The Mental Health Act in Independent
Hospitals
This guidance relates to England only
Previously issued by the Mental Health Act Commission and reviewed October 2008
This note provides guidance to on use of the Mental Health Act in Independent Hospitals, with a
specific focus on managers’ duties.
1.
Introduction
In this Guidance:
•
•
•
“MHA 1983” means the Mental Health Act 1983, as amended by the Mental
Health Act 2007;
“the 2000 Act” means the Care Standards Act 2000;
“the Regulations” means the Mental Health (Hospital, Guardianship and
Treatment) (England) Regulations 1983.
Under S. 2(3) (b) of the 2000 Act, independent hospitals in England were required to
be registered with the Healthcare Commission, and were liable to inspection by such
bodies. If such Hospitals’ registration allows them to accept patients who are liable
to be detained under the MHA 1983, the Care Quality Commission (CQC) may also
visit them and interview such detained patients in private.
Independent hospitals that are registered to receive detained patients are “hospitals”
for the purposes of Parts 2, 3 and 4 of MHA 1983. Those Parts relate, respectively,
to: (a) compulsory admission to hospital; (b) patients concerned in criminal
proceedings or under sentence; and (c) consent to treatment.
Independent hospitals that are registered to receive detained patients must comply
with all the relevant provisions of MHA 1983.
2.
Receipt, scrutiny and recording of documents
The Managers must ensure that the grounds for admitting a patient to hospital are
valid, and that all relevant admission documents are in order (Code of Practice,
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30.11). They may consent to the rectification of certain errors contained in
admission documents (s.15 of MHA 1983).
The Managers may delegate their duty to receive and scrutinise statutory documents
to specified officers (see Regulation 4(3) and Code of Practice, chapter 13), who
must possess an adequate knowledge of MHA 1983, have received appropriate
training (Code of Practice, 30.10), and be capable of identifying any error that might
require rectification.
Where the number of persons registered in respect of an Independent Hospital (i.e.
“the Managers” for the purposes of MHA 1983) is two or more, they may authorise
one of their number to perform the duty of rectifying applications and
recommendations, and considering the sufficiency of medical recommendations.
There should be adequate 24-hour cover for the receipt of documents. Although
circumstances might dictate otherwise, it is preferable that receipt and scrutiny take
place simultaneously.
The Managers are responsible for ensuring that patients are detained lawfully.
Therefore, they should audit the receipt and scrutiny of admission documents
regularly. The Code of Practice chapter 13 gives further guidance concerning the
receipt and scrutiny of statutory documents.
Section 15 of MHA 1983 describes the type of errors in the statutory documents that
may be rectified. Rectification must be performed by the person who signed the
document in question; it must take place within 14 days of the patient's admission;
and it must have the consent of the Managers. Managers may also wish to refer to
the Commission’s own guidance note: Scrutinising and Rectifying Statutory Forms
for Admission under the Mental Health Act.
3.
Giving of information
Under s.132 of MHA 1983, the Managers must take all practicable steps to ensure
that a patient understands;
a.
b.
under what provisions of MHA 1983 s/he is detained; and
what rights s/he has to apply to a Mental Health Review Tribunal (MHRT)
This information must be given as soon as practicable after the commencement of
detention, and it must be given again if the patient is subsequently detained under a
different section of MHA 1983. The information must be given both orally and in
writing, and, unless the patient objects, it should also be given in writing to the
Nearest Relative. Managers should be mindful of the need to have information
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available in different languages and mediums for the assistance of patients who do
not use English as their first language, or who have visual or auditory impairments or
learning disabilities.
Managers should also ensure that each patient is given specific information
concerning consent to treatment, detention, renewal and discharge, and CQC (s.132
(2) of MHA 1983).
Under s.133 of MHA 1983, the Managers must inform the Nearest Relative (as
defined by s.26 of the MHA 1983) when a patient is about to be released from
detention. This information should be given at least seven days before the date of
discharge. It also applies to patients discharged from hospital into Supervised
Community Treatment. The information need not be given, however, if either the
patient or the Nearest Relative has made a request to that effect. Provided the
patient agrees, it is good practice for the Nearest Relative to be provided with details
of any care that s/he will receive once discharged.
The Code of Practice (chapter 2) advises that the Managers implement a system for
the giving of statutory information, and sets out the essential components of any
such system.
4.
Medical recommendations and pecuniary interest
The revisions to the Mental Health Act 1983 which was operative from 3 November
2008 changed the rules regarding conflicts of interest considerably. Whereas
previously no doctor on the staff of an independent hospital could make a
recommendation in support of an application for admission to that hospital, under the
new regulations 1 one (but not more than one) recommendation in support of an
application for admission to an independent hospital may be made by a doctor on
the staff of that hospital.
This restriction on providing medical recommendations is not mirrored in respect of
submitting reports to court for a decision in respect of Part 3 hospital orders (i.e.
admission under s.37 etc), in which case both doctors could be on the staff of the
admitting independent hospital.
An assessor will also have a conflict of interest if s/he stands to make a financial
benefit (or loss) from the decision 2 , although simple employment by an independent
1
2
Mental Health (Conflicts of Interest) (England) Regulations 2008 (SI 2008/1205), Reg 4(2)
Ibid. Regulation 4(1)
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hospital is not counted as such a financial interest. Neither is payment of a fee for
providing the assessment (providing that the fee is paid irrespective of the outcome).
5.
Renewal and discharge (section 20(3) and 20(4))
Under s.20(3) of MHA 1983, it is the duty of the Responsible Clinician (‘RC’) to
examine the patient before the expiry of a period of detention, and to submit a report
to the Managers if it appears to him/her that the criteria for further detention are
satisfied. The RC must consult another person who is of a different profession to the
RC and has been professionally concerned with the patient’s medical treatment,
who, if they agree that the criteria for further detention is satisfied, must state this in
writing (s.20(5A) of MHA 83). The Managers should then decide whether to
discharge the patient. If they decide against discharge, they should so inform the
patient.
A patient may ask the Managers to exercise their power of discharge at any time. In
any case, the Managers should ensure that a patient’s detention is reviewed, not just
when required by s.20 of MHA 1983, but also whenever it is considered necessary.
Detailed guidance on when the Managers must consider holding a review is given in
the Code of Practice (chapter 31.11).
The Managers’ power to discharge an unrestricted patient from hospital may be
exercised by a sub-committee formed for that purpose (Code of Practice, 31.3 –
31.9). This is equally so where the patient is detained in an Independent Hospital.
Any such sub-committee should comprise at least three members, at least one of
whom should, if possible, be a non-executive Manager. All members of a committee
or sub-committee that may exercise the power of discharge should be properly
informed and experienced, and they should receive suitable training (Code of
Practice,).
In order to avoid any conflict of interest, managers’ panels for Independent Hospitals
should not include people who are on the staff of the Hospital or who have a
financial interest in it (Code of Practice, 31.7). Being paid a fee for serving on the
committee counts as neither of these things.
Where patients are detained in an Independent Hospital under a contract with a
NHS Trust, the Managers of that Trust should monitor the way in which the
Managers of the Hospital fulfil their duties under MHA 1983. NHS Trusts have the
power to discharge their NHS patients who are either detained in independent
hospitals or subject to SCT where the responsible hospital is an independent
hospital. This is in addition to the discharge powers of the independent hospital
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managers themselves. The Code of Practice (31.45 – 31.47) states that, as a
general rule, such NHS bodies are entitled to expect that the managers’ panel
arrangements in independent hospitals will be sufficient to exercise their role by
delegation. However, if requested to consider discharge in respect of any particular
patient, NHS bodies (or a panel on their behalf) must consider whether there are any
special circumstances which would make it unfair for them not to hold a hearing.
It is CQC’s view that it remains appropriate, wherever possible, for the Managers of
independent hospitals and NHS trusts to co-operate when exercising their respective
functions in respect of patients detained in independent hospitals.
6.
The managers’ duty to refer cases to a tribunal
The Managers must ensure that any patient who wishes to apply to a Mental Health
Review Tribunal (‘MHRT’) is given all necessary assistance to do so (Code of
Practice, 30.34 et seq, 32.5 et seq & 32.25), and that officers provide reports
(including any reports about after-care) to the MHRT within the time limits set out in
its rules and procedures (Code of Practice, 32.19).
In some circumstances, however, the Managers are required to be rather more
proactive. Managers should be familiar with their duties to refer cases to the MHRT,
as set out at chapter 30.34 to 30.41 of the Code of Practice and described below.
Section 68 of MHA 1983 requires the Managers to refer to the MHRT after six
months the case of any patient
• who is admitted to a hospital in pursuance of an application for admission for
assessment;
• a patient who is admitted to a hospital in pursuance of an application for
admission for treatment;
• on a community treatment order;
• whose community treatment order is revoked under s. 17F;
• who is transferred from guardianship to a hospital.
where the right to a Tribunal has not been exercised by or on behalf of that patient.
If the authority for a patient’s detention is renewed at a time when s/he has not had a
MHRT for three years or more (or, if s/he is under 18 years-of-age, for one year or
more), the Managers must refer his/her case to the Tribunal. This requirement will
also apply to a patient who is subject to a Part 3 Hospital Order or Direction without
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being subject to special restrictions, or who was detained under s.3 but became an
SCT patient.
7.
The appointment and role of the Responsible Clinician
Under MHA 1983, the Responsible Clinician (RC) is the the approved clinician with
overall responsibility for the patient’s case (s.34 (1) (a)). “Approved clinician” means
a person approved by the Secretary of State to act as an approved clinician for the
purposes of the Act (s.145 (1)).
The Code of Practice (chapter 14) recommends that hospital managers should have
a protocol for allocating responsible clinicians to patients, and sets out the main
requirements of such a protocol.
8.
Procedures under section 5(2) and section 5(4)
The same procedures that enable an informal patient to be prevented from leaving a
NHS hospital before s/he has been assessed for detention under the MHA 1983 are
available for use in Independent Hospitals.
Under s.5(2) of MHA 1983, an informal patient may be detained for up to 72 hours if
the doctor or approved clinician in charge of his or her treatment (or their nominated
deputy) reports that an application ought to be made for admission to hospital under
s.2 or s.3.
Under s.5(3) of MHA 1983, the registered medical practitioner or Approved Clinician
in charge of an in-patient's treatment may nominate ONE deputy to exercise the
s.5(2) power on his/her behalf during his/her absence from the hospital. In either
case, the deputy may be either a registered medical practitioner or an approved
clinician. It is permissible to nominate deputies by title (i.e. ‘the doctor on call for
ward X’) rather than name, provided that there is only one person at any one time to
whom such a title refers (Code of Practice 12.15).
A patient’s detention under s.5(2) of MHA 1983 will begin immediately the doctor or
approved clinician 's report in Form H1 is delivered to the Managers, or to someone
authorised to receive such a report on their behalf. ‘Delivery’ in such circumstances
includes delivery to the hospital internal mail system.
Section 5(2) should not be used to provide a three-day ‘holding power’, or as a ‘trial
period’ of compulsory detention.
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Any patient detained under s.5 (2) of the MHA 1983 should be discharged from
detention immediately:
a.
an assessment is carried out and a decision is taken not to make an
application under s.2 or s.3; or
b.
it is decided that it is unnecessary to carry out an assessment for possible
detention.
The 72-hour period of detention permitted by s.5 (2) may not be renewed. It is
acknowledged, however, that circumstances may arise in which, after a patient has
reverted to ‘informal’ status, it is necessary to consider using s.5 (2) again.
A patient detained under s.5 (2) is not subject to the consent to treatment provisions
of Part 4 of the MHA 1983.
Where a doctor is not immediately available to invoke s.5 (2), a nurse of the
prescribed class 3 may consider using s.5 (4) to prevent an informal patient from
leaving the hospital. If the relevant power is exercised, the patient may be detained
for up to six hours or until the arrival of a doctor who enjoys the power to invoke
s.5(2), whichever is the earlier.
The Code of Practice gives detailed guidance on the use of s.5 (2) and s.5 (4) at
chapter 12. The Managers should ensure that appropriate procedures are in place
for detaining patients under any section of MHA 1983, and that medical and social
work professionals are readily available.
9.
Patients on leave of absence
In requiring independent hospitals to be registered to take detained patients, the
Care Standards Act 2000 says that such patients are “liable to be detained” under
MHA 1983. However, s.2 (6) of the 2000 Act exempts from the definition of “liable to
be detained” anyone who is on leave from their place of detention under s.17 of the
MHA 1983. This is so as to allow such patients to be sent on leave to registered
care homes or any other establishment.
It should be noted that where a patient is moved to a registered care home or
independent hospital under s.17 of MHA 1983, the appropriate statutory powers
3
The prescribed classes at the time of publication (October 2008) were as follows:
(i)
Registered Nurse, Sub-part 1 or 2, indicating field of practice as ‘Mental Health’
(ii)
Registered Nurse, Sub-part 1 or 2, indicating field of practice as ‘Learning Disability’
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remain vested in the patient’s RC at the referring hospital, and the patient cannot be
granted leave by the staff of the receiving home or hospital.
Where a patient is to be sent on leave to an independent hospital, it is conceivable
that the purpose of that leave will simply be to assess his or her suitability for
transfer. If, however, it is intended that the patient will remain at that establishment and subject to MHA 1983 - for the foreseeable future, then, in accordance with
Department of Health Guidance, s/he should be formally transferred there under
s.19 of MHA 1983 (see HSG (96) 28).
10.
Miscellaneous
A. Emergency assessment
The Managers should monitor the use of the emergency admission power in s. 4 of
MHA 1983, and they should seek to ensure that second doctors are available to visit
a patient within a reasonable time after being asked to do so (Code of Practice, 5.9).
B.
Application by nearest relative
Where a patient is admitted direct to an Independent Hospital following an
application by the Nearest Relative, the Managers should ask the relevant local
social services department to provide them with a social circumstances report (s.14
of MHA 1983 and Code of Practice, 30.11).
C.
Patients liable to be detained under sections 47 and 48
The Crime (Sentences) Act 1997, which inserted new s.45A and s.45B into the MHA
1983, has removed the previous ban on the transfer of prisoners to Independent
Hospitals by warrant of the Home Secretary under s.47 or s.48 of the MHA 1983.
The Code of Practice (paragraph 33.34) recommends that every patient that is so
transferred should have received and, as far as practicable, understood the letter
from the Home Office explaining the respective roles of the Managers and the
Responsible Medical Officer.
D.
Consent to treatment under part 4 of the MHA 1983
The consent to treatment provisions of MHA 1983 apply to patients detained in
Independent Hospitals exactly as they do to patients detained elsewhere. Managers
should monitor compliance with those provisions.
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The Managers should ensure that procedures are in place to notify a patient’s
approved clinician in charge of the treatment of the imminent expiry of the threemonth time limit set by s.58 of MHA 1983, and they should check the action taken by
the approved clinician. The same reminder system should ensure that patients are
asked whether they consent to continued medication. If patients are unwilling to
consent or incapable of doing so, the approved clinician in charge of the treatment
must ask the Care Quality Commission to arrange for a Second Opinion Appointed
Doctor (‘SOAD’) to visit the patient and review the proposed treatment. When a
second opinion is required, the Managers should ensure both that a ”second
professional”, who is not a doctor, a nurse or the patient’s RC, is available to consult
with the SOAD, and that the statutory documents are in order and readily available
for inspection.
The three-month period prescribed by s.58 of MHA 1983 means three calendar
months. The period begins on the first day in any continuous period of detention on
which medicine for mental disorder is administered to a patient. Therefore, if such
treatment is first administered on 19 January, the three-month period will expire at
midnight on 18 April.
E. Emergency treatment
The Managers should monitor the giving of ‘urgent treatment’ under s.62 of MHA
1983, and they should ensure that a form is provided for completion by the approved
clinician in charge of the treatment, giving details of the proposed treatment, the
reason for the ‘urgent necessity’, and the length of time for which the treatment was
given (Code of Practice, 24.37).
F.
Psychological treatments
The Managers should ensure that psychological treatment programmes are
considered as a routine treatment option at all stages of formulating the treatment
plan (Code of Practice, 23.46). Psychological therapy programmes should be set
out clearly, so that staff, patients and relatives can understand them, and never used
as an isolated and spontaneous reaction to particular behaviour.
G.
Control and restraint
The Managers should formulate and make available to staff a clear written
operational policy on all forms of restraint, including post-incident analysis and
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support for patients and staff (Code of Practice, 15.21). The Managers should
monitor and regularly review the use of seclusion and restraint.
H.
Absence without leave
The Managers must ensure that there is a clear written policy in relation to the action
that must be taken when a detained patient goes absent without leave (s.18 of MHA
1983 and Code of Practice, 22.10).
I. Provision of after care
Under s.117 of MHA 1983, it is the duty of the health and local authorities to provide
after-care for those patients who leave hospital after they have been detained under
s.3 or s.37. The section is so defined as to include patients who were formerly
detained in registered Independent Hospitals. Further guidance is contained in
chapter 27 of the Code of Practice.
A local authority may not make any charge for services provided as part of its
obligation under s.117, whether those services consist of residential or nonresidential provision, and even if they are provided to patients who are subject to
Guardianship or to Community Treatment Orders.
J. Access to interpreters
The Managers should ensure that members of staff receive sufficient guidance in the
use of interpreters, and that all parties, including patients, have easy access to
trained interpreters (see Code of Practice, 2.5).
K. Staff training
All staff should receive regular training on MHA 1983 and the Code of Practice, and
copies of both documents should be readily available.
L. Complaints
The Managers should monitor the handling of complaints and pay particular
attention to those made by children and young people.
M. Patient Mail
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The Managers may withhold a patient’s outgoing mail if the addressee has
requested in writing that they do so (s.134 (1) and (9) of MHA 1983 and Code of
Practice, 30.32 – 30.33).
N. Visiting Of Patients
Managers should regularly monitor the exclusion from the hospital of visitors to
detained patients (Code of Practice, 19.15)
All hospitals should have written policies on arrangements for the visiting of patients
by children (Code of Practice, 19.17). Health authorities should ensure that
Independent Hospitals are aware of the further guidance on the visiting of psychiatric
patients by children (HSC 1999/222).
Any questions or concerns about this guidance should be sent to:
CQC Mental Health Act
Citygate
Gallowgate
Newcastle upon Tyne
NE1 4PA
Tel: 03000 616161
Email: [email protected]
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