Challenging a detention under the Mental Health Act
If you believe someone is being wrongly detained under a section of the Mental Health Act, you can challenge the decision.
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The Mental Health Act 1983 and guardianship
Challenging a detention under the Mental Health Act can be done in one of four ways.
- Ask the health professional in charge of the individual's care (known legally as 'the responsible clinician') to discharge them.
- Ask the hospital manager to discharge them. The manager will hold a meeting (called a hearing) with 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. They have the power to discharge the person, however they must give written notice to the hospital and the discharge can be overridden by the doctor on medical grounds.
- Apply to a First-tier Tribunal in England or a Mental Health Tribunal in Wales. A tribunal is able to hear cases where the person or their representative believes that they should be discharged from hospital. They have the power to discharge the person if they feel that they no longer need to be detained. Staff on the hospital ward, an independent mental health advocate (IMHA) or the hospital's Mental Health Act administrator can help put people in touch with a solicitor to represent them at the hearing. The Law Society of England and Wales also has a list of solicitors who are accredited to represent people at these hearings.
You can try all of these options at the same time to challenge a section decision, you do not need to try one at a time or follow any particular order.
What happens when a section expires?
If the section is not renewed or replaced by another section, the person can discharge themselves from hospital. However, a doctor or nurse can detain someone trying to leave the hospital, if they feel they should stay until another assessment is made. This is because the hospital always has a duty to make sure patients' needs will be met in the community after they are discharged.