Chapter 5: The Mental Health Act 2007

Learning objectives

This chapter will provide an overview of the most recent version of the Mental Health Act, including the implications of this Act for nursing practice and ethical treatment of patients. By the end of this chapter, you should be able to:

- Describe the Mental Health Act and how it developed.

- Understand the key sections of the Mental Health Act.

- Apply the Act to your practice setting.

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The Mental Health Act 2007

The most recent Mental Health Act was widely implemented in November 2008. It is designed to guide healthcare professionals in managing patients with psychiatric disorders who may require treatment against their will or who pose a risk to the public or themselves.

The Act is divided into multiple sections, which each serve a different purpose and define the justification and process of detaining patients for treatment or care against their will. A specific process is required under different sections. 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 approved mental health professional (AMHP) are required to enact a section under the Mental Health Act 2007. However, not all sections require these; these are discussed below. For a nurse, the most important sections relate to delivering care in exceptional circumstances: sections 2, 3, 4 and 5.

Section 2 covers detention in hospital for assessment and treatment of their mental disorder. This applies to persons deemed to have a mental disorder to such a degree that it is in the interests of the patient or the general public that they are assessed and treated in hospital. Section 2 allows detention 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 allows detention of 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.

Section 4 is designed specifically for emergency detention for a short period of assessment. The length of the assessment period is only 72 hours, although is otherwise very similar to the section 2 process of patient assessment. However, this section only requires one doctor who is approved. This may be applicable when it is not possible or practicable to get a second doctor to participate, or where this may cause delays. 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 and determine the need for further sectioning under section 2 or 3. Two distinct aspects exist: section 5(2) and section 5(4). Section 5(2) is for patients already in hospital, not considered well enough to leave, and a further assessment period of 72 hours is deemed necessary. Following this, extension of assessment or treatment may be requested. 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, section 5(2) or another course of action may be invoked. 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 use of emergency holding powers should only be considered if emergency assessment is absolutely necessary for patients already in hospital. The aim of holding powers is to allow for a rapid period of assessment; hence, assessment should be performed as soon as possible following sectioning. 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 hospital, a section 4 should only be used to ensure rapid assessment of the patient.

If longer than 72 hours assessment is needed, and the patient has been seen by a doctor, a section 2 is necessary. This allows for a more detailed assessment, but also allows initial treatment to begin. In some instances, this treatment may be sufficient to allow the patient to recover. Alternatively, the patient may be assessed 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, nurses must act in the patient’s best interests. Invoking the Mental Health Act 2007 can be a challenging decision, 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 potential trauma of the process.

Nurses must not assume that capacity is not present. Patients should be formally assessed before capacity can be determined for specific decisions. The Mental Health Act exists to safeguard patients where they lack capacity; therefore nurses should use the Act to serve the best interests of the patient. The Mental Health Act 2007 is like a framework to guide you in meeting the needs of the patient where they are unable to decide for themselves.

Patients may have capacity in the future to contribute towards decision-making; therefore, you should 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.

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Complexities in overruling a patient’s autonomy

When a patient lacks capacity in the context of psychiatric care, this can be problematic for nurses. The duty of the nurse is to consider the best interests of the patient and balance these with the potential for harm to come to others. An overview of interventions or measures that may be used to ensure patient safety or wellbeing during challenging situations follows below:

Restraint, restriction and seclusion

Practical measures to control the patient’s behaviour should be considered a last resort only. These include physical or chemical restraint and seclusion from other patients. ‘Chemical restraint’ describes the use of sedatives and similar medications, often reducing consciousness and aggressiveness. Physical restraint refers to the use of straps or other measures that hold a patient in place or prevent movement, including locking doors to restrict patient movement within the care setting, removing items that may cause harm, restricting contact between patients and family members or friends, and holding the patient so that medication can be administered. The patient may be harmed when any of these measures are used unnecessarily. Neither physical or chemical restraint techniques are therapeutic; restraint does not treat the patient’s condition. They only prevent the patient from injuring themselves or harming others. Accordingly, measures should be proportionate to the risk posed, and should be reviewed regularly. Often, patients may be calmed down using behavioural strategies or practised techniques, before restraint is necessary.

Seclusion removes the patient from the general ward environment or from interacting with others, thereby preventing harm. This is a last resort, due to the stress associated with seclusion. 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, while long term seclusion is 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

The Mental Capacity Act 2005 includes deprivation of liberty safeguards. This aims 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.

Liberty may 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 provide guidance on how these can be justified and used appropriately, emphasising that these are only justified in extreme cases and that their duration should be minimised.

Nurses 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. When nursing staff feel that patients may be deprived of their liberty, they must contact the managing authority in order for the 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 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, family members or informal carers should be involved as much as possible, and challenges to deprivation of liberty should be considered at any time.

Covert medication

Administering medication to a patient without their knowledge is ‘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 requires treatment, covert medication may be necessary.

Covert 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). The legal process always demands that the covert medication must be in the best interests of the patient and that no other reasonable measures may be used to treat the patient. Once a covert medication has been incorporated into the care plan, the medication must only be delivered covertly while the patient lacks capacity and the medication is in their best interests. When either of these issues is in doubt, a review is required and a capacity assessment should be performed.

Personal stress and nursing conundrums

Use of restrictive measures and treating patients against their will, can be stressful for nurses. Nursing staff should view any intervention they undertake as necessary for the patient and in accordance with professional and legal aspects of nursing. If you are uncomfortable with these decisions, or reluctant to participate, you should express these concerns to senior staff. Alternative methods may be available, or you may require additional support. You should not be afraid to challenge decisions.

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This chapter provided an overview of the Mental Health Act 2007 and the implications of this Act for nurses. 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, and 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.

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