Contents
1 Aim
The aim of this standard operating procedure is to provide clinical staff with specific guidance around providing patients with an explanation of their legal rights under section 132 of the Mental Health Act 1983.
2 Scope
The contents of this standard operating procedure apply to clinical staff working within the trust.
3 Link to overarching policy
The overarching procedure for this standard operating procedure is the trust procedure “section 132, Informing detained patients of their legal rights”, but it also needs to be read in conjunction with the following trust documents:
4 Procedure
4.1 On admission to the inpatient ward or at the point of detention under the Act being completed
Any patient admitted to the ward who is subject to detention under the Mental Health Act 1983 must be informed as soon as possible both in writing and verbally of the following:
- under which section of the Mental Health Act 1983 they are being detained and the provisions or implications of the section
- their right to, and how to access, the services of an independent mental health advocate (IMHA)
- their rights of appeal to both the hospital managers and the tribunals service. Appropriate details of address, telephone numbers, email address or website details should also be given along with guidance on how to make an application
- that if they are detained on a treatment order (including a CTO) should it be renewed for a further 6-month period and they do not appeal to the first tier tribunals service in the first period of detention, then the trust will automatically refer their case to the first tier tribunals service
- that they have the right of legal representation at the tribunal hearing and are given a list of solicitors who are specifically trained in mental health law
- the restriction for discharge from the section under which they are detained should they wish to leave the hospital
- the nature and likely effects of any treatment which is planned
- the role and powers of the Care Quality Commission and how to make a complaint to them. The address, telephone number, email address and website details should also be supplied
- access to a copy of the MHA Code of Practice 2015
- their right to receive or send correspondence and whether there are any constraints on this
- the power of the patient’s nearest relative to request discharge or to make an appeal on the patients’ behalf
- the procedure for making a formal complaint to the trust
- the patients’ financial entitlements whilst in hospital and how to secure them
- details of the visiting policy for the unit and in particular any restrictions around the visiting of children
- the need to share or disclose information to other agencies or workers
- aftercare entitlement under section 117 (if applicable) and the implications of this
- discharge procedures under the care programme approach (CPA)
A form 14A is to be completed by the staff member who undertakes the explanation of the patient’s legal rights and documented on the electronic patient record. If the patient has expressed that they do not want any information to be provided to their nearest relative this is to be recorded on the relevant section of the form 14A.
4.1.1 Action if the patient isn’t well enough to have their legal rights explained to them at the point of admission
There may be occasions when due to the disturbed nature of a patient’s mental state it may not be possible to provide them with all the above information at the point of admission. In these cases, staff should attempt to provide the following as a minimum:
- that the patient is detained and the section they are on
- the maximum duration of the section
- that due to them being detained they cannot leave the ward without the express written permission of their consultant psychiatrist
- that they have the right of appeal and to whom
If the patient is only provided with the minimum information this does not meet the requirements under section 132 so the form 14A is to be completed stating this and that a further attempt is to be made. An entry is to be made in the patient’s clinical records as to why a full explanation could not be
provided and arrangements made for the patient to receive a full explanation of their legal rights at a later date.
4.1.2 Action to take if the patient refuses to have their legal rights explained or lacks the capacity to understand them
The explanation of a patient’s legal rights needs to be a two-way process to allow the patient an opportunity to ask questions. Also, interaction with the patient is required so that the nurse can judge the patient’s level of understanding. In the event that a patient either refuses to engage in the process or lacks the capacity to do so this is to be recorded on the form 14A, and further attempts made on a daily basis.
Should it be felt by the clinical team that daily attempts at explaining a patient’s legal rights to them are not needed, for example if the patient is responding in a violent way towards staff or where the patient lacks the capacity to understand, this is to be recorded in the electronic patient record, and an agreement reached with the clinical team as to when a further attempt will be made. It is to be clearly documented in the care plan as to when the situation will be reviewed.
Where a patient with cognitive impairment is assessed as lacking the capacity to understand their legal rights under detention and is assessed by the Clinical team to be unlikely to regain such capacity staff must ensure that the rights are explained to and understood by the nearest relative. The nearest relative is able to appeal on behalf of the patient, to the first tier tribunals service, for their discharge.
In the absence of a nearest relative an IMHA can be appointed who can appeal to the first tier tribunals service on behalf of the patient and request the first tier tribunal appoint a solicitor for the patient under rule 11 of the first tier tribunal rules.
This process should be clearly evidenced through the completion of an MCA 1 form to reflect the patient’s lack of capacity and the completion of a MCA 2 form to provide rationale that reading the rights to the nearest relative or nominated other is in the patient’s best interests. The patient’s electronic patient record should demonstrate the Clinical team’s discussion and shared decision making. The decision to read the rights to the nearest relative or nominated other must be clearly documented in the patient’s care plan.
4.1.3 Action to take if a newly detained patient is placed into seclusion
In the event that a newly detained patient requires an episode of care in seclusion it is not appropriate for staff to attempt to explain their legal rights to them. The priority at this time will be to actively treat the patient and end the episode of seclusion at the earliest opportunity.
The patient’s legal rights are to be explained to them once the episode of seclusion has ended.
4.2 During an episode of inpatient care
The explanation to a patient of their legal rights is not a one-off event as even for a patient who appeared to have understood when it was first explained to them, there may be additional questions that arise throughout their stay on the ward due to changes in circumstances such as the patient becoming more insightful or a relative wanting to take them out on leave. In view of this arrangements need to be in place for the revisiting and re-reading of patient’s legal rights and within the inpatient services the following has been agreed as a minimum requirement:
| Ward | Frequency |
|---|---|
| Acute wards | Patients will have their legal rights revisited on a weekly basis |
| PICU’s | patients will have their legal rights revisited on a weekly basis |
| Rehabilitation and recovery wards | Patients will have their legal rights revisited on a monthly basis |
| Older people’s wards | Section 2, Patients will have their legal rights revisited on a weekly basis Section 3, Patients will have their legal rights revisited on a monthly basis |
| Forensic wards | Patients will have their legal rights revisited on a monthly basis |
Any patients who are subject to detention under the Mental Health Act will have a care plan in place to cover the revisiting of their legal rights, and whenever a patient’s legal rights are revisited the nursing staff must:
- complete a form 14b on the electronic patient record
- make any necessary changes to patients care plan
4.3 Patients who are receiving care on a ward of the local acute hospital
4.3.1 RDaSH Inpatients subject to detention under the Mental Health Act 1983 who require care on a medical or surgical ward
There may be times when due to physical health care needs an inpatient on one of the adult mental health inpatient wards who is subject to detention under the Mental Health Act needs to be admitted to a medical or surgical ward to receive treatment which cannot be safely provided on the mental health inpatient ward.
In this event the patient is usually placed on section 17 leave and the trust remains as the detaining responsible authority. It is therefore the responsibility of the staff on the mental health ward to make arrangements for the patient to continue having their legal rights under section 132 of the Mental Health Act 1983 explained to them in line with the guidance as set out in section 4.2 of this standard operating procedure.
However, it is recognised that there may be occasions when it is not possible or appropriate to revisit the reading of a patient’s legal rights at the agreed intervals as the patient may be heavily sedated, or in a coma. In these circumstances a record is to be made in the patient’s electronic records providing a reason as to why the rights are not be revisited in line with the guidance contained in section 4.2 of this standard operating procedure. The situation must be kept under review and the patients’ legal rights revisited with them as soon as it is practicable to do so.
4.3.2 Patients who are detained for the purpose of formal admission to a general hospital ward
The direct formal admission of a patient to a general hospital ward under the powers of the Mental Health Act 1983 is an infrequent occurrence. However, in the event that this does occur although the general hospital is the responsible detaining authority the responsibilities of the trust inpatient staff are as follows:
- at the point of the patient being detained the Hospital Liaison team will provide the patient with an explanation of their legal rights and complete the form 14A
- for patients detained to the general hospital who do not require 1-to-1 nursing the ongoing explanation of their legal rights will be the responsibility of the Hospital Liaison team
- For any patients detained to the care of the general hospital who are on 1-to-1 nursing, the ongoing explanation of their legal rights will be the responsibility of staff from the inpatient ward which is providing the 1-to-1 nursing
4.4 Arrangements for patients subject to a community treatment order (CTO)
4.4.1 Initial information at the point of the CTO being completed
As a CTO is completed whilst the patient is subject to a period of inpatient care it is the responsibility of the inpatient staff to provide the patient with the following information both verbally and in writing at the point of the CTO being completed:
- their right to, and how to access, the services of an independent mental health advocate (IMHA)
- the reason for the CTO having been made
- the conditions of the CTO
- how the order works
- their rights of, and how to, appeal to the first tier tribunals service and hospital managers
- their right to have information about the CTO provided to their nearest relative
A form 14A is to be completed by the staff member who undertakes the explanation of the patient’s legal rights and recorded on the electronic patient record. If the patient has expressed that they do not want any information to be provided to their nearest relative this is to be recorded on the relevant section of the form 14A.
4.4.2 Arrangements for the on-going explanation of their legal rights to a patient who is subject to a CTO
The explanation to a patient of their legal rights is not a one-off event, and for any patients subject to a CTO the frequency with which their legal rights are to be revisited should be agreed between the patient and their care coordinator and included in their care plan. When agreeing this time frame consideration needs to be given to the fact that patients who have only recently become subject to a CTO may need their legal rights to initially be revisited on a more frequent basis to allow them to gain a full understanding.
Whilst it is important to respect the patient’s wishes as to the frequency with which their legal rights are revisited, they should as a minimum be re-explained:
- at each care programme approach review
- if the patient becomes dissatisfied with any of the conditions which are attached to the CTO
- if there are any variations made to the conditions attached to the CTO
Whenever patient’s legal rights are revisited the care coordinator must complete a form 14b in the electronic patient record and any necessary changes made to the patients care plan.
4.4.3 Action to be taken if the CTO is extended
A CTO can be extended after the initial 6-month period for a further 6 months and then thereafter at yearly intervals. On each occasion that the order is extended the patients care coordinator must provide them with an explanation of their legal rights both verbally and in writing as detailed in section 4.4.1 above.
The care coordinator must then complete a form 14C in the electronic patient record.
4.4.4 Information to be provided to patients who are recalled to the inpatient ward
The responsible clinician can recall a patient who is subject to a CTO if:
- the patient needs to receive treatment for a medical disorder in hospital
- there would be risk of harm to the health or safety of the patient or others, if the patient was not recalled
In the event of a decision being made to recall a patient the clinicians involved in the decision must wherever possible provide the patient with an explanation as to why this course of action has been taken and explain the fact that they can be detained in hospital for an initial period of up to 72 hours. It should also be explained that after the 72 hour period they may if well enough be discharged back home with the CTO continuing, or if they are not fit for discharge the CTO can be revoked, with them becoming subject to detention under a section 3 to 37 of the Mental Health Act 1983, and an automatic referral will be made for a first tier tribunal.
Once the patient arrives on the ward as part of the admission process the admitting nurse will reiterate the above information to the patient.
For any recalled patient who becomes subject to detention under a section 3 of the Mental Health Act 1983 ward staff are to refer to the guidance in sections 4.1 and 4.2 of this document.
4.4.5 Information to patients who are discharged from a CTO
When a decision is made to discharge a patient from their CTO the care coordinator should make sure the patient is provided with the following information:
- the reason for their discharge from the CTO
- that the conditions of the CTO will no longer apply to them
- their entitlement to after care under section 117, and what this means for them
4.5 Information to be provided when a patient is discharged from their section
When a patient is discharged from any period of detention, or the authority for their detention expires, they are to be informed of this fact and given an explanation of:
- what the proposed plans are for their ongoing care and treatment
- the fact that if they are an inpatient as they are no longer subject to detention they can if they wish discharge themselves
- their right to117 after care (if applicable)
4.6 Access to the Mental Health Act (MHA) information leaflets and forms
Staff in the local MHA offices will provide each of the wards with section packs which include copies of the relevant information leaflets. These patient information leaflets are written by and supplied to the trust by the Care Quality Commission and their content cannot be changed. It is the responsibility of the ward senior sister or charge nurse to check they are available to staff on the ward and request further packs from the Mental Health Act office as and when required.
4.7 Patients whose first language is not English
Section 132 places a duty on the trust to take all reasonable steps to facilitate the patient’s understanding of their legal rights. If the patient is not fluent in English or has a learning or sensory impairment, arrangements must be made for the explanation of their rights to be delivered in a manner which is appropriate to their needs.
All the section information leaflets are available from the local Mental Health Act offices in languages other than English, and arrangements can be made for it to be provided in braille and audio format. Arrangements are in place within each locality for staff to have access to these outside normal working hours.
Interpreters, and signers can also be arranged as needed and staff should refer to the trust procedure for “provision of, access to and use of interpreters for patients, service users and carers”, for further details.
However, in respect of the explaining of patient’s legal rights interpreters should:
- fully understand the terminology, and conduct of a mental health interview
- have knowledge of the patient’s cultural and religious values
- be able to interpret the law
- be of a gender which accords with the patient’s wishes
Note, it is not desirable that relatives be asked to act as interpreters.
4.8 Explanation of their legal rights to a child and young person
A child is defined as under the age of 16 and anyone under this age who is admitted to one of the Mental Health wards whilst subject to detention under the Mental Health Act 1983 should have their legal rights under section 132 explained to them in the presence of their next of kin or legal guardian who will also be given a copy of the relevant leaflet.
A young person is a person aged 16 to 17 and the usual procedure regarding reading a person their legal rights will apply. However, consideration should be given to completing this in the presence of their next of kin if the patient agrees.
Staff should refer to section 5.14 of the trust procedure for “section 132, Informing detained patients of their legal rights” for full details around confidentiality in relation to children and young people.
Document control
- Version: 5.
- Unique reference number: 456.
- Date ratified: 11 January 2024.
- Ratified by: Mental health legislation operational group.
- Name of originator: Mental Health Act manager.
- Name of responsible individual: Executive medical director.
- Date issued: 23 January 2024.
- Review date: 31 January 2027.
- Target audience: Clinical staff.
Page last reviewed: April 24, 2024
Next review due: April 24, 2025