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
- Sections of the Mental Health Act for people with dementia
- The key roles in the Mental Health Act
- You are here: Safeguards and challenges to a detention under the Act
- How to support a person with dementia who has been detained under the Mental Health Act
- Guardianship
- Lasting powers of attorney and deputies
- Deprivation of Liberty Safeguards and the Mental Capacity Act 2005
The Mental Health Act 1983 and guardianship
One of the main rights the Mental Health Act creates is the right for the detained person to have access to an Independent Mental Health Advocate (IMHA).
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. Don’t be afraid to ask.
Can you challenge a detention under the Mental Health Act?
If it is believed that someone is being wrongly detained under sections 2 or 3 of the Mental Health Act, this can be challenged in the following ways.
The responsible clinician can be asked informally to discharge them.
The special team at the hospital, which makes sure the Act is properly applied (called ‘hospital managers’) can be asked to hold a hearing to decide whether to discharge the person.
The nearest relative has the power to discharge the person. However, they must give the hospital written notice 72 hours before 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 the Mental Health Tribunal. The role of the Tribunal is to decide whether the legal criteria are met and whether the section should continue, based on the evidence on the day of the hearing.
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.
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 in certain circumstances.
It is also possible to make a complaint to the Care Quality Commission (in England) or the Healthcare Inspectorate (in Wales) if there are concerns about how the Act is being used.