Introduction to The Mental Health Act 1983

With the exception of sections 7 – 10, section 17 and section 117, the whole of the Mental Health Act (MHA) 1983 concerns itself with:

  • The conditions under which individuals can be detained in hospital against their will;
  • What treatment can be provided while in hospital;
  • The circumstances under which they can cease to be so detained.

Professionals with powers under the Mental Health Act

Detentions under Part ll. (Civil Sections)

  • Approved Mental Health Professionals (AMHPs);
  • Doctors approved under s12;
  • Other doctors (e.g. GPs);
  • Nearest Relatives;
  • Recommendations and Applications.

Detentions under Part lll. (Criminal Sections)

  • Magistrates’ Courts;
  • Crown Courts;
  • The Home Secretary.

Holding Powers

  • Police Officer- 72 hours;
  • Doctor- 72 hours;
  • Nurse- 6 hours.

Informal admission (section 131)

Psychiatric service users can be admitted to hospital without being legally detained, and without any formality.

Voluntary Patients – service users who have capacity and who freely give their consent.

Informal Patients – service users who lack capacity and are unable to exercise consent – Bournewood/Mental Capacity Act 2005/DoLs.

Code of Practice

  • Issued under section 118;
  • Advice on the implementation of the Act;
  • Guiding principles – how to apply the Act and Code in individual situations.

Scheme of Delegation

The Mental Health Act 1983 invests powers and duties upon Hospital Managers which can be delegated to others.  It is the Hospital Managers who have authority to detain patients under the Act.  They have the primary responsibility for ensuring that the requirements of the Act are followed.  In particular, they must ensure patients are detained only as the Act allows, that their treatment and care accord fully with its provisions and they are fully informed of, and supported in exercising their statutory rights.

The Act allows the Hospital Managers to delegate most of its functions to officers of the Trust.  The power of discharge, however, can only be delegated to Non-Executive Directors of the Trust or other appointed people who are not employees of the Trust.

Chapter 30.9 of the Code of Practice (Mental Health Act 1983) sets out guidance that Hospital Managers should have a Scheme of Delegation that sets out which decisions and functions are delegated and to whom.

Details of the Scheme of Delegation are outlined here: SHSC Scheme of Delegation.

Guiding Principles

  • Enshrined in S118;
  • Intended to inform decisions, not to determine them;
  • Intended to safeguard the rights of service users and carers;
  • Neither is more important than the other – the weight given will depend on the context.

The Nearest Relative

  • The Nearest Relative (NR) as defined under the Mental Health Act 1983 is not the same as Next of Kin;
  • Service users can choose their Next of Kin and will probably be asked for a name by a nurse upon their admission to hospital;
  • Service users cannot choose their NR – it is defined in the Act;
  • Preference is given to age not gender – if mother is older than father then she is NR;
  • Provision is made for co-habitees and carers. This is not gender specific;
  • NRs can delegate their responsibilities, e.g. to another family member, as long as they notify their Social Services Department in writing (Neighbourhoods & Community Care);
  • NRs can be displaced by a County Court.

Role of the Approved Mental Health Professional (AMHP)

  • Assess;
  • Co-ordinate;
  • Interview in a suitable manner;
  • Identify, consult with and inform NR;
  • Arrange conveyance;
  • Provide a report.

Independent Mental Health Advocates (IMHAs)

Service users who are subject to compulsion to have access to formal advocacy services (IMHA).

The advocate can:

  • Interview the service user in private and inform them of their rights;
  • Interview staff involved with the service user;
  • Scrutinise records held by health or social services, subject to certain restrictions, e.g. data protection principles.

The Sheffield Mental Health Advocacy Service provides the IMHA service in Sheffield.  For further information please click here.