One in four people will experience mental ill health at some point in their lives. In the most serious cases, the law provides for people to be detained in hospitals for treatment – this is also known as being ‘sectioned’.
What is sectioning?
The basic legal framework is the Mental Health Act 1983 (MHA). This allows people to be kept in hospital if:
- They have a mental disorder (this is the term the Act uses); and
- There is a serious risk to their health and safety or other people’s safety if they don’t get treatment urgently.
Under the Act you can be detained in hospital for a mental health assessment for a maximum of 28 days (Section 2) or for treatment following the assessment for up to six months – though this can be renewed (Section 3). For your detention to be lawful, it must be necessary for your health and safety or to protect others.
Who gets to decide? How?
Before someone is sectioned, they will be assessed by a team of health professionals. This will be an ‘approved mental health professional’ and two doctors. Approved mental health professionals have received specialist training in relation to the Mental Health Act 1983. A range of different professionals can qualify in this role, including community psychiatric nurses, occupational therapists and psychologists.
Can I object?
Depending on what power a person is sectioned under, their nearest relative (that is their closest surviving family relative) may be able to object to them being sectioned. The patient can also ask to be discharged themselves. And they can also appeal to the Mental Health Tribunal. Thanks to human rights law the authorities have to show you should be detained, rather than you showing why you should be released.
Doesn’t sectioning breach my human rights?
Under Article 5 of the Human Rights Convention everyone has the right to liberty. Obviously, being kept in hospital without being able to leave means you cannot exercise this right. However, the convention allows for the right to liberty to be limited in a number of situations, one of which is ‘the lawful detention of persons of unsound mind’. In principle, as long as the proper procedures laid down by the Act are followed, sectioning someone can be lawful in human rights terms.
In face, in some circumstances, sectioning someone under the Mental Health Act may actually be necessary to protect a person’s human rights. Failure to section people known to be seriously ill who have then committed suicide, or to keep them under close observation once sectioned, has been held to be a breach of the right to life. Hospitals owe a duty to patients who are at risk, and have to take steps to protect them.
How are your rights protected if you’re sectioned?
Some of the safeguards built into the Mental Health Act help to protect your rights. For example, you can only be detained for the periods the Act allows and only if doctors who are qualified to make a judgement on it think you meet the tests. You have the right to be told what section you are under, and to receive information. You may also have the right to have an independent mental health advocate, who has been trained to help people who have been sectioned understand their rights.
Is there any other way my liberty can be limited for mental health reasons?
The Mental Health Act only applies to people who need treatment (or an assessment for treatment). In some circumstances, people who are not capable of making personal care or healthcare decisions need to be detained for their own safety. The Mental Capacity Act 2005 applies here and allows hospitals and care homes to detain people to protect their (or others’) safety where a judge permits this.
The courts have emphasised that the right to liberty is so important that no matter how well-intentioned, deprivations of liberty need to be carefully monitored: ‘a gilded cage is still a cage’. If you are subject to continuous supervision and are not free to leave, that is a deprivation of liberty.
Under the Deprivation of Liberty safeguards, any deprivation must be authorised (usually by a local authority) and the least restrictive it can possibly be for a person’s liberty. The deprivation can be challenged in the Court of Protection.
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