Legal Eagle: Mental Health Act section 2 guidance if you are detained

What is a section 2? – If you have been detained under section 2 of the Mental Health Act, you can be kept in hospital for up to 28 days. This is for a period of assessment where the doctors and nurses will look at your symptoms and produce a plan for the best way forward. It is often a last resort used by professionals and would be used if you were presenting as a risk to yourself, or to someone else.

Can I be held under the Mental Health Act if I am under 18? – Yes, there is no minimum age limit for detention under the Mental Health Act. Children under 18 will be detained in a hospital ward that is suitable for their age and needs. This is often referred to as a Child and Adolescent Mental Health Services (CAMHS) ward. In some situations, children can be detained in a general hospital ward, instead of a mental health ward.

How you can be discharged from hospital. – Your Responsible Clinician (RC) can discharge the section at any time. The RC is usually the psychiatrist who has overall legal responsibility for your care and treatment. If, at any point, they feel that the criteria is no longer being met, they should discharge you from the section.

Your Nearest Relative has the power to order your discharge from hospital. If the Nearest Relative orders your discharge, your RC has the power to prevent this by issuing a Barring Order. The RC would need to complete this within 72 hours of receiving the order for discharge and would need to prove that if discharged, you would either be dangerous to yourself or others. A Hospital Managers’ Barring Hearing would then likely be arranged to consider the decision.

You also have the right to appeal to the Mental Health Tribunal to request your release from hospital. The Tribunal are completely independent from the hospital and are made up of a panel of 3 people; a judge, independent doctor and specialist lay member. They are able to order your discharge if they agree that you should not be in hospital.

If you would like to apply to the Tribunal, Ben Hoare Bell LLP are able to assist you with this. Legal Aid is available on a non means tested basis for all Tribunal applications.

What is the procedure of the Mental Health Tribunal? – You would need to submit an application to the Tribunal within the first 14 days of the Section 2. This can be done on the ward with the Nursing Staff, or if you wanted legal advice whilst completing this form, we are able to complete this with you.

Once the application has been submitted, the Tribunal service must organise the hearing within 10 days. Within this time, your Responsible Clinician, nursing team and Care Co-Ordinator (often Community Psychiatric Nurse or social worker) will produce reports for the Tribunal. The content of these reports often includes what had happened to bring you into hospital, your progress in hospital and their recommendations for whether you should be discharged.

At Ben Hoare Bell, we will come to see you to discuss these reports with you and advise you of the next steps. If you decide to proceed with your Tribunal hearing, the panel will take the reports into consideration and question the authors of the reports on its contents. Your legal representative will also question the clinical/community team on their reports and other matters.

At the end of the Tribunal, the panel will make the decision as to whether they are going to discharge you from your section. We then receive a written decision with full reasons for the decision within 7 days.

At Ben Hoare Bell, we offer personal and specialist support and advice to all clients, but we can offer particularly considerate expertise to those who are children/adolescents. To speak to a solicitor please contact us on 0191 275 2626 or email [email protected].