Detention in hospital

Appeals

Southern Advocacy Service ‘Independent Mental Health Advocates’ [IMHA’s]



Mental Health Act 1983 (MHA)

The Mental Health Act provides a legal framework regarding an individual’s rights following a ‘detention in hospital’, who are deemed to have a mental disorder. Different sections under the Act have differing regulations. If you feel you have been unlawfully detained or wish to ‘appeal’ your section, you are able to do this. Certain sections of the Act give a legal provision and statutory right for advocacy support.

People who are eligible to have an Independent Mental Health Advocate (IMHA) in England are:

  • People detained under the Mental Health Act 1983 (even if ‘on leave of absence’ from hospital) but exclude individuals who are detained under certain short-term sections, such as s.4, s.5, s.135 and s.136.
  • Conditionally discharged ‘restricted’ patients
  • People subject to Guardianship Orders
  • People subject to supervised Community Treatment Orders (CTO)

Detention in hospital:

A detention in hospital is when a person is detained (sectioned) on a specialist hospital ward for assessment and treatment. Section 2 of the Mental Health Act allows a ‘responsible clinician’ to restrict a person from leaving the hospital for a maximum of 28 days for assessment, if it is deemed they have a mental disorder and/or their or others health or safety may be at risk.

There are different types of sections, each with different rules. How long a person can be detained in hospital is dependent on the type of section they are under. For example, if a person is assessed by a responsible clinician and they believe further treatment is required, and the person doesn’t consent, they may be detained on a section 3. Under section 3 a person can be ‘detained’ for up-to months for treatment and can be treated without their consent.

A responsible clinician can detain a person if all these criteria are met:

  • A person has a mental disorder, and,
  • a person is unwell enough to be in hospital, and,
  • professionals think a person should be detained in hospital for their own health or safety or to protect other people, and,
  • appropriate treatment is available for you, and,
  • you will not get this treatment unless you are detained.

Appeals:

Also known as the ‘First Tier Tribunal’, it is when an independent panel sit to consider a person’s discharge from section. The tribunal hearings take place at the hospital and decide if a person continues to meet the criteria for being sectioned (s.2, s.3, s.37).

First Tier Tribunals have the power to:

  • discharge a person from section,
  • recommend that a person is given ‘leave’,
  • recommend supervised CTO’s, instead of staying in hospital,
  • decide on a delayed discharge or conditional discharge,
  • transfer person to another hospital, or,
  • meet up again if their recommendations are not followed.

However, the hospital is not legally obliged to follow the tribunal’s recommendations.

Southern Advocacy Service ‘Independent Mental Health Advocates’ [IMHA’s]:

IMHA’s are independent of mental health services in the hospital and can support people in getting their views heard, and to make sure they know their legal rights. IMHA’s are specialist advocates who are trained to work within the framework of the Mental Health Act.

Individuals must be told about the IMHA service as soon as it is practicable to do so once becoming a qualifying patient. Hospital staff have a duty to ensure that qualifying patients understand that support is available from an IMHA service, and, provide information on how to access an IMHA, or, to make a referral on their behalf. An individual should also be reminded of the IMHA service on a regular basis.

The role of an IMHA is to support patients, obtain information and to understand the following:

  • their rights under the Mental Health Act,
  • the parts of the Mental Health Act which apply directly to them,
  • the medical treatment they are receiving or might receive in the future - and the reasons for that treatment

The IMHA can also support people to exercise their rights which may include representing or speaking on their behalf, or, take reasonable steps to support their involvement in decisions regarding their care and/or treatment or making a complaint.



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