The document summarizes key concepts in UK mental health law, including the Mental Health Act 1983 as amended in 2007. It discusses how mental health law allows for the detention and treatment of individuals with mental disorders against their will if they pose a risk to themselves or others. The key sections of the Mental Health Act are outlined, including Section 2 for assessment, Section 3 for treatment, community treatment orders under Section 17A, and rules around consent to treatment under Part 4. Definitions of important terms like "mental disorder" are also provided.

1. MENTAL HEALTH LAW
Legal concepts and the Mental Health 1983 (as
amended 2007)

2. Psychiatry and Law
 A question of social deviancy
 If I steal, assault or murder I will be arrested, convicted
and imprisoned.
 These behaviours are socially unacceptable
 In mental health the boundaries are less clear
 But the perceived behaviours of those with mental
health problems are generally considered socially
unacceptable

3.  The Mental Deficiency Act, 1913, allowed local
authorities to certify and institutionalise, generally
unmarried, pregnant women who were deemed
‘defective’, at this time of heightened panic over ‘racial
degeneration’ and eugenic concern about the
perpetuation of ‘unfit’ genes. ‘Mental defect’ was
believed by some to have caused the women’s
‘immorality’...
 Pat Thane and Tanya Evans, Sinners? Scroungers? Saints?
Unmarried Motherhood in Twentieth-Century
England(Oxford, 2012), pp. 24-25

4. Mental Health Law
 Has worked on the principle that a person with a
mental health problem can be detained, assessed
and treated against their will.
 For those that have broken criminal law and have
mental illness there is the perceived need to
protect the individual and society

5.  Those that break criminal/civil law society
punishes them by imposing a monetary or
custodial sentence determined by a
judge/Magistrate
 Under mental health law boundaries for detention
are less explicit
 Person detained is not punished but treated

6. Principle views of Mental Health
Legislation
 Mental health problems can be conceptualised as
an illness – which is treatable
 Society has a moral right and duty to protect the
majority from the minority and to protect those
incapable of protecting themselves

7. Problems?
 Personal freedoms and right to expression
balancing with rights of the wider society
 Eroding rights and criminalising
 Public pressure to tighten legislation
 High profile cases
 Social and political control – the understanding of
what constitutes an illness
 USSR political dissent as mental illness
 Psychiatrist as agents of the state

8. The consequence of being seen as
mentally disordered
Civil Libertarianism
Eg Thomas Szasz
Welfarism eg Zito
Trust
As you move in this direction
-Less responsibility for own actions
-Possibility of detention & treatment in interest of own health or safety of others
-Theoretically more mental health resources
Nature of degree of mental disorder
Level of risk to self or others
Resources
0 +

9.  Where does the MHA (1983 as amended 2007) sit
between the completing ideologies?
 AMHPs, doctors, tribunal and courts are left to
make the decision when circumstances justify
treatment
 For the MHA, mental capacity is not the relevant
test. It is the nature or degree of the mental
disorder plus risk level
 Somewhere upper middle?

10. How mental health law progressed
1713 Vagrancy Acts – allowed detention of ‘lunaticks’
1774 Act regulating private madhouse
1808 Country Asylums Act
1845 Lunatics Act
1886 Idiots Act
1913 Mental Deficiency Act
1930 Mental Treatment Act – allowed for voluntary admission
1959 Mental Health Act
1983 Mental Health Act
2003 Mental Capacity Bill
2005 Mental Capacity Act
2007 MHA (Amends 1983)

11. Definitions needed for the Act
 Mental Disorder
 Any disorder or disability of the mind. Section 1(2)
 A list of possible examples set in code of practice (para 3.3)
 The presence of a condition in a manual does not necessarily
establish them as mental disorders for legal purposes
 Excludes by reason only of dependence on alcohol or drugs
 For longer term sections (3,7 or 37) appropriate medical
treatment must be available and identified as to where this
located
 Where the patient has a learning disability (separate
definition) it must be associated with abnormally
aggressive or seriously irresponsible conduct

12. Does a person have to be treatable?
 No
 Treatability test with the MHA 1983 meant that
someone diagnosed with psychopathic personality
disorder who refuses treatment may not be treatable.
 Now all that is need is the availability of appropriate
treatment
 A person’s refusal to accept treatment can no longer
be an obstacle to detention as long is a treatment is
available
 Is detention treatment?

13. Criteria for detention (non offender)
for s3
 A) that the patient is suffering from mental
disorder of a nature or degree which makes it
appropriate for him to receive medical treatment
in a hospital
 B) that it is necessary for the health or safety of
the patient or for the protection of other persons
that he should receive such treatment and it
cannot be provided unless he is detained; and
 C) that appropriate medical treatment is available
to him

14. Civil Admission (Part 2)
Section
Number
Maximum
duration
Can appeal
to MHRT
Can NR
apply to the
MHRT
Automatic
Tribunal
Consent to
treatment
rules?
2
Admission for
assessment
28 days
Not renewable
Yes. Within first
14 days
No – s23 can
discharge but
see s25
No Yes
3
Admission for
treatment
6 months
Renewed for 6
months and the
yearly
Yes. Within first
6 months and
then in each
period
No – s23 can
discharge but
see s25
Yes. At 6 months
and then every
3 years (yearly if
under 18)
Yes
4
Admission for
assessment in
an emergency
72 Hours
Not renewable
but second Dr
can change to s2
Yes. Only
relevant if s4
converted to s2
No No No
5 (2)
Doctor or AC’s
holding power
72 Hours
Not renewable
No No No No
5 (4)
Nurse’s holding
power
6 Hours
Not renewable
but Dr or AC can
change to 5 (2)
No No No No

15. Section
Number
Maximum
duration
Can appeal
to MHRT
Can NR
apply to the
MHRT
Automatic
Tribunal
Consent to
treatment
rules?
7
Reception into
guardianship
6 months
Renewable for
6 months and
then yearly
Yes. Within first
6 months and
then in each
period
No – s23 can
discharge but
see s25
No No
17A
Community
Treatment
Order (CTO)
6 months
Renewable for
6 months and
then yearly
Yes. Within first
6 months and
then in each
period
No – s23 can
discharge but
see s25
Only if CTO
revoked
Yes
Part 4A
19
Transfer
between s7
and hospital
6 months
Renewable for
6 months and
then yearly
Yes. Within first
6 months and
then in each
period
No – s23 can
discharge but
see s25
Yes. At 6
months and
every 3 years
Yes
25 Restriction
by RC of
discharge by
NR
Variable No Yes. Within 28
days of being
informed
No N/A
135 Warrant to
search for and
remove patient
72 hours
Not renewable
No No No No
136
Police power in
public place
72 hours
Not renewable
No No No No

16. S2 Form example

17. Section 2 Admission for Assessment
 Compulsory admitted and detained to hospital for
up to 28 days.
 For assessment or for assessment followed by
medical treatment rather than just observation.
 2 doctors sign recommendation (one must have
special experience in diagnosis or treatment of
mental disorders (Section 12) and one must have
previous acquaintance with the patient.

18.  Recommendations S2(2):
a)He is suffering from mental disorder of a nature or
degree which warrants the detention of the patient in
a hospital for assessment (or for assessment followed
by medical treatment) for at least a limited period; and
b)He ought to be so detained in the interests of his own
health or safety or with a view to the protection of
others.

19. S3 Form example

20. Section 3 Admission for treatment
 Compulsory admitted and detained to hospital for
up to 6 months. If grounds still met may be
renewed for 6 months and after that for one year
at a time.
 2 doctors sign recommendation (one must have
special experience in diagnosis or treatment of
mental disorders (Section 12) and one must have
previous acquaintance with the patient.

21.  Recommendations state;
 He is suffering from a mental disorder of a nature or
degree which makes it appropriate for him to receive
medical treatment in a hospital; and
 It is necessary for the health or safety of the patient or
for the protection of other persons that he should
receive such treatment and it cannot be provided
unless he is detained under this section; and
 Appropriate medical treatment is available to him.

22. S2 or S3?
 S2 considered where:
 Full extent of the nature and degree is unclear
 Need to carry out initial assessment to formulate a
treatment plan or to reach a judgement whether the
person will accept treatment on voluntary basis or to
reformulate a treatment plan
 S3 when following met:
 The patient is already detained under S2; or
 The nature and current degree, the treatment plan and the
likelihood of the patient accepting treatment on a
voluntary basis are already established

23. Section 17A Community Treatment
Orders
 RC should consider the use of CTO in any case
when granting S17 leave that exceeds 7
consecutive days
 Applies conditions that the patient makes
themselves available for examination and any
other discretionary conditions eg ensuring person
receives treatment, prevents risk ro protects
others.

24. S17 example form

25. Consent to Treatment
 Part 4 of the Act
 Those patients not covered by Part 4 cannot be
treated without there consent except where the
MCA 2005 or common law would allow this
 Knowing who is covered is vital
 Generally those detained for more than 72 hrs are
covered

26.  A detained patient is not necessarily incapable of
giving consent. The patient’s consent should be
sought for all proposed treatments which may
lawfully be given under the Act. It is the personal
responsibility of the patients RC to ensure that
valid consent has been sought. The interview at
which such consent was sought should be properly
recorded in the medical notes
 Code of Practice 16.4

27. Definition of medical treatment
 S145 defines this as
 Nursing, psychological intervention and specialist
health habilitation, rehabilitation and care...the
purpose of which is to alleviate, or prevent a
worsening of, the disorder or one or more of its
symptoms or manifestations.

28. Does Part 4 apply? This will be:
YES if S2, 3, 36, 37, 38, 44, 45A, 47, 48
NO if S4, 5, 7, 17A, 35, 135, 136 or informal
NO
NO
YES
DO NOT TREAT without
patients consent unless
under MCA or common law
Identify the treatment: Is it for mental disorder?
S58: Meds after 3 Months from
when detained
Not listed in Regs or Act eg meds
before 3 Months
REQUIREMENTS: (either 1 & 2 or 3)
1 consent of patient
2 cert verifying consent by RC & SAOD
2 Cert that treatment is appropriate signed
by SOAD after consult with nurse and one
other professional
TreatDo not treat
Not satisfied
YES
Type of treatment involved?

29. Form T6 – cert of 2nd opinion (patients who are not capable of understanding
the nature, purpose and likely effects of the treatment.

30. Form T1 – Cert of consent to
treatment and 2nd opinion

31. Form T2 – cert of consent to
treatment

32. S62
 Emergency treatment
 Only allows:
a) Which is immediately necessary to save life; or
b) Which (not being irreversible) is immediately necessary
to prevent a serious deterioration of his condition; or
c) Which (not being irreversible or hazardous) is
immediately necessary to alleviate serious suffering by
the patient; or
d) Which (not being irreversible or hazardous) is
immediately necessary and represents the minimum
interference necessary to prevent the patient from
behaving violently or being a danger to himself or other

33. Other areas to look at in detail
 All civil sections
 All criminal sections (Part 3 of the Act)
 Identifying NR
 MH Tribunals and Hospital Managers’ Reviews
 The Mental Health Act Commission

34. Further reading
 Brown, R. (2010) The Approved Mental Health
Professionals Guide to Mental Health Law.
Learning Matters.
 Barber, P., Brown, R. & Martin, D(2012) Mental
Health Law in England & Wales. Learning Matters
 Department of Health (2008) Mental Health Act
1983: Code of Practice. TSO
 A very good website!
 http://www.mentalhealthlaw.co.uk/Main_Page