved Mental Health Professional, a Police officer or any officer on the staff of the hospital where the patient is liable to be detained or any person authorised in writing by the managers of that hospital. Time Limits for Retaking Patient Absent Without Leave If a patient remains AWOL for six months or until his section has expired, he cannot be retaken under section 18 and a fresh application for treatment would have to be made, if compulsory powers were still appropriate. A patient cannot be taken into custody under section 18 if the period of his detention under one of the following short term powers has expired: admission for assessment (section 2), emergency admission (section 4) the detention of an inpatient by the doctor (section 5(2)) or by a nurse (section 5(4)). Section 135 (1) Warrant to Search and Remove Allows a police officer to remove a person where there is reason to suspect that a person is suffering from a mental disorder and is: a. Being ill-treated, neglected or not kept under proper control or b. Is unable to care for her or himself and lives alone An AMHP can apply to a magistrate for a warrant authorising a police officer with a doctor and an AMHP to enter any premises and remove the person to a place of safety. Once removed to a place of safety that person may be detained there for a period of up to a maximum of 36 hours When executing the warrant if the premises specified in the warrant are a place of safety, the police officer executing the warrant may, instead of removing the person to another place of safety, keep the person at those premises for the purpose of assessment. Section 135 (2) Warrant to Retake an AWOL Patient Allows for the retaking of a detained patient, who is absent without leave, by forced entry if necessary to any premises where the patient is located and entry has been refused. Section 117- Aftercare It is the duty of the health authority & local social services to provide, in co-operation with relevant voluntary organisations and aftercare services. Those subject to S117 are patients on (or have been on) S3, S37, 45A, S47 & S48 19

20 The Care Quality Commission The Care Quality Commission regulate health and adult social care services in England, whether they are provided by the NHS, local authorities, private companies or voluntary organisations. Their aim is to ensure these services provide people with safe, effective, compassionate, high quality care, and to protect the rights of people detained under the Mental Health Act. Their main activities are: Registration of health and social care providers to ensure they are meeting essential common quality standards Monitoring and inspection of all health and adult social care Using their enforcement powers, such as fines and public warnings or closures, if standards are not being met Improving health and social care services by undertaking regular reviews of how well those who arrange and provide services locally are performing and special reviews on particular care services, pathways of care or themes where there are particular concerns about quality. Reporting the outcomes of their work so that people who use services have information about the quality of their local health and adult social care services. It helps those who arrange and provide services to see where improvement is needed and learn from each other about what works best. Their work brings together independent regulation of health, mental health and adult social care. Before 1 April 2009, this work was carried out by the Healthcare Commission, the Mental Health Act Commission and the Commission for Social Care Inspection. These organisations no longer exist. Mental Health Act T2/T3 Completion The Mental Health Act 1983 provides the prescriber with a 3-month period to develop a treatment programme to meet the service user's needs. The 3-month period legally starts from first administration of medication, but the Trust will take the start date of the section. The 3-month rule The MHA Team will remind the approved clinician at least 4 weeks before the expiry of the 3- month period. The approved clinician should: Seek the service user's consent to continuing medication. Record the discussion in the medical notes including an assessment of the service user's ability to consent. If the service user refuses consent or is deemed unable to provide a reliable consent the approved clinician must request a second opinion appointed doctor (SOAD) visit from the Care Quality Commission (CQC). Validity checks of T2, T3 and Section 62 forms T2, T3 and Section 62 forms apply to medication used to alleviate the symptoms of mental disorder and their side effects as detailed in the Mental Health Act