Dementia Support Line
Sections of the Mental Health Act for people with dementia
Some sections of the Mental Health Act may be relevant to people with dementia and their carers.
- The Mental Health Act 1983
- You are here: Sections of the Mental Health Act for people with dementia
- The key roles in the Mental Health Act
- Safeguards and challenges to a detention under the Act
- Guardianship
- Lasting powers of attorney and deputies
- Deprivation of Liberty Safeguards and the Mental Capacity Act 2005
- The law in Northern Ireland
- The Mental Health Act 1983 – useful organisations
The Mental Health Act 1983 and guardianship
What does sectioning mean?
The Mental Health Act has over 100 parts, which are known as ‘sections’. Some sections allow people to be detained, so they can be assessed and/or treated against their will. This would be on a mental health ward in a hospital or in a specialist mental health hospital.
This is where the term ‘sectioned’ comes from. Although this term is commonly used, it is not used in the Act.
Section 2 – detention for assessment in hospital
Section 2 of the Act allows a person to be detained in hospital to have their mental health assessed.
This can happen if the person:
- refuses to agree to being assessed voluntarily or
- is likely to change their mind about going into hospital or
- doesn’t have the mental capacity to give ‘informed consent’ – this means they are not able to understand all the relevant information to agree to be assessed.
A person can only be detained for assessment if that is necessary to prevent harm to themselves or others. For example, a person with dementia may be detained under section 2 if they are seriously neglecting themselves. Or they may be detained if they are behaving in ways that challenge, such as being aggressive.
How long can you be detained under section 2?
A person would usually be admitted under section 2 initially, where they can only be detained for a maximum of 28 days for assessment. They can be discharged sooner, if that is appropriate.
Often, however, the person will move onto section 3. Section 2 also allows for a person to be given appropriate treatment, such as medication, whilst they are being assessed.
The key roles of the Mental Health Act
Learn more about key roles in the Mental Health Act, including ‘nearest relative’.
Section 3 – detention for treatment in hospital
Section 3 of the Act allows for someone to be detained in hospital for treatment. This could apply to someone who has already been detained under section 2 and who then needs to be treated for longer. It can also be used immediately if the relevant criteria are met.
How long can you be detained under Section 3?
Section 3 of the Act allows for a person to be detained for up to six months to begin with. After this, the period of detention may be renewed for another six months, and then for a year at a time. Having these regular reviews in place is to ensure that people don’t stay in hospital longer than they need to.
As with detention under section 2 of the Act, either an AMHP or the nearest relative can apply for a person to be detained in hospital for treatment.
However, an AMHP can’t admit a person to hospital under section 3 if the person’s nearest relative doesn’t agree to this.
The process for detaining someone for treatment under the Act is similar to the process for detaining someone for assessment. However, before the doctors sign the medical recommendations, they must make sure appropriate treatment is available for the person in hospital.
Treatment does not just mean medication. It could include specialist mental health nursing care or psychological therapies.
The Act says that a person detained under either sections 2 or 3 can be given treatment without their consent as long as it is prescribed by their ‘responsible clinician’ and relates to their mental disorder. If someone has been treated with medication for three months, an approved doctor must give a second opinion for this treatment to continue.
Sections 135 and 136 – powers of the police
Sections 135 and 136 of the Act give certain powers to the police. These include the power to remove a person from their home or a public place to a ‘place of safety’. This could be for a mental health assessment, or a referral for treatment or care. An AMHP and a doctor should be involved in this process.
The place of safety is usually a police station or a hospital. This might be used if, for example, the police find a person with dementia in distress in a public place and they are unable to find help for them elsewhere.
Section 117 – aftercare services
What is aftercare?
Section 117 of the Act deals with aftercare services. These are the services that a person must be given when they are discharged from detention for treatment under section 3. They are not available if someone has only been detained under section 2.
The local authority and the NHS have a joint duty to arrange aftercare services if a person needs them. This means they must find the ongoing support that the person needs.
There are many types of aftercare services. Examples include:
- providing a place to live that is suitable for the person, such as supported accommodation or a care home
- providing a package of care for the person in their own home
- providing daycare or other recreational activities.
A person with dementia who has been detained under the Act is more likely to be discharged to a residential care setting than back to their own home.
To receive aftercare, a person must have an ongoing need for support. The support must meet a need that is connected to their mental disorder. It must also reduce the risk of their mental condition getting worse and having to be readmitted to hospital.
It can take a while for an aftercare package to be arranged which may delay the person’s discharge from hospital.
Aftercare support is not means-tested. Everyone who needs aftercare services should get them, no matter how much money they have.
Aftercare must be provided free of charge by both the NHS and the relevant local authority. This includes paying for care in the person’s own home and paying for care home fees.
The NHS and the local authority must arrange for the person to move to a care home or receive a care package that meets their needs. This must happen even if it means paying for the person to live in a care home that is not on the NHS and local authority’s standard list.
If someone is offered a care home that meets their needs, but they want to move into a different and more expensive care home, they can pay a top-up fee.
This means they can pay the difference between the amount the NHS or local authority pay and the cost of their chosen care home. Someone else, for example a family member, can also agree to do this on their behalf.
The NHS and the local authority can withdraw aftercare support if they decide together that the person no longer needs it. This would be if the support no longer meets a need connected to their mental disorder or no longer reduces the risk of their condition getting worse.
Because dementia gets worse over time, it is likely to be hard for the NHS and local authority to show this. Sometimes it may seem that the person is settled in a residential care setting, but the key question is: if that care was removed, would the person be likely to be readmitted to hospital?
If aftercare support is withdrawn, the person’s care needs will be reassessed using a means-test. They may then have to pay for some or all of their care costs, unless they qualify for NHS Continuing Healthcare funding, which is also non-means-tested.
If someone is worried that aftercare is going to be removed inappropriately, they may need to ask for specialist advice.
An approved mental health professional (AMHP) and a person’s nearest relative both have the legal power to apply to have the person admitted to hospital under section 2.
However, it is very unusual for a nearest relative to do this as it is not a familiar process and it can be distressing. Instead, every local authority has a trained team of AMHPs who can help to do this role.
If someone is worried about a person with dementia and thinks they are a risk to themselves or others, they can contact the safeguarding adults team at their local council.
An AMHP can make an application under section 2 even if the nearest relative disagrees. This is different where section 3 is used.
Two doctors must agree that the person should be detained. They must follow strict legal rules. The doctors need to sign medical recommendations that say why the person needs to be detained in hospital to be assessed.
One of the doctors must have specialist experience of working with people who have a ‘mental disorder’. Some local areas may have doctors who specialise in assessing people with dementia. The second doctor should normally be someone who knows the person, such as their GP or their psychiatrist.
Once the person is in hospital they will be closely supervised. There will be significant restrictions on where they can go until they are discharged. This can be distressing both for the person and for those who care for them.