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Working sections of the Mental Health Act relating to Hospital Admission and DischargeThis page explains the basic criteria for admission and discharge
to psychiatric units. Information on what the section is for, who
is required to detain you under each section and how that is done.
It also covers discharge from hospital and how an application is
made and who can sanction the discharge. If you have any queries
about the information on this page please contact our office on
0151 709 9442 or Simon@advocacyproject.co.uk and
we will guide you through your query or put you in touch with an
appropriate agency.
What is Section 2Admission to hospital for
assessment, or assessment followed by treatment for a period of
up to 28 days. Who detains you on a section 2;Two medical recommendations, one from ‘an approved doctor' and preferably one from a doctor with a prior knowledge of the patient, plus application from an Approved Social Worker (ASW) or nearest relative. Who and how can you be discharged from Section 2;RMO, Hospital Managers, MHRT*, Nearest Relative. *It is important to understand that to appeal for a Mental Health Review Tribunal, the application must be submitted within 14 days of admission to hospital if you are a section 2 patient.
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What is Section 4
Who and how can you be discharged from Section 4;
RMO
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What is Section 5
5(2) Application in respect of a patient already in hospital 72 hours (includes any period in which a
5(4) was applied) One application from the doctor in charge of the patient or nominated deputy
5(4) Nurses holding power 6 hours One application from a registered nurse (mental health or LD)
Who and how can you be discharged from Section 5;
RMO
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What is Section 35 - ‘Remand to hospital for
a report'
Where there is reason to suspect that the accused person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and it would be ‘impracticable' for a report on his mental condition to be made if he were remanded on bail 28 days x 3 renewable up to a maximum 12 weeks in total Patient is an accused person awaiting trial, and the Court has received evidence from one doctor. Admission must occur within 7 days
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What is Section 36 - ‘ Remand
to hospital for treatment'
as the person is suffering from mental illness or severe mental impairment ‘ of a nature or degree which makes it appropriate for him to be detained in a
hospital for medical treatment' Same as Section 35 Patient is an accused person awaiting trial
for an imprisonable offence (except murder). The Crown Court receives reports from two doctors (one approved). Admission must occur within 7 days
Who and how can you be discharged from Section 36;
Patients can ask Crown Court or Magistrates Court to end the Order.
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What is Section 37 - Hospital or Guardianship
Order.
The offender is suffering from mental illness, psychopathic disorder, severe mental impairment or
mental impairment of a nature or degree which makes it;
A) appropriate for him to be detained for medical treatment under a hospital order, and in the case of psychopathic disorder or mental impairment, medical treatment is likely to help the condition or to stop it becoming worse and the court thinks a hospital order is the best way to deal with the case, or
B) it is of a nature or degree which makes it appropriate for a guardianship order to be made for his care and protection and the court thinks guardianship is the best way to deal with the case
Same as section 3 Patient is convicted by a Magistrates Court of an imprisonable offence (not murder), and receives two medical recommendations – one approved.
In making a hospital order under section 37, the court is not concerned about whether the
offender's mental state affected his responsibility for the crime, its' job is to decide the best way to
help him as an individual. In the case of a guardianship order the offender is received into the
guardianship of the local social services department or a person (usually a relative) whom the
department is willing to accept as guardian. The guardian has the power to require him to live in a
specific place, to see a doctor, social worker or any other authorised person, and to attend
specific places for occupation, education or training, or medical treatment. However, he still
retains the right to refuse any treatment.
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What is Section 38 - Interim Hospital Order.
the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or
mental impairment, and there is reason to suppose that the mental disorder ‘is such that it may be
appropriate for a hospital order to be made'. A period specified by the court up to a maximum of 12
weeks, renewable for 28 days at a time for no more than one year in total (If the court finally decides to send him to prison, the time spent in hospital is taken away from the sentence).
The patient is convicted by a Crown Court or Magistrates' Court of an imprisonable offence
(other than murder) and makes the order on the evidence of two doctors. Admission must occur
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What is Section 41 - Restriction order
With or without limit of time.
A Section 37 Hospital Order is in force, and oral evidence from one doctor indicates
to the (Crown) Court needs to protect the public from serious harm.
Who and how can you be discharged from Section 41;
Home Secretary, MHRT. Can be an ‘absolute' or ‘conditional' discharge. The patient will
only be given a conditional discharge if they agree to keep to certain conditions (eg to live
in a specific place or to keep appointments for treatment), and they can be recalled to
hospital at any time while the restriction order is still in force.
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What is Section 47 - ‘Transfer to hospital from prison'.
The Home Secretary is satisfied that;
a) the prisoner is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment
b) his mental disorder is of a nature or degree which makes it appropriate for him to be detained in hospital for medical treatment and
c) in the case of psychopathic disorder or mental impairment, treatment is likely to help the condition or to stop it becoming worse and
d) ‘having regard to the public interest and all the circumstances', transfer to hospital is
the best course of action.
Who and how can you be discharged from Section 47;
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What is Section 48 - ‘Transfer
to hospital of prisoners not serving sentences of imprisonment'
Who and how can you be discharged from Section 48;
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What is Section 49
Restriction Direction
If serving a sentence of fixed length - restriction direction remains in force until the date when sentence would have ended, (taking into account full remission). Or can be discharged by the Home Secretary. Can be applied by the Home Secretary to a Section 47 Hospital Transfer.
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What is Section 135 - ‘Warrant
to search for and remove patients',
Who and how can you be discharged from Section 135;
135 - RMO
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What is Section 136
Who and how can you be discharged from Section 136;
136 - RMO
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Discharge from hospital
The Hospital Managers
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The Mental Health Review Tribunal (MHRT)
Certain formal patients can apply to have their legal status reviewed by a MHRT. The tribunal will contain a chairperson (‘the president') who will be a lawyer, a medical member who will usually be a psychiatrist and a layperson. The medical member of the tribunal will visit before the hearing in order to form a view of the patients mental health and will give the other members of the panel an opinion. Generally, people detained under sections 5, 135, and 136 cannot apply to a tribunal, as can't people detained by the courts on remand. In other cases the patient can apply as soon as they are detained (except during the first 6 months of a section 37 hospital order), and each time the section is renewed (only once during each of the first two 6 month periods of a section 48 and not thereafter). Applications must be made within the first 14 days if detained under a section 2 and the hearing will take place within a week. For other sections the tribunal will be held several weeks after application. A doctor and a social worker will produce reports and copies will be sent to the patient or their solicitor, and to the tribunal office. The solicitor will discuss these with the patient and possibly instruct a doctor to make an independent report. The tribunal will decide whether detention should continue. The decision may be given soon after the hearing, otherwise it will be posted to the patient a few days afterwards. Tribunal powers;
• if not ‘restricted', the tribunal
can discharge a patient immediately or set a later date for discharge;
• if
restricted and not transferred from prison, the tribunal can
still discharge, with or without conditions;
• if transferred from prison and restricted, the tribunal can only recommend discharge to the Home Secretary;
• if not discharged, the tribunal may make recommendations regarding the patients' future care, whether formal or informal. The Court of Appeal has recently reversed the burden of proof regarding patients seeking discharge at tribunal as this was considered incompatible with the European Convention of Human Rights. Section 72 is now changed to reflect this so that the burden of proof of the appropriateness of continuing detention now falls upon the hospital.
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The rights of ‘Nearest Relatives'
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Aftercare
Section 117 - Duty to make Aftercare Arrangements
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