Nigel Turner's HyperGUIDE to the Mental Health Act

Section 134

Withholding of Patients' Correspondence

Summary

The Mental Health Act Managers [MHAM] have the power to withhold detained patients' outgoing and incoming mail, in certain circumstances. The MHAM should have a policy on this, to be implemented, if and when necessary, by hospital staff appointed for this purpose. The power relates to a "postal packet and anything contained in it," and includes the right to open a packet in order to find out if it is one which can and should be withheld. A record has to be kept of a packet being withheld or opened (even if it is not then withheld). There is a right of appeal against the withholding of mail, and certain excluded correspondence cannot normally be withheld .

Outgoing Mail

In the case of someone detained in hospital under the Mental Health Act, a postal packet intended for despatch may be withheld:

• if the person to whom it is addressed has requested that communications from the detained patient should be withheld. (Such requests must be in writing to the Mental Health Act Managers, the Responsible Medical Officer, or the Secretary of State.) OR
• if, in the case of Special Hospitals only, the Mental Health Act Managers consider that the packet is likely (a) to cause distress to the person to whom it is addressed (or to anyone else, excluding hospital staff), or (b) to cause danger to any person.

Incoming Mail

A postal packet addressed to a detained patient in a Special Hospital may be withheld if, in the Mental Health Act Managers' opinion, it is necessary to do so in the interests of the safety of the patient or for the protection of others.

Correspondence which cannot normally be Withheld

Correspondence to/from a number of individuals/bodies can never be withheld, unless that person/body has specifically made a written request to the contrary. These individuals/bodies include:

• any Member of either House of Parliament
• officers of the Court of Protection or the Lord Chancellor
• a health authority, local authority or Community Health Council
• health and local authority ombudsmen
• a Mental Health Review Tribunal
• the Mental Health Act Managers who are responsible for the patient's detention
• the patient's legal advisors
• the European Commission of Human Rights or the European Court of Human Rights

Records and Information

The member of hospital staff who is appointed to undertake Section 134 duties on behalf of the Mental Health Act Managers, has to make a number of records, and provide certain information. Some of these requirements are set out in the Act itself and others are set out in Regulation made under this Section.

• In the case of a package which is opened, but then nothing is withheld, the appointed person must put a record in the packet itself stating:
  
  • his/her name and the name of the hospital
  • that the packet has been inspected and opened
  • that nothing has been withheld
• When a package or part of its contents are withheld, the appointed person must replace the withheld items with a record stating:
  
  • his/her name and the name of the hospital
  • that the packet has been inspected and opened
  • a brief description of what has been withheld

  ... and, in cases where the Mental Health Act Managers have used their discretion to withhold (i.e. excluding cases where the outgoing mail has been withheld at the request of the addressee)

  • details of the right to appeal to the Mental Health Act Commission. (It is a requirement that these details are given with 7 days of the item being withheld.)
  • a statement of the reasons for withholding a the package or its contents

  ... and in the case of incoming mail, the above information must specifically be given to the person (if known) who sent the package, not just to the patient.

Appeals Against the Withholding of Mail

The Mental Health Act Commission has a duty (under Section 121) to review a decision by the Mental Health Act Managers to withhold a postal packet or anything contained in it. The appeal must be made within 6 months of the time the person making the appeal received notification that the withholding had taken place. There is no right of appeal when outgoing mail is withheld at the request of the addressee. Appeals can be made by:

• In the case of outgoing mail withheld at the Mental Health Act Managers' discretion, by the patient, OR
• In the case of incoming mail withheld at the Mental Health Act Managers' discretion, by the patient or by the person who sent the packet.

The Mental Health Act Commission can, on appeal, direct the Mental Health Act Managers for the hospital in question, to release the withheld item(s).

Notes

• Section 134 provides for the withholding of mail, including the contents of a postal packet, but it does not appear to give the Mental Health Act Managers any power to censor or amend the contents of the communication.
• There is no power to withhold mail to/from informal patients, nor people subject to Guardianship. As Section 134 uses the words "detained in a hospital", not "liable to be detained", it appears that Section 134 powers cannot be used if a patient is on leave.
• For a special hospital, the Mental Health Act Managers' role is the duty of the Secretary of State for Health, who delegates this to the Special Hospitals Service Authority.