LEGAL EAGLE: What does it mean to be 'sectioned' under the Mental Health Act?

My family member has been sectioned under the Mental Health Act and I have been told that I am their nearest relative. What does this mean?

When someone is 'sectioned', this means that, following an assessment, they are detained under the Mental Health Act 1983. Being 'sectioned' usually refers to the person being required to stay in hospital for a period of either 28 days for further assessment and treatment (section 2), or a minimum period of six months for medical treatment (section 3).
When someone is 'sectioned', this means that, following an assessment, they are detained under the Mental Health Act 1983. Being 'sectioned' usually refers to the person being required to stay in hospital for a period of either 28 days for further assessment and treatment (section 2), or a minimum period of six months for medical treatment (section 3).

What does it mean to be ‘sectioned’ under the Mental Health Act?

When someone is “sectioned”, this means that, following an assessment, they are detained under the Mental Health Act 1983 (MHA). Being “sectioned” usually refers to the person being required to stay in hospital for a period of either 28 days for further assessment and treatment (section 2), or a minimum period of 6 months for medical treatment (section 3).

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What does it mean to be someone’s nearest relative?

If someone is in hospital under a section 2 or 3, the MHA gives certain rights and powers to their nearest relative – this is an important safeguard for people who are subject to the MHA.

Being a person’s nearest relative is not the same as being next of kin. Rather, nearest relative is a role created by the MHA, which sets out who a person’s nearest relative shall be. The list is in strict order and the person who is highest on the list is usually the nearest relative:

1. Husband, wife or civil partner (including cohabitee for more than 6 months) 2. Son or daughter 3. Father or mother 4. Brother or sister 5. Grandparent 6. Grandchild 7. Uncle or aunt 8. Nephew or niece

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However, a relative who has lived with the person or had a role caring for them would take precedence, even over a relative higher up the list. If there are two people from the same group, the elder person is a nearest relative.

In terms of rights, the nearest relative must be consulted before a person is detained under section 3, unless this would not be reasonably practicable, or it would cause unreasonable delay.

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In terms of rights, the nearest relative must be consulted before a person is detained under section 3, unless this would not be reasonably practicable, or it would cause unreasonable delay.

Being a nearest relative gives you certain powers under the MHA in relation to your relative’s detention in hospital. Specifically, if your relative is detained under section 2 or section 3, you can order discharge of their section by giving the Hospital Managers 72 hours’ notice in writing.

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What would happen if I ordered a discharge of my relative’s section?

If you order your relative’s discharge in this way, this will give their responsible clinician (RC) 72 hours to decide whether to allow you to order the discharge or to bar you from doing so. To bar it, the RC must certify that the patient, if discharged, would be likely to act in a manner dangerous to himself or others. This is the only objection to discharge which the RC can rely upon.

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If the RC does not issue a barring order, then your relative’s section will be discharged after the 72-hour notice period comes to an end.

If the RC issues a barring order, then the Hospital Managers’ will usually hold a hearing to decide whether you should be allowed to discharge the section.

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If your relative is detained under a section 3 and your order for discharge is barred, then you will have the right to appeal to the Mental Health Tribunal. Legal aid is available for appeals to the Mental Health Tribunal on a non-means tested basis.

If it is thought that you have ordered your relative’s discharge without due regard for their welfare or the interests of the public, then an application could be made to the court to have you removed from the nearest relative role and replaced with someone else, often the local authority.

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Ben Hoare Bell LLP has specialist Mental Health Solicitors who can help with issues surrounding Mental Health law. To speak to a solicitor please contact us on 0191 565 3112 or email [email protected]. Visit www.benhoarebell.co.uk for further information.