What are the requirements for detaining someone against their will under the mental Health Act

In most cases when people are treated in hospital or another mental health facility, they have agreed or volunteered to be there. You may be referred to as a voluntary patient.

But there are cases when a person can be detained, also known as sectioned, under the Mental Health Act (1983) and treated without their agreement.

The Mental Health Act (1983) is the main piece of legislation that covers the assessment, treatment and rights of people with a mental health disorder.

People detained under the Mental Health Act need urgent treatment for a mental health disorder and are at risk of harm to themselves or others.

Find out how to deal with a mental health crisis or emergency

If your loved one has been detained, he or she will have to stay in hospital until the doctors or a mental health tribunal decide otherwise.

You still have the right to visit. Visiting arrangements depend on the hospital, so check visiting hours with staff or on the hospital website.

In some cases the patient may refuse visitors, and hospital staff will respect the patient's wishes. If you're unable to see your relative, staff should explain why.

With permission from your relative, doctors may discuss the treatment plan with you.

You can also raise concerns or worries with the doctors and nurses on the ward.

Hospital accommodation should be age- and gender-appropriate.

Not all hospitals will be able to offer a ward dedicated to each gender, but all should at least offer same-sex toilets and wash facilities.

For more information:

An emergency is when someone seems to be at serious risk of harming themselves or others.

Police have powers to enter your home, if need be by force, under a Section 135 warrant.

You may then be taken to a place of safety for an assessment by an approved mental health professional and a doctor.

You can be kept there until the assessment is completed, for up to 24 hours.

Find out more about the Section 135 warrant

If the police find you in a public place and you appear to have a mental disorder and are in need of immediate care or control, they can take you to a place of safety (usually a hospital or sometimes the police station) and detain you there under Section 136.

You'll then be assessed by an approved mental health professional and a doctor.

You can be kept there until the assessment is completed, for up to 24 hours.

Find out more about the Section 136 warrant

If you're already in hospital, certain nurses can stop you leaving under Section 5(4) until the doctor in charge of your care or treatment, or their nominated deputy, can make a decision about whether to detain you there under Section 5(2).

Section 5(4) gives nurses the ability to detain someone in hospital for up to 6 hours.

Section 5(2) gives doctors the ability to detain someone in hospital for up to 72 hours, during which time you should receive an assessment that decides if further detention under the Mental Health Act is necessary.

Non-emergencies

In most non-emergency cases, family members, a GP, carer or other professionals may voice concerns about your mental health.

They should discuss this with you, and together you should make a decision about what help you may need, such as making an appointment with your GP to discuss further options.

Find out more about accessing mental health services

But there may be times when there are sufficient concerns about your mental health and your ability to make use of the help offered.

In these circumstances your relatives or the professionals involved in your care can ask for a formal assessment of your mental health through the Mental Health Act process.

Your nearest relative has the right to ask the local approved mental health professional service, which may be run by local social care services, for an assessment under the Mental Health Act.

It's also possible for a court to consider using the Mental Health Act in some circumstances, or for a transfer to a hospital to take place from prison.

As part of this formal process, you'll be assessed by doctors and an approved mental health professional.

One of the doctors must be specially certified as having particular experience in the assessment or treatment of mental illness.

Find out more about getting a mental health assessment

The length of time you could be detained for depends on the type of mental health condition you have and your personal circumstances at the time.

You could be detained for:

• up to 28 days under Section 2 of the Mental Health Act
• up to 6 months under Section 3 of the Mental Health Act, with further renewals

During these periods, assessments will be regularly carried out by the doctor in charge of your care to determine whether it's safe for you to be discharged and what further treatment is required, if any.

You should always be given information about your rights under the Mental Health Act.

Read the Royal College of Psychiatrists' Q&A about being sectioned in England and Wales.

The Mental Health Act is structured in many sections.

If someone says, "You're being sectioned under the Mental Health Act", they mean you're detained according to a particular section of the Mental Health Act.

In most cases, you'll be told which section of the Mental Health Act applied in your case. For example, "You're detained under Section 2 of the Mental Health Act".

Any person who's compulsorily detained has the right to appeal against the decision to a mental health tribunal (MHT) or to the hospital's managers.

An MHT is an independent body that decides whether you should be discharged from hospital.

You may be eligible for legal aid to pay for a solicitor to help you do this.

Visit GOV.UK if you want to apply to the mental health tribunal

You also have the right to see an independent mental health advocate if you're detained.

Ask the nurses on your ward or the hospital manager how you can get to see one.

An independent mental health advocate can help you understand your rights and could also help if you're not happy with your situation.

You can also make a complaint to the Care Quality Commission (CQC) if you're unhappy with the way the Mental Health Act has been used.

If you're held under the Mental Health Act, you can be treated against your will.

This is because it's felt you do not have sufficient capacity to make an informed decision about your treatment at the time.

This is also the case if you refuse treatment but the team treating you believe you should have it.

The CQC provides detailed guidance about your rights in terms of consenting to medication and electroconvulsive therapy if you're detained in hospital or placed on a Community Treatment Order (CTO).

Going on leave from the hospital should form an important part of your care as you recover.

This means that while detained under the Mental Health Act, you may be able to leave the hospital if authorised by the doctor or clinician in charge of your care (also known as the responsible clinician).

This leave is often referred to as "section 17 leave", as it's Section 17 of the Mental Health Act that allows this leave.

The responsible clinician in charge of your care can place conditions on the leave, such as where you should stay while away from the hospital and whether this will be for a fixed period of time.

You should be given a copy of the Section 17 leave form that sets out these conditions so you're clear what they are.

The responsible clinician can revoke your leave and make you come back to hospital at any time.

If you do not return to the hospital at the end of the leave period, you can be made to go back to the hospital.

If you have been treated in hospital under the Mental Health Act and are being discharged or allowed out of the hospital on short-term leave, you may be put under a Community Treatment Order (CTO).

Under Section 17 of the Act, you can get leave but can be recalled to hospital if, for example, you stop taking required medication or your condition gets worse.

Make sure you know how long any leave is agreed for (usually 1 night or a weekend) before leaving the hospital.

You may be recalled to hospital during the leave if there are significant concerns about how you manage in the community.

If you're on leave or are being discharged, you may be made subject to a CTO if your doctor is concerned that you may not continue your treatment when you leave hospital.

Generally, a CTO means you can go home under certain conditions that you have to meet.

This is to protect yourself or others from harm and ensures you continue your treatment.

As normally occurs when someone is discharged from hospital, you'll be assigned a care co-ordinator, who'll help you with your mental health needs.

If you break the conditions of the CTO or your situation gets worse, you could be readmitted to hospital.

You could be detained for up to 72 hours while a decision is made about the next steps in your care.

Depending on your circumstances, your CTO could be revoked, which means you'll have to stay in hospital, or you could be allowed to leave hospital and continue your CTO.

While you're on a CTO, you can appeal against it. You may be eligible for legal aid to pay for a solicitor to help you do this.

You also have the right to see an independent mental health advocate and appeal to a mental health tribunal when you're on a CTO.

Ask your care co-ordinator, the nurses on your ward or hospital manager how you can get to see one.

An independent mental health advocate can help you understand your rights and could also help if you're not happy with any of your CTO conditions.

The CQC provides detailed guidance about your rights in relation to consent to medication and electroconvulsive therapy if you're subject to a CTO.

Download the CQC guidance on supporting your rights under a CTO (PDF, 109.91kb)

The second opinion appointed doctor (SOAD) service safeguards the rights of patients subject to the Mental Health Act.

SOADs are consulted in certain circumstances when a patient refuses treatment, or is too ill or otherwise incapable of giving consent.

They'll check whether the recommended treatment is clinically appropriate and that your views and rights have been taken into account.

For example:

• If you have already received medication for 3 months without consent under the Mental Health Act, the SOAD has to review whether continuous medication is really necessary.
• If you're too ill to give valid consent to electroconvulsive therapy and your doctor feels it's necessary, the SOAD has to review whether it's appropriate for the treatment to be given. Electroconvulsive therapy cannot be given to a patient who's able to give consent but refuses to do so, except in urgent situations.

An approved mental health professional (AMHP) is a mental health worker who has received special training to provide help and give assistance to people who are being treated under the Mental Health Act.

Their functions can include helping to assess whether a person needs to be compulsorily detained (sectioned) as part of their treatment.

An approved mental health worker is also responsible for ensuring that the human and civil rights of a person being detained are upheld and respected.