Absence of proof of medical scrutiny invalidates detention?

Law and practice Mental Health Act
1

Hi, Can I please have views on whether or not failure to be able to provide proof of medical scrutiny should invalidate a detention considering that the Code of Practice states that it SHOULD take place rather than MUST take place.

Thanks

2

So-called ‘medical scrutiny’ does not form a part of the process for the application for detention, therefore in that respect, no proof is required.

3

I think you’re referring to chapter 35 of the English Code of Practice (“Receipt and scrutiny of documents”). You might be interested in R (Lee-Hirons) v SSJ [2016] UKSC 46 (failure in duty to provide reasons for recall didn’t make detention unlawful) and of course R (Munjaz) v Ashworth Hospital Authority [2005] UKHL 58 (Code of Practice must not be departed from in the absence of cogent reasons).

4

This was exactly my thoughts and colleagues, we were refused a transfer because the accepting placement believed the detention to be invalid due to the absence of medical scrutiny, we disagreed but legal took the decision to invalidate and re-detain in order for the transfer to take place.

This is really helpful

5

Thanks Jonathan, this is massively helpful for me to challenge the decision making