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21st February 2014

Being Detained – The Essential Criteria

legal gavel and law books, on whiteAt what point can we use the Mental Health Act 1983 (in England and Wales) or the Mental Health (Care and Treatment) (Scotland) Act 2003 to detain someone in hospital? Remember we don’t have to go to court, this is a decision usually made by just three people - two doctors, and an Approved Mental Health Professional (AMHP) or a Mental Health Officer (MHO) in Scotland.

Case scenario

Here’s a scenario – a care home manager contacts Jack’s GP. Jack has been a resident at the home for some months, but he has very recently become verbally aggressive, making accusations that staff are stealing from him, and causing distress to other residents. Now the GP is very likely going to investigate the possible causes of this change of behaviour, perhaps offer treatment, or maybe the care home will look to make changes to his care that might settle him. However for the purposes of this article I want to cut a possibly long story quite short. Let’s say all investigations have taken place, alternative care has been looked at, family members have been called in, and social workers have looked at other possible placements but the view from everybody involved in his care is that the situation is unmanageable, the risks are high if nothing changes. The decision to be taken is, bluntly, can we admit him to a hospital to get his mental health assessed and treated? Even more bluntly, can we section him? (That’s a shorthand way of saying can we detain him against his will under a section of the Mental Health Act.)

Well there are a couple of other options we might need to rule out first:

  • Firstly we could ask Jack if he’s willing to go into hospital, and if he is that will probably be our preferred option.
  • Secondly, can we argue that if Jack lacks mental capacity to make decisions about his care, then can we use another piece of mental health law, the Mental Capacity Act 2005, to make a decision to remove him to hospital to treat him? Now this is a very complex area of law, but the experience of some recent case law is that if our purpose is care and treatment of a mental disorder for someone where the criteria of the Mental Health Act are met, then it’s the Mental Health Act 1983 we should use (or the Mental Health (Care and Treatment) (Scotland) Act 2003).

Criteria for detention

So what are the criteria that our three practitioners are going to satisfy themselves are met if they are undertaking an assessment under the Mental Health Act?

First of all they have to agree that the person is suffering from a mental disorder. That’s a wider criterion than you might think. Have a look at the definition of that in the Mental Health Act Code of Practice. It means any disorder or disability of the mind, so that’s pretty wide. The suggested list of disorders includes learning disability , dementia, eating disorders, and many more.

The next hurdle is to decide what is it about the mental disorder that makes the decision maker believe the person needs to be in hospital. What the act says is the disorder has to be of a nature or degree that warrants their detention. Note that this is about nature or degree not nature and degree. One of the problems about any laws is that they are often written in legal language that is sometimes difficult for practitioners on the ground to interpret and we might have to wait for a judge to interpret the meaning of some of these legal terms. A helpful piece of case law (R -v- Mental Health Review Tribunal for South Thames Region ex parte Smith to be precise) tells us that nature is about the history or course of the mental health disorder, and degree is more about the current symptoms and presentation of the illness. This is very interesting because you might hear practitioners say, ‘things aren’t bad enough yet’, or ‘they’re not sectionable yet’.  Well the Mental Health Act doesn’t necessarily demand that we have to reach that stage. Think back to Jack, we don’t have to wait until the symptoms have got so severe, or in the words of the Act, that the degree of the disorder has reached a certain level for him to meet the criteria. If the nature of his disorder is that it is worsening and will continue to worsen without treatment, it may be the nature of his disorder warrants assessment and treatment in a hospital.

Now the next hurdle in our criteria for detaining someone in hospital is to ask what the risk factors are. In the words of the Act, is his health or safety at risk, or is there a risk to others that would mean he needs to be detained in hospital? Often you will hear people talk about being a danger to himself or others – that is not one of the criteria for detention. It is a decision about whether the risk factors can be managed at the home, if not, then the criteria for admission are met.

So now we know!

So those are essentially the grounds by which someone might be detained in hospital. There are some other things worth mentioning. Practitioners have to take into account all the circumstances of the case, including social factors before they can say the best place for the person is to be in hospital. They should also be taking into account a number of good practice principles, including looking for the least restrictive alternative – which might be about getting additional support for Jack, or persisting in trying to persuade him to take treatment whilst still living in the care home. If there is a less restrictive alternative to the Act, then that may well be the best option all round.

The criteria for detaining somebody in hospital under Scottish mental health law is very similar, but with some interesting differences. Again the first requirement is that someone has a mental disorder, and that it is necessary to detain the person in hospital to determine treatment. However it does not ask practitioners to say what it is about the disorder that makes it necessary (no mention of nature or degree). It does however ask practitioners to say that the person’s ability to make decisions about treatment is significantly impaired (which is really a question about the person’s capacity). Lastly there is a requirement about indicating the risk factors that would be present if the person was not admitted (very similar to the English law).

So back to Jack. It’s very difficult to challenge the practitioners on mental health law – they’re the ones applying the law and they should know. However if the doctors don’t believe that Jack should be admitted – you could ask them what are the criteria for admission. See if they know – you will, because you’ve read this article!

David Beckingham – QCS Expert domiciliary care agencies which specialise in the care of people with mental health problems, doing their best to eliminate the stigma and to offer those in its care respect and dignity at all times.">Mental Health Contributor

For further reading:

The Code of Practice relating to the Mental Health Act 1983 at:

The Welsh Code of Practice relating to the Mental Health Act 1983 which came into force in 2008 at:

Volume 2 of the Code of Practice for the Mental Health (Care and Treatment) (Scotland) Act 2003 which deals with compulsory powers at:

Topics: Mental Health

Sarah Riley

Senior Customer Care Executive

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