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22 Mental Health

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1. Introduction

2. What is the Mental Health Act for?

3. Who decides if I should be detained in hospital?

4. When can I be detained in hospital?

5. When can I be given compulsory treatment?

6. What treatment can I be given?

There are several types of treatment you can be given under the Mental Health Act.

Your responsible medical officer can give you medication (drugs) without your agreement for up to three months, starting from the day you are first given the treatment as a detained patient.  If they want to continue giving you the medication after this, they must either:

  • get your permission; or
  • get an independent doctor (known as a 'second opinion appointed doctor' or  SOAD), to confirm that you should continue getting the treatment.

Electro-convulsive therapy (ECT)
Your responsible medical officer can give you ECT only if:

  • you give your permission; or
  • the SOAD confirms that you should have it and that it will help you.

Types of treatment you can be given without your agreement
You can be given some treatments without your agreement or the SOAD's permission, as long they are given (or instructed) by your responsible medical officer. These treatments include:

  • general nursing care;
  • psychological treatments (which include behaviour therapy, counselling and psychotherapy); and
  • treatment for a physical condition if it is directly connected with your mental health problems.

In most cases it will be clear whether a treatment is for your mental health problems or not. However, if it is not clear and you don't want the treatment, your doctor will need to get legal advice. You may also want to get your own legal advice (see 'Further help').

Treatments that can't be given without your agreement
Some rarely used treatments, such as psycho-surgery (surgery on your brain), can be given only if:

  • you agree to the treatment; and
  • an independent doctor has confirmed separately that you should have the treatment and it will help you.

A panel of people appointed by the Mental Health Act Commission must make sure you understand what the treatment is and what it will do before you decide whether to agree to it. This applies whether or not you are detained under the Mental Health Act.

If you need urgent treatment
Sometimes you can be given treatment without the usual procedures being followed. For example, if you decide you no longer want to take medication that you had earlier agreed to, and your responsible medical officer believes there would be a serious problem if you stopped, they may be able to make you continue taking it. However, your responsible medical officer should contact the Mental Health Act Commission   straight away to arrange for a SOAD to confirm that you should continue taking the medication and that it will help you.

What does the second opinion appointed doctor (SOAD) do?
If you are unable to agree to a treatment or you don't want to agree to the treatment, a SOAD must make their own decision about whether you should get the treatment without your agreement.

The SOAD must discuss the treatment with:

  • your responsible medical officer;
  • a nurse involved in caring for you; and
  • another person who cares for you who is not a doctor or a nurse.

The SOAD must also talk to you about why you don't want the treatment if this is so. If the SOAD decides you should be given the treatment, then you must be given the reasons for this decision in writing unless the information is likely to cause serious harm to your physical or mental health.

When could I be given treatment that is not covered by the Mental Health Act?
If your doctor thinks you are unable to make decisions about treatment, it can be given to you in your 'best interests'. However, some treatments, such as sterilisation, can be given only if a court allows it.

'Best interests' means that the doctors believe:

  • you will die if you don't have the treatment;
  • your condition will get worse if you don't have the treatment; or
  • the treatment will improve your physical or mental health.

In all these cases, the treatment must also be part of accepted medical practice.

If you are unable to make decisions, your doctor should also talk to any relatives or friends who care for you to work out what you would want if you were able to make decisions. But the treatment must not be given if, at a time when you were able to make such decisions, you made an 'advance directive' (sometimes called an advance refusal) about your treatment.

When am I judged able to make a decision about treatment?
You are considered able to make decisions if you are 18 or over, unless there is evidence to show you can't. If you are 16 or 17, you are considered able to make decisions but your parents may still have a say in your treatment.

If your doctor thinks you may not be able to make a decision, they need to look at whether you can:

  • understand and retain the information you have been given about the treatment (especially the information about having or not having the treatment); and
  • weigh up the information to decide whether you want to have the treatment.

What is an 'advance directive'?
An example of an advance directive is when you make a statement saying you do not want to be given a particular treatment now or in the future, even if you reach a point when you can no longer make such decisions. Someone with cancer may make an advance directive saying they do not want chemotherapy, even if at some point in the future they are unable to make decisions about their treatment.

Advance directives may be included in 'advance statements'. These are statements that people make to describe how they would like to be cared for and treated, if at some time in the future they are unable to make their views known.

When you make an advance directive, it must be clear that you understand what will happen if you don't have the treatment; for example, that if you do not have the treatment, you may die.

Advance directives do not need to be in writing, but it is better if they are. It is also a good idea to have a doctor write down that you made your statement when you were capable of making this decision. Advance directives can, however, be overridden by the compulsory treatment powers in the Mental Health Act.

7. Who can discharge me from hospital?

8. What are my rights in hospital?

9. What if I am unhappy with my care and treatment?

10. Will I get help when I leave hospital?

11. What powers do the police have against people with mental health problems?

12. Mental health and The Human Rights Act

13. Terms used in mental health law

14. Further help

15. About this leaflet

This leaflet is published by the Legal Services Commission (LSC). It was written in association with Camilla Parker, and independent consultant specialising in mental health law and policy.

The leaflets are regularly updated but the law may have changed since they were printed so the information in them may be incorrect or out of date.

Leaflet Version: November 2019

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