Relevant Mental Health Acts


The following is a brief outline of the Mental Health Act and for more detailed information of the processes to be followed and the individuals rights you should seek information from Rethink or Mind.

The Mental Health Act 1983 – outlines the law under which a person can be detained and treated in hospital against their wishes. In order to be detained they must be assessed as suffering from a mental disorder requiring treatment the aim is to protect them from themselves or to protect others.

There are different sections to the act namely;

Section 2 which allows admission for a first time assessment to determine whether or not the individual has a mental disorder, what type it is and how it might best be treated.

Section 3 which allows admission for treatment to individuals that can only be provided by detaining them. People are usually detained under this section if they are already known to the Mental Health Services.

There is often a period of relief for the carer and family when a person is “sectioned” as they are now in a place of safety and there can be a period of consolidation by all concerned as to what has just taken place to arrive at this point.


The Mental Capacity Act 2005 – covers people in England and Wales aged 16 and over who can’t make some or all decisions for themselves. The ability to understand and make a decision when it needs to be made is called ‘mental capacity’. See the HPFT Carer’s handbook. People who may lack capacity include some of those with a mental health condition. However, just because a person has a Mental Health condition it does not follow that they lack the capacity to make a specific decision.  The Act indicates that:

  • People have the right to make their own decisions. Health professionals should always assume that an individual has the capacity to make a decision, unless it is proved otherwise through a capacity assessment.
  • Individuals must be given help to make their own decision including providing them with information in a format that is easier for them to understand.
  • Just because someone makes, what others consider to be an “unwise” decision, they should not be treated as lacking the capacity to make that decision. Everyone has the right to make their own life choices, where they have the capacity to do so.

Following an assessment where someone is judged not to have the capacity to make a specific decision, that decision can be taken for them, but it must be in their best interests.

Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms possible, while still providing the required treatment and care.

The Act also allows people to express their preferences for care and treatment and it also allows them to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.

People should also be provided with an independent advocate who will support them to make decisions in certain situations, such as serious treatment or where the individual might have significant restrictions placed on their freedom and rights in their best interests.


The Care Act 2015 – see also the HPFT Carer’s handbook.  This Act gives carers the right to an assessment of their needs as a carer and what support might be needed. This includes discussion about:

  • Information and practical support
  • Emotional support and discussion of their own health and wellbeing
  • Breaks from caring
  • Contingency planning for circumstances when they are unable to care

A review of needs can be requested should circumstances change


Power of Attorney – See the HPFT Carer’s handbook

This is a legal Document which allows the named person to deal with the affairs of the person who has chosen them to act on their behalf (usually financial).