Challenging Detention in Hospital

Challenging detention in hospital
Legally reviewed by: Tim Lumb

Being held in a hospital under section 2 or 3 of the Mental Health Act can be frightening and confusing. Our specialist Mental Health Team can advise and represent you to protect your rights and help you understand what’s happening.

Get in touch with our dedicated, compassionate Mental Health Law team now for support.

How Cartwright King can help you

Sections 2 and 3 of the Mental Health Act enables health professionals to keep you in hospital if they believe you are unwell as a result of a mental disorder. You may have no idea why you’re being held and what your rights are if you have been detained against your wishes, which is where our Mental Health Team can step in to support you. 

If you are being held in hospital, you still have rights, which include:

  • Access to information about why you have been held in hospital
  • Appealing to a Mental Health Tribunal to challenge your detention in hospital
  • Seeking help and support from an advocate
  • Meeting with hospital managers

If you are being denied any of these rights, Cartwright King’s specialist Mental Health Lawyers can work with you to ensure you can access your rights.

Benefit from a free, initial telephone conversation

If you or a loved one are being held in hospital under section 2 or 3 of the Mental Health Act, our Mental Health Law team can provide you with a free initial discussion.

There’s no substitute for speaking to a specialist solicitor for help understanding your rights and the best course of action to take for your case.

We’re here to ensure that you’re not alone. For immediate action, call us or email us for your free* initial discussion. 

The discussion is completely informal and confidential, and is an opportunity for us to:

  • Get to know you 
  • Understand your situation
  • Agree how you want to proceed

*Please be aware that this is a ‘get to know you’ call and no advice will be given.

Coronavirus and the Care Quality Commission

The Care Quality Commission (CQC) has made changes to the Mental Health Act complaint process in response to the coronavirus (COVID-19) pandemic. 

The CQC is prioritising complaints from or about people who are currently detained on an inpatient ward in hospital and aims to ‘identify ways to help support people through Mental Health Act monitoring, resulting in a quicker resolution to a complaint or concern’.

 All other complaints will be reviewed, but may be paused due to coronavirus. You can email or call 03000 616161 to make a complaint.

We're here for you.

Frequently asked questions.

What prompts detention?

Health professionals may decide to detain a person in hospital if they believe that they are suffering from a mental disorder. A decision to detain is taken because it is deemed to be in the interests of the individual’s health, safety or because they are a risk to others

How long can a person be held?

Under section 2 of the Mental Health Act, an individual can be detained for up to 28 days. If an individual has not been discharged after the 28 days have lapsed, they are free to leave the hospital – unless a doctor or mental health professional deems it necessary for a person to remain in hospital for further treatment.

If this is the case, an individual can be detained under section 3 of the Mental Health Act.

Under section 3 of the Mental Health Act 1983, an individual can be held in hospital for an initial six months. However, if a doctor or mental health professional decides further hospital treatment is required, detainment can be renewed for an additional six months and for 12 month periods thereafter.

Who has the authority to discharge an individual?

The following have the authority to discharge a person from hospital:

  • A Doctor
  • Hospital Managers 
  • Nearest Relative 
  • A Tribunal

A doctor can discharge an individual at any time.

Hospital managers can discharge you following a review of your case. They will review reports prepared by doctors, social workers, nurses and anyone else involved in your care while in hospital. They will also speak to an individual directly to determine what their wishes are.

Additionally, hospital managers can adjourn for further information or make informal recommendations about your case.  

The nearest relative of an individual held in hospital can order a discharge. In this situation, a doctor has 72 hours to agree (resulting in discharge) or disagree (resulting in continued detainment). 

The nearest relative can only request a  discharge once during the six-month period – if an individual is held under section 3 of the Mental Health Act.

A Tribunal can discharge an individual. A Tribunal is an independent panel of three people – a lawyer, psychiatrist and a specialist member. Reports will be provided by a doctor, a nurse and usually a social worker concerning an individual’s case. 

After reviewing the reports, a Tribunal can:

  • Discharge a person (immediately or delayed for a period of time)
  • Adjourn for further information
  • Make formal recommendations about leave in the community; transfer to another hospital or into guardianship or that a doctor considers whether to subject an individual to a Community Treatment Order (CTO)  

If a section 3 detainment of six months elapses and it is not renewed, the sectioning of the individual expires and they can be discharged.

Can an individual leave the hospital?

Only a doctor can give authorisation for an individual to have leave from the hospital for a brief time. This is done under S.17 of the Mental Health Act. Leaving a hospital is time restricted and can be subject to conditions such as being escorted by a nurse. 

If an individual fails to adhere to time limits or restrictions, they can be brought back to hospital, by the police if necessary.

Does a person have to take medication?

Under section 2 of the Mental Health Act, if a person doesn’t agree to take any prescribed medication it can be administered against their wishes for the entire 28-day period for which they are held. There is no right to appeal a doctor’s decision to prescribe medication during the 28-day period.

If an individual is held in hospital under section 3 of the Mental Health Act, they don’t have to take medication. However, if a person does not agree to take prescribed medication, or does not have capacity to agree, it can be administered against their wishes for an initial three-month period.

It can then be administered for longer subject to authorisation from a second opinion doctor.

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