Key legislation - Mental Health Act 1983
The Mental Health Act (MHA) 2007 came into force in November 2008. The Act primarily amends and updates the MHA 1983. I It supports dignity in care by setting out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated. The main purpose of mental health legislation is to ensure that people with serious mental disorders can be treated without consent where it is necessary to prevent them from harming themselves or others. The 2007 Act was also used as a vehicle to introduce the Deprivation of Liberty Safeguards into the MCA 2005.
The main changes to the 1983 Act made by the 2007 amendments are:
- Definition of mental disorder: a single definition applies throughout the Act, references to categories of disorder are abolished.
- Criteria for detention: to be detained or ‘sectioned’ someone must be suffering from a mental disorder that requires assessment or treatment and this needs to be given in hospital in the interests of their own health or safety or to protect other people (Rethink 2011).
- Professional roles: the Act replaced the role of the approved social worker with that of the approved mental health professional. The role is similar and requires specific training in the application of Mental Health legislation but practitioners are no longer required to have a social work qualification. They may be a psychologist, occupational therapist or psychiatric nurse
- Nearest relative: a patient may now make an application to the county court to displace their nearest relative if they believe them to be ‘not a suitable person to act as such’.
- Community Treatment Orders: were put in place to allow certain patients with a mental disorder to be discharged from hospital but supervised in the community to ensure, for example, they continue taking their medication or receive therapy. If they fail to comply with their treatment plan they can be recalled to hospital. This is particularly intended to help avoid situations in which some patients leave hospital and do not continue with their treatment, with the result that their health deteriorates and they require detention again – this is sometimes referred to as ‘the revolving door’.
- Electro-convulsive therapy (ECT): ECT cannot generally be given without consent. If the patient lacks capacity ECT can be used if it is certified as ‘appropriate’, but it must not conflict with a valid and applicable advance decision or refusal of treatment by an LPA acting within their powers. In emergency situations, for example, in very severe cases of depression, ECT can be given without consent only where it is immediately necessary either to save the patient’s life or to prevent a serious deterioration of their condition (Mental Health Law Online).
- Age-appropriate services: hospital managers are required to ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age (subject to their needs).
- Independent mental health advocates (IMHAs): although advocacy had been previously available the Act made independent mental health advocacy a requirement for ‘qualifying patients’. Mental health professionals must let people know they have a right to an IMHA. Qualifying patients are those with a mental disorder who are:
- detained in hospital under the MHA
- subject to a Guardianship Order under the MHA
- subject to a Community Treatment Order in the community
- discussing with their doctor the possibility of psychosurgery (any surgical operation on the brain tissue)
- discussing the possibility of serious treatment such as neurosurgery
- under 18 years old and are discussing with a doctor the possibility of ECT.
In the rare circumstances that restraint needs to be used, staff will be protected from liability (e.g., criminal charges) if certain conditions are met. If restraint is used, staff must reasonably believe that all of these apply:
- the person lacks capacity to consent to the act in question
- it needs to be done in his or her best interests
- restraint is necessary to protect the person from harm
- it is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.
Restraint can include physical restraint or verbal warnings to stop someone going somewhere or doing something. It can also be far more subtle and can include preventing someone from moving freely, for example by placing a walking frame out of reach. Locking doors to prevent people from harm is quite common: while of itself it does not amount to a deprivation of liberty, it must be recognised as a restraint and its use carefully considered for each individual person. If a person has capacity to go out safely, locked doors must not be used to prevent their normal activities.
There are no clear distinctions between restriction, restraint and the deprivation of liberty, each individual case must be evaluated. The Deprivation of Liberty Code of Practice (2.3) offers this guidance: ‘The difference between deprivation of liberty and restriction upon liberty is one of degree or intensity. It may therefore be helpful to envisage a scale, which moves from “restraint” or “restriction” to “deprivation of liberty”. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time.’
The MCA Code of Practice (S.6) sets out specific rules on the use of restraint, both verbal and physical, and on the restriction of liberty. Restraint should only be used as a last resort or in exceptional circumstances. Staff administering restraint must be appropriately trained, and they must record when and why they have restrained a person.
Restraint may also be used under common law (as distinct from the MCA 2005) in the rare circumstances where there is a risk that the person lacking capacity may harm someone else. Again, staff must make a record of when and why they used restraint. The Code of Practice on Deprivation of Liberty Safeguards (PDF file) offers guidance relating to restraint.
Frontline practitioners should do all they can to remove excessive restrictions on the rights of individuals in their care. They should seek advice about the legal position of people who they think are possibly being detained without legal safeguards. If such a person is in a care home or hospital, the management should contact the local supervisory body and, if necessary, complete an application to deprive the person of their liberty lawfully within the Deprivation of Liberty Safeguards. Care providers should ensure that people using services and their families know how to use the complaints procedure and that there are whistleblowing procedures for staff who feel that their concerns are not being addressed within the service.
- The Mental Capacity Act Code of Practice
- Department of Health guidance: Independence, choice and risk: a guide to best practice in supported decision making
- Mental Health Law Online
- Mind: Information on the ‘nearest relative’
- Mind: Information on rights and legislation
- National Mental Health Development Unit (NMHDU) (now closed but its useful advice and guidance remains available on the website.
- SCIE resources on restraint
- SCIE resources on MCA, incuding an At a glance summary