The Mental Health Act 1983 and Guardianship

The Mental Health Act 1983 deals with people who are medically assessed as having a 'mental disorder'. If a person is thought to be a risk to themselves or to others, or if it is felt that their health is at risk, they can be detained in hospital under the act (this is known as being 'sectioned'). Under the act, 'Guardians' can also be appointed to make decisions on behalf of people who do not have mental capacity.

People have different reactions to the Mental Health Act and to the idea of sectioning people under the act. Some carers feel that a person with dementia should be sectioned under the act, if necessary, and taken into hospital for assessment. Other carers would prefer it if a person could only be taken to hospital as a voluntary patient.

The Sections of the act

There are over 100 parts of the act, called Sections. The following are the most relevant to people with dementia and their carers.

Section 1 explains what the act deals with: the reception, care and treatment of mentally disordered patients, and the management of their property.
Section 2 gives the authority for someone to be detained in hospital for assessment for a maximum of 28 days. If the medical team feels that more time is needed after this for further investigation, it will detain the person under Section 3 of the act.
Section 3 gives the authority for someone to be detained in hospital for treatment. A person can be kept in hospital under Section 3 for six months to start with. After this time, the Section may be renewed for a further six months and then for a year at a time.
Section 117 deals with aftercare arrangements when someone has been detained under Section 3. It means that the statutory authorities have a duty to make arrangements for the person's continuing support and care. This support and care must be provided free of charge. Sometimes people are removed from a Section 117 and have to start paying for their own care. Local ombudsmen have emphasised the need for local authorities to be careful in their approach to removing a Section 117 where their motivations are mainly financial. The view of the courts is generally that as long as the mental health problems persist, the person should remain under the Section.

Applying for a Section

Only an approved social worker or a person's nearest relative can apply for a person to be sectioned under the Mental Health Act. The nearest relative is generally whoever comes first in the following list: husband or wife, son or daughter, father or mother, brother or sister, grandparent, grandchild, uncle or aunt, nephew or niece, or someone (not a relative) with whom the person normally lives and has done so for at least five years. Two medical officers must have seen the patient within the past 14 days and within five days of each other, and they must confirm the need for a Section in their medical reports.

Having a Section reviewed

If someone wants to leave hospital but has been sectioned, they can apply to a mental health review tribunal (MHRT) and ask to be discharged. A MHRT is an independent tribunal made up of a lawyer, a psychiatrist and a lay member. The Council on Tribunals governs MHRTs and the Department of Health administers them regionally. Staff on the hospital ward, or the hospital's Mental Health Act administrator, can help a patient apply to a MHRT. They should also help patients to see a solicitor - the Law Society has a panel of solicitors with experience of MHRTs.

A patient's nearest relative can also apply to have them discharged by writing to the hospital managers. If the responsible medical officer (the person in charge of the individual sectioned) still feels that the person with dementia would be at risk if they were discharged, he/she should write to the hospital managers within 72 hours. If the nearest relative still feels that the person has been sectioned unnecessarily, they can apply to the MHRT for a review.

The Bournewood ruling

In 1997 a man with autism exhibited challenging behaviour in a day centre that was considered serious enough for him to be taken to hospital. He stayed there for over three months but he was not sectioned. His carers wanted to take him home but the doctors told them that the patient had not expressed any desire to leave. The medical team therefore considered him to be a voluntary patient.

This case was brought before the European court of human rights, which ruled that the the actions of the medical team had deprived the person of his liberty and led to the violation of two articles of the Convention on Human Rights.

This case is known as the 'Bournewood ruling' because of the name of the hospital trust in which the person was detained. The case made the legal position more clear. The government now plans to introduce new safeguards for people who lack capacity and are informally detained. These safeguards should ensure that people who do not have mental capacity are not deprived of their liberty.

Example

The medical team says that Mum should go straight into residential care from hospital but I want to bring her home. She has not been sectioned so what will happen if I get her discharged?

The Bournewood ruling (see above) should make situations such as this clearer for everyone involved. However, at the moment one of two things will probably happen. The hospital will either allow the discharge or the mental health team might seek a Guardianship Order in order to keep your mother in hospital. Their reasoning would be that although you feel that you can provide the best care for your Mum, social services have legal obligations to ensure that adequate arrangements are put in place. If the local authority feels that your mother would be at an unacceptable risk of harm if you were to care for her at home, social services could be accused of failing in their duty to protect a vulnerable adult by letting her go home.

Guardianship

If a person has a mental disorder, a court can appoint a Guardian for them. This can only happen if the local authority considers it necessary for the person's welfare or for the protection of others. This arrangement is known as a Guardianship Order. The Guardian has powers and responsibilities to make decisions on behalf of and for the benefit of the person lacking mental capacity.

Who can be a Guardian?

Under Section 8 of the Mental Health Act 1983, Guardianship can be arranged if an approved social worker or the person's nearest relative applies for it and if two doctors agree to it. See under 'Applying for a Section' for the definition of nearest relative. In over 90 per cent of cases the local authority is named as the Guardian although a friend or relative may be appointed.

What powers does a Guardian have?

Section 8 of the Mental Health Act 1983 describes three powers that the Guardian has. These are:

The power to require the person (referred to in the act as the patient) to live at a specified place
The power to require the patient to attend specified places for medical treatment, occupation, education or training
The power to require that access be given to the patient by a doctor, approved social worker or other specified person.

The Guardian cannot detain the person and cannot restrict his/her movements. All they can do is insist that the person lives at the place specified and return the person to that place if appropriate. A Guardian cannot authorise the physical removal of someone from a place if they are unwilling, or authorise medical treatment. The Guardian has no control over the person's money or property. It is an offence to mistreat or wilfully neglect a person subject to a Guardianship Order.

A Guardianship Order lasts for up to six months but can be renewed for a further six months and annually after that.

Objecting to a Guardianship Order

The Mental Health Act states that a Guardianship Order can only be made if a person is suffering from mental illness or impairment, severe mental impairment or psychopathic disorder. Guardianship must also be necessary for the welfare of the patient or for the protection of other people. If the nearest relative does not believe this to be the case, he or she can object to the Guardianship Order.

The nearest relative can also appeal to a MHRT if they wish to challenge the Guardianship Order. The MHRT may end the Guardianship Order, decide not to end it, or make certain other orders. The MHRT must end the Guardianship if:

At the time the MHRT considers the case, the person does not have mental illness or impairment, or psychopathic disorder
The Guardianship Order is not necessary for the welfare of the person or for the protection of others.

A Guardianship Order is not the same as a Section - although it is similar to a Section in that people who are the subject of a Guardianship Order may have decisions made for them with which they may not necessarily agree.

Case examples

With reference to taking people off a Section 117 see R v Manchester CC, ex parte Stennet, High Court

With reference to patients challenging choice of nearest relative see JT v UK (1997)

With reference to same-sex partners being appointed nearest relative see R (on the application of SSG) v Liverpool CC (1), Secretary of State for Health (2) and LS (interested party)

Useful organisations

Mind

15-19 Broadway
London
E15 4BQ

Infoline: 0845 766 0163
Email: contact@mind.org.uk
Website: http://www.mind.org.uk/

NHS Direct

Telephone: 0845 4647
Website: http://www.nhsdirect.nhs.uk/

Department of Health

Richmond House
79 Whitehall
London
SW1A 2NL

Customer service centre: 020 7210 4850
Email: dhmail@dh.gsi.gov.uk
Website: http://www.dh.gov.uk/

The Mental Health Foundation

7th Floor
83 Victoria Street
London
SW1H 0HW

Telephone: 020 7802 0300
Email: mhf@mhf.org.uk
Website: http://www.mentalhealth.org.uk/

SANE

1st Floor Cityside House
40 Adler Street
London
E1 1EE

SANELINE: 0845 767 8000 (daily, 6pm - 11pm)
Website: http://www.sane.org.uk/

Alzheimer's Society