Chapter 5: The Mental Health Act 2007

Introduction

Previous chapters have discussed the ethics and professionalism of nursing practice - two key features of care that ensure patients are treated fairly and with their best interests at heart. One of the main principles of ethical treatment is involving the patient in the decision-making process and respecting their rights and wishes. However, in some circumstances, patients may not be able to give their consent for treatment, as they lack capacity. In addition, patients may pose a danger to themselves or to others, in which case nurses have a responsibility to consider the wider needs of the population. These scenarios are often related to mental health problems in the patient population and a detailed understanding of legal and professional practice is required to ensure that you are able to manage these situations appropriately. This chapter aims to provide an overview of the Mental Health Act (2007) as it relates to nursing practice.

The history and politics of mental health law in the UK

In the UK, there have been laws in place guiding the management of patients with mental health problems since the 18th Century. Initially, these laws were designed for the sole purpose of protecting the public against “acts of madness” or “lunacy” - particularly where aggressive or violent behaviour was present. Often, the only course for such patients was incarceration. This was at the time when the asylum system was present in the UK and where mental health problems were poorly understood and often badly managed, if at all (Stuart, 2014).

During the early Twentieth Century, reforms to mental health law took place, consistent with wider changes in health and social care policy. The population realised that patients with mental health problems should be taken care of, not just incarcerated, while medical and psychological professionals were developing more effective treatments and approaches to manage such patients. This progressive social trend culminated in the first Mental Health Act of 1959, which outlined how patients with mental health problems could be detained when they posed a risk to themselves or to others. This Act abolished the role of magistrates in the process, handing over decision-making to the medical profession, reflecting the potential to treat these patients.

Following the civil rights movements in the 1960s and 1970s, it was considered necessary to reform the Mental Health Act to offer more protection to patients’ rights. This led to the Mental Health Act 1983, which narrowed the definition of what was considered a psychiatric disorder and restricted how treatments could be delivered without patient consent. At the same time, the Mental Health Act Commission was developed to act as an independent inspection body to regulate how healthcare professionals used the Act in practice.

During the 1990s, the composition of a new Mental Health Act was considered, but largely rejected by the UK Government in favour of updating the existing Act. This was partly motivated by media coverage of events where individuals with psychiatric conditions had been involved in murders or aggressive criminal behaviour. The Mental Health Act 2007, the most recent version of the Act, expanded the circumstances in which a patient can be assessed or detained under the Act, increased the powers of healthcare professionals to keep patients in hospital for treatment, and allowed patients to be detained even if their condition is not ‘treatable’, but if they pose a potential threat to the public (Videbeck, 2013).

The Mental Health Act 2007

The most recent Mental Health Act is an Act of Parliament that was widely implemented in November 2008. It is designed to serve as a guide to healthcare professionals in the management of patients with psychiatric disorders who may require treatment against their will or who pose a risk to the public or to their own health. Doctors play an important role in implementing the mental health act, along with approved mental health professionals (AMHPs), which includes a wide range of professionals who have received training relevant to the role.

The Act is divided into multiple sections, which each serve a different purpose and provide legal guidance on the justification and process of detaining patients for treatment or care against their will. A specific process is required for individuals to be detained under different sections of the mental health act. In general, a section 12-approved doctor and a consultant doctor who routinely cares for the patient (e.g. psychiatrist or general practitioner) in conjunction with an AMHP are all required to enact a section under the Mental Health Act 2007. Section 12 approval indicates that the doctor in question has specific approval to diagnose and treat mental health disorders. However, not all sections require these individuals to act in concert; these will be discussed below. As a nurse, you should be familiar with the key sections of the Act that apply to your practice. From a nurse perspective, the most important sections relate to the way in which care can be delivered to the patient in exceptional circumstances: sections 2, 3, 4 and 5.

Section 2 provides a framework for someone to be detained in hospital for the assessment and treatment of their mental disorder. This applies to any person who is deemed to have a mental disorder to such a degree that it is in the interests of the patient or the general public that he or she is assessed and treated in hospital. Section 2 allows patients to be detained for up to 28 days, although discharge should be performed as soon as possible. During the assessment period, patients may be treated against their will, although consent should always be sought. This section cannot be extended or renewed and the patient has the right to appeal within 14 days of the first date of detention.

Section 3 gives the power to detain a person with mental health problems for the specific purpose of treatment. The order lasts for a typical period of 6 months, although this can be renewed by the appropriate professionals undertaking care of the patient. As with section 2, the patient has the right to appeal this decision.

Section 4 is designed specifically for emergency detention of patients for a short period of assessment. The length of the assessment period is only 72 hours, although this section is otherwise very similar to the section 2 process of patient assessment. However, unlike a section 2 detention, this section does not require an AMHP and two doctors, but only one doctor who is approved. This may be applicable in instances where it is not possible or practicable to get a second doctor to participate in the section, or where this may cause delays, leading to the potential for patient or public harm. The patient cannot appeal against a section 4 detention.

Section 5 is an emergency holding power, which gives healthcare professionals time to assess a patient completely and determine the need for further sectioning under section 2 or 3. Two distinct aspects exist to a section 5 detention: section 5(2) and section 5(4). A section 5(2) is for patients already in hospital, where they are not considered well enough to leave and a further assessment period of 72 hours is deemed necessary. Following the end of the assessment period, extension of assessment or treatment may be requested through other relevant sections. A section 5(4) is specifically a holding power for nurses for patients already in hospital. The holding power for nurses lasts for 6 hours, allowing time for the patient to be assessed by a doctor. Once the doctor has seen the patient, the decision may be made to evoke a section 5(2) or another course of action. In both cases, the short-term nature of the section precludes patient appeals.

When should the Mental Health Act be invoked and how should this be undertaken?

The previous paragraphs provided an overview of the different sections of the Mental Health Act 2007. Knowing how and when to use these sections in practice is an important part of coordinating patient care. Several examples of how the different sections can be justified and implemented will now be provided and discussed to clarify the practical use of the Mental Health Act 2007.

It is important to recognise the legal limitations and the appropriate use of the different sections of the Mental Health Act 2007. The use of emergency holding powers (i.e. section 5(2) and 5(4) of the Act) should only be considered in cases where emergency assessment is considered absolutely necessary for patients already in the hospital setting. The aim of holding powers is to allow for a rapid period of assessment; hence, the assessment should be performed as soon as is possible following the sectioning process. Nursing staff should always consult the patient and ask them about their willingness to be assessed prior to invoking the sectioning process. Similarly, when patients are outside of the hospital setting, a section 4 should only be used as a means to ensure rapid assessment of the patient.

For patients who need to be assessed for periods longer than 72 hours, having been seen by a doctor, a section 2 is necessary. This section is primarily designed for a more detailed assessment of the patient, but also allows for initial treatment to begin. In some instances, this treatment may be sufficient to allow the patient to recover. Alternatively, the patient may be assessed thoroughly and released based on a change in their clinical status. However, when longer term treatment may be needed against the will of the patient, or without their consent, a section 3 is essential to allow for this additional time. Although this section allows for treatment to take place for up to 6 months (with a potential for renewal), this period of time may not be appropriate for all patients. The guidelines should be considered the maximum periods of detention, rather than targets, in order to reduce the negative impact of sectioning on the life of the patient.

Helping patients without capacity

When patients are judged to lack capacity (see chapter 3), nurses must act in the best interests of the patient. This is a fundamental principle of best nursing practice and is consistent with the principle of ethical patient management. The decision to evoke sections of the Mental Health Act 2007 can be challenging however, as patients may be reluctant to remain in or present to hospital for assessment or treatment. Therefore, delicacy in communication and in the enactment of sections is recommended to minimise the potentially traumatic nature of the detention process.

As noted in chapter 3, a patient’s diagnosis must not be used as a sole basis for assuming that capacity is not present. Furthermore, patients should be formally assessed before capacity can be ethically and legally determined for specific decisions. The Mental Health Act 2007 exists to safeguard patients where they lack capacity to make their own decisions and therefore nurses should use the principles of the Act to serve the best interests of the patient. As a nurse, you should consider the Mental Health Act 2007 as a framework to guide you in meeting the needs of the patient where they are unable to decide for themselves.

Acting in the best interests of the patient requires a careful consideration of multiple aspects of patient care and potential changes in the status of the patient. Firstly, decisions should be based on all relevant circumstances involving the patient. This should include the physical and mental disorders the patient may have, as well as past or present beliefs and values the patient may have that could reasonably be used to inform decision-making by nursing staff. Consultation with family members, carers and friends may be useful in determining the best interests of the patient. Factors such as patient age, appearance or behaviour should not be the main determinants of their best interests, as this can lead to discriminatory practice.

Patients may have capacity in the future to contribute towards decision-making; therefore, you should make sure to re-assess their mental status frequently and engage them in decision-making processes as much as possible. In some instances, decisions on care may wait until the patient has achieved capacity once again. In acute mental health contexts, this may not be appropriate however, and nurses may be required to act with limited information about the personal views and experiences of the patient. The following section will consider how nurses should act on behalf of patients in a practical manner, when balancing the complexities of overruling a patient’s autonomy.

Complexities in overruling a patient’s autonomy

When a patient lacks the capacity to give their consent to treatment in the context of psychiatric care, this situation can be problematic for nurses. Patients may require immediate treatment, may be a danger to themselves, or may put the general public, other patients or members of staff at risk of harm. The duty of the nurse is to consider the best interests of the patient and the potential for harm to come to others - a delicate balancing act in some instances. The following sections provide an overview of interventions or measures that may be used to ensure patient safety or wellbeing during challenging situations of mental health nursing.

Restraint, restriction and seclusion

The use of practical measures to control the patient’s behaviour should be considered a last resort only, when other measures do not work or would be inappropriate for the patient. These include the use of physical or chemical restraint and seclusion from other patients. ‘Chemical restraint’ is a term used to describe the use of sedatives and similar medications that can pacify the patient, often reducing their level of consciousness and aggressiveness. Physical restraint refers to the use of straps or other measures that can be used to hold a patient in place or prevent movement. Furthermore, restraint or restrictive practice can involve locking doors to restrict patient movement within the care setting, removing items from the patient that may cause harm, restricting contact between patients and family members or friends, and holding the patient so that medication can be administered. In all cases, there is a risk of harm to the patient when these measures are used unnecessarily or frequently. It should be noted that neither physical or chemical restraint techniques are therapeutic, in that restraint does not serve to benefit the patient in treating their condition. The only benefit to restraint is to prevent the patient from injuring themselves or harming others. Accordingly, the measures used should be proportionate to the risk posed by the patient and should be reviewed regularly based on this risk. Often, patients may be able to be calmed down using behavioural strategies or practised techniques, before restraint is necessary.

Similarly, seclusion is a technique designed to remove the patient from the general ward environment or from interacting with others, thereby preventing harm. This measure should only be applied when other techniques do not work due to the stress associated with seclusion and the potential for overuse of such techniques. Seclusion entails isolating the patient and often depriving them of routine human contact. This technique may only be temporarily effective in calming a patient down during an aggressive or violent episode, while long term seclusion is considered challenging to maintain in a hospital environment. Therefore, alternative measures should be considered carefully to ensure practical patient care, and care that meets the best interests of the patient.

Deprivation of liberty

One of most significant updates to the Mental Capacity Act 2005 was the inclusion of the deprivation of liberty safeguards. This amendment was based on the need to protect patients’ rights - specifically, article 5 of the Human Rights Act, which states that all individuals should have the right to liberty and security of person and that no one should be deprived of their liberty unless necessary under legal rulings. The deprivation of liberty safeguards provide a framework for the deprivation of liberty of an individual who is unable to provide capacity to give their consent for treatment or assessment. Deprivation of liberty can be summarised by the existence of two key components: the individual is under continuous supervision or control, and the person is not free to leave their environment when they wish to do so (Stuart, 2014).

However, although these two components can be used to broadly determine if someone is being deprived of liberty, this issue may be more complex in psychiatric care. Liberty may also be compromised among patients who are physically restrained or secluded, patients who receive medication or sedation to control their behaviour, and patients who are restricted to specific areas of a care setting. The safeguards introduced by the act provide guidance on how these techniques can be justified and used appropriately to deprive an individual of their liberty, emphasising that this is only justified in extreme cases and that the duration of these techniques should be minimised (Semple & Smyth, 2013).

When care providers are deciding on an appropriate care plan for a patient, they do not have to be experts on how deprivation of liberty is determined, but they should be aware of when interventions may compromise patient liberty. The safeguards apply to people in hospitals or care homes, and when nursing staff feel that measures used to manage the patient may deprive them of their liberty, they are obliged to contact the managing authority in order for this care plan to be authorised and supervised appropriately. This process may be conducted up to 28 days prior to the liberty restrictions being put in place and a final decision is then made within 21 days. Deprivation of liberty can only be authorised for patients aged 18 years or older, patients with a mental disorder lacking capacity, where restrictions would be in the best interests of the patient, when detention under the Mental Health Act would not be preferable, and where advance directives or decisions are not in place that could override any restrictive processes. When restrictive measures are used, and liberty may be compromised, best practice dictates that family members or informal carers should be involved as much as possible and that challenges to deprivation of liberty should be considered at any time (Caplan, 2013).

Covert medication

Administering medication to a patient without their knowledge is known as ‘covert medication.’ Under normal clinical circumstances, patients have a right to know they are being treated, should provide consent to treatment, and should be aware of any medication and treatments they have been administered. However, when a patient lacks capacity and treatment is considered to be in the patient’s best interests, the use of covert medication may be unavoidable (Norman & Ryrie, 2013).

Covert medication can be disguised or hidden from the patient in a variety of ways. Medication may be placed into drinks or food without the knowledge of the patient, or a variety of medications may be given through different routes without the patient’s knowledge (i.e. intravenous medication while the patient is sedated). Regardless of the method employed, the legal process underlying covert medication use demands that the use of that medication is in the best interests of the patient and that no other reasonable measures may be used to treat the patient. Once a decision is made that covert medication should be a part of the care plan, it is therefore essential that the medication is only delivered covertly as long as the patient lacks capacity and the use of the medication is in the best interests of the patient. When either of these issues is in doubt, a review of the care plan is required and a capacity assessment should be performed.

Personal stress and nursing conundrums

The use of restrictive measures and treatment of patients against their will, when they lack capacity, can be a stressful time for nurses. It is important that nursing staff view any intervention they undertake as necessary for the patient and in accordance with the professional values and legal precedents of nursing. If you are uncomfortable with decisions that have been made, or are reluctant participate in these treatments, you should express these concerns to senior staff. It may be the case that alternative methods are available or that you require additional support in managing stressful situations. You should not be afraid to challenge decisions - particularly when patient liberty may be jeopardised or your own health placed at risk (Stuart, 2014).

A number of ethical dilemmas may arise when managing patients without capacity and who may be eligible for sectioning under the Mental Health Act. These are considered in greater detail in chapter 6. The following section provides several examples of case studies that illustrate the use of the Mental Health Act in practice.

Case studies

The use of the Mental Health Act 2007 to detain patients is often the subject of media reports - particularly in instances where the Act was not used in a timely manner or the public perceive failings in the way that mental health is managed in extreme circumstances. However, from a nursing perspective, it is important that media hype and bias towards patients with mental health conditions do not influence your practice. You should be able to utilise laws fairly and with respect to patent rights. The case studies in this section provide examples of people who have undergone sectioning using the Mental Health Act 2007, and the nursing challenges associated with the use of these acts.

Patient ‘Fred’

Fred (not real name) was a 55-year-old man who had been diagnosed with schizophrenia at the age of 25. He has had several admissions to hospital during his time staying in the community, but is typically supported by community mental health team members. He receives his antipsychotic medication by injection every fortnight and it is effective after a period of several months. Following a few months, Fred determines that he no longer needs his medication, due to a perceived improvement in his mental state - he no longer has auditory hallucinations and is less paranoid than he was previously. Fred refuses any further medication in the community and refuses to even answer the door to community healthcare professionals concerned for his wellbeing. On previous occasions, Fred has gone through a similar process of refusing medications over his 30-year period of schizophrenia diagnosis. On these occasions, his mental state has declined rapidly following his refusal to take any medications, leading to more severe symptoms and a potential risk of harm to himself and others.

The community mental health team were faced with two choices in this situation: to observe the situation and see how it progresses, or to convene a mental health assessment and potentially detain Fred under the Mental Health Act to ensure he receives treatment. When in the community, Fred is not detained under the Mental Health Act, and therefore there is no precedent to force him to take his medication. The community mental health team tried to contact Fred and to engage with him, encouraging him to talk with them and to open the door, at least to discuss options. However, all attempts at communicating with Fred were unsuccessful and the healthcare team became concerned for Fred’s wellbeing - they had no way of knowing whether or not he was deteriorating or posing a risk of harm to himself. Accordingly, a warrant was requested to enter the property and to pursue a mental health assessment of Fred to determine if he has the capacity to make a decision regarding his on-going treatment, or whether or not he should be detained to undergo further treatment. In this case, it was deemed necessary to detain Fred under section 2 of the Mental Health Act, as he did not appear to have capacity due to a deteriorating mental state, and required assessment to ensure that an appropriate care strategy was put into place.

There are a number of important issues to consider in this case study. Firstly, it is quite common for patients to want to discontinue medication once they feel they have improved or recovered from a condition. Medication may be associated with side effects or may be unpleasant to take, and patients may therefore want as short a course as possible. Patients with mental health conditions may also perceive medication administration to be intrusive and may be paranoid or have a low mood, affecting how they value medication. Furthermore, these patients are likely to require long term medication to prevent relapses or deterioration in their condition; therefore, stopping medication early is often not effective. In this instance, Fred had a history of relapses when medication use was interrupted, suggesting that this was likely to happen again.

The second issue relates to the timing of the actions taken. It may be considered reasonable to leave Fred alone in the community for a longer period of time in order to try and communicate with him. The process of detaining a patient in hospital for treatment can be stressful for the patient and may reduce the therapeutic bond between the patient and members of the healthcare team. However, as Fred’s condition was only going to deteriorate, and potentially at a rapid pace, it was deemed necessary to act swiftly and to ensure that the best interests of the patient were being met, rather than to wait for a change in circumstances. Early interventions like this have the potential to compromise liberty and patient rights, but may be justified as the best way of ensuring the wellbeing of the patient when they lack capacity.

Patient ‘E’

One final case highlights the importance of considering the impact of treatment of a patient using restrictive or forceful measures when detained under the Mental Health Act. The patient (identified as ‘E’) was a 32-year-old woman who had suffered from anorexia nervosa since her teenage years as a result of sexual abuse she experienced in her childhood. She went on to achieve good grades in school and completed several years of a medical degree before she became unable to continue. During this period of time, she had undergone around 10 admissions to hospital for her anorexia nervosa under the Mental Health Act. In July 2011, she had signed an advance directive, preventing resuscitation or any medical interventions designed to prolong her life. However, during this time she was struggling with alcohol misuse and admission for anorexia. In 2012, she was admitted once again and it was determined that she required feeding through a tube to preserve her health; she opposed this and the tube feeding was stopped. This continued for days and the patient was placed on a palliative care pathway, including opiate medication. It was questioned whether or not the use of forced feeding would be appropriate for this patient under the Mental Health Act - particularly in light of the existing advance directive.

When reviewing the case, the judge determined that the use of forced feeding would only be necessary if the advance directive was considered inappropriate. The circumstances under which this directive was made were questioned, however, as the judge noted that the patient was unreasonably concerned with her weight and was misusing alcohol at the same time. Accordingly, it was retrospectively determined that she did not have capacity to complete this directive and that it should not stand for her current care decisions. When considering the use of a feeding tube, the judge ruled in favour of medical staff, highlighting that the patient lacks capacity to refuse treatment and that it is the only life-saving measure that is available to her for now. The use of the feeding tube was considered in the patient’s best interests, even though her family members felt that the patient should be allowed to determine her own fate at this stage to ease her suffering. However, the judge determined that without capacity and based on the potential prognosis of her condition if feeding was successful, that the feeding tube was the only way to preserve life and that to not perform this action would violate the patient’s fundamental human right to life.

In this case, the use of the Mental Health Act in detaining the patient for treatment was justified. However, the use of forceful measures, such as feeding tube use, is not straightforward and the issue of patient capacity when making advance directives was raised. It is important that the decision to use a feeding tube is performed with consideration of the need to respect patient liberty and rights in the long term. When the use of feeding tubes becomes futile, this should be discontinued, as appropriate. Similarly, when capacity returns (or if it returns) then the patient can refuse treatment and the case should be reviewed. The use of chemical sedation or forceful restraint was permitted by the judge to facilitate feeding, but this should be through the least restrictive measures possible and for the shortest period of time possible to minimise distress and harm to the patient. Only then can nurses say that they are acting ethically and in accordance with the values of the Mental Health Act.

Conclusion

In summary, this chapter provided an overview of the Mental Health Act 2007 and the implications of this Act for nurses. Although it is complicated in nature, the Mental Health Act should be considered a guide to decision-making for patients with mental disorders lacking capacity. Knowing when sections 2, 3, 4 and 5 apply is important from a professional point of view, and as a nurse you should be familiar with the differences between these sections. However, sectioning a patient is only the first stage of successfully assessing and managing patients in practice. Acting in the best interests of the patient, preserving their rights and dignity and maintaining professionalism are all essential aspects of nursing that apply, even when capacity is lacking.

Reference list

Caplan, G. (2013). An approach to community mental health (Vol. 3). London: Routledge.

Department of Health (2005). Mental capacity act. London: Stationery Office.

Mental Health Act (1983). London: Stationery Office.

Mental Health Act (2007). London: Stationery Office.

Norman, I., & Ryrie, I. (2013). The Art And Science Of Mental Health Nursing: Principles And Practice: A Textbook of Principles and Practice. London: McGraw-Hill Education (UK).

Semple, D., & Smyth, R. (2013). Oxford handbook of psychiatry. Oxford: Oxford University Press.

Stuart, G. W. (2014). Principles and practice of psychiatric nursing. London: Elsevier Health Sciences.

Videbeck, S. (2013). Psychiatric-mental health nursing. London: Lippincott Williams & Wilkins.