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IMHA Telephone Helpline

IMHA Support Project's Legal Advice Line: THURSDAYS, 3.30pm - 5.30pm

020 7921 4414

After a month long pilot the IMHA Legal Advice Line went live from the beginning of December 2010. The line runs every Thursday afternoon and is staffed by a team of legal advisors with specialist knowledge in MHA, MCA and community care law.

To date the line has responded to 47 queries from IMHAs across the country with more than half the calls coming from the South East & North West. The legal advisors answer e-mail queries as well as those calls received during the Thursday afternoon time slot.

To date queries have covered a whole range of issues including people_s rights under guardianship e.g. rights of appeal, CTO e.g. clarification about the right to treat, the right to s17 leave; the degree of authority an IMCA report has; the use of covert medication and the use of DOLS. The following 3 issues have come up a number of times in queries to the line. Obviously the particular circumstances of a case may vary so it is important to seek a legal opinion:

CTO & housing
S17B allows for where someone lives to be set as a condition of a CTO where it can be argued that it is necessary or appropriate in order to ensure that the patient receives medical treatment for mental disorder; prevent a risk of harm to the patient_s health or safety; protect other people.

How Does an Individual Displace their Nearest Relative_
If agreement can_t be reached and the individual needs to take the matter to court then an application can be made pursuant to section 29 of the MHA. It needs to be made in the County Court on a CPR Part 8 Claim Form (form number N208) setting out the reasons why the NR should be displaced. (See MHA Code of Practice 8.6 for a list of grounds on which a County Court can appoint a nearest relative.) There will be a fee; unless the applicant is exempt from court fees because of their income e.g. s/he is on Income Support. These can be difficult cases so it is suggested that the individual considers instructing a solicitor as they may be eligible for legal aid.

Can someone detained under s3 get married_
Yes, a person detained under section 3 can get married. The marriage of detained patients is provided for under section 1 of the Marriage Act 1983 which states that a person who is detained can get married in hospital as long as this is _on the authority of certificates of a superintendent registrar issued under Part III of the Marriage Act 1949_.

There is guidance in the Department of Health Local Authority Circular (84) 9 which says that a detained person can get married in hospital except for patients detained under the shorter term provisions e.g. sections 2, 4, 5, 35, 36 and 136 MHA 1983.

When a person wishes to get married in hospital, the notice of marriage, which is required by section 27 of the Marriage Act 1949, must be accompanied by a statement in the prescribed form by the Hospital Managers not more than 21 days before the date on which the notice of marriage is given. This statement must identify the establishment where the person is detained and state that the Hospital Managers do not object to that establishment being the place identified on the marriage certificate as the place where the marriage is performed.

Thanks go to the MHA & MCA teams at Bindmans LLP for the above legal advice.

Please keep those queries coming _ if you_re not able to call during the advice line_s opening times then please e-mail your query to Collette Byrne, IMHA Support Project Manager and I_ll pass it onto the legal advisors for an answer.