Which sections of the Mental Health Act are relevant to dementia?

Some sections of the Mental Health Act may be relevant to people with dementia and their carers.

The Mental Health Act has over 100 parts, which are known as ‘sections’. Some of these sections allow people to be detained so they can be assessed or treated against their will. This is where the term ‘sectioned’ comes from.

Some of these sections could be relevant to people with dementia and their carers. These are explained below.

Section 2 – detention for assessment in hospital 

Section 2 of the Act allows a person to be detained in hospital to have their mental condition assessed. This can happen if they refuse to do this voluntarily or if they are likely to change their mind about going into hospital. It can also happen if the person doesn’t have the mental capacity to give informed consent – this means they are not able to understand all the relevant information to agree to be assessed.

A person can be detained for assessment if health professionals think they are behaving in a way that puts their health at risk. They can also be detained if health professionals think they are a danger to themselves or others. For example, a person with dementia may be detained under section 2 if they are seriously neglecting themselves. Or they may be detained if they are behaving in ways that challenge, such as being aggressive. A person can only be detained for assessment for a maximum of 28 days. They can be discharged sooner, if that is appropriate.

As well as detaining a person so their mental health can be assessed, section 2 also allows for a person to be given treatment, such as medication.

An approved mental health professional (AMHP) and a person’s nearest relative both have the legal power to apply to have the person admitted to hospital under section 2. However it is very unusual for a nearest relative to do this. Instead every local authority has a trained team of AMHPs to do this role. If someone is worried about a person with dementia and thinks they are a risk to themselves or others, they can contact their local council and ask for the social services team.

As part of the process, two doctors must agree that the person should be detained. The doctors need to sign medical recommendations that say why the person needs to be detained in hospital to be assessed. The doctors must see the person within five days of each other (if they see the person separately).

One of the doctors must have specialist experience of working with people who have a mental disorder. The second doctor should normally be someone who knows the person. For example it could be their GP.

The AMHP or the person’s nearest relative must have the person admitted to hospital within 14 days of the date when the last medical recommendation is signed. The AMHP or the person’s nearest relative must also have seen the person within the 14 days before they are admitted.

Once the person is in hospital they will be closely supervised. They will not be allowed to leave the hospital until they are discharged.

Section 3 – detention for treatment in hospital

Section 3 of the Act allows for someone to be detained in hospital so that they can receive treatment. This could apply to someone who has already been detained under Section 2 and who then needs to be treated for longer.

Section 3 of the Act allows for a person to be detained for up to six months to begin with. After this the section may be renewed for another six months, and then for a year at a time.

As with detention under section 2 of the Act either an AMHP or the nearest relative can apply for a person to be detained in hospital for treatment. However, an AMHP can’t admit a person to hospital under section 3 if the person’s nearest relative doesn’t agree to this. See the section ‘The key roles’  for more information about AMHPs and nearest relatives.

The process for detaining someone for treatment under the Act is similar to the process for detaining someone for assessment. However, before the doctors sign the medical recommendations they must make sure appropriate treatment is available for the person in hospital. Treatment could include medication, specialist mental health nursing care and psychological therapies, such as cognitive behavioural therapy. If someone has been treated with medication for three months or more against their will, an approved doctor must give a second opinion for this treatment to continue.

Some treatments can’t be given to a person unless certain additional criteria are met. These include electroconvulsive therapy.

Sections 135 and 136 – powers of the police

Sections 135 and 136 of the Act give certain powers to the police. This includes the power to remove a person from their home or a public place to a ‘place of safety’ for a mental health assessment, or so other arrangements can be made for their treatment or care. An AMHP and a doctor should be involved in this process. The place of safety is usually a police station or a hospital.

Section 117 – after-care services

Section 117 of the Act deals with after-care services. These are the services that a person must be given when they are released from detention for treatment under section 3. The local authority and the NHS have a joint duty to arrange after-care services if a person needs them.

After-care support is not means-tested. This means that everyone who needs after-care services will get them, no matter how much money they have. After-care must be provided free of charge. This includes paying for care in the person’s own home and paying for care home fees.

The NHS and the local authority must arrange for the person to move to a care home or receive a care package that meets their needs. This must happen even if it means paying for the person to live in a care home that is not on any ‘standard’ list of homes that the NHS or local authority normally pay for.

If someone is offered a care home that meets their needs but they want to move into a different and more expensive care home, they can choose to pay a top-up fee. This means they can pay the difference between the amount the NHS or local authority pay and the cost of their chosen care home.

The NHS and the local authority can withdraw after-care support if they decide together that the person’s needs have changed. To receive aftercare, a person must have an ongoing need for support. The support must meet a need that is connected to their mental disorder. It must also reduce the risk that their mental condition will deteriorate. The aim is to reduce the risk of the person being readmitted to hospital.

However, if the person no longer needs support connected to their mental disorder, the after-care support could be withdrawn. If this happens the person’s care needs will be reassessed using a means-test. They may then have to pay for some or all of their care costs. If someone is worried that after-care is going to be removed inappropriately, they may need to ask for specialist advice. See the section 'Other resources' for some suggestions about who can help.