Frequently Asked Questions.

As a voluntary patient on a psychiatric ward, you are in the same position as a voluntary patient on any other type of hospital ward, which means you are legally free to leave hospital as and when you choose.

However, if nurses on the ward are concerned that it will be too risky for you to leave hospital, they may consider using their temporary holding powers under s5 of the MHA, which means that you can be kept on the ward for a limited period, in order for an assessment under the MHA to take place.

You have been detained because you have been assessed as meeting the criteria for detention under the Mental Health Act 1983. Generally speaking, this means that following an assessment, doctors have concluded that you:

● have a mental disorder
● which is of a nature and/or degree requiring assessment and/or treatment in hospital, and
● you need to be detained in the interests of your own health or safety, or for the protection of others.

In other words, it is felt that you have a mental disorder and that it is currently not safe for you to be assessed or treated in the community.

A restricted patient is someone that has been sent to hospital by a criminal court under s37 of the MHA (a ‘hospital order’) and at the same time, has also had imposed a restriction order under s41 of the MHA.

The restriction order is added to the hospital order by the court to reflect the gravity of the criminal offence and/or the higher degree of risk associated with a patient’s mental disorder.

Another type of restricted patient is one who has been transferred to hospital from prison under either s47 or 48 of the MHA and at the same time has had a restriction direction attached under s49 of the MHA. Virtually every patient transferred to hospital from prison will be a restricted patient (for as long as their prison sentence lasts).

If you are a detained patient, you can apply to the MHT for discharge from your section. When you apply, a hearing is then arranged at which the panel considers whether they should discharge you. When making the decision, the tribunal panel will consider written reports from your care team. They will also hear oral evidence from you and the care team. If the panel is not satisfied that you meet the criteria for detention, you will be discharged.
Normally MHT hearings take place at the hospital where you are detained. As a result of the Covid regulations, however, all hearings currently take place via video link.
You are entitled to free and independent legal representation at a MHT hearing.
MHT hearings are an effective way of ensuring that your case is thoroughly reviewed by an independent panel. Bear in mind, however, that the MHT’s powers are, in the main, restricted to deciding whether you should remain detained. MHTs do not therefore have the power to interfere in decisions regarding the type of treatment you are receiving.

 If you want to make the application yourself, ask a member of the ward staff to put you in touch with the MHA Administrator, who will send off the application for you. Otherwise, you can get a solicitor to do it for you. A list of local solicitors who are able to assist will be available on the ward. The solicitor’s advice and assistance will be free of charge

You may decide to apply for a tribunal if you want to be discharged from your section and there is no other realistic way of achieving it.

You will need to bear in mind, however, that you will only be allowed one tribunal for each period of detention.

You will also need to bear in mind that it may take some time between the application being submitted and the tribunal hearing take place. If you are detained under s2, the hearing should be within 7 days of the application. If you are detained under s3 (or 37), however, there will probably be a period of approximately 8 weeks between the application and the hearing.

If you are detained under s2, your application will need to be submitted in the first 14 days of your detention.

The managers’ hearing is organized by the detaining hospital trust itself. It is not therefore independent in the way a Mental Health Tribunal is.

At a managers’ hearing, a panel of three people appointed by the hospital trust will consider your application for discharge.

The procedure at the managers’ hearing is very similar to that at a tribunal, although your case will not be considered in quite as much detail.

You are entitled to be legally represented at a managers’ hearing.

Discharge rates following managers’ hearings are lower than they are following tribunal hearings.

Managers’ hearings will automatically be convened to review your case (whether you have applied for one or not) if you are detained under s3 (or 37) and your section is about to be or has recently been renewed.

For most patients, there are four routes to discharge:
The first route is discharge by your responsible clinician. S/he will discharge you as soon as they are satisfied that you no longer meet the criteria for detention.
The second route is discharge by your nearest relative. To work out who your nearest relative is, see here. Whoever it is, s/he has the power to discharge you from your section if you are detained under s2 or s3.
To discharge you, s/he will simply need to provide 72 hours’ notice in writing to the MHA Administrator at the hospital in which you are detained. Your responsible clinician can ‘bar’ discharge within those 72 hours, but only if s/he is able to certify that if you were discharged, you would be likely to act in a manner dangerous to other persons or to yourself.
The third route is discharge by hospital managers. For further details on this option, .see here
The fourth route is discharge by a Mental Health Tribunal. For further details on this option, see here.

Any patient that has been detained in hospital for treatment under the MHA is entitled to the provision of after-care services when they leave hospital. After care services are defined in s117 of the MHA as services which have both of the following purposes—

● meeting a need arising from or related to the person's mental disorder; and
● reducing the risk of a deterioration of the person's mental condition (and, accordingly, reducing the risk of the person requiring admission to a hospital again for treatment for mental disorder).

You will not need to pay for after-care services.

Yes, if the Ministry of Justice agrees to your transfer – using s47 of the MHA if you are a serving prisoner, or s48 if you are on remand.

A transfer under s47 can be authorised if you are suffering from a mental disorder which is of a nature or degree which makes it appropriate for you to be detained in a hospital for medical treatment, and appropriate medical treatment is available for you.

A transfer under s48 can be authorised for the same reasons but you will also need to be deemed in urgent need of the treatment.

If you have yet to be sentenced, the criminal court dealing with your case also has various powers to order your admission to a psychiatric hospital.

● to apply for your relative to be admitted to hospital under the Mental Health Act (although the vast majority of applications are made by an AMHP, not the nearest relative); ● to be informed if it is proposed that your relative should be admitted to hospital under s2; ● to be consulted if it is proposed that your relative should be admitted under s3 - and to prevent detention if you (reasonably) object.● to discharge your relative from detention under s2 or s3;● to apply to the MHT for your relative’s discharge if he or she is detained under s37;● to be provided with details of your relative’s detention (subject to his/her consent)● to be informed of your relative’s discharge from section (subject to his/her consent)

If you think the person may need to be admitted to hospital under the MHA, bear in mind that a formal application will need to be made, which will need to be supported by two medical recommendations.
The application itself must be made either by the person’s nearest relative or by what is known as an Approved Mental Health Practitioner (AMHP). AMHPs are usually social workers with specialist mental health knowledge/expertise appointed by the local social services authority to carry out MHA assessments.
Even if you are the nearest relative, it will almost certainly be easier for you if the application for a person’s hospital admission is made by the AMHP, as the AMHP will be very familiar with the procedure and will know how to go about arranging the medical assessments required.
To get a relative assessed for admission to hospital under the MHA, therefore, you will need to contact an AMHP. Your local social services authority should have contact details for the local AMHP team.

Note, however, that your power to discharge is qualified in the sense that there is a 72- hour notice period after your written notice of discharge is served during which your relative’s responsible clinician has the power to ‘bar’ discharge if the s/he thinks that the patient would be likely to act in a manner dangerous to other persons or to him/herself. If the responsible clinician does bar discharge in this way, then – in s3 cases - you have the right to apply to the MHT for your relative’s discharge.
If you are the nearest relative of a patient detained under s37, you do not have the power to discharge him/her yourself, but you do have your own right to apply to the MHT for his/her discharge.
If you are not the nearest relative, you do not have the power to discharge and you do not have the right to apply to the MHT. You can, though, contact your relative’s responsible clinician and explain to them why you think that detention under the MHA is no longer required. You can also support your relative with any application for discharge to the MHT that they may make.

Mental capacity is someone’s ability to make certain decisions. There is a legal test which determines whether someone has mental capacity to make a certain decision. This test depends on the precise circumstances and it is always time and decision specific. It is possible therefore for someone to have capacity to make decisions about one aspect of their life whilst also lacking capacity to make decisions about another issue.