1. MENTAL HEALTH LEGISLATION
& CARERS RIGHTS
Mental Health Legislation Department

2. Mental Health Act 1983 (Amended 2007)
“Everyone including carers and families needs to know about the Code and all communication channels – from bottom to top and vice versa including sideways – should remain open for the benefit of all” Expert Reference Group carer

3. Empowerment and involvement of patients and carers, and dignity and respect are principles underpinning the Mental Health Act.

4. MHA Code of Practice Guiding Principles
Least restrictive option and maximising independence
Empowerment and involvement
Respect and dignity
Purpose and effectiveness
Efficiency and equity
Where it is possible to treat a patient safely and lawfully without detaining them under the Act the patient should not be detained. Wherever possible a patient’s independence should be encouraged and supported with a focus on promoting recovery wherever possible.
Patients should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered when taking decisions. Where decisions are taken which are contradictory to views expressed, professionals should explain the reasons for this.
Patients, their families and carers should be treated with respect and dignity and listened to by professionals.
Decisions about care and treatment should be appropriate to the patient, with clear therapeutic aims, promote recovery and should be performed to current national guidelines and/or current, available best practice guidelines.
Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental healthcare services are of high quality and are given equal priority to physical health and social care services. All relevant services should work together to facilitate time, safe and supportive discharge from detention.

5. Unless there are good reasons to the contrary, patients should be encouraged to agree to their carers being involved in decisions under the MHA and to them being kept informed If patients lack capacity to consent to this, it may be appropriate to involve and inform carers if it is in the patient’s interests
although that decision should always be made in the light of the specific circumstances of the case

6. have a right to be given a copy of the patient’s care plan if
In order to ensure that carers can, where appropriate, participate fully in decision making, it is important that they have access to:
practical and emotional help and support to assist them in participating
timely access to comprehensive, up to date and accurate information, and
have a right to be given a copy of the patient’s care plan if
(a) the patient consents, or
(b) issues of duty of care or risk override patient objections
This applies equally to children, young people or individuals with a learning disability who are supporting parents who have mental disorder. In considering the kind and amount of information which young people (especially young carers) should receive about a parent’s condition or treatment, the people giving the information will need to balance the interests of the child against the patient’s right to privacy and their wishes and feelings. Any such information should be appropriate to the age and understanding of the young person.

7. If carers request that the information they provide is kept confidential, this should be respected and recorded in the patient’s notes.
A carer should be asked to consent to such information being disclosed.
Where a carer refuses to consent, professionals should discuss with the carer the benefits of sharing information in terms of patient care and how their concerns could be addressed.

8. The right to require an assessment to be made
The right to apply for compulsory admission
The right to information and consultation before the patient is admitted to hospital
The right to information and consultation after the patient is admitted to hospital
The right to review of the patient’s detention
If you think that your relative may need hospital treatment for a mental health problem but will not ask for help by themselves, you have a right to ask the local social services authority in the area where your relative lives to appoint an Approved Mental Health Professional (AMHP) to look into the matter. Your relative will then be assessed by two doctors who will advise the AMHP of the medical facts of the case. The AHMP will have to give you a written explanation of the reasons if s/he decides not to apply for admission to hospital.
Most applications for admission to hospital are made by an Approved Mental Health Professional (AMHP), but you do have the right to apply yourself. It is usually easier for you and your family if the application is made by someone else, but if you decide to make an application you will need the written support of two doctors (just one if it is an emergency admission). You can ask a doctor or an AMHP for help to make the application.
If an Approved Mental Health Professional (AMHP) applies for the patient’s admission for assessment and treatment under Section 2 of the Mental Health Act, s/he must take reasonable steps to inform you and to tell you about your power of discharge.
If the AMHP applies for the patient to be admitted for treatment under Section 3 of the Act, s/he must take reasonable steps to advise you and to ensure that you do not object to the application being made, in so far as it is practicable to do so. If you object, the patient can not be detained. If your objection seems unreasonable, the AMHP might apply to the County Court to have someone else replace you as Nearest Relative. In that case you would need advice from a solicitor.
Unless you object, or the patient asks the hospital not to disclose information to you, you have a right to be given the same information about the admission as the patient. This should be given to you in writing as soon as possible and includes:
information about the patient’s detention;
advice about applying to a Mental Health Review Tribunal;
information about discharge from hospital;
advice about compulsory treatment;
information about the Care Quality Commission.
Unless you object, or the patient asks the hospital not to tell you, you are entitled to be notified of any review of the patient’s detention by the Hospital Managers or the Mental Health Review Tribunal and offered the opportunity to state your opinion. You may do this in person or by sending a letter to the hospital’s Mental Health Act Office to be presented at the hearing.

9. The right to discharge the patient
The right to instruct an independent mental health advocate to visit the patient
The right to be told when the patient is about to be discharged
The right to delegate the role of nearest relative
Provided that your relative is not in hospital because of a court order or subject to special restrictions, you have a right to tell the Managers of Hertfordshire Partnership NHS Trust that you want to discharge him or her. You must do this in writing and make sure that the Managers receive your letter not less than 72 hours (three days) before you want the discharge to happen.
Your relative will be free to leave the hospital when the 72 hours are up UNLESS the Responsible Clinician signs a barring order.
If the patient is detained under Section 3, you may also apply to the Mental Health Review Tribunal if the Responsible Clinician bars discharge and the Hospital Managers uphold the Responsible Clinician’s decision.
There is no appeal to the Tribunal if the patient is detained under Section 2.
Unless your relative is detained under one of the very short detention sections (between 6 and 72 hours), s/he will be entitled to the services of an Independent Mental Health Advocate (IMHA). This includes patients on Supervised Community Treatment and Guardianship. The IMHA’s role is to support the patient while s/he is detained and we have given your relative a leaflet explaining how this is done. You have a right to instruct an IMHA to visit your relative, but it is the patient’s choice whether or not to speak to the IMHA if you do so.
Where practical, you should be told that the patient is likely to be discharged on a certain date. Once the patient has been discharged, s/he will receive a letter confirming discharge and you should receive a copy of that letter unless the patient has objected.
You can ask someone else to act as the Nearest Relative. This is called delegating the role and the person who stands in for you is called your delegate. You can change your mind and take back your rights as Nearest Relative at any time by telling the Mental Health Act Office in writing that you want to do so.

10. Can help or advise on best ways of communicating with a patient
Can help or advise on best ways of communicating with a patient. Carers’ centres can advise carers on their rights and answer general questions on MHA, Code of Practice, procedures and other issues.
Using carers as intermediaries or interpreters is not good practice and should only exceptionally be used – including when the patient is a child or young person. Interpreters (professional and non-professional) must respect the confidentiality of any personal information they learn about through their involvement

11. Carers and advocates should be involved, where the patient wishes or if the patient lacks capacity to understand, in reaching decisions which affect the patient’s care and treatment under the Mental Health Act.   A patient and persons supporting them (family, carer etc), especially a patient lacking capacity, must be supported to make a complaint if they think the safeguards of the Mental Health Act are not being appropriately applied or they have concerns about the care and treatment being provided.

12. Mental Capacity Act 2005 right to be consulted by professionals in
assessing someone’s capacity,
(though occasionally this will be impossible,
such as in an emergency)
right to be involved in determining what is in the best interests of the person being cared for, if that person lacks the mental capacity to make a decision
right to be named as attorney in person’s Lasting Power of Attorney
LPAs
If you’re bankrupt or subject to a debt relief order, you can make, sign and register an LPA for financial decisions. However, your attorneys will not have power over all of your property.
If this applies to you, you should think about getting legal advice before you make your LPA.
If you become bankrupt or subject to a debt relief order after your financial LPA is made or registered, it will be cancelled.
If an attorney becomes bankrupt or subject to a debt relief order, they can no longer be your attorney under your LPA for financial decisions

13. right to be immune from prosecution following the results of a decision made on behalf of an individual, if carer has a reasonable belief that the person lacks capacity and that the action they are taking is in that person’s best interests
right (as a third party) to apply for an independent assessment of whether someone has justly been deprived of their liberty from the Court of Protection .

14. Advance Statements/Advance Decisions
Can my family/carer overturn an Advance Decision?
No – this is a statement of the person’s wishes or in the case of an Advance Decision it is their refusal of a treatment and cannot be overturned by anyone unless:
They have a signed LPA to appoint a health and welfare attorney after the Advance Decision and given authority to the attorney to accept or refuse treatment to which the Advance Decision relates
Revoke the Advance Decision at a time when the person has mental capacity
The Advance Decision was made when the person did not have capacity
Undue influence was used by others to make the Advance Decision