Mental Health Law in Nursing


Richard Murphy & Philip Wales

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  • Chapters
  • Front Matter
  • Back Matter
  • Subject Index
  • Copyright

    About the Authors

    Richard Murphy is a qualified social worker and still practises as an AMHP and DOLS best interest assessor. He became the Mental Health Act and Mental Capacity Act lead for Solent NHS Trust in 2010 and has completed a master's degree in mental health law. A key aspect of his current role is to train and support nursing staff in best practice in relation to the Mental Health Act.

    Philip Wales is currently a senior manager working for the Care Quality Commission. Between 2004 and 2009 he was employed as a regional director in the Mental Health Act Commission. Before specialising in Mental Health Act regulation Philip held senior management positions within the NHS in the mental health and acute hospital sectors. He qualified as a mental health nurse in 1987 and has undertaken advanced nurse training. He is a trained counsellor and systemic psychotherapist. He has degrees in nursing and complementary health studies.


    The Mental Health Act is one of the most complex pieces of legislation a mental health nurse is likely to encounter in practice. This complexity is further compounded by the influence of other European and national laws. In such a maelstrom of legal nuance, jargon and ethical dilemma sit some of the most vulnerable people in need of care and compassion, and the challenge of providing person-centred care in this context cannot be overestimated.

    In this book Richard Murphy and Philip Wales have provided us with a carefully planned, logical journey through the Mental Health Act from its developmental history to the more recent amendments in 2007. This book effectively de-mystifies the Act, creating a useful guide that will assist in everyday practice. In considering the role the mental health nurse has in the application of the Mental Health Act, the authors have woven the principles underpinning the operation of the Act throughout the book, providing hints and tips, clear concept summaries and even revision questions to aid the reader in expanding not only their understanding of the Act itself, but also the underlying ethical considerations. The outlines of the different roles and responsibilities of professionals operating the Act are also extremely useful.

    Whether you are a student approaching mental health law for the first time, a newly qualified nurse about to embark in practice or a practitioner of some years standing wanting to refresh your working knowledge, this book will stand you in good stead. It can be read as a coherent whole or dipped into, section by section, to assist you in practice in an increasingly complex world of mental health care and providing a useful addition to your toolkit to ensure good, defensible, person-centred practice.

    Perhaps the most important feature of this book is the fact that the patient is never overlooked. The authors interpret the Act in the way it was designed, to protect and serve individuals temporarily unable to serve themselves. The activities and case studies provide a comprehensive review of the ethical issues raised by the use of such a powerful medium of control in a caring context. It highlights, quite rightly, the difficulties posed for nurses in balancing the needs of the person with the legal requirements of the Act. Engaging with the book will help you to become a more empowered practitioner who is ready to face the ethical dilemmas which will inevitably arise in the care of vulnerable people.

    Sandra Walker Series Editor


    The authors and publisher would like to thank the Care Quality Commission for allowing use of their data on First Tier (Mental Health) Tribunals (Figures 10.1 and 10.2).

    Richard Murphy would like to thank Solent NHS Trust for their support in enabling him to complete the writing of this book. Richard also thanks his family for their support, especially when taking time out on holiday, and acknowledging the gifts of Kath, Rose and John: his wife, daughter and son.

  • Glossary


    Any act which intentionally – or possibly recklessly – causes another person to apprehend immediate and unlawful personal violence


    Absent without leave

    community patients

    Those treated outside hospital or other institutional settings. In the context of community treatment orders the term has a specific meaning. That is, a person under a community treatment order

    community treatment order

    A statutory regime on which patients who have been detained on longer term sections for treatment may be discharged. It has conditions attached and the patient may be recalled to hospital in certain circumstances

    informal patients

    Those treated in hospital who are not detained but have not been able to consent to the admission because they lack capacity to do so. However, the term is commonly used to refer to all patients that are not detained

    Mental Health Act administrator

    An administrator normally responsible for the management of paperwork and processes related to the Mental Health Act. This includes the scrutiny of detention papers

    qualifying patients

    Those eligible to receive the services of specialist independent mental health advocates. Section 130C of the Mental Health Act sets out who is eligible to receive support from an independent mental health advocate. This includes those who are either detained in hospital (including those who are on authorised leave), subject to guardianship or on supervised community treatment. People detained in hospital under either emergency or holding powers are not eligible. All patients who are considering treatment under section 57 and anyone under 18 who is being considered for electro-convulsive therapy are also eligible. It is a legal requirement to tell people who are eligible to receive a service from an independent mental health advocate about their right to receive it

    recall to hospital

    The power to compel a patient under a community treatment order to return to hospital, if necessary against their will

    regulatory authority

    The national authority with statutory responsibility to regulate and monitor certain aspects of the Mental Health Act

    section 17 leave

    Patients detained under the Mental Health Act can only normally leave hospital if their absence is authorised by their responsible clinician. This is often referred to as section 17 leave

    second opinion appointed doctor

    A doctor appointed by the Care Quality Commission to consider approving certain treatment plans of detained patients. They have the power not to approve the treatment plans

    statutory consultee

    A person whom a second opinion appointed doctor consults as part of their assessment process

    supervised community treatment

    The term used by the Code of Practice to describe all aspects of the community treatment order regime

    vicariously liable

    This legal term means that in circumstances in which the first person is in a special relationship with a second person, the first person can be held responsible for any harm the second person causes. For example, a local authority is responsible for the actions of its employees when they are undertaking their employment duties

    voluntary patient

    One who has consented to be treated in hospital

    Answers to Multiple Choice Questions

    Chapter 1
    • (c) 2007
    • (c) Parliament
    • (c) 1930
    • (a) Reference Guide to the Mental Health Act 1983
    Chapter 2
    • (a) Everyone in the UK
    • (b) Financial means
    • (d) That they cannot make a complaint
    • (c) Patients may not be deprived of their liberty
    Chapter 3
    • (c) Health care assistant or domestic worker
    • (c) Brother or sister
    • (a) Appoint doctors for the purpose of carrying out a second opinion under the Act (SOAD)
    • (a) Responsible clinician
    Chapter 4
    • (d) Is an informal patient who can give valid consent to be admitted and is agreeable to receiving care and treatment
    • (d) Any disorder or disability of the mind
    • (d) May last for up to 28 days. The patient may appeal within the first 14 days of the detention
    • (d) Can be applied by a nurse of the prescribed class, is not renewable and the patient must be already receiving treatment in hospital for a mental disorder
    Chapter 5
    • (b) The Care Quality Commission
    • (c) A patient on community treatment order recalled to hospital
    • (a) From when the medicine was first administered under that period of detention
    • (d) In an emergency
    Chapter 6
    • (b) Their responsible clinician
    • (d) Necessary in the interests of the patient or the protection of others
    • (d) A responsible clinician must consider a community treatment order if a patient has been on section 17 leave for longer than seven days
    • (b) Withhold the leave on medical grounds
    Chapter 7
    • (c) A patient detained under section 3
    • (c) The responsible clinician can recall them to hospital if they are in need of further treatment as a recalled patient due to risk to self or others
    • (c) 72 hours
    • (d) They cannot be subject to section 5 holding powers
    Chapter 8
    • (a) 72 hours
    • (c) Section 47
    • (c) Never
    • (b) Restrictions should be based on individual risk assessments and not blanket bans
    Chapter 9
    • (a) Public law, tort law, contract of employment, statute
    • (a) They are protected from liability unless the act was done in bad faith or without reasonable care
    • (b) Potentially a safeguarding issue
    • (b) The act must be a criminal offence
    Chapter 10
    • (d) Once, within the first 14 days
    • (a) As many times as they like
    • (b) If the statutory criteria are not met
    • (b) Provides evidence based on their interview with the patient and makes a decision about the statutory criteria


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