In our most recent White Paper survey, we explored the level of informedness people have regarding their rights under the Mental Health Act 1983.
Similar to last year’s findings, only 40% of respondents were familiar with their rights under the Act, while 60% reported having limited or little understanding of its provisions. These figures show no significant improvement, highlighting an ongoing gap in awareness.
Additionally, 40% of respondents reported to been admitted to a hospital without a formal mental health diagnosis. This remains deeply concerning, as everyone should be properly informed about the reasons for their admission, as well as their care and discharge plan. Without this knowledge, people and families are left feeling uncertain and powerless in decisions that directly affect their lives.
What Is the Mental Health Act?
The Mental Health Act 1983, last updated in 2007, shapes how mental health support is provided in England and Wales. It sets out people’s rights when receiving care- whether in hospital or the community- and the legal routes through which someone might be admitted, either voluntarily or through formal processes.
Some people in hospital have agreed to be there. But for more than half, that decision wasn’t theirs to make. They have been sectioned under the Mental Health Act, meaning they are legally required to stay, even if they don’t want to. This takes away certain rights, including the freedom to leave. That’s why understanding what the Act says is so important- it affects not just care but a person’s choices and control over their own life.
Key facts and information:
- Being sectioned is another term for detention.
- Detention means being required to stay in hospital.
- If someone is detained, the guidelines in the Code of Practice must be followed.
- A person may be detained for assessment or treatment.
- Before detention is considered, other options for support in the community should be explored.
- An Independent Mental Health Advocate can help explain what detention means and what rights a person has.
Detention Under the Mental Health Act
Under the Mental Health Act, a person can be detained in hospital if they need to be assessed or receive treatment for a suspected mental health condition or mental ill health. Under the current act, people can be institutionalised in a mental health unit if they:
- Have underlying mental health challenges
- Learning disability
- Experiences self-harming behaviours
- Need an urgent treatment that can only be provided in a hospital
- Pose a risk to their own health and safety or the health and safety of others
Before this happens:
- An application must be made to detain the person.
- This application must show that hospital care is necessary for person’s mental health needs.
- An application for detention can be made by an Approved Mental Health Professional (AMHP) or people’s Nearest Relative.
- People can be detained in hospital even if you don’t agree to stay.
Over the past decade, there has been a growing number of autistic people being detained under the Mental Health Act. n 2015, 38% of people in mental health hospitals were autistic, and that figure has now risen to 68%.
For autistic people and people with a learning disability, the average hospital stay is often longer than five years. This is alarming because most of these people should not have been admitted to hospital care at all.
The Rights of People Under the Mental Health Act
The rights of people detained under the Mental Health Act are essential to ensure they are treated with dignity and respect throughout their care. One important right is the ability to refuse treatment, which allows people to make decisions about their own care, even when they are detained.
However, this right is not absolute, and there are certain circumstances where treatment may be administered without consent, typically when it is deemed necessary for the person’s safety or the safety of others.
Understanding these rights, along with the conditions under which they may be limited, is crucial for both people and healthcare providers in promoting a respectful and supportive care environment.
Right to Informed Consent and Treatment Options
If someone is detained under the Mental Health Act, they have the right to information that helps them understand how it applies to their situation. This should be provided in a clear and understandable way, such as:
- Plain English
- Braille
- Easy Read
- Another language they understand
Anyone who is detained must receive information about:
- The specific section of the Mental Health Act they are detained under.
- Any rights their Nearest Relative has in supporting their discharge and what happens if the responsible clinician disagrees.
- How to access support from an Independent Mental Health Advocate.
It’s important that people are clearly informed about the reasons for their detention, helping them understand why they are being held. They should also be made aware of the maximum duration of their detention and the circumstances under which it could be extended.
In addition, people must be informed about their right to be considered for discharge, including the process of applying to a Tribunal, what this entails, and how to access it.
People should also be regularly reminded of their rights throughout the detention period. Also, families should know how to seek legal advice to navigate their rights and options effectively.
Equally important is knowing how to make a complaint, ensuring they have a clear way to raise concerns or dissatisfaction with their treatment. An Independent Mental Health Advocate can also be a vital resource, helping people understand their rights and providing support during the process.
Right to Appeal Detention and Challenge Decisions
Under the Mental Health Act, anyone who is detained has the right to challenge their detention and decisions made about their care. One of the main ways to do this is by applying to a Mental Health Tribunal- an independent legal body that reviews whether continued detention is necessary.
This process provides an opportunity to present a case, seek legal representation, and have the decision reviewed by an impartial panel. In some situations, a Nearest Relative can also request discharge, though this can be blocked if the responsible clinician believes detention should continue.
Understanding and exercising these rights can feel overwhelming, which is why information must be provided in a way that is clear, accessible, and regularly revisited. Access to legal advice and support is essential, and an Independent Mental Health Advocate (IMHA) can provide guidance, ensuring that people understand their rights and feel supported in challenging decisions about their detention.
Having the right support in place helps ensure that decisions about detention are fair, transparent, and open to challenge when necessary.
Right to Dignity and Humane Treatment
In the UK, human rights are safeguarded by the Human Rights Act 1998. This legislation requires all public authorities, including the government, police, NHS, and local councils, to uphold principles of equality, dignity, fairness, and respect in their actions and decisions.
The Human Rights Act ensures that anyone experiencing a mental health condition is treated with dignity and respect by staff and service providers. Professionals in mental health, social care, and emergency services are required to uphold and protect these rights in their work.
No one should ever be subjected to torture or treated in an inhuman or degrading way—treatment that causes severe physical or emotional distress. This includes upholding fundamental rights such as:
- Respect for personal identity and sexuality
- The ability to decide who has access to one’s body
- Protection of private and confidential information
- The freedom to build relationships and maintain connections with others
Examples of potential breaches include being denied visits from a partner or family while in hospital, not being informed about detention under the Mental Health Act or the right to challenge it, having confidential medical details shared without consent, experiencing mistreatment in a care setting, or undergoing medical treatment or testing without agreement- except in specific legal circumstances.
Are People Properly Informed About Their Rights?
Many people detained under the Mental Health Act are not fully aware of their rights, even though this information should be provided. Complex legal wording, inconsistent explanations, and a lack of accessible formats can leave people feeling lost or unsure about what they can do.
The right to challenge detention, seek legal advice, or get support from an Independent Mental Health Advocate (IMHA) should be explained in a way that makes sense and revisited regularly. Healthcare providers play a crucial role in ensuring people with mental capacity challenges fully understand their rights and have the necessary support to exercise them.
Without this, decisions about care and treatment can feel out of a person’s control. Clear and accessible information isn’t just a requirement- it’s the foundation of being treated with dignity and having a real say in what happens next.
The Need for Better Communication and Education
To improve awareness and communication about rights under the Mental Health Act, several systemic changes are needed:
- Provide information in accessible formats, such as plain language, Easy Read, audio, or video, to ensure clarity for everyone.
- Implement regular updates on rights, ensuring people are informed throughout their detention.
- Offer ongoing training for healthcare providers to communicate legal rights effectively and compassionately.
- Increase access to Independent Mental Health Advocates (IMHAs) for support and guidance.
- Leverage technology to deliver information through mobile apps or online platforms.
- Educate family members and carers to help them better advocate for their loved ones.
These changes can help address the communication gaps and empower people to better understand and exercise their rights.
Upcoming Changes in The Mental Health Act
On 6 November 2024, the Mental Health Bill was introduced to Parliament by the minister responsible for mental health. Once passed, the changes are expected to be implemented gradually over eight to ten years, allowing services time to adapt. The reform process began with the Independent Review of the Mental Health Act in 2018, with a strong focus on reducing detentions and addressing racial inequalities.
The UK government states that the proposed changes in the bill aim to enhance personal choice, autonomy, rights, and support while ensuring dignity and respect throughout treatment.
Key changes include:
- Expanding the right to appeal detention and ensuring representation for detained people.
- Clarifying and strengthening detention criteria to ensure people are only detained if they pose a risk to themselves or others.
- Reforming the use of Community Treatment Orders (CTOs).
- Limiting the detention of people with learning disabilities and/or autism to 28 days unless a co-occurring mental health condition requires hospital treatment.
- Introducing statutory care plans for those detained under the Mental Health Act.
- Increasing people’s involvement in care decisions through a new clinical checklist and advance choice documents.
- Ending the use of police cells and prisons as places of safety.
These reforms aim to create a more person-centred and rights-based approach to mental health care.
Get Familiar with The Mental Health Act
It’s important for people to have access to the right information, so they can make informed decisions and fully understand their rights when detained under the Mental Health Act. Having clear, accessible guidance helps people feel more in control of their care and ensures they are treated with dignity and respect throughout the process.
If you’re looking for more details about the Mental Health Act and how it may affect you or someone you care about, feel free to explore our Resource Page, where we’ve gathered useful information to support you.
