A BRIEF GUIDE FOR MENTAL HEALTH SERVICE USERS AND THEIR FAMILIES
The 1983 Mental Health Act is, and remains, the important piece of legislation setting out the legal framework for compulsory powers in England and Wales.
The 2007 Act amended the 1983 Act, rather than replacing it. Unfortunately this means that mental health law has become more complicated and so this Guide briefly explains both where the law has changed, and also where it remains the same.
The 1983 Act was previously amended in 1995 by the Mental Health (Patients in the Community) Act which created “supervised discharge” or “after-care under supervision”, and this has been important for people receiving “Section 25 aftercare”. This 1995 Act is replaced by the 2007 Act, and “Section 25 aftercare” has ended. It is replaced by Supervised Community Treatment which we explain in more detail later.
Along with the 1983 Act there was a Code of Practice which gave guidance on how the Act should be applied in both England and Wales. This Code has been rewritten to reflect the changes in the 2007 Act and, very importantly, there is now a separate version specifically for Wales. The Mental Health Act Code of Practice for Wales came into force in November 2008. It is a long document (around 240 pages) and it will be important in directing how mental health legislation is applied in Wales. The Welsh Assembly Government is also producing a series of booklets under the general title “Peace of Mind” which offer useful summaries of the Code for service users, families and carers. Information about where to find the Code, and the Peace of Mind booklets, is given at the end of this Guide.
The Code of Practice is not law which must be automatically followed, but it is an important document as it offers “statutory guidance”, and professionals who do not follow this guidance can be challenged in court.
So to summarise, from November 2008, the important mental health statutory documents for Wales are:
• the Mental Health Act 1983, as amended by the Mental Health Act 2007
• the Welsh Mental Health Act Code of Practice.
This Guide will now explain what, in practice, has remained the same and what has changed. We will look first at the Mental Health Acts and then at the Code of Practice.
THE MENTAL HEALTH ACTS 1983 and 2007 – WHAT HAS NOT CHANGED
The Sections for Hospital Admission, Guardianship and Aftercare
Starting with what has not changed, this includes the Sections which service users and families will be most familiar with. These are:
• Section 2 used to admit and detain a person in hospital for assessment for up to 28 days,
• Section 3 used to admit and detain a person in hospital for treatment for up to 6 months,
• Section 4 used in an emergency to admit and detain a person in hospital for up to 3 days,
• Section 5 again used in an emergency to detain a person already in hospital for up to 3 days by a doctor (S5.2) or 6 hours by a nurse (S5.4),
• Section 7 used to receive a person into Guardianship,
• Sections in Part 3 of the Act, including Sections 37 and 41 used for people who come before a Court,
• Section 117 placing a duty on authorities to provide aftercare to a person who has been detained for treatment,
• Sections 135/136 about taking a person to a place of safety for assessment.
These Sections of the 1983 Act are unchanged by the 2007 Act, and remain in force. What should change is how they are applied in practice and this is what we will now look at.
THE MENTAL HEALTH ACTS 1983 and 2007- WHAT HAS CHANGED
We will now look at seven areas where the 2007 Act brought in changes to the 1983 Act. These are:
• how mental disorder is defined
• the professionals who have specific roles within the Act
• additional rights for patients to displace their Nearest Relative
• how treatment is defined, and when it can be given
• the introduction of Supervised Community Treatment (SCT) and Community Treatment Orders (CTOs)
• a new right for patients to have an advocate
• some changes about how Mental Health Review Tribunals operate.
To read about these areas in more detail please click here
THE CODE OF PRACTICE FOR WALES
We have already said that, whilst key sections of the Act have not changed, how they are applied in practice should be changing. This is where the new Welsh Code of Practice is important.
The Code sets out in great detail how professionals and organisations should undertake the roles and responsibilities given to them under mental health legislation. It also sets out in detail the rights of service users (always referred to as “patients”), their relatives and carers. The Code has 34 chapters and it would not be practical to refer to them all in this Guide. Instead we highlight those parts of the Code that are most important for service users and their families in terms of exercising rights included in the Act. These include:
• the Guiding Principles
• Care and Treatment Planning
• Advance Statements of wishes and feelings
• Visiting people in hospital
• Information for patients and their Relatives
• the Nearest Relative
• Independent Mental Health Advocacy
• the Mental Health Review Tribunal.
To read about the above sections in detail please click here and then scroll to the section titled The Code of Practice for Wales
THE MENTAL HEALTH (WALES) MEASURE 2010
Hafal has long campaigned for a mental health law specifically for Wales to offer a balance to the compulsory powers in the 1983 and 2007 Mental Health Acts by giving people with serious mental illness the right to appropriate assessment, treatment and advocacy. We have always believed that for some people such rights, if properly provided before they become very ill, may mean compulsion becomes unnecessary. The Welsh Assembly has now passed such a law, the Mental Health (Wales) Measure 2010, giving people with serious mental illness new legal rights. (A “Measure” is the formal name for legislation passed by the Assembly specifically for Wales.) We believe this Mental Health Measure is a very significant new law for people with serious mental illness and we explain it in detail on a separate page. However, it is important to note that the Mental Health (Wales) Measure 2010 is an additional law giving people in Wales new rights, and the 1983 and 2007 Mental Health Acts continue to apply in Wales.
This above aims to offer only a brief overview of the 1983 Act as amended by the 2007 Act. It cannot, and is not intended to be, a comprehensive commentary on the legislation. If, therefore, you need more detailed information, it is important you seek further advice.
All the major documents relating to the Mental Health Act and the Code of Practice, including information leaflets, are available on the Health of Wales information service (HOWIS) website which can be accessed by this link: