N.B. This applies to England and Wales only
Other jurisdictions will have their own mental health legislation
[NB - page needs updating - Oct 2014]
The Mental Health Act provides a legal framework for the compulsory detention, assessment and treatment of people with serious mental illness who, by virtue of active mental disorder are not currently able to make informed decisions about their own care and are presenting a significant and imminent risk to themselves or others (see
Managing Risk.) In the case of children (technically under the age of 18) it is rare to use the MHA, and it is not uncommon to encounter resistance to its use. There may be issues about how you
Working with your NETWORKS - recruiting the right professionals (Police, Social Services, Psychiatrists) to attend.
Use of the Mental Health Act (Vs. The Children's Act) for children.
In extreme cases, where it is necessary to admit the patient to hospital and voluntary admission is not achievable, this may require activation of an assessment under the Mental Health Act (
Local Protocols will apply for summoning of the appropriate personnel).
In the under 16 age group (who are clearly still Children under the definition of the
Children's Act, which also empowers parents with the responsibility to make medical decisions on their behalf) there are sometimes major concerns about which legislative framework to apply (the Mental Health Act or the Children's Act.) Owing to the rarity of such cases, many Approved Social Workers feel inexperienced in making these kinds of judgements.
Under the terms of the Children's Act, young people under the age of 16 can be admitted to hospital (and medicated and restrained) using parental consent alone, though discussion will need to take place with the parents and relevant professionals regarding the potential merits and demerits of such an approach if the child is refusing. Moreover, in general it is not an appropriate use of the Children's Act if
Mental Illness is a feature.
The Mental Health Act can be applied for
any age. The Children's Act does
not in such circumstances provide:
- Statutory services (police or ambulance services) with a 'power to convey' to hospital.
- Any right of appeal for the young person.
- Any statutory obligations for adequate aftercare (as Section 117 of the Mental Health Act does).
Therefore Children's Act, whilst perhaps avoiding the very real risk of stigmatising a young person, is significantly less practical, more authoritarian and less facilitative of ongoing support than the Mental Health Act.
There is also a much greater chance of undermining the long term relationship between the young person and their parent (under whose authority they are admitted and treated) when using the Children's Act, rather than the authority of the professionals involved in applying the Mental Health Act (Section 2, for assessment and treatment, does not legally require the consent of any nearest relative, although good practice would always suggest seeking such consensus.)
If the Mental Health Act is used, the following Sections are generally the most applicable, although Social Workers and Doctors approved under the Mental Health Act will make the decision as to how to apply the Act:
- Section 2 (Assessment and Treatment, up to 28 days) can be applied without parental/nearest relative consent (though it should be sought)
- Section 3 (Treatment - for patients with a known diagnosis) requires the consent of the nearest relative.
- Section 135 (Allows Police to gain entry to a dwelling and transport a person suspected of suffering from a mental illness to a place of safety for the purposes of an assessment under the terms of the Mental Health Act)
- Section 136 (Allows the Police to convey a person found in a public place and suspected of suffering from a mental illness to a place of safety for the purposes of an assessment under the terms of the Mental Health Act.)
N.B. A major revision to the Mental Health Act is currently being debated in the UK Parliament (2006-7)