Here is a very quick run down of all the sections of the MHA that seem relevant at some stage to the police – necessarily a snap-shot, I’m not going to explain all the ins and outs of every section listed – mental health law books are thousands of pages long!
You could argue about detail on this if you really wanted to but instead, I’d encourage you to read Mental Health Law Online, a website and goldmine of resources, if you want something more specific:
- Part I
- Section 1 – the definition of mental disorder: “‘mental disorder’ means any disorder or disability of the mind; and ‘mentally disordered’ shall be construed accordingly”.
- Part II – this is the terminology you will hear AMHPs and MH professionals using:
- Section 2 – the power to detain someone believed to be suffering mental disorder for assessment (and treatment). The order lasts for up to 28 days and cannot be extended or renewed. It is imposed after application by an AMHP and two DRs one of whom must be “section 12 approved”. <<< You see? … paradoxically, you need this guide just to understand it!?>! The patient has a right of appeal against detention to a Mental Health Review Tribunal.
- Section 3 – the power to detain someone for treatment of mental disorder. This order lasts for six months and can be renewed. It is imposed after application by an AMHP and two DRs one of whom must be “section 12 approved”. Right of appeal against detention to a Mental Health Review Tribunal.
- Section 4 – the emergency power to detain someone for assessment for up to 72hrs. This is in effect a s2 detention, but is imposed where an AMHP and only one s12 Doctor believe it is needed and delay for a 2nd doctor is impracticable. No right of appeal.
- Section 5(2) – a ‘holding power’ for DRs to detain an inpatient in hospital for up to 72hrs for assessment under the Act. Cannot be used in A&E because the patients there are not (yet) “inpatients”. Can be used by non-psychiatric doctors on inpatients with psychiatric problems who are on ‘general’ medical wards in a non-psychiatric hospital.
- Section 5(4) – a ‘holding power’ for a nurse of the prescribed class – usually a more senior psychiatric nurse – to detain someone for up to 6hrs: either for consideration by a DR of whether to use their 5(2) holding power; or to arrange an MHA assessment. Again, this holding power can only be used on patients already admitted.
- Section 6 – the AMHPs authority to detain and convey someone to hospital for admission under the Act.
- Section 7 – this allows patients to be received into “Guardianship”, which obliges them to reside in a particular place, but still allows them a level of personal autonomy.
- Section 12(2) – Various things in the MHA can only be done by or must include a “section 12 approved doctor”. Such DRs are those “having special experience in the diagnosis or treatment of mental disorder.”
- Section 13 – the AMHPs duty to consider the need for and potentially undertake MHA assessments; the AMHP also has a duty to make applications for admission where necessary.
- Section 17 – the right of hospitals to grant leave as part of rehabilitation and recovery. Such leave might be very brief when first granted – an hour or so – and it may be supervised by a staff member. However, as patients near release it may be for a weekend, for several days or longer. It is a very necessary part of rehabilitation and recovery for patients.
- Section 17A – the right of hospitals to release a patient from detention subject to Supervised Community Treatment (SCT), otherwise known as a Community Treatment Order (CTO). Excuse the comparison, (but this page is being mainly written for police officers!) – it is effectively like “bail conditions”. If the conditions are not complied with, a person can be recalled and failure to return makes them ‘AWOL’ under the Act.
- Section 18 – the power to (re-)detain AWOL patients and return them to hospital. There is NO power of entry in order to do so. Can only be exercised in a public place or where legal permission to enter a private building or dwelling has been obtained.
- Section 19 – the authority of hospitals to transfer patients between different MH facilities.
- Part III – these are sections relevant to decisions by criminal courts and prisons
- Section 35 – power for a criminal court to remand an accused person to hospital for psychiatric reports. Lasts for twelve weeks but can be renewed for further twelve week periods.
- Section 36 – power for a criminal court to remand an accused person to hospital for treatment pending trial. Also lasts for twelve weeks and can be renewed.
- Section 37 – power for a Crown Court to impose a hospital order upon a person convicted of or found responsible for an offence. This order can be imposed after a full conviction or following conviction for manslaughter on the grounds of diminished responsibility; it can also be used following a successful insanity defence or after a finding of unfitness to stand trial. The order lasts until such time as the Responsible Clinician believes it needs to be discharged but patients retain a right of appeal (under different rules) to a Mental Health Review Tribunal.
- Section 38 – an interim hospital order: can be imposed on a convicted or responsible person to undertake assessment and treatment as to whether a full hospital order is the right outcome.
- Section 41 – a restriction order, sometimes known as a ’37/41 order’. The Crown Court can ‘restrict’ an order made under s37 which subsequently prevents the DR from taking decisions to released the patient, transfer the patient to a different (kind of) mental health hospital or to allowing them periods of s17 leave from hospital. It obliges the DR to have such decisions authorised by the Ministry of Justice Mental Health Unit. Such restriction orders can only be imposed if the original court was satisfied that the patient posed a “significant risk of harm to the public.”
- Section 42 – anyone detained under a restricted hospital order is never just ‘released’. They are always released under this section, in what is known as conditional restricted release. Again, pleased excuse the comparison, but with my police audience in mind, it amounts to being released on licence, again with some potential restrictions or conditions. If those restrictions or conditions are breached, the Secretary of State for Justice, through the MoJ Mental Health Unit, can issue a warrant for the return of that patient to a named hospital. They then assume the status of a s37/41 restricted patient.
- Section 47 – a “transfer direction” authorises the moving of a convicted prisoner to a hospital, if they develop a need for mental health treatment whilst serving their sentence. By virtue of s47(3) MHA, such a patient is then treated in hospital ‘as if’ they had been sentenced to a s37 hospital order by a court. This is sometimes referred to a ‘Notional s37’ and I have written a specific post about this.
- Section 48 – same power as per s47, but for remand and other prisoners (such as immigration detainees) in contrast to s47 for convicted prisoners.
- Section 49 – a “restricted transfer direction” imposes restrictions upon leave, discharge or transfer without Ministry of Justice permission, as per s41 MHA. Sometimes, this is known as a ’47/49 order’, but it for our purposes the same as ’37/41 order’.
- Section 50 – is a “remission direction” to remove a s47 MHA patient back to prison if their detention in hospital for mental health treatment is no longer required but their sentence of imprisonment is not yet up.
- Parts IX and X – offences and police powers
- Section 126 – criminal offence of forgery (with respect to MHA documents) or possession of forged items.
- Section 127 – criminal offence of wilful neglect of an inpatient.
- Section 128 – criminal offence of assisting a person to absent themselves without leave from hospital; or harbouring such patients after absenting themselves.
- Section 129 – criminal offence of obstruction of an AMHP or refusing to withdraw from an AMHP.
- Section 132 – the rights which must be explained to someone when detained in hospital, including where detained under s135(1) or s136 as a place of safety.
- Section 135 – warrants under the Act for (1) assessments on private premises; and (2) recovering patients who are absent without leave.
- Section 135(6) – legal definition of a place of safety.
- Section 136 – police power to detain someone in immediate need of care or control and remove them to a place of safety. Power to detain lasts for 24hrs.
- Section 136C – police power to search someone upon detention under s135 warrants; OR after arrival at or transfer to a place of safety under either s135 or s136.
- Section 137 – authority to regard someone subject to an application for admission under the Act as being ‘in legal custody’.
- Section 138 – power to detain or recover someone who has absented themselves from lawful custody in one of two situations: a) recover someone who absconded from s135(1) or s136 and return them to a place of safety. Power lasts for 72hrs after they went missing or after arrival at the place of safety; whichever is sooner; and b) to detain someone who absconded after being “sectioned” but before being admitted to hospital. This is known as someone who is “liable to be detained”.
- Section 140 – duty on CCGs (England) and LHBs (Wales) to specific hospitals for the reception of patients in circumstances of special urgency and for those patients aged under 18yrs.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk