All types of detention
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The various detaining sections can be classified, for ease of explanation, into various types.
Civil and criminal; unrestricted and restricted
The following is the most common way of categorising the various sections.
- Patients can be detained under the civil sections by mental health professionals, each section having its own rules as to the type and number of professionals required, and the procedure to be followed. They are to be found in Part 2 of the Mental Health Act 1983.
- Criminal sections are either based on a court decision or a transfer from prison to psychiatric hospital. They are to be found in Part 3 of the Mental Health Act 1983.
- The Crown Court can impose restrictions when imposing a criminal section; similar restrictions can be imposed on patients who have been transferred from prison. In practice, the main restrictions are that the Responsible Clinician must obtain the Ministry of Justice’s permission for granting leave of absence from hospital, for transfer or for discharge (however, the Mental Health Tribunal can still discharge).
In the table below, the common sections are in bold text.
| Civil (Part 2) | Criminal (Part 3) | |
|---|---|---|
| Unrestricted | Restricted | |
| 2, 3, 4, 5(2), 5(4). Also: CTO, guardianship | 35, 36, 37, 38, 43, 44, 45A, 47, 51 | 37/41, 45A, 47/49, 48/49 |
Route to detention
Another similar way to separate out the various detentions is whether they begin in the community, at court or in prison.
| Community | Court | Prison |
|---|---|---|
| 2, 3, 4, 135, 136
Hospital: 5(2), 5(4) Also: CTO, guardianship |
35, 36, 37, 37/41, 38, 43, 44, 45A, 51 | 47, 47/49 |
Duration
The short-term sections last for a maximum of 72 hours (s4 and s5(2)) or for some other, shorter maximum period (s5(4), s135, s136). The medium-term assessment section (s2) lasts for a maximum of 28 days; the duration of the others depends on the duration of the on-going criminal trial process. The long-term sections last indefinitely, subject to (for unrestricted sections) a periodic renewal process.
| Short term/emergency | Medium-term | Long-term |
|---|---|---|
| 4, 5(2), 5(4), 135, 136 | 2, 35, 36, 38, 43, 44, 48/49 | 3, 37, 37/41, 45A, 47, 47/49 Also: CTO, guardianship |
Informal or formal
Patients who agree, under s131, to remain in hospital are ‘informal’ patients, as they are not subject to the formal regime of the MHA.
Patients can enter hospital informally, and can remain in hospital informally after the end of their section. The House of Lords in R (L) v Bournewood Community and Mental Health NHS Trust [1998] UKHL 24 subdivided this group of patients into voluntary patients who have capacity to consent and do, and informal patients who do not have capacity but do not object. See also HL v UK 45508/99 [2004] ECHR 471.
For further details, see Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009)
List of detention sections
Civil (unrestricted)
- s5(2) - doctors' holding power
- s5(4) - nurses' holding power
- s136 - mentally disordered persons found in public places
Criminal (unrestricted)
- s35 - remand for report
- s36 - remand for treatment
- s37 - hospital order
- s43 - committal by magistrates (to custody rather than to hospital) for restriction order
- s44 - committal by magistrates to hospital under s43
- s46 - detention following Court Martial (repealed)
- s47 - transfer direction (from prison)
- s51(5) - hospital order without conviction
Criminal (restricted)
- s47/49 - transfer direction with restriction direction
- s48/49 - transfer of unsentenced prisoner, with restriction direction
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