My client’s care coordinator is adamant that she was unlawfully restrained on admission as the police were not in attendance and there was no s135 warrant. My client had let the AMHP and s12 doctors into her property and s2 application had been completed but she refused to get into the ambulance. The AMHP requested a s135 warrant but police refused to proceed with this. The following day a secure ambulance arrived and her brother let them in -they requested police assistance again unsuccessfully and finally ambulance crew restrained her and conveyed her to hospital.
I believe that under s6 the AMHP has a power to convey which she can delegate to the ambulance staff but the Care Co is convinced that this is unlawful because the patient is not subject to s2 until they reach the hospital.This puts me in a difficult position as my client will be unimpressed if I counter his assertion that this was unlawful. Any views?
From what you are saying it appears the AMHP and doctors entered the house lawfully. Ie they were let in
They then completed the application .once the application is completed the patient is deemed to be in legal custody the AMHP has a power to convey the patient
Paragraph 17.9 of the code of practice covers the AMHPs responsibility to ensure the patient is conveyed in a manner which ensures safe transport to the hospital named on the application
Either the applicant or the person delegated by the application can use such force as is reasonably necessary to achieve the object of conveying the patient to hospital
Thank you Len and that is precisely what I thought. The Care co raised his erroneous concerns at a tribunal and even criticised me for not agreeing with him as I was ‘supposed to be representing her’! So I wanted to be absolutely sure that I was right before dealing with him.
Hi there. Agree with Len and you might want to add in section 137 for good measure.
BW
Christine
Hi,
I agree that nothing unlawful happened here, but it would be interesting to think about the idea of an AMHP’s application automatically placing a person into their custody until the person is accepted at a hospital. I’m not sure it’s as straightforward as that.
S6 allows the applicant “to take the patient and convey him to hospital” and then, importantly “at any time within the following period”. No mention of placing the patient into custody for the entirety of the period. Just whilst doing the ‘taking and conveying’ . S137 grants custody, in this circumstance, ‘while being so conveyed’. So, in this scenario, was the person in the AMHP’s custody from the moment the application was signed, or only when the ambulance turned up the next day?
Given the Devon judgement’s recent focus on the specific meaning of the words in the Act, I wonder how a judge would interpret ‘take and convey’ and ‘while being so conveyed’ if considering an AMHP’s power of custody.
In your situation the restraint was applied during the ‘taking’ part, so is covered by S137. But was the patient in the custody of the AMHP overnight?
Answers on a postcard.
Good question have a look at "The Masked AMHP "website there is a page devoted to the issues of legal custody and conveyance within the act but also referencing the common law.
The question of the patient remaining at home without restrictions after the s2 has been applied for is interesting -it always astonishes me that it is ever allowed to happen. Clearly the patient is not in the AMHPs custody at that point but I wonder who would carry the responsibility if there was a tragic outcome.
The Code of Practice para 14.77 states "If the doctors reach the opinion that the patient needs to admitted it is their responsibility to take the necessary steps to secure a bed "
Sect 140 of the MH act places statutory duty on CCGs to ensure there is a bed available this is delegated usually to the local MH Trust .both have to ensure AMHPs are aware of what arrangements have been made to obtain a bed including if necessary a bed out of area or in the private sector. In the case of Medium Secure and High secure beds its NHS England. No patient should be left at home overnight having had an application completed.
Thanks Len. This does happen on occasion in Kent-I suppose the reason it is never challenged is that the patient is unlikely want a bed at that point.