A.     Definitions

 1. NR (Nearest Relative)

 The “Nearest Relative” is defined by the Mental Health Act and will not necessarily be the “next of kin”.  The list of blood relatives which should be used to determine which relative comes highest in the pecking order for classification as a NR is as follows:-

 i) husband or wife;

ii) son or daughter;

iii) father or mother;

iv) brother or sister;

v) grandparent;

vi) grandchild;

vii) uncle or aunt;

viii) nephew or niece

In deciding who the NR is one works down the pecking order until reaching a relative who is living permanently in the United Kingdom .  The oldest relative will take priority within a group i.e. mother will be the NR if she is older than the father.  Relatives who live with or care for the patient will also take priority.  People living together for over 6 months are classed as husband or wife.  The NR may authorise that another person (not necessarily a blood relative) should perform the functions of the NR.  This authorisation must be in writing.  The agreement must be mutual and can be revoked at any time, again in writing.  The NR can also be set aside by application to the County Court on various grounds, often by another relative or an approved Social Worker.  A displaced relative has the right to appeal to the Mental Health Review Tribunal.

2. RMO (Responsible Medical Officer)

 The “Responsible Medical Officer” is the Consultant with overall care of the patient in hospital.

3. ASW (Approved Social Worker)

An “Approved  Social Worker” is approved under Section 12 Mental Health Act 1983 as someone with specialist knowledge of people suffering from mental distress.

4. Managers Hearing

The “Hospital Managers” are people from the community who act very much like school Governors and are non-Executive Directors of the hospitals Board of Directors.  They act on behalf of the hospitals NHS Trust that runs the hospital.  The Managers have the power to discharge the patient and a duty to refer to certain cases to Mental Health Review Tribunal.  The Managers can also hold hearings at their own discretion for any reason.  They must hold a hearing for any of the following reasons:-

i)                  at the patients request;

ii)                 on the renewal of detention;

iii)                when the NR is barred from discharging the patient.

The patient can appeal to the Managers if they are under Sections 2, 3 or 37.  The Managers do not have powers of discharge for other detained patients but may recommend a discharge.  A patient may appeal to the Managers as often as he/she wishes.

 5. MHRT (Mental Health Review Tribunals)

 The “Mental Health Review Tribunal” is an independent organisation responsible for hearing patients’ appeals against detention and can be described as a “mobile court”.  The Tribunal panel will consist of a Legal Member, a Medical Member and a Lay Person.  The Legal member will be the President of the Tribunal.  The MHRT can:-

 i)                discharge a patient from hospital;

ii)                decide on a delayed discharge or conditional discharge;

iii)               recommend leave of absence and transfer to another hospital;

iv)               reconvene if any recommendation is not complied with;

v)                issue directions regarding procedural matters.

 6. Patient’s Representative

 This can be a Legal Executive, Trainee Solicitor, Solicitor or Barrister.  All patients who appeal to the Tribunal are entitled to legal representation via the Controlled Legal Representation scheme irrespective of their income or savings.   Patients applying to Managers for Hospital Managers Hearing may have to make a contribution through the Green Form Scheme for the preparation of their case.  The Law Society publishes a list of Solicitors approved for MHRT representation who have undergone an approved course and interview.

 B.     Sections (compulsory detention orders)

Section 4

This allows compulsory admission and detention for up to 72 hours for assessment.  It is designed for emergency situations within the community when those involved cannot cope with the mental state of the patient and there is a need for forcible admission to hospital.  The order is used under urgent necessity with a clear intention that an immediate Section 2 will be arranged once the patient is in hospital.  The application is by the NR or ASW and requires one medical recommendation only.

Section 2

This allows compulsory admission and detention for up to 28 days for assessment or assessment followed by treatment for mental disorders.  This period of detention is not renewable.  The application is made by NR or ASW and requires either a joint medical recommendation from two doctors or two separate medical recommendations.

Section 3

This allows compulsory detention for up to 6 months for treatment and is renewable in the first instance for 6 months and then, subsequently, for periods of one year.  It should be remembered that a Section 3 detention is initially for a maximum of 6 months and need not runs its full course.  The patient must be suffering from a mental illness, mental impairment, severe mental impairment, or psychopathic disorder.  A patient who is suffering from any other disorder or disability of mind cannot be detained for treatment under this section.  The application is made by the NR or by the ASW and requires either a joint medical recommendation or two separate medical recommendations.

Section 37

This is a hospital order which directs the admission of a patient to a named hospital from a criminal court.  The hospital must have consented to admit the patient.  This section allows for compulsory detention for up to 6 months initially for the first renewal period of up to 6 months and subsequent renewal periods of 1 year.  Once in hospital the order operates much like a Section 3.  The application is made by a Crown Court or a Magistrates Court and requires an Order of the court plus two medical recommendations.  It is an alternative type of sentence for offenders who are found to be suffering from a mental disorder at the time of sentencing.

Section 41

When a hospital order (Section 37) is made, an order restricting discharge may be made under Section  41.  A hospital order accompanying a restriction order will be recorded as a Section 37/41.  Restriction orders are applied to more serious persistent offenders and because of the nature of the offence the Home Office has involvement in the case even when the patient is in hospital.  The Home Office will be responsible for granting leave and allowing discharge (apart from a MHRT discharge).  Only Crown Courts can make a restriction order.  The court will direct the admission of a patient to a named hospital which has consented to the patients admission under specific restrictions such restrictions may be made without limit of time or for a specific period.  Two medical recommendations are needed and at least one of the medical practitioners must give evidence to the court orally.

 C.     Consent to Treatment

Excluding those on Section 4, as a general rule, patients can be treated for a mental disorder for 3 months with or without their consent.  Electro-convulsion therapy (ECT) and special treatments are an exception to this rule.  Treatment for a physical illness is also excluded e.g. insulin injections for diabetes.  After 3 months if a patient withdraws their consent an outside doctor from the Mental Health Act Commission must provide a second opinion in order for treatment to be continued.  The outside doctor will also be called in for a second opinion if the patient is unable to consent to treatments.

D.    Discharge

RMO

The RMO will tell a patient when he/she thinks they are well enough to leave hospital and can discharge them any time.

NR

The NR can order the Hospital Managers to discharge the patient when detained under Sections 2 and 3 Mental Health Act 1983.  The Managers must within 72 hours (3 days) consider the order.  If the RMO considers that the patient if discharged is likely to act in a manner dangerous to the public or to themselves he/she must issue a Barring Certificate.  The issue of a Barring Certificate triggers the automatic right to a Managers hearing.  The patient also has a right to a MHRT hearing to discuss the issue of dangerousness.  The NR can apply to the MHRT if the patient is detained under Section 3.

Hospital Managers

If the RMO considers that the patient is not ready for discharge and the patient disagrees, the patient has the right to apply to the Hospital Managers for a hearing.  Reports must be provided by the RMO, the Social Worker and the patient’s Primary Nurse.  The application is then discussed by the Managers in the presence of the patient and their representative.

MHRT

In most cases of compulsory detention the patient has the right to a Mental Health Review Tribunal to hear an application for discharge.  The Medical Member of the Tribunal (who will be an independent Consultant Psychiatrist) will see the patient before the Tribunal.  The Tribunal will also receive reports from the RMO and the Social Worker assigned to the patient and will make the decision on whether or not to discharge after a full hearing at which the patient can be represented.