Here are some answers to FAQs about Mental Health Law and Court of Protection Law.
We do hope that you will find it useful, but we recognise that there are all sorts of situations in which you may require legal advice regarding these subjects, so if you have a question which is not answered on this page, just contact us here and we will put you in touch with one of our lawyers who will be able to assist.
To skip to the appropriate section, please click on one of the following:
Patients FAQs
Patient rights FAQs.
Can I be stopped from leaving the ward?
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.
Can I spend time away from the hospital if I am on a section?
Yes, but only if your responsible clinician authorises it under s17 of the Mental Health Act (‘s17 leave’). S17 leave may be used to authorise you to spend time on the hospital grounds, visit the local shops, or even return home. The leave can be escorted (with ward staff) or unescorted.
S17 leave is usually built up gradually during your time in hospital and is used as a way of preparing you for discharge.
Can I be forced to take medication?
You can only be required to take medication if you are detained under the MHA. If you are on a psychiatric ward as a voluntary patient, you cannot be forced to take medication against your wishes. If you are in prison, then you are not under the MHA and its provisions therefore don’t apply to you.
If you are a detained patient, (even if you are detained for assessment under s2) then you can be required to take medication if the clinician in charge of your treatment thinks it is necessary.
Reasonable force can be used by your care team in administering the medication, although your care team will always try to secure your agreement first.
Detained patients FAQs.
Why have I been detained under the Mental Health Act?
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.
How long will my detention last?
You will be detained only for as long as you continue to meet the criteria for detention (see above).
Detention under s2 will last for a maximum of 28 days. This period cannot be extended but if you are assessed as remaining unwell at the end of it, you can be assessed for detention under s3 instead.
Detention under s3 lasts initially for a period of up to 6 months. It can then be renewed for a further 6 months and, after that, for periods of 12 months at a time. Detention can only be renewed if you are assessed as continuing to meet the criteria for detention.
Detention under s37 follows the same pattern as s3.
What are section papers?
Section papers are the forms that need to be filled out by the social and healthcare professionals who make the decision to detain you. If filled out correctly, these forms provide the lawful basis for detaining you in hospital. The papers must record how it has been concluded that you meet the criteria for detention in hospital and must demonstrate that the correct procedure has been followed.
If the papers have not been filled out correctly, your detention may be unlawful.
What is an IMHA?
IMHA stands for Independent Mental Health Advocate.
IMHA’s are specialist advocates whose job is to support you and assist with your understanding of your rights as a detained patient.
As a detained patient, you have the right to support from an IMHA during your detention. Ward staff will be able to advise you how to get in touch with an IMHA.
An IMHA’s service is provided free of charge.
Who is my nearest relative?
Most patients detained under the MHA have what is known as a ‘nearest relative’ for the purposes of the Act. The only detained patients who do not are restricted patients.
It is important to know who your nearest relative is because s/he has very important powers/responsibilities in relation to your detention. For example, s/he will have the power to discharge you if you are detained under s2 or s3.
Your nearest relative is decided for you according to specific rules set out in the Mental Health Act. You do not get to choose who your nearest relative is.
Broadly speaking, your nearest relative will be whoever appears highest up the following list:
(a) husband/wife/civil partner;(b) son/daughter;(c) father/mother;(d) brother/sister;(e) grandparent;(f) grandchild;(g) uncle/aunt;(h) nephew/niece
The following rules also apply:
● if two or more relatives appear in the same category (e.g. children, parents, siblings), the eldest will be preferred;● if two or more relatives appear in the same category, a relative of ‘the whole blood’ will be preferred to one of ‘half-blood’;● If you live with or are cared for by a particular relative, that relative will be preferred over others.
If you are in any doubt, the MHA Administrator at your hospital should be able to tell you who your nearest relative is. A solicitor will also be able to help and to provide you with advice on this point.
Restricted patients FAQs.
What is a restricted patient?
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).
How are things different if I am a restricted patient?
The main legal consequence of being a restricted patient is that the Ministry of Justice is involved in your care management, which means that your responsible clinician may not grant you leave, transfer you to a different ward or hospital, or discharge you without the agreement of the Ministry of Justice.
You can still apply to the Mental Health Tribunal (MHT) for discharge from your section, but the MHT must consider different criteria when considering your application.As a s37/41 restricted patient, you are highly likely to be made subject to a conditional discharge when you are discharged. This means that you will be liable to recall to hospital.
As a restricted patient transferred from prison under s47/49, you will remain a restricted patient, and will be liable to return to prison (when you no longer need to be in hospital) for as long as your prison sentence lasts.
Mental Health Tribunal & Hearings FAQs
What is a Mental Health Tribunal?
A Mental Health Tribunal (‘MHT’) is a review of your detention by a panel of three independent people with expertise in the area of mental health law specially appointed by the Tribunals Service. The panel consists of a judge, a psychiatrist and a ‘specialist lay member’.
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.
How can I apply for a tribunal hearing?
Applications to the Mental Health Tribunal are processed by the Tribunals Service, so your application needs to be sent to them. There is a standard form that can be used.
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
Should I apply for a tribunal hearing?
It is entirely up to you whether to apply for a tribunal, but if you need advice, you can always discuss your situation with a solicitor 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.
What is a managers’ hearing?
A managers’ hearing is another way of applying for discharge. You can apply for a managers’ hearing in addition to, or instead of, a tribunal hearing.
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.
Next steps
Getting discharged FAQS.
What are my options?
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.
What is a CTO?
A CTO is a ‘community treatment order’. It is an order that can be imposed when you are discharged from your section and are about to leave hospital having been detained under s3 or 37. It is an alternative to straightforward discharge.
The effect of a CTO is that you can be required to comply with certain conditions after you leave hospital, and you remain liable to recall to hospital in the future if you are assessed as needing further in-patient treatment.
Your responsible clinician will tell you if s/he is thinking of imposing a CTO when discharging you, but a CTO cannot be imposed unless there is evidence to show that there is a need for you to be liable to recall to hospital.
A CTO lasts initially for up to 6 months. It can then be renewed for a further 6 months, and then for periods of 12 months after that. You can be discharged by your responsible clinician at any time during the CTO. You can also be discharged by your nearest relative, by hospital managers, or by a Mental Health Tribunal.
You cannot be required to take medication if you are on a CTO – even if it is a condition of the CTO. However, if you don’t take medication as prescribed, you are at risk of recall to hospital.
Leaving hospital FAQs.
What is after-care?
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.
Do I have to continue with treatment after I leave hospital?
Unless you are on a CTO (see below), you are under no legal requirement to continue with treatment after you leave hospital.
Before stopping any treatment, however, we would advise you to raise any concerns you have about your treatment with your care team. It is always better to do things by agreement if possible.
Do I have to stick to the conditions of a CTO?
If you are on a CTO, it is highly likely that there will be several conditions attached to it, eg to reside at a certain address. As a matter of law, you cannot be forced to abide by these conditions. You cannot be forced, for example, to take medication against your wishes, even if a condition of your CTO is that you should take it.
However, anyone who is on a CTO is liable to recall to hospital as a result of being on the CTO, and your failure to abide by a condition of the CTO may be taken into account when deciding whether you have reached the threshold requiring your recall.
Transfer FAQs.
Can I get transferred from prison to a psychiatric hospital?
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.
Can I prevent transfer to a psychiatric hospital?
If the Ministry of Justice decides that you need to be transferred from prison to a psychiatric hospital, you can make representations asking it to reconsider the decision. Your representations would need to show that you did not meet the criteria for admission to hospital or that for some other reason it was not appropriate for you to be transferred.
Apart from getting the Ministry of Justice to change its mind, your only way to prevent the transfer would be to challenge it in the High Court by means of a judicial review.
Family members
What are my rights as a nearest relative?
As a person’s nearest relative, your main rights are as follows:
● 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)
How can I get a family member assessed under the Mental Health Act?
If you feel that a family member needs urgent help with a mental health problem, you should contact his or her GP, or the local community mental health team if he or she has already received care or treatment from them. You may also consider contacting the 24-hour NHS urgent mental health helpline.
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.
How can I get a family member discharged from their section?
If you are the nearest relative of a patient detained under s2 or s3, you have the power to discharge him or her yourself. There are no legal criteria to meet. You simply need to send notice in writing to the MHA Administrator for the hospital concerned.
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.
Court of ProtectionFAQS.
What is mental capacity?
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.
What is the court of protection?
The court of protection is where any disputes or decisions about a person who cannot make their own decisions are decided. It is a specialist court which deals with decisions on behalf of those who lack the mental capacity to make their own decisions. The court deals with a variety of issues ranging from those concerning property and financial affairs to wider health and welfare matters.
What is a litigation friend?
The litigation friend is appointed by the court of protection to act on a persons behalf in circumstances where they are unable to conduct proceedings themselves. This is because they have been deemed to lack the capacity to conduct those proceedings and they therefore require the support and assistance of a litigation friend. Litigation friends can be friends or family members of the relevant person. They are often professionals such as independent advocate or the Official Solicitor.
How much does it cost?
Legal aid is often available for representation in cases before the court of protection. In some circumstances, this is not subject to a means test. We are able to explain the legal aid regulations to you and will ensure that you receive legal aid if you are eligible.
Why does the court need to be involved?
There are often cases taken to the court of protection because the relevant person has expressed unhappiness or an objection to their arrangements. People have a right to have their case heard before the court in certain circumstances, often despite the wishes of the wider friends and family. This is because of certain guidelines prescribed by law. We are happy to advise on cases where this may apply.
What are Deprivation of Liberty Safeguards (DoLS)?
The key thing to note is the last word; safeguards. Where someone is subject to an urgent or standard authorisation they are often referred to being "under DoLS". This is a mechanism which ensures that the person has some legal protection and a route to challenge where they are deprived of their liberty. The law currently says that someone is deprived of their liberty when:
i) they are unable to give valid consent, due to a lack of capacity;
ii) they are under continuous supervision and control. This means for example that their daily activities, meals, whereabouts are always monitored or led by others
iii) they are not free to leave. This applies whether someone tries to physically leave or is unable to take steps to leave.
Contact us.
Fill out the form and we will get back to you.
Phone Us
Office Hours
We are available in the office between 9.00am and 5.00pm Monday to Friday.
Where we areOur Taunton office is located at;
Butler & Co Solicitors LtdChandos House, 1 Heron GateHankridge wayTauntonTA1 2LR
© Butler & Co Solicitors Ltd. All rights reserved.
Butler & Co. Solicitors Ltd are authorised and regulated by the Solicitors Regulation Authority, SRA number 835790.
To find out more, visit the SRA website.
Contact us.
Fill out the form and we will get back to you.
Phone Us
Office Hours
We are available in the office between 9.00am and 5.00pm Monday to Friday.
Where we areOur Taunton office is located at;
Butler & Co Solicitors LtdChandos House, 1 Heron GateHankridge wayTauntonTA1 2LR
© Butler & Co Solicitors Ltd. All rights reserved.
Butler & Co. Solicitors Ltd are authorised and regulated by the Solicitors Regulation Authority, SRA number 835790.
To find out more, visit the SRA website.