The Mental Health Act 1983

About the Mental Health Act 1983

In England and Wales, the Mental Health Act 1983 is about people who have a ‘mental disorder’, which threatens their health or safety, or the safety of others.

Some people would choose not to use the term ‘mental disorder’. However, it is the term the Act uses to describe any disorder or disability of the mind, including dementia. 

The Act explains when and why a person may be kept (detained) in hospital. This is sometimes referred to as ‘sectioning’, although that is not the term used in the Act.

Under this law, a person can be detained whether or not they have the ‘mental capacity’ (the ability to decide for themselves) to agree. However, it sets out safeguards to protect a person who is detained and outlines the responsibilities of health and social care providers. 

The Mental Health Act might be used for a person with dementia if they are consistently

• very aggressive 
• very agitated 
• experiencing distressing hallucinations or delusions 
• displaying inappropriate sexual behaviour 
• seriously neglecting themselves 
• indicating suicidal behaviours or thoughts. 

This would usually be where the person is at crisis point and the situation cannot be managed in other ways. If the Act is used for someone with dementia, it can be stressful for them and their carers. 

Changes to the Mental Health Act have been proposed by the government and it is likely that the Act will change in the next few years. However, there is no definite date yet.

The Mental Health Act only applies in England and Wales. It does not apply in Northern Ireland. 

When can someone be detained under the Mental Health Act?

A person can only be detained if: 

• they have a mental disorder that makes it appropriate to detain them under the Act for assessment and/or treatment and 
• it is necessary to protect them or other people. 

A person should not be detained unless less–restrictive ways of giving them care and treatment have already been considered. 

A person with dementia might be detained: 

• following a hospital visit (either to accident and emergency or if they are on another ward) or 
• from a care home or 
• from their own home. 

In some cases, it could be that the police are called to the person’s home. Sometimes the police may help to take the person into hospital if they are being detained under the Act. 

It would usually be an ‘approved mental health professional’ who makes the application for the person to be admitted to hospital. The ‘nearest relative’ also has that power, although it is rare for them to use it.

When someone is detained under the Act, both they and their nearest relative must be told about their rights, including what is happening and how this relates to the Act.  
 

The rights the person and their nearest relative have   

The Act sets out various rights and protections for the person and their nearest relative. There are also Codes of Practice (a different one for each of England and Wales), which explain these rights and protections in more detail. These Codes are there to help you.

They include the right to be: 

• told under what section of the Act the person is being detained and why 
• for the person to access support from an Independent Mental Health Advocate and how to get that
• told how to be discharged, including by appeal to the Mental Health Tribunal 
• for the nearest relative to request the person be discharged and what happens if doctors disagree 
• told how to get legal advice and the right to access this or independent advice 
• told about the role of the Care Quality Commission or the Healthcare Inspectorate Wales, including the right to make a complaint.

The Codes also state that information given to the person should be given in a way that they can understand and that supports their independence.

Mental Health (Northern Ireland) Order 1986   

The relevant law in Northern Ireland is the Mental Health (Northern Ireland) Order 1986. This is similar to the Mental Health Act in England and Wales, but there are some differences. 

As in England and Wales, a person in Northern Ireland can be detained in hospital to be assessed or treated if they have a ‘mental disorder’ and they are a danger to themselves or others. However, there are some differences around the process and how long they can be detained. 

Northern Ireland also has similar rules about guardianship, but again there are some differences in the detail around this. There is no equivalent in Northern Ireland to Section 117 of the Mental Health Act, which deals with providing aftercare services.

There are also important general differences in the way care is provided and paid for in Northern Ireland compared with England and Wales.  

As in England and Wales, the law in Northern Ireland is set to be changed. However, there is no confirmed date for when this will happen.