Part II of the Mental Health (Northern Ireland) Order 1986 (the Order) sets out the processes through which a person may be compulsory admitted to and detained in hospital for assessment and treatment. Part II also sets out provisions for reception into guardianship and will be addressed in a separate chapter.

This chapter begins with an overview of the key provisions in relation to compulsory admission to and detention in hospital for assessment and treatment. The process is then set out following the person/patient pathway from;

  • The Community – including an Accident and Emergency Department (A&E)
  • A General Hospital
  • A Psychiatric or Learning Disability Hospital
    with reference to three flow charts which follow the patient's journey

1. Persons who may be detained. How may a person be detained in hospital for assessment?

The Order states that a person may be detained in hospital for assessment of their mental disorder if an application, founded on a medical recommendation, has been made. The application will only be made if the person meets the criteria for admission set out in the Order and if there is no alternative to detention in hospital.

At what age can a person be compulsory admitted to and detained in hospital under the Order?

Anyone, regardless of age, can be admitted to hospital under the Order if they meet the criteria set out in the Order.

Do these provisions also apply to children and young people (aged 17 and under)?

Yes. The same criteria and provisions apply regardless of age. The Children (Northern Ireland) Order 1995 also has provision for a court to direct a parent or guardian to bring a child or young person to hospital for assessment of their mental disorder and, if necessary, for treatment.

Can a person who is not a resident of Northern Ireland be admitted to and detained in hospital for assessment and treatment?

Yes. Non-residents including visitors, migrant workers, refugees and those who may be considered illegal immigrants can all be admitted to hospital for assessment and treatment if the criteria have been met.

In such circumstances anyone who is not a resident of Northern Ireland can receive compulsory assessment and treatment in hospital or care under guardianship without charge. These provisions are set out in the Health and Personal Social Services Statutory Rules – Provisions of Health Services to Persons who are not Ordinarily Resident Regulations (Northern Ireland) 2005.

What if the person does not speak English as a first or competently as a second language?

All Health and Social Care professionals/staff have a legal duty to provide an interpreter in such circumstances under The Northern Ireland Act 1998, Race Relations (Northern Ireland) Order 1997 and Human Rights Act 1998.

What if the person has communication difficulties i.e. sensory impairment or learning difficulties?

Again all health and social care professionals have a duty under the above pieces of legislation to assist the person involved and their family/carers if also required.

Do these provisions apply where arrangements are being made for the care and treatment of persons who may lack capacity to give consent to arrangements that could be considered as a deprivation of liberty? The Order does not specifically address issues of capacity in relation to admission and treatment. However all those involved in the admission, care and treatment of a person who lacks mental capacity to consent to these arrangements, because of their mental disorder, should be guided by the interim guidance provided by the DHSSPSNI in relation to such matters.

Link to Circular Revised Deprivation of Liberty Safeguards

This guidance was circulated in October 2010 following an important judgment by the European Court of Human Rights (HL v UK 45508/99 (2004) ECHR 471.

2. The Criteria for Detention in Hospital What are the criteria for Admission to Hospital for Assessment? The criteria for admission to hospital for assessment are set out in Article 4 of the Order which states that an application for assessment may be made in respect of a patient on the grounds that the person is:

  • Suffering from mental disorder of a nature or degree which warrants his detention in hospital for assessment (or for assessment followed by medical treatment); and
  • Failure to so detain him would create a substantial likelihood of serious physical harm to himself or to other persons.

What are the criteria for Detention in Hospital for Treatment? The criteria for detention in hospital for treatment are set out in Article 12 as:

  • The patient is suffering from mental illness or severe mental impairment of a nature or degree which warrants his detention in hospital for medical treatment; and
  • Failure to so detain the patient would create a substantial likelihood of serious physical harm to himself or to other persons.

What do the terms nature and degree mean? The word "nature" refers to the particular mental disorder that the person is thought to be suffering from, its chronicity, prognosis and the person's previous response to receiving treatment for the disorder. The word "degree" refers to the current severity of the person's mental disorder. What is a Mental Disorder? Article 3 of the Mental Health (Northern Ireland) Order 1986 states that in relation to admission for assessment the definition of mental disorder includes:

  • Mental illness, defined as a state of mind which affects a person's thinking, perceiving, emotion or judgement to an extent that he requires care or medical treatment in his own interests or the interests of other persons.
  • Mental handicap, defined as a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning and
  • Any other disorder or disability of mind.

The criteria for detention for treatment include mental illness as defined above and severe mental impairment:

  • Severe mental impairment is defined as a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.

(The legislation contains 1 additional definition in relation to severe mental handicap which is one of the criteria for guardianship.This will be defined in the Guardianship Chapter of this document.)

What is not considered a Mental Disorder within the meaning of the Order? The Order states "No person shall be treated under this Order as suffering from mental disorder, or from any form of mental disorder, by reason only of personality disorder, promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs". Article 3 (2)

This means that a person who is considered to have a personality disorder, is dependant on alcohol or drugs, or is a person exhibiting any of the behaviours listed above, can only be detained if he is also considered to be suffering from a coexisting mental disorder.

What does "substantial likelihood of serious physical harm" mean?

This refers to situations where:

A person has caused serious physical harm to himself or has threatened or attempted to do so and/or

  • Where the person's judgement is so affected by his mental disorder that he is unable to protect himself against serious physical harm and
  • Reasonable provision for the person's protection is not available in the community.

In relation to others, substantial likelihood of serious physical harm refers to situations where:

  • The person has behaved violently towards others.
  • Has behaved in such a way that others were placed in reasonable fear of serious physical harm to themselves. Article 2 (4)

What other factors should be considered? The Code states that the assessment of a person whose detention in hospital is being considered can legitimately involve consideration of any prognosis of future deterioration of their mental health and the known history of their mental disorder. Examples of what may be considered in assessing the nature of the serious physical harm are:

  • Uncontrolled over-activity likely to lead to exhaustion;
  • Gross neglect of hygiene and personal safety which would create a hazard to the patient or others;
  • Serious and protracted neglect of diet which would lead to malnutrition;
  • Dis-inhibited behaviour likely eventually to lead to serious physical harm to the patient, his family or other persons. Code of Practice 2.22

3. Making an Application and Recommendation. What must happen before a person may be detained in hospital for assessment?

Article 4 (3) of the Order sets out the formal procedures that must be followed before a person may be admitted to hospital for assessment against their will. Admission requires the making of a Medical Recommendation followed by an Application "founded" on this recommendation.

Who can make the medical recommendation? Article 6 of the Order states that the medical recommendation for admission for assessment should be given and made on the prescribed form (Form 3) by:

  • The patient's medical practitioner or by a medical practitioner who has previous acquaintance with the person whose admission to hospital is being recommended.
  • A medical practitioner on the staff of the hospital to which admission is sought should not make the recommendation except in cases of urgent necessity.

The Medical recommendation must not be made by:

  • The applicant or a partner of, or person employed as an assistant by, the applicant or
  • A person who receives, or has an interest in the receipt of, any payments made on account of the maintenance of the patient or
  • The spouse (civil partner), parent, father-in-law, mother-in-law, child, son-in-law, daughter-in-law, brother, brother-in-law, sister or sister-in-law of the patient.

What if the person is not registered with a General Practitioner? The assistance of a doctor must be sought as the application cannot proceed until a medical recommendation has been made. Some Trusts may have arrangements in place to deal with such eventualities. In situations where the assistance of a doctor is required as a matter of urgency this should be sought from the nearest GP practice to where the person, for whom there is concern is, at that time. What must the medical practitioner do before making the medical recommendation? The medical practitioner must:

  • Examine the patient not more than two days before the date he/she signs the recommendation and
  • Address the legal criteria for admission before making their recommendation.
  • The medical recommendation must be made using the prescribed form (Form 3) and given to the applicant.

When can an Application for Assessment be made? An application for admission for assessment can only be made after the Medical Recommendation for admission for assessment has been made.

Who can make the Application for Admission for Assessment? Article 5 states that an application can be made by:

  • The nearest relative of the patient (Form 1); or
  • An approved social worker (ASW) (Form 2).

The term "applicant" is used in the Order in relation to the person who has made the application regardless of whether this is the ASW or nearest relative. However in most situations the application will be made by an Approved Social Worker (ASW).

What is an Approved Social Worker? An approved social worker (ASW) is a social worker who has been appointed by a Health and Social Care Trust to carry out specific duties and responsibilities under

Trusts have a responsibility under Article 115 of the Order to ensure that ASWs are competent to carry out duties and responsibilities. See Role of ASW

Who is the Nearest Relative? This is a legal term and is defined in Article 32 of the Order. See Role of Nearest Relative

What must the applicant do before making the Application for admission to hospital for assessment?

An application for assessment cannot be made unless the Applicant has:

  • Personally seen the person for whom the medical recommendation has been made not more than 2 days before the date the application is made and; in the
  • The ASW has consulted with the person, if any, appearing to be the nearest relative unless it appears to the ASW that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.*

* Following a judgment, R (E) v Bristol City Council (2005) EWHC 74 (Admin) in which the Judge involved, Bennet J., considered the duty of the ASW to consult with the nearest relative and the rights of a patient under Section 3(1) of the Human Rights Act 1998, ASWs can interpret the words "practicable" and "reasonable delay" in a way that takes into account the person/patient's "wishes, health and well ".

In addition:

If the application is to be made by an ASW then that person must:

  • Interview the person whose admission for assessment is being considered in a suitable manner.
  • Consider the wishes of relatives of the person and any other relevant circumstances.
  • Be satisfied that the application ought to be made and that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment that the patient needs.

Article 40 Where might the interview with the medical practitioner and applicant take place? An initial assessment in relation to whether or not detention for assessment should be sought could take place in:

  • Any community setting i.e. in someone's home. See community flow chart and narrative
  • Any Hospital setting – where a person is an in-patient. The Order allows for patients in all general, psychiatric or learning disability hospitals, not already subject to detention under the Order, to be prevented from leaving that hospital, using a "holding power" if there is concern that they are mentally disordered and may be at risk of physical harm to themselves and/or others. The same process in relation to consideration of a medical recommendation and application will then be followed. See general hospital and psychiatric and learning disability flow charts and narratives
  • An A&E department, Health Centre or out-patient facility – these facilities are also considered community settings within the Order. The holding powers described in the previous paragraph cannot be used in these settings and are only applicable to a person who is an "in-patient" at that time. See community flow chart and narrative
  • A "place of safety"* i.e. where a person has been brought under Article 129 or Article 130 of the Order. See community flow chart and narrative

* Article 129 of the Order defines a "place of safety" "place of safety" means any hospital (see appendix section for list of designated hospitals) of which the managing Board or HSS trust is willing temporarily to receive persons who may be taken there under this Order, any police station, or any other suitable place the occupier of which is willing temporarily to receive such persons. The Guide states that persons should be kept in places of safety for as short a time as possible while other arrangements are made for their care. This is particularly so in the case of a police station which should only be used as a place of safety when no other suitable place is available.

In what circumstances should the PSNI be asked to attend during the medical practitioner and ASW's assessment?

The PSNI should not be routinely asked to attend situations where a person is being assessed with a view to their detention in hospital for assessment. However the PSNI may already be involved as a consequence of the need to use their powers under Article 129 and 130 of the Order (see below). LINK TO PSNI ROLE

What if the medical practitioner and/or the applicant cannot gain access to premises in the community to carry out the assessment?

If all attempts to persuade the person for whom assessment is sought are denied, either by that person or others, entry can be legally forced by the PSNI under Article 129. This action should only be taken when an officer of the Health and Social Care Trust or a police constable have sufficient concerns that the person has a serious mental disorder and as a consequence is at risk of serious physical harm from themselves or to or from others and when other attempts to gain access by other means have failed. See community flow chart and narrative

What happens if the person is in a public place?
Interviewing a person in a public place with a view to detaining them to hospital for assessment is not advised. All attempts should be made to persuade the person to go to a more private setting. However if the person is unwilling to accompany the professionals, who are seeking to carry out the initial assessment, to a more private place the police may be asked to assist.

Article 130 allows a police officer to remove a person found in a public place, and who appears to be suffering from a mental disorder, to a place of safety (see definition above). If this power is used the person may only be detained in that place of safety for a maximum of 48 hours and during this period they must be examined by a medical practitioner and interviewed by an approved social worker to allow for any necessary arrangements for care and treatment to be made. See community flow chart and narrative

What happens after an Application for admission for assessment is made? Once the application for assessment is made the Order states the approved social worker or the nearest relative has the legal authority to arrange for the person to be taken to hospital and to be detained there until a medical examination is carried out and Form 7 is completed. This must be done within 2 days starting from the date that the medical recommendation was signed. Article 8 Can the person refuse to go to or remain in hospital? No. The Applicant has a legal duty and right to ensure that the person is conveyed to hospital once Forms 1 or 2 and 3 are completed. However once the person has been detained in hospital for assessment he or she has the right to appeal against their continuing detention through application to the Mental Health Review Tribunal. What hospital will the person whose admission for assessment is sought be taken to? This will usually be a hospital in the Trust in which the person resides. However if this is not possible due to lack of availability, a bed will be sought in another Trust area with a view to transferring that person as soon as one becomes available in his or her own area.

What if the person is not a resident of the Trust or the jurisdiction? In this situation the person should be conveyed to the nearest hospital where arrangements can be made, following admission for assessment, for the person's transfer to a facility in their own Trust area. Where the person is not a resident of Northern Ireland they should be offered the same level of assessment, care and treatment to that afforded to any resident of Northern Ireland who is subject to provisions of the Order and, where possible, consultation should take place regarding the suitability of the person's transfer to the jurisdiction in which they normally reside. How should the person be conveyed to hospital? The Code states that it will often be best to convey the person by ambulance. The Code also states that the ASW has responsibility for ensuring that the person, whose detention is sought, is safely conveyed to hospital. The ASW must ensure that the most humane and least threatening mode of transport consistent with the safety of the person and others is chosen. Code 2.40 - 2.44. LINK TO COMMUNITY FLOW CHART Should the PSNI (Police Service of Northern Ireland) be asked to assist in conveying the person to hospital? The PSNI should not be routinely asked to assist in the conveyance of a person to hospital. The Guide states that where there is likely to be, or is, exceptional difficulty because of resistance on the part of the person who is being detained or relatives, it may be appropriate to seek the co-operation of the police in securing the person's removal. Any request for assistance must be based on an assessment of the level of risk of physical harm to the person and/or others during the conveyance process. This initial assessment will usually be undertaken by the ASW in consultation with the GP/medical practitioner.

See flow chart narratives.

4. DETENTION IN HOSPITAL FOR ASSESSMENT Arrival at Hospital What should happen when the person arrives at the hospital to which the application has been made? The person is received by the nurse in charge and the forms (medical recommendation and application) are delivered. The person should be medically examined immediately on arrival at hospital by the RMO or Part II doctor or a doctor on the staff of the hospital.

What happens following the medical examination? Following the examination a decision will be made by the examining doctor that the person will be:

  1. Detained in hospital for assessment or
  2. Allowed to remain in hospital as a voluntary patient or
  3. Should not remain in hospital.

The examining doctor will report his opinion to the Health and Social Care Trust. How long may the person be detained for assessment? The patient can be detained for a maximum period of 14 days. This period cannot be extended.

There is a statutory duty to review the grounds for detention at:

  • 48 hours (if the admitting doctor was not the RMO or a Part II doctor)
  • 7 days
  • Before the end of the 14 day period.

When should the person be discharged from detention for assessment? The person must be discharged as soon as it is clear that the person does not meet the criteria for assessment, this may be prior to the end of the maximum 14 day assessment period. Discharge from detention does not mean that the patient should be discharged from hospital and if appropriate the patient should be allowed to remain in hospital as a "voluntary" patient.

5. Detention in Hospital for Treatment What should happen at the end of this two-week assessment period? The person must be formally re-examined by the responsible medical officer or a Part II doctor.

Depending upon the outcome of this examination, the person will then either be:

  1. Detained for treatment of their mental disorder
  2. Re-graded to voluntary status (and stay in hospital for treatment)
  3. Discharged from the psychiatric hospital

Are the grounds for detention for treatment different to the grounds for admission to hospital? The grounds for detention for treatment, to be clearly stated on the Form 10, are more stringent than the grounds for admission. The general diagnosis of mental disorder is no longer sufficient.

It must be clearly stated that the patient suffers from mental illness, severe mental impairment, or from both.

Severe mental impairment is where severe mental handicap is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. Article 12

What should happen during the detention for treatment period? During the assessment period a multi-disciplinary assessment will have been carried out and an initial treatment and care plan to address the patient's needs agreed. Detention for treatment therefore gives the multi-disciplinary team the opportunity to implement this or the revised treatment and care plan. Can detention for assessment or treatment in hospital be appealed? Yes. Patients and nearest relatives have a right to appeal against their detention during both the detention for assessment and treatment periods. Further information regarding when and how this may be done is contained in the Mental Health Review Tribunal Chapter of this Guidance.

The patient must be advised on a regular basis throughout the period of detention for assessment and for treatment of his right to apply to the Mental Health Review Tribunal (once within the first 6 months, once during the second 6 months and once during each subsequent 1 year period of detention) and a record kept of this. Staff advising them must ensure that repeated offers are made to explain this right, especially when the patient's illness affects his understanding.

Most mental health and learning disability services have advocates who will also do this informally.

The detaining Health and Social Care Trust also has a statutory responsibility to refer the case of a patient who has not appealed during the previous 2 year period.

Can a patient be transferred to a hospital in another legal jurisdiction? Yes, the Order provides for a patient, detained under Part II or Part III, to be transferred to jurisdictions in Britain (i.e. England, Scotland and Wales) in situations where specialist services are not available in Northern Ireland. Transfers may also occur when high levels of security not available in Northern Ireland are required for Part III patients.

Transfers between Northern Ireland hospitals and Scottish hospitals, including the State Hospital, Carstairs, are carried out under Article 6 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005. Transfers between Northern Ireland hospitals and hospitals in England are carried out under sections 81 and 82 of the Mental Health Act 1983.

There is no provision in the Order for the transfer of detained patients to or from the Republic of Ireland.

Guidance on the transfer of patients detained under the Order to and from a hospital in Northern Ireland have been revised by DHSSPSNI to comply with the findings of a recent Judicial Review (Ref JR 49). Link to Guidance on the transfer of mentally disordered patients detained under the Mental Health (NI) Order 1986 to and from Hospitals in Great Britain. August 2011 pdf

Does a patient , who has been transferred to another jurisdiction,have the same rights of access to the Mental Health Review Tribunal? Yes. The patient and the nearest relatives have the same rights to request a review of detention by the Mental Health Review Tribunal.

When should the person be discharged from detention? While being treated in hospital the patient's progress should be continually reviewed. The patient must be discharged from detention as their condition improves and as soon as the criteria for detention are no longer met. Discharge from detention does not mean that the patient should be discharged from hospital and if appropriate the patient should be allowed to remain in hospital as a "voluntary" patient.

Has a person who has been detained for assessment and/or for treatment for mental disorder a duty to declare this? Article 10 states that any periods for which a patient has been detained for assessment and which have not immediately been followed by a period of detention for treatment can be disregarded for certain purposes i.e. these periods of detention for assessment can be regarded as if they had never occurred.

This means that except in the case of judicial proceedings* the person has no legal duty to declare that they have been detained for assessment under the Order. This provision is unique to Northern Ireland.

It should be noted that this provision relates to periods of assessment only and does not extend to periods of detention for treatment which must be declared if required.

Guide paragraph 45.

* Judicial proceedings includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person having power – (a) by virtue of any statutory provision, law, custom or practice; (b) under the rules governing any association, institution, profession, occupation or employment; or (c) under any provision of an agreement providing for arbitration with respect to questions arising there under, to determine any questions affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question. Article 10 (6)