Safeguards and challenges to a detention under the Act
The powers that are created by the Mental Health Act can have a significant effect on a person’s freedoms. This is why the Act also contains some safeguards to protect the person’s rights.
- The Mental Health Act 1983
- Which sections of the Mental Health Act are relevant to dementia?
- The key roles of the Mental Health Act
- You are here: Safeguards and challenges to a detention under the Act
- Lasting powers of attorney and deputies
- Deprivation of Liberty Safeguards (DoLS)
- The law in Northern Ireland
- The Mental Health Act 1983 - other resources
The Mental Health Act 1983 and guardianship
One of the main rights the Act creates is the right for the detained person to have access to an independent mental health advocate (IMHA). See the section ‘The key roles’ for more information about IMHAs. The person’s nearest relative also has the right to ask for an IMHA to be appointed to support the person. IMHAs generally visit hospital wards, or hospital staff can help people contact one.
If someone is being wrongly detained under sections 2 or 3 of the Mental Health Act, this can be challenged in the following ways.
- The health professional who is in charge of the person’s care can be asked to discharge them. This professional is known legally as the ‘responsible clinician’. This is an informal way to challenge the decision.
- The ‘hospital managers’ can be asked to hold a hearing to decide whether to discharge the person. These are not the general managers of the hospital. They are members of a special team that is set up to make sure the Act is applied properly.
- The nearest relative of the person who is being detained has the power to discharge them. However they must give the hospital written notice and a doctor can override the discharge if they think the person is a danger to themselves or to other people.
- An application can be made to a First-tier Tribunal (Mental Health) in England or a Mental Health Review Tribunal in Wales. A tribunal can hear cases where a person (or their representative) believes they should be discharged from hospital. The tribunal has the power to discharge the person if it thinks they no longer need to be detained. Staff on the hospital ward or an IMHA can help people contact a solicitor who can represent them at a tribunal hearing. Legal aid (public funding) is available to help people who are detained pay for tribunal legal costs. The Law Society of England and Wales has a list of solicitors who are accredited to represent people at tribunal hearings. See the section 'Other resources' for details.
These options can be tried together rather than in any particular order. However it’s important to be aware that there are time limits for tribunal applications. An IMHA or a solicitor can provide information about the time limits.
The tribunal will itself automatically review a person’s detention after a certain period of time. The length of this period of time will depend on the circumstances of the person’s detention.