What is the Mental Health Act?

Why is the Mental Health Act important for someone with dementia?

If you’re caring for someone with dementia, it’s worth familiarising yourself with a few key parts of The Mental Health Act 1983, which are designed to protect the rights of people with dementia.

In a nutshell

The Mental Health Act 1983 consists of more than 100 parts, known as sections and deals with when and why it might be necessary for someone with a mental health problem (including dementia) to be admitted into hospital against their will. This is called being ‘sectioned.’
If you’re caring for someone with dementia the thought of them ever being ‘sectioned’ is probably very distressing – nobody wants to see a loved one taken into hospital if they don’t want to go – the word itself might seem frightening or shaming to you and everyone you know.

Three facts worth knowing

• A section should only ever happen as a last resort when all other alternatives have been explored. If you don’t think this has happened you can challenge it (see below).
• A section is designed to protect, not punish, the person with dementia and keep them safe from harm.
• In 2012/3 nearly 9000 people over 65 were sectioned under the Mental Health Act, at least half of these were estimated to be sectioned as a result of severe dementia.

Parts of the Mental Health Act you should know about

Section 2
If your loved one is behaving in a way that possess a danger to their own health, or to the health of others, they can be detained in hospital for an assessment by doctors under this section of the Mental Health act.

But if they agree to go into hospital of their own free will the Mental Health Act does not need to be used, so it’s always best to try persuading them.

Two doctors need to agree that the section is necessary, one of them must be a dementia specialist, the other is often a GP who knows the person well.

Once the section is in place your loved one will not be allowed to leave the hospital without close supervision, though you can of course visit and advise staff on the best ways to help them stay calm.

The maximum amount of time this sort of section can last is 28 days.

Section 3
This is similar to a section 2 but can last for six months (or longer, if reviewed) and should only be used if a person needs treatment and refuses to accept it voluntarily. Treatment can mean anything from specialist nursing to medication or psychological therapies.

Section 117
Section 117 requires councils to provide free care home funding, or care at home – which is not means tested – for patients who are sectioned under Section 3 (see above). It’s important to be aware of Section 117 because it might save your loved one quite a lot of money.

Take legal advice if your local council does not offer this funding or decides to withdraw it when you’re loved one still needs it.

Guardianship orders

Doctors might decide that a Guardianship Order is more suitable for a person with dementia than a hospital section. The Mental Health Act allows individuals (such as a relative) or an organisation (such as a local authority) to be appointed the ‘guardian’ of someone with dementia.

• Guardians must always act in the best interests of the person in their care, and can make decisions about where they should live and what medical treatments they receive.
• Guardians cannot force anyone to do something they don’t want to do so they need to have a very good relationship with the person who has dementia.
• Guardians have no control over money or finances.

Did you know? If your loved one is sectioned it might not be too late for them to create a lasting power of attorney providing they also appoint a deputy to assist them whilst they’re being detained in hospital.

How to challenge a section

1. You can ask for a hospital discharge (you will have to put this in writing). However if doctors don’t agree, they can overrule it.

2. You can take legal advice and apply for something called a First-tier Tribunal (Mental Health) which is independent and will listen to both sides of the argument before making a decision. It may, or may not, find in your favour.

Good to know

Although it can undoubtedly be traumatic, a section might also come as a relief. If you’ve been worried sick about your loved one’s behaviour but unsure what to do for the best, handing over the decision to experts (who aren’t emotionally involved) could mean that the person you’re caring for soon gets the sort of help they need – and you won’t have to worry quite so much.