The Mental Health Act 1983 and guardianship

The Mental Health Act (MHA) is designed to protect the rights of people in England and Wales who are assessed as having a 'mental disorder'. The act uses this term to describe a range of mental health conditions, including dementia.

If health professionals think that a person with dementia is behaving in a way that places their health at risk or is a danger to themselves or others, they can be detained in hospital under this act. This process is known as 'being sectioned'.

The act also allows for individuals called 'guardians' to be appointed to make decisions on behalf of people with a mental disorder. Guardians can require that a person lives in a certain place, has access to health professionals and attends appointments relating to their care and treatment.

The Mental Health Act 2007

The Mental Health Act 2007 amends the earlier Mental Health Act 1983 as well as the Mental Capacity Act 2005. It confers responsibility for people with mental health conditions to a broader range of medical professionals and allows for people affected by the act to ask to change their designated nearest relative (see 'Definitions').

Most of the changes in the 2007 act do not affect people with dementia. Those that do are detailed at the end of this sheet.

The sections of the Mental Health Act 1983

The MHA consists of over 100 parts, called sections. The following sections are the most relevant to people with dementia and their carers:

Section 2 - Detention for assessment in hospital

Under Section 2 of the MHA, someone can be detained in hospital for assessment for a maximum of 28 days.

An Approved Mental Health Practitioner or the person's nearest relative has to ask for someone to be sectioned. Two doctors are then needed to recommend a section. One of these doctors must have special experience in working with people with a mental disorder. The second should normally know the person, such as their GP. The doctors must assess the person within five days of each other, and within 14 days of when the section request was first made.

Section 3 - Detention for treatment in hospital

Section 3 of the act allows someone to be detained in hospital for treatment, initially for six months. After this time, the section may be renewed for a further six months, and then for a year at a time.

Either an Approved Mental Health Practitioner or the person's nearest relative can apply for someone to be sectioned and admitted to hospital. The process is the same as for detaining someone for mental health assessment under section 2 (above), except that the doctors must confirm there is appropriate treatment available for the person in hospital. Treatments can include psychological intervention, specialist mental health nursing, medication and care.

Section 117 - After-care services

Local authorities have a duty to make arrangements for the continuing care and support of someone who has previously been detained under section 3 of the MHA. This support is not means-tested. It must be provided free of charge and includes paying for care home fees.

Sometimes, people cease to be eligible for after-care support under 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 such after-care 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 eligible for after-care, even if they are taken off that section while they are in hospital.

Challenging a section

A section can be challenged in four ways. The person being sectioned can:

• ask the health professional in charge of their care (the responsible clinician) to discharge them
• apply to a First-tier Tribunal if they are in England or a Mental Health Tribunal in Wales. Staff on the hospital ward, an Independent Mental Health Advocate or the hospital's MHA administrator, can help put people in touch with a solicitor to represent them at a First-tier Tribunal hearing. The Law Society of England also has a list of solicitors who are accredited to represent people at these hearings, see 'Useful organisations'
• ask for the hospital manager to discharge them. The manager will convene a hearing of the people in charge of the hospital and other hospital staff. There is no time limit for when this hearing should be held
• talk to the nearest relative. The nearest relative can discharge them, however this can be overridden by the doctor on medical grounds. The nearest relative may also be able to apply to a First-tier Tribunal (if they are in England or a Mental Health Tribunal in Wales) for them to be discharged. 

There is no reason why the person cannot try all the options available to them at the same time to challenge a section decision.

What happens when a section expires?

If the section is not renewed or replaced by another section, the person is free to discharge themselves from hospital. However, a doctor or nurse can detain someone trying to leave, if they feel they should stay in the hospital until another assessment is made. The hospital always has a duty to make sure patients' needs will be met in the community after they are discharged.

Guardianship

A guardian can be appointed with limited powers to take decisions on a person's behalf under sections 7-10 of the Mental Health Act. These decisions must be made in the person's best interests.

Guardianship can be arranged if an Approved Mental Health Practitioner or the person's nearest relative applies for it, and if two doctors agree to it.

In most cases the local authority is named as the guardian, although alternatively, a friend or relative may be appointed. A guardianship order cannot proceed if the nearest relative objects to it unless their powers are transferred to someone else.

A guardian has the authority to make sure that:

• the person lives at a specified place.
• the person goes to the place where they are required to live if they do not (or cannot) go there without assistance.
• the person attends specified places for medical treatment, occupation, education or training.
• access be given to the person by a doctor, Approved Mental Health Practitioner (AMHP) or other specified person.

The guardian cannot authorise medical treatment, and has no control over a person's money or property. It is an offence to mistreat or wilfully neglect a person subject to a guardianship order. A guardianship order initially lasts for six months and can be renewed for a further six months and then annually.

Objecting to a guardianship order

Guardianship must be necessary for the welfare of the patient or for the protection of themselves or 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 patient or nearest relative can appeal to a First-tier Tribunal, or Mental Health Tribunal in Wales, if they wish to challenge the guardianship order. The tribunal can decide to either end the guardianship order or not to end it, or they can make certain other orders. Guardianship must end if:

• at the time the tribunal 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 in that people who are the subject of a guardianship order may have decisions made for them that they might not agree with.

Detaining someone under a section or depriving them of their liberty under the Mental Capacity Act?

The Mental Capacity Act 2005 is a law that aims to protect people with limited mental capacity, who don't have the ability to make certain decisions. Under this act a hospital or care home must get authorisation in certain circumstances to detain someone who has impaired mental capacity. This is known as a Deprivation of Liberty Safeguards authorisation and is different from being sectioned under the Mental Health Act. The Deprivation of Liberty Safeguards are not meant as a replacement for the Mental Health Act. If the MHA applies to a person's situation then it should be used.

The MHA only applies if someone has a 'mental disorder', needs to go to hospital or stay in hospital because they need or are receiving mental health treatment, and wants to leave hospital or is refusing treatment.

For more information see Factsheet 483, Deprivation of Liberty Safeguards (DoLS).

Examples

A person is taken into hospital by relatives because there are real concerns about their behaviour causing a risk to themselves or to others. They are being assessed and treated in a psychiatric ward and the treatment consists of mental health nursing.

This person clearly fits the description of a mental health patient and should be sectioned in the ward if they attempt or persistently request to leave and the doctor thinks they need to stay.

A person who has received treatment in hospital is ready to be discharged. A care assessment recommends that they go into a care home. They are taken to a care home but try to leave, or persistently ask to go home.

The manager of the home will have to decide if they are depriving the person of their liberty. If this is the case they will need to apply for authorisation under the Deprivation of Liberty Safeguards.

A person with dementia is living on their own and refusing any help from social services. Social workers say they cannot act because the person is able to make decisions for themselves. The person is not eating, losing weight and has recently started being aggressive when the doctor visits.

Social services has a duty to identify the person's care needs and ensure that they are met. However, if the person is able to make decisions about their care (has the mental capacity), then they have the right to refuse help even if others might disagree. If the person doesn't realise the consequences of refusing help, then social services could decide the person does not have capacity to make decisions about their own care. If this is the case, social workers can make a care plan acting in the person's best interests. This plan might include going into a care home for respite or to live there permanently.

In certain circumstances where the person is given a diagnosis of a mental disorder it might be more appropriate for the person to go into hospital to receive mental health and medical treatment or be assessed under the MHA, than to receive a package of care in the community or go into a care home. This could be because there is a risk to their health or because their behaviour is creating a risk to their safety or to the safety of others. An Approved Mental Health Practitioner or the nearest relative can request the person goes into hospital in cases like this under a section.

Definitions

Mental disorder is the term used in the MHA to describe a range of mental health conditions. Dementia is one of these conditions and therefore the act can apply to people with dementia.

An Approved Mental Health Practitioner is a professional who works in the field of mental health and can request that someone is sectioned or have a guardian appointed. They can be a social worker or mental health professional (such as a community psychiatric nurse) who is trained and approved to perform this role. Social services departments, GPs, hospitals and community mental health services will have access to Approved Mental Health Practitioners.

The nearest relative is responsible for looking after the interests of the person concerned. The nearest relative is generally the person who comes first in the following list: husband, wife or civil partner, son or daughter, father or mother, brother or sister, grandparent, grandchild, uncle or aunt, nephew or niece, or someone (not a relative) the person has lived with for at least the last five years.

The nearest relative can request that someone is sectioned, object to a guardian, discharge the person from hospital and apply to a tribunal for someone to be discharged. Healthcare professionals and the person sectioned or under a guardianship order can apply to a court to change the designated nearest relative under certain circumstances. These could include trying to discharge someone without sufficient regard for their welfare or the welfare of others, unreasonably objecting to a guardianship order or a section 3, or being unable to fulfil this role due to illness.

The responsible clinician is the medical professional in charge of the person's care in the hospital. This is normally a doctor but they can be another health professional such as a psychologist, mental health nurse, occupational therapist or a specially trained social worker who has been approved to perform this role.

An Independent Mental Health Advocate is someone who can explain a person's rights and how to challenge a section decision. Advocates have access to the person's medical records and operate independently from the hospital.

A First-tier Tribunal has the power to discharge from hospital someone who has been sectioned (these were called Mental Health Tribunals in England until November 2008. They are still called Mental Health Tribunals in Wales). The tribunal comprises a medical professional, a chairman who is legally qualified and a non-medical professional.

Amendments to the Mental Health Act 1983

The 2007 Mental Health Act amended the earlier 1983 Mental Health Act. The main changes brought in that relate to people affected by dementia are as follows:

• A nearest relative now includes civil partner.
• A person sectioned can challenge who they want to be their designated nearest relative.
• A person detained in hospital under the act has the right to access an Independent Mental Health Advocate, to explain their rights and how they can challenge a section.
• A guardian has the power to take a person to a place they are required to live.
• Approved Mental Health Practitioners, as well as social workers, can now recommend a person is sectioned or has a guardian.
• The main person in charge of someone's treatment when they are in hospital (the responsible clinician) includes other professionals and not only doctors.

For details of Alzheimer's Society services in your area, visit alzheimers.org.uk/localinfo
For information about a wide range of dementia-related topics, visit alzheimers.org.uk/factsheets

Useful organisations

Alzheimer's Society

Devon House
58 St Katharine's Way
London E1W 1LB
T 020 7423 3500
0845 300 0336 (helpline open 8.30am-6.30pm weekdays)
E info@alzheimers.org.uk  (general information)
helpline@alzheimer.org.uk  (helpline)
W alzheimers.org.uk

The UK's leading care and research charity for people with dementia and those who care for them. The helpline provides information, support, guidance and referrals to other appropriate organisations.

Department of Health

Richmond House
79 Whitehall
London SW1A 2NS
T 020 7210 4850 (8.30am-5.00pm)
020 7210 5025 (textphone)
E dhmail@dh.gsi.gov.uk
W www.dh.gov.uk

The government department responsible for health, social care, and the National Health Service (NHS). Provides a range of information and literature.

Law Society

113 Chancery Lane
London WC2A 1PL
T 020 7242 1222 (general enquiries)
E contact@lawsociety.org.uk
W www.lawsociety.org.uk

The body representing solicitors in England and Wales. It provides details of law firms and solicitors practising in England and Wales, and useful information about legal specialties and fees, as well as tips about what to ask and what to expect from a solicitor.

Mental Health Foundation

9th Floor
Sea Containers House
20 Upper Ground
London SE1 9QB
T 020 7803 1100
E mhf@mhf.org.uk
W www.mentalhealth.org.uk

Provides information, carries out research, campaigns and works to improve services for anyone affected by mental health problems, whatever their age and wherever they live. It does not run a helpline, but produces a wide range of information through its publications and website.

Mind

Mind England
PO Box 277
Manchester M60 3XN
T 020 8519 2122
0845 766 0163 (Mindinfoline 9am-5pm weekdays)
E contact@mind.org.uk
W www.mind.org.uk

Mind Cymru
3rd Floor, Quebec House
Castlebridge
Cowbridge Road East
Cardiff CF11 9AB
T 02920 395 123
E contactwales@mind.org.uk

The leading mental health charity in England and Wales. It publishes information on all aspects of mental health and provides a range of support through 200 local associations.

NHS Direct

T 0845 46 47
W www.nhsdirect.nhs.uk

Official website and 24-hour telephone helpline for the NHS. Provides information about health problems and how to keep healthy.

SANE

1st Floor
Cityside House
40 Adler Street
London E1 1EE
T 020 7375 1002
   0845 767 8000 (SANEline, 6-11pm daily)
E info@sane.org.uk
W www.sane.org.uk

Charity working to improve the quality of life for people affected by mental illness. It provides help and information to those experiencing mental health problems, their families and carers through SANEline.

Factsheet 459

Last updated: April 2012
Last reviewed: March 2010

Reviewed by: Luke Warren, Information Officer (Legal and Welfare Rights), Alzheimer's Society and Lynn Aglionby, Solicitor, Trowers & Hamlins LLP