|Also see: Lasting Power of Attorney |
Court of Protection
GUIDE TO MENTAL HEALTH LAW
Mental Health issues will affect many of us, or our
families, at some time. A small number will suffer the
distressing experience of themselves or a family member being
detained in hospital. We can advise on how to challenge
detention, and about other aspects of care both in hospital
and in the community.
The Mental Health Act 2007 came
into force on the 3rd November 2008.
There were concerns that changes to the
way the law defined mental illness and treatment could enable
detention in hospital for conditions such as alcoholism or
paedophilia, but the changes appear to be more subtle than was
feared. At the moment it seems unlikely that they will lead to
an increase in the use of hospital detention. See below for
provisions that may affect you now.
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DETENTION IN HOSPITAL
Under the Mental Health Act someone can be detained in
hospital and treated without his or her consent (often called
We can advise how concerned relatives can initiate this
process. We can check whether the procedure has been carried
out correctly and challenge it if appropriate.
Once a patient is detained in hospital they can apply for a
Mental Health Review Tribunal to appeal against being
sectioned. We can advise and represent them; detained patients
will almost always be entitled to legal aid. The patient can
also apply to the hospital managers for discharge, and we can
assist with this process.
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The patient's nearest relative has a limited power to
prevent some admissions and to
discharge the patient, and can also apply him or herself for a
tribunal to examine the patient's case.
It had been hoped that the new Mental
Health Act would allow people to choose their Nearest
Relative, but this has not come about. Same-sex partners can
now be Nearest Relatives, but in order to change your Nearest
Relative you will have to apply to the County Court and show
that your statutory Nearest Relative is unsuitable for the
role. This is aimed to help, for example, those who may have
been victims of abuse by their Nearest Relative.
Once again we can
advise and assist.
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CARE IN THE COMMUNITY
The Mental Health Act 2007 introduces a
new Community Treatment Order (CTO) with new powers. A variety
of conditions can be attached to it, according to what the
psychiatrist thinks the patient needs.
Like its predecessor (s25A), a CTO can
only start while a patient is subject to s3 of the Mental
Health Act (a compulsory admission to hospital for treatment).
The biggest single difference under the new Act will be that a
patient on a CTO can be called back into hospital, and if that
happens their s3 detention for treatment will start up again.
You can appeal to a Tribunal against a
CTO; if you are at all concerned about the terms of such an
order you should take legal advice because this is new law and
it will take time before people are used to it - there are
bound to be mistakes in the early days.
We can advise and assist on a variety of issues that may
arise from psychiatric treatment outside hospital, whether
voluntary or under a degree of compulsion. Free advice will be
subject to your financial position, but we will not charge
anything to assess whether you are eligible.
People with mental illness, and their carers, often face a
variety of difficulties in accessing services. Please contact
us to find out if we can assist.
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