Child safety
Local Authorities have a general duty to safeguard the children in their area, reduce...- 31 May 2023
Under Section 2 MHA a person can be detained in hospital if it is decided by medical professionals that they are suffering from a mental disorder and it is of a nature and/ or degree to warrant detention in hospital for assessment or assessment followed by treatment for at least a limited period, and the person ought to be detained for their own health, safety, or for the protection of others.
The section can last for up to 28 days, it cannot be renewed but the person can be placed onto a section 3 for treatment if it is established that the criteria for a section 3 are met.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal, the application must be placed within the first 14 days of the section commencing. The person also has the right to appeal to the Hospital Mangers at any time, at the Hospital Managers discretion and the section can be discharged by the persons Responsible Clinician or at the request of their Nearest Relative.
Whilst subject to section 2 a person can be given treatment for a mental disorder without their consent.
Under Section 3 MHA a person can be detained in hospital if it is decided by medical professionals that they are suffering from a mental disorder of a nature and/ or degree which makes it appropriate for them to receive medical treatment in hospital, and detention is necessary for their own health, safety, or for the protection of others that they receive such treatment, the treatment cannot be provided unless they are detained and appropriate medical treatment is available.
The section can last initially for up to 6 months and can be renewed for a further 6 months and then yearly thereafter.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal once within each period of eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers at any time, at the Hospital Managers discretion and the section can be discharged by the persons Responsible Clinician or at the request of their Nearest Relative.
Whilst subject to section 3 a person can be given treatment for a mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
Under Section 37 MHA a person convicted of an offence punishable with imprisonment can be sentenced to a Hospital Order by either the Magistrates Court or the Crown Court if the person is found to be suffering from a mental disorder of a nature and/ or degree which makes it appropriate for them to be detained in hospital for treatment, appropriate medical treatment is available and the Court is of the opinion that this is the most suitable method of dealing with the person.
The section can last initially for up to 6 months and can be renewed for a further 6 months and then yearly thereafter.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers and the section can be discharged by the Responsible Clinician. The person could also appeal against their sentence to the Crown Court or Court of Appeal subject to time bars, however if the appeal was successful then the person could be re-sentenced in accordance with criminal law.
Whilst subject to section 37 a person can be given treatment for a mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
As well as a Hospital Order under s.37 (outlined above) the Court can impose a Restriction Order under section 41. A Restriction Order can only be given by the Crown Court if having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, it is necessary for the protection of the public from serious harm that an order is made.
The Order will usually be made on an indefinite basis and the main effects of the restrictions are that the Ministry of Justice’s consent is required for section 17 leave, transfer to another hospital or discharge from hospital by the responsible clinician.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers. The Responsible Clinician cannot discharge the section but can request discharge to the MOJ.
Under section 47 MHA a person serving a sentence of imprisonment can be transferred from prison to hospital if the Secretary of State (SOS) is satisfied that the person is suffering from a mental disorder of a nature and/ or degree which makes it appropriate for them to be detained in hospital for treatment, appropriate treatment is available to them and the Secretary of State having regard to the public interest and all the circumstances may then direct that the person is transferred from prison to hospital.
The section can last initially for up to 6 months and can be renewed for a further 6 months and then yearly thereafter.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers and the section can be discharged by the persons Responsible Clinician. If discharged the person would not be returned to prison.
Whilst subject to section 47 a person can be given treatment for a mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
As well as a transfer direction under s.47 (outlined above) the SOS can impose a restriction direction under section 49, this is imposed in almost every case.
The criteria to be satisfied are the same as outlined in section 41 (above).
The section will run for a period of time as set by the section 49 direction. If the person was subject to a fixed term sentence then the restriction will terminate on the persons release date. The person will then only be subject to the section 47 which will operate in the same way as a section 37 (also known as a notional section 37). Indeterminate sentenced prisoners do not have a release date and so will always be subject to restrictions.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers. The Responsible Clinician cannot discharge the section but can request discharge to the MOJ.
Whilst subject to section 47/49 a person can be given treatment for a mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
Under section 48 a person detained in prison or detention under the Criminal Justice System (eg on remand) or detained under the Immigration Act can be transferred to hospital if the Secretary of State is satisfied that the person is suffering from a Mental Disorder of a nature or degree which makes it appropriate for them to be detained and treated in hospital, appropriate treatment is available and the person is in urgent need of such treatment.
The section lasts until the Court or Ministry of Justice direct that it should end.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers and the section can be discharged by the persons Responsible Clinician with the permission of the Court and MOJ. The Court and MOJ must be informed in all the above cases as they may issue an order for the person to be transferred back to prison. The section 48 will also come to an end when the person is sentenced under Criminal Law or the legal proceedings to which they are subject come to an end.
Whilst subject to section 48 a person can be given treatment for a mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
As well as a transfer direction under section 47 (outlined above) the Secretary of State can impose a restriction direction under section 49, this is imposed in almost every case.
The criteria to be satisfied are the same as outlined in section 41 (link to s.37/41 above).
The section will run for a period of time as set by the section 49 direction. If the person was subject to a fixed term sentence then the restriction will terminate on the persons release date. The person will then only be subject to the section 47 which will operate in the same way as a section 37 (also known as a notional section 37).
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers.
Whilst subject to section 48/49 a person can be given treatment for a mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
Under section 45A the Crown Court can make a Hospital Order alongside a prison sentence (except where the sentence is fixed by law). This is often referred to as The Hybrid Order.
Following sentence the person would be taken to a secure psychiatric hospital and would be subject to the same process as if they had been transferred under section 47 (above). They would be transferred back to prison to serve the remainder of their sentence if the criteria for hospital detention was no longer made out.
The court must also impose a limitation direction which has the same effect as a restriction direction under section 49 above.
If the person remains in hospital on their release date then the restrictions will automatically cease and the person will become a notional section 37 patient which operates as a section 37 Hospital Order.
The person has the right to appeal against their detention in hospital to the Mental Health Tribunal subject to their eligibility (see Eligibility to appeal to the Mental Health Tribunal). The person also has the right to appeal to the Hospital Mangers and the section can be discharged by the persons Responsible Clinician.
Whilst subject to section 45A a person can be given treatment for mental disorder without their consent. After three months medication can only be given with the persons consent or if a Second Opinion Appointed Doctor agrees.
If you require any advice, assistance or representation in relation to the above please contact our Mental Health Team via email at mentalhealth@thblegal.com or call 01268 792 994 and we will be happy to assist you further. Legal Aid is available for Mental Health Tribunal work
Community Treatment Order
Guardianship Orders
A CTO can only be made if a person has initially been detained under section 3, 37, 45A, 47 or 48 of the Mental Health Act (MHA) and where it is decided by medical professionals that the criteria under the MHA for making such an Order is met.
The criteria is that the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment, that it is necessary for their health safety or for the protection of others that they receive such treatment, that it is necessary that the Responsible Clinician should be able to recall the person to hospital for treatment if required and appropriate treatment is available.
A person cannot be forced to comply with the conditions of a CTO however, if the conditions of the CTO are breached then this could lead to a recall to hospital. If this happens your doctor will have 72 hours in which to decide whether to revoke your CTO meaning that you will be back on your original detaining section (eg section 3) or to discharge you back onto your CTO. During this time you can be treated without your consent.
A CTO can last initially for up to 6 months and can be renewed for a further 6 months and then yearly thereafter.
If a person is under a CTO they have the right to appeal to the Mental Health Tribunal and or the Hospital Mangers. Both are independent from the hospital and both have the power to discharge the CTO. The Tribunal can also make binding recommendations. A persons Responsible Clinician can also discharge the CTO and their Nearest Relative also has the power to request their discharge from a CTO.
A Guardianship Order can be used both as an alternative to admitting a person to hospital and as a route to discharge from hospital.
The criteria for making a Guardianship Order is that a person must be aged at least 16 and suffering from a mental disorder of a nature or degree to warrant the need for guardianship and it is necessary in the interests of the welfare of the person or for the protection of others that guardianship is used.
A Guardianship Order can provide the power to decide where a person lives (and if that person absconds from that place of residence they can be returned), to require the person to attend appointments for treatment, education or occupation, to require the person to see a Doctor, Approved Mental Health Practitioner or other medical professional at their place of residence (this does not give the power to force entry), to be given treatment for their mental disorder (only with their consent).
A Guardianship Order can last initially for up to 6 months and can be renewed for a further 6 months and then yearly thereafter.
If a person is under a Guardianship Order they have the right to appeal to the Mental Health Tribunal. The Tribunal has the power to discharge the Order. The person also has the right to appeal to the Local Authority who can discharge the order. The Responsible Clinician can also discharge the order.
To find out more information or if you require advice, assistance or representation in relation to CTO’s or Guardianship Orders please contact our expert Mental Health Team via email at mentalhealth@thblegal.com or call 01268 792 994 and we will be happy to assist you further.
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