I have just been looking at the original section 3 papers for a client whose section began in 2015.
In the AMHP application, where they are asked to put the date on which they met with in order to confirm that the application was made within 14 days of the meeting, it is blank. This is the scrutinised copy and doesn’t seem to have been picked up.
I have just email the MHAO and await a response but in my view this is a fundamental defect. If this is invalid, the patient could be entitled to compensation for unlawful detention since 2015!
Does anyone else have any views?
It would be a fundamental defect if the AMHP had never seen the patient, but not if they had just forgotten to write a date on a form. On the whole, it’s the process that is fundamentally important, not the recording of it.
On the face of the application - how do we know the AMHP has seen the patient if the date is blank?
Ask them and check other records such as AMHP report and progress notes.
I have them, but my view is that the procedural chain should be clear from the detention paperwork.
It should be but if it isn’t, it is almost certain that a court will not find that detention is unlawful, if in fact the correct procedure was followed.
separate issue then Guy - if the detention should have taken place anyway and correct procedure was followed, i accept that detention would have been lawful in that respect. But if the section paperwork is deemed to be invalid, then his detention couldn’t possibly have been ‘lawful’ and wouldn’t he possibly be entitled to the ‘daily rate’ for each day he was unlawfully detained?
I say ‘daily rate’ because i’m thinking of a case where this was mentioned but can’t for the life of me remember the name
Bostridge v Oxleas is the case that covers situations whereby someone is detained unlawfully but would have been detained in any case if the correct procedure had been followed (it was not about a simple mistake on a form). The patient was awarded nominal damages of £1. The ‘daily rate’ case you are probably thinking about, is ‘Huzzey v Riverside’ but that was a situation whereby the patient should have been discharged from detention but wasn’t.
Really helpful Guy, thanks