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22nd April 2009 Mental Health Act 1983 Practical Application e-Learning
Introduction The Mental Health Act (MHA) provides the authority to detain and treat people with a mental disorder in hospital. The ‘Act’ is arranged like a book and is divided into chapters called parts. Each part contains numbered paragraphs called sections. Altogether there are 149 sections.
MHA Powers The Powers of the ‘Act’ are Considerable as They Override Two Basic Rights. Usually a person can only be detained if they have committed an offence. Under this legislation however, a person is detained not because of a crime but because they have a mental disorder that needs hospital treatment. The other basic right is that an adult with mental capacity to consent can only be given treatment with their consent. Again the Act overrides this and makes psychiatry unique in the medical profession for authorising treatment that can override the refusal of consent by an adult with capacity. (With a few exclusions – e.g. ECT, Advance Directives).
Part II Powers to Admit and Treat People in Hospital Over 20 different sections provide the powers to detain a person for assessment and/or treatment of a mental disorder. Each section differs in relation to a number of matters, including the maximum detention period allowed, the professionals required, the appeal procedures and the treatment regulations. In this e-learning we will concentrate on the Hospital Sections – Section 4, 5(4), 5(2), 2 and 3. We will also outline Section 63/58, Section 17 and Section 132/133/23a.
Section 4 Admission for Assessment in Cases of Emergency The Power to forcibly admit and detain a person in hospital for up to 72 hours. It may be applied when staff want to place a person under Section 2 but are unable to get two doctors as required by Section 2 and the person needs urgent hospital admission. - Detention – Power to admit someone forcibly from the community to hospital and detain them for 72 hours. - Treatment – Can only be given if the person has capacity and consents. If they lack capacity, the Mental Capacity Act can be used - Absconding – They can be forcibly returned to hospital by any authorised member of the hospital staff or by the police - Forms – A10, A11, H3 and 132 rights
Section 5(4)/5(2) Sections 5(2) and 5(4) are short term emergency powers that are designed to prevent a voluntary in-patient discharging themselves. The duration of these section allows time for the longer term powers of Section 2 or Section 3 to be applied.
Section 5(4) Nursing Power The power for a nurse to detain a voluntary in patient for up to six hours. The person has to indicate they wish to leave hospital and there has to be an immediate need to prevent this where a doctor is not available to complete a Section 5(2) instead. - Detention – The power to detain for up to six hours. - Treatment – The power to treat a person forcibly under the Act does not apply to this section. Treatment can only be given if the person has capacity to consent. If they lack capacity to consent, powers of the Mental Capacity Act can be used. (Section 5 MCA) - Absconding – If the person absconds they can be forcibly returned to hospital by any authorised member of hospital staff or by the police. - Forms – H2, H3 and 132 rights form.
Section 5(2) The power for a doctor to detain a voluntary in-patient for up to 72 hours. It is designed to provide the time required to complete an application for Section 2 or 3. - Detention – The power to detain a person who is already in hospital for up to 72 hours. - Treatment – The power to treat a person forcibly under the act does not apply to this section. Again Section 5 MCA can be used if the person lacks the capacity to consent. - Absconding – If the person absconds, they can be forcibly returned to hospital by any authorised member of hospital staff or by the police. - Forms – H1, H3 and 132 rights form Note – Once assessment has taken place, the S5(2) ends.
Section 2/3 These sections can be used in a number of ways To forcibly admit a person from the community into hospital To prevent a voluntary in-patient leaving the hospital To detain a patient for a longer period if they are already on a short term section such as Section 4, 5(2), 135(1), or 136. Legal Criteria The person is suffering from a mental disorder and it is of a nature or degree to warrant detention in hospital for assessment or assessment followed by treatment for a least a limited period, and the person ought to be detained in the interests of their own health or safety or with a view to protection of others. (Section 3 only) – and appropriate medical treatment is available for them. (Nature – Refers to the particular mental disorder from which the patient is suffering, its chronicity, prognosis and the patients previous response to receiving treatment for the disorder) (Degree- Refers to the current manifestation of the patients disorder)
Section 2 Admission for Assessment The power to detain and treat a person in hospital for up to 28 days. It is used for the assessment and treatment of people who have, or are believed to have a mental disorder. There must be an intention to assess the person for this power to be used. - Detention – The power to detain a person for up to 28 days in hospital (Although section 2 itself cannot be renewed, a person can be detained for a further period of time by the completion of a section 3 before the section 2 expires) - Treatment – The person can be given treatment for mental disorder with or without their consent (Section 63, excluding ECT) - Absconding – If the person absconds, they can be forcibly returned to hospital by any authorised member of the hospital staff or by the police - Leave of Absence - The RC may grant (Section 17) leave. - Forms – H3, A2, A3, A4, 132 rights and Scrutiny.
Section 3 Admission for Treatment This section gives the power to detain and treat a person in hospital for up to six months. The power is renewable for further periods of time if required. - Detention – The power to detain a person for up to 6 months initially. - Treatment – The person can be given treatment for mental disorder with or without their consent (Section 63/58. excluding ECT) - Absconding – If the person absconds they can be forcibly returned to hospital by any authorised member of hospital staff or by the police. - Leave of Absence – The RC may grant (Section 17) leave. - Forms – H3, A6, A7, A8, 132 Rights and Scrutiny This section has been used 324 times during the last year ( )
Section 17 (Leave of Absence) A detained patient may not leave hospital unless granted leave under Section 17 of the Act. Leave can be granted for a specific period of time such as weekend, or for a specific occasion such as a family celebration. Leave needs to be reviewed every seven days in order to consider SCT as an alternative. Rules A RC may grant leave to patients on Section 2,3,37,47 or 48. The leave may be granted with or without conditions, as considered appropriate by the RC, in the interests of the patient or for the protections of others. The RC can require the patient to be escorted by another person during their leave for the protections of the patient or others. In this case, the patient can be escorted by a member of hospital staff or another person as authorised in writing by the RC. A RC may NOT grant leave to restricted patients without the approval of the MoJ. Forms – Section 17 (Blue)
Section 132 rights Nursing staff should take all practical steps to ensure the patient understands their legal rights and provide this information both orally and in writing. This is documented on a Section 132 Rights Monitoring Form, even if the patient does not understand. Further attempts to be made until the patient is responsive. (e.g. Elderly patients without capacity. All rights leaflets are held on inpatient wards. The MHA administrators also produce written confirmation sent directly to the patient and nearest relative (if the patient does not object) regarding rights upon detention under the MHA 1983.
Section 133/23a Section 133 – Duty of managers of hospitals to inform nearest relative of discharge from section. Section 23a – This section provides for the absolute discharge of detained patients. The discharge must be ordered, it cannot be effected by implication. In this section, the term “discharge” mean discharge from detention, not from hospital.
Section The power to give treatment with or without consent is contained in Part 4 of the Act (Consent to Treatment). Sections 56 to 64 within Part 4, details the powers available to treat people under the Act and the rules and limitations that apply to these powers. Section 63 – Provides the power to give treatment to detained patients with or without their consent in the first three months starting with the first time they are given medication. Section 58 – Comes into force after medication has been given for three months. This provides a form of protection for patients still being treated
Section 58 (Continued…) If the patient has capacity and consents to treatment, the RC must complete a Form T2 stating that the patient has understood the nature, purpose and like effects of the treatment and consented to it. If the patient refuses treatment or does not have capacity to consent to it, a second opinion appointed doctor (SOAD) must be called. They will consult a nurse who has been involved with the patient, another professional (not a nurse or doctor), the RC and the patient. Following these consultations, the SOAD can authorise the treatment if they consider it as appropriate for the treatment to be given. Form T3
Withdrawing Consent (S58) A patient may initially consent to treatment and a form T2 is signed. However, consent is a continuing process and the patient may later refuse treatment. This would invalidate the form and the treatment must stop. A SOAD should then be called in order to authorise the treatment. If needed, during the interim period, emergency treatment may be considered under Section 62. Form T2 would also become invalid if the person lost their capacity to consent to treatment or if the treatment prescribed was different to that originally written on the form. The reverse would also be true. If a person lacked capacity at the beginning of the treatment and then regained capacity during treatment, their consent must be sought.
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