The Mental Health Act was introduced in 1983 in England and Wales and was updated in 2007. Equivalent legislation exists in Scotland – The Mental Health (Care and Treatment) Act 2003 and Northern Ireland – Mental Health Order 1986.
The Mental Health Act was designed to protect the rights of people who have a mental illness, including dementia, if they are detained against their wishes. Under the act, a person can be detained against their wishes if their health is at risk or if they pose a risk to themselves or others. There are a number of sections included in the act, which is why being ‘sectioned’ is often the term used for people who are detained.
The other piece of legislation that governs how people affected by mental illness receive treatment and care is the Mental Capacity Act.
The following 3 sections apply to people living with dementia
Section 2 –allows a person to be detained in hospital for assessment for up to 28 days.
Section 3 – allows a person to be detained in hospital for treatment, initially for 6 months.
Section 117 – provides continued care for a person who has been detained under section 3.
Although they are rarely used, sometimes it is considered more appropriate to apply for a guardianship order, which allows the appointed guardian limited powers including deciding where a person should live. In most cases, the local authority is named as the guardian, but a friend or relative may also be appointed. For more information on guardianship orders visit the Alzheimer’s Society.
The act was amended in 2007, the main changes are:
- The definition of mental disorder was changed.
- It introduces changes to the criteria for detention with a new “appropriate medical treatment” test which will apply to all the longer-term powers of detention. As a result, it will not be possible for patients to be compulsorily detained or their detention continued, unless medical treatment which is appropriate to the patient’s mental disorder and all other circumstances of the case is available to that patient At the same time, the so-called “treatability test” will be abolished.
- The professional roles (i.e. practitioners) who can take on the functions currently performed by the approved social worker (ASW) and responsible medical officer (RMO) was broadened.
- The amended act gives the patient the right to make an application to displace their nearest relative (NR). It also enables county courts to displace an NR where there are reasonable grounds for doing so. The provisions for determining the NR will be amended to include civil partners amongst the list of relatives.
- It introduces supervised community treatment (SCT) for patients following a period of detention in hospital. It is expected that this will allow a small number of patients with a mental disorder to live in the community whilst subject to certain conditions under the 1983 Act, to ensure they continue with the medical treatment that they need. Currently, some patients leave hospital and do not continue with their treatment, their health deteriorates and they require detention again – the so-called “revolving door”.
- It introduces an order-making power to reduce the time before a case has to be referred to the Mental Health Review Tribunal (MHRT) by the hospital managers. It also introduces a single Tribunal for England, the one in Wales remaining in being.
- It requires hospital managers to ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is age-appropriate (subject to their needs).
- It places a duty on the appropriate national authority to make arrangements for help to be provided by independent mental health.
- It introduces new safeguards for patients in relation to electro-convulsive therapy.
How Mum was impacted by the Mental Health Act
During the early stages of Mum’s illness, she became so agitated and distressed that she was hospitalised at Cross Lane Hospital which provides mental health inpatient facilities. Mum didn’t take too kindly to this and spent much of her time trying to escape and as a result, she was detained under section 3 of the Mental Health Act, which allowed the hospital to effectively stop her from leaving.
Upon her release from hospital, Mum went into a care home and as a result, she was entitled to section 117 aftercare, meaning that all her care home fees were paid for.