The Mental Health Act and Guardianship

2. The sections of the Mental Health Act

There are over 100 parts to the Mental Health Act, known as sections. Some of these sections allow people to be detained against their will, which is where the term 'sectioned' comes from. The following sections are likely to be the most relevant to people with dementia and their carers.

Section 2 - Detention for assessment in hospital

Section 2 of the Mental Health Act allows people to be detained in hospital in order to have their mental condition assessed, in situations where the person themselves refuses. This can happen if health professionals think that they are behaving in a way that places their health at risk, or is a danger to themselves or others. Examples of when people with dementia may be detained under section 2 include serious cases of self-neglect and where the person is behaving in ways that challenge, such as being aggressive. A person can only be detained for a maximum of 28 days. They can of course be discharged sooner if appropriate.

An approved mental health professional (AMHP) and the person's nearest relative both have the legal power to have someone admitted to hospital under section 2 of the Mental Health Act (see 'The key roles', below, for an explanation). However, it is very unusual for a nearest relative to do this. Instead, every local authority has a duty to provide a trained team of AMHPs specifically to carry out this role. If you are concerned about someone and feel that they are a risk to themselves or others, contact your local authority social services department.

Once this has been done, two doctors must agree to the detention and sign medical recommendations that say why the person can only be treated in a psychiatric hospital. The doctors must assess the person within five days of each other. One of these doctors must have specialist experience of working with people with a mental disorder. The second should normally be someone who knows the person, such as their GP. The AMHP or nearest relative must then admit the person to hospital within 14 days of the date the medical recommendations were signed.

Once the person is in hospital under a section of the Act, they will not allowed be to leave the hospital until they are discharged and will be closely supervised.

Section 3 - Detention for treatment in hospital

Section 3 of the Act allows someone to be detained in hospital in order to receive treatment. This might apply to someone who has already been detained for a period of assessment and who then requires treatment. It could also apply if it is clear from the outset that the person will not accept treatment voluntarily. Section 3 of the Act allows someone to be detained for up to six months in the first instance. After this, the section may be renewed for a further six months, and then for a year at a time.

As with detention under section 2 of the Act, both an approved mental health professional (AMHP) or the person's nearest relative can apply for someone to be detained to hospital (see 'The key roles', below). However, the AMHP cannot admit someone to hospital under section 3 if the nearest relative doesn't agree to this.

The process for detaining someone for treatment under the Act is broadly the same as for assessment. However, the doctors must make sure there is appropriate treatment available for the person in hospital before signing the medical recommendations. If there is not, then it is likely that the person will not be detained. Treatment might include psychological therapies such as problem-solving therapy and cognitive behavioural therapy (CBT), specialist mental health nursing, medication and care.

Section 117 - After-care services

Section 117 of the Act deals with after-care services. These are the services that must be provided to someone when they are released from detention under the Mental Health Act. Local authorities and the NHS have a joint duty to make arrangements for after-care services for people who have previously been detained for treatment under section 3 of the MHA and who require them.

After-care support is not means-tested. This means that everyone who needs it will receive it, regardless of their financial situation. It must be provided free of charge and this includes care in the person's own home and paying for care home fees.

There is usually an upper limit on how much the NHS and a local authority will spend on an individual's care home fees. The NHS and local authority will normally tell you what the limit is. Often they will provide a list of care homes in the area within this budget and families can choose from this list.

However, if someone wishes to move into a different and more expensive care home to that chosen by the NHS or local authority, they can choose to pay a top-up fee. This means they can pay the difference between the amount the NHS or local authority are willing to pay and the cost of the person's chosen home.

It is possible for after-care support to be withdrawn if the NHS and the local authority together decide that the person’s needs have changed. In order to receive after-care, the person must have a continuing requirement for support. This support must meet a need connected with the person’s mental disorder, and reduce the risk of a deterioration of their mental condition. If this is no longer the case, the after-care support could be withdrawn and the person’s care needs reassessed on a means-tested basis, meaning they may have to pay for some or all of their care costs. If you are concerned that after-care is going to be removed inappropriately you should seek legal advice.