Admission to hospital 5 days after s2 completed

A patient is detained under s136 in POS and s2 completed but a bed cannot be found for 4 days so the patient remains detained in POS. s2 starts from date of hospital admission so what is her status for those 4 days between end of s136 and start of s2? I am sure that I must have known this at some point but my mind has gone blank and I can’t find it in Jones. It does seem unfair as her s2 has obviously been extended by 4 days.

The short answer is she is deprived of her liberty without legal authority, unless she has capacity and is consenting - unlikely if she needs to be detained under section 2. If the place of safety is in a hospital, that hospital could accept the section 2 application and thereby avoid a potential liability for unlawful detention.

Yes most likely a technically unlawful detention.

But most practitioners take the view that it would be better to run the risk of the high court than the coroner’s court. I’ve heard of delays of 5 - 7 days in some cases and it seems to be quite common that s.136 expires before a bed is found.

This is why some services are designating their mental health based PoS as ‘swing-beds’ that can be designated as a ward bed so the patient can be formally admitted to it under s.2 or s.3. CQC have written about this in past annual MHA reports and we suggest this resolves the legal gap, albeit not to much advantage for the patient…

Thank you Mat - that is tremendously helpful. That confirms what we had just concluded. I suppose a ‘swing bed’ would help the patient in that the detention wouldn’t be unlawfully extended.

Sorry Stephen-just seen your reply too. Yes, I am wondering if we can argue that the hospital should have accepted her as an inpatient from the date she went into their POS.