The mental health act has recently been updated to allow professionals other than approved social workers to provide certification, and there are also some other changes. Thus the information on this page is currently archive information only

Introduction

The Mental Health Act 1983 (the Act) provides the statutory framework for the admission to hospital of patients with a mental disorder and their subsequent treatment and aftercare. In addition, the Department of Health and the Welsh Office produce a Memorandum on Parts of the Mental Health Act (revised in 1998) which explains the provisions of the Act in more detail and the Code of Practice (revised March, 1999) which provides guidance on how the provisions should be carried out.

The Mental Health Act Commission (MHAC) recommends that general practitioners should be conversant with the main provisions of the Act (particularly Part II, which is concerned with compulsory admission to hospital and guardianship, and some of the provisions for after-care under Section 117) and the Code of Practice. The Code of Practice is not legally enforceable but it is a statutory document and failure to follow it could be referred to in evidence in legal proceedings. All those with responsibilities under the Act should have access to a copy of the Code of Practice. For more detailed information, general practitioners may find it helpful to refer to reference texts such as the Mental Health Act Manual (Richard Jones, 1999)2, which includes an interpretation of the various sections.

Part 1 of the Act defines the term "mental disorder" and identifies four categories. While it is sufficient for admission under Section 2 (Admission for Assessment) that the person is suffering from a mental disorder, for Section 3 (Admission for Treatment) the specific category of mental disorder has to be identified.

A general practitioner may be expected to take part in the following processes:

Assessment for detention

The general procedures for assessment for detention under both Sections 2 and 3 of the Act are similar. Most commonly an Approved Social Worker (ASW) or, very rarely, the Nearest Relative (see paragraph 5 for explanation of the position of Nearest Relative) will make an application under the Act based on two medical recommendations. One of the medical recommendations must be given by a doctor approved under Section 12(2) of the Act as having special experience in the diagnosis and treatment of mental disorder. Other than in exceptional circumstances, the second medical recommendation should be given by a doctor who knows the patient personally in his or her professional capacity. Where this is not possible, it is desirable for the second medical recommendation to be provided by an "approved" doctor (Code of Practice 2.29).

Although the two doctors can examine the patient together (and indeed there is a specific form that can be used in this situation), it is important that they each form an independent professional opinion based on their knowledge of the patient and their examination. Similarly, the Approved Social Worker is acting in an independent professional capacity and he or she has to be satisfied that detention in hospital is the most appropriate course of action.

An application under Section 2 may be made on the grounds that the patient:

  1. is suffering from mental disorder of a nature or degree which warrants detention in hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
  2. ought to be detained in the interests of his or her own health or safety or with a view to the protection of other persons.

The patient can be detained for up to 28 days under this Section which is not then renewable. Should a longer period of detention be necessary an application will be made under Section 3.

An application may be made under Section 3 on the grounds that:

The period of detention is for a maximum period of six months, but can be renewed for a further six months and then at yearly intervals should this be necessary.

Emergency admissions for assessment can take place under Section 4 of the Act (Chapter 6 Code of Practice). An application for assessment is made by an ASW or possibly the patient's Nearest Relative with one medical recommendation given, if practicable, by a medical practitioner who has prior knowledge of the patient. This Section should only be used in cases of urgent necessity, where delay in obtaining a second doctor would be undesirable. It should not be used for administrative convenience.

Section 4 is "converted" to Section 2 detention by the provision of a second medical recommendation usually by the psychiatrist in charge of the case. Should such a second recommendation not be completed, the Section 4 ceases to have effect 72 hours after the admission of the patient. The Section should not be allowed simply to lapse; the patient should be discharged from the Section as soon as it is decided that formal admission will not be necessary.

Other provisions

General practitioners may be asked to carry out an assessment under other circumstances.

Under Section 136 of the Act, where a police constable has reason to suppose that a person in a public place is suffering from a mental disorder he or she may, using powers of arrest, take the person to a place of safety to enable assessment by a doctor and ASW and for any necessary arrangements for his or her treatment and care to be made within a period of 72 hours (Chapter 10, Code of Practice). A similar provision applies under Section 135 of the Act, except that in this case the ASW applies for an order from the Magistrates Court empowering a constable to enter a private property and to convey a patient to a place of safety for a similar assessment. The constable executing the warrant must be accompanied by an ASW and a registered medical practitioner.

Section 5(2) of the Act enables the doctor in charge of the treatment of an informal patient to make a report to the Managers that the patient should be detained to allow time to give consideration to an application under Section 2 or 3. An assessment should then be made by an ASW and doctors, one of whom should be, if possible, the patient's own family doctor, (Chapter 8, Code of Practice).

An Application for Guardianship (Section 7 of the Act) is made by an ASW or possibly the Nearest Relative and is also based on two medical recommendations. The purpose of Guardianship is to enable patients to receive community care where it cannot be provided without the use of compulsory powers. In particular the Guardian, who is normally a social worker acting on behalf of the local authority, can require a patient to live in a specified place, to attend at specified places for treatment and to allow access to authorised persons at the place where he or she is living (Chapter 13 Code of Practice).

The Mental Health (Patients in the Community) Act 1995 introduced the procedure of Supervised Discharge, which has been incorporated within the 1983 Act at Section 25A to 25J. It provides a framework of formal supervision, the purpose of which is to help ensure that a patient who has been detained for treatment under the Act receives the after-care services required to be provided under Section 117 (Chapter 28 Code of Practice).

An application for Supervised Discharge is made by the patient's Responsible Medical Officer at a time when the patient is liable to be detained for treatment under the Act. It is supported by two recommendations provided by an ASW and a doctor, who should, if possible, be concerned with the patient's medical treatment in the community. There are also requirements to consult with informal carers and nearest relatives. A supervisor is appointed, whose powers are similar to those of a Guardian, but there is an additional power allowing the supervisor to convey a patient to a place where he or she is to attend for treatment. The Community Responsible Medical Officer (CRMO) is responsible for the patient's psychiatric treatment in the community. He or she will usually be a consultant psychiatrist, but a general practitioner Who is approved under Section 12 may be appointed as the CRMO. The general practitioner may be asked to make the medical recommendation which is required to support an application for Supervised Discharge and should be involved in planning meetings regarding its implementation.

Completion, scrutiny and rectification of statutory forms

Statutory forms are legal documents and are required to be accurate. They must be completed in accordance with the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 (as anciended)3. When completing the medical recommendations (forms 3,4,7, 10 or 11) the following points should be noted:

There should be a number of checks within the process of admission to ensure that the documentation is correct. Besides doctors and ASWs making sure that the forms they sign comply with the requirements of the Act, ASWs have the additional duty to check the medical recommendation forms as well as their own application form before admission.

The Hospital Managers will have nominated a person, usually the Mental Health Act Administrator, to receive and scrutinise the documents. Some errors are described as "rectifiable" and if such errors are found they will be returned for amendment. It should be noted that there is a time limit (14 days beginning with the date of the patient's admission) within which these amendments have to be made.

The majority of admitting Trusts will arrange for medical scrutiny of the medical recommendations to ensure that the clinical description and the reasons for admission are adequate.

Further guidance about rectification can be found at paragraphs 44 to 54 of the Memorandum. The Mental Health Act Commission has also issued Guidance Note 2/98 on Scrutinising and Rectifying Statutory Forms.

Nearest relatives

The Nearest Relative is defined under Section 26 of the Act in precise terms. The Nearest Relative may not necessarily be the person whom patients would describe as their nearest relative or even their next of kin.

The Nearest Relative should, if possible, be involved in any process of application and has to be consulted by the ASW concerning an application for admission for treatment under Section 3. The Nearest Relative can object to the patient being detained under Section 3. In this case, the application cannot be made unless a court order is obtained to displace the Nearest Relative under Section 29 of the Act on the grounds that the objection is unreasonable.

The Nearest Relative has a number of other rights in that he or she:

The care programme approach and section 117 aftercare

The Care Programme Approach (CPA) is not part of the Mental Health Act but forms the cornerstone of community care policy for mentally ill people. The essential elements of the CPA are a systematic assessment of health and social care needs, an agreed care plan, an allocation of a key worker and regular reviews of the patient's progress. The CPA stipulates that no individual should be discharged from hospital unless and until those taking the decision are satisfied that he or she can live safely in the community and that proper treatment and care are available.

Section 117 of the Act (Chapter 27 Code of Practice) requires health and local authorities, in conjunction with voluntary agencies, to provide after-care for patients who have been detained on the longer term Sections of the Act (Sections 3, 37, 47 or 48) until they are satisfied that this is no longer necessary. This statutory provision overlaps with the procedures of the CPA, but, because Section 117 obligations have statutory force whereas the CPA does not, a record should be kept of those for whom arrangements have been made under Section 117.

The general practitioner should be invited to and, wherever possible, attend the multi-disciplinary meetings held prior to a detained patient's discharge or leave. The aim of the meeting is to plan and organise the management of the patient's continuing health and social care needs. The general practitioner should receive a copy of the care plan as soon as possible afterwards.

A policy booklet to clarify the role and purpose of the Care Programme Approach has recently been issued and should be consulted for more information.

General note about medical recommendations

The provision of medical recommendations under the Act is a service additional to general medical services and a separate fee is payable at two levels depending on whether the doctor is approved under the Act. General practitioners, particularly those whose workload leads them to being called upon to conduct Mental Health Act examinations (for example, forensic medical examiners), may wish to consider the advantage of seeking approval under Section 12(2) of the Act. Details should be available from the health authority, which is responsible for ensuring that there are sufficient Section 12 doctors available (Code of Practice, 2.41).