Two medical recommendations for detention under S2 have been completed, AMHP cannot complete the application because no bed is available
Patient tried to leave, police were called and was detained under s136 and the police remained in A&E with the patient for just over 24hrs they only left after the s136 expired.
The question is whether the MCA 2005 & best interests can be used to lawfully prevent the patient from leaving A&E until a bed becomes available? The person was assessed and they lack capacity to consent to staying in A&E whilst a bed is being found.
Slightly different facts but I donât see why the principles in Sessay wouldnât apply. Thereâs no lacuna in the MHA - the s136 time limit (which can be extended to 36 hours) is there for a reason and to use another framework would circumvent the statutory scheme (and, in my view, be unlawful).
I agree with Zac that the MCA probably canât be used - though not because the s136 time is up, but because the patient is ineligible for deprivation of liberty under the MCA. (The proposed detention is in a hospital, the purpose is to provide mental health care and the patient has tried to leave and is therefore probably to be regarded as âobjecting" to being there. If the patient isnât objecting then an urgent application to the Court of Protection might be possible.)
But I think thereâs another possible option - which is for the AMHP to apply for the patient to be detained under s2 in the hospital where the A&E is. The managers of that hospital could then transfer the patient to a mental health unit when a bed becomes available.
No - you canât flip to the MCA during an MHA process.
This was also tested in an inquest where an expert psychiatric witnesses (with no legal qualifications) suggested thatâs what should happen and it was almost literally laughed out of court.
The NHS once SCREAMED at me in an adult safeguarding review, âTHERE IS NEVER NOT A BED!!â so Iâd use one of those, I guess.
I agree with the foregoing. The Sessay case and Bridget Dolanâs opinion for the Met police alongside it make it clear that the MCA cannot be used for these purposes, although it does also indicate that it is unlikely in the ordinary case that a human rights breach or tort of false imprisonment would arise provided the application was processed with no undue delay, the many caveats in the language working in both directions of course.
Itâs a good idea to try for admission in the hospital where the patient is waiting for the psychiatric bed but someone has to agree this admission and accept the papers, and in my experience this is very unlikely in an ED, or even in some other ward of a general hospital, unless the patient is also being treated for a physical injury concurrently. In some Trusts the contorted position is allowed that the health-based place of safety itself, usually being in a hospital, can be converted into a bed and the patient formally received there-in other Trusts such a position is strongly deprecated, not without good reason.
If the patient is actually trying to run out and harm themselves then there is always the doctrine of necessity to fall back on, but as with all these expedients, I do not think they have been much tested in court.
It all goes to show that the worthy but really unhelpful reduction in the period of authorisation of s.136 and s.135 has only had the effect of creating a so-called âgrey zoneâ in which patients are more or less unlawfully detained instead, which is no improvement at all. Many other jurisdictions have three-day initial holding powers and there is even some evidence that they have the effect of reducing lengthier detentions overall. Allegedly, having ducked the issue in the MHA 2025, the DHSC is still looking at some sort of s.5-style remedy-but then why do away with the 72-hour holding power in the first place?
You canât use DOLS in A&E. Itâs not a ward or place of accommodation. Yes you could admit to a ward in the general hospital IF there was some other medical treatment required on a general hospital ward but unlikely to be a viable option
Neither DOLS nor the MHA require admission to a âwardâ. The legislation in both cases refers to a âhospitalâ. Using either to keep someone in A&E may generally not be a good idea, but it is possible.
I understand what youâre saying but A&E isnât classed as the hospital from my understanding. Itâs a public place for assessment, and although classed as a place of safety for 136, you canât be admitted to A&E.
I accept some hospitals might not be prepared to do it in practice. But legally it is possible to admit and detain someone in an NHS hospital under the MHA (or DOLS) even if theyâre going to be kept in A&E.
NHS A&E departments fall within the relevant legal definition of hospital (s275 NHS Act 2006, as applied by s145(1) MHA and para 175 of Sch A1 MCA):
âhospitalâ meansâ
(a) any institution for the reception and treatment of persons suffering from illness,
(b) any maternity home, and
(c) any institution for the reception and treatment of persons during convalescence or persons requiring medical rehabilitation,
and includes clinics, dispensaries and out-patient departments maintained in connection with any such home or institution, and âhospital accommodationâ must be construed accordingly.
Nobody cares about the law anymore, except when it creates a personal issue for them - like a speeding fine, or the CQC decides to lock them down!
How dare I say that? Well, Iâve dealt with various organisationsâ approaches to acting outside the law on these forums before. In summary - they donât want to retain me because when they get to the point of thinking about it, I declare I am not doing anything that puts me in an illegal situation. And thatâs the end of that. Itâs like âDonât call us, weâll call youâ - and so they never call back.
So at this time Iâm being starved out for refusing to comply with illegal expectations though no organisation has openly admitted that they have such expectations. They wonât. They canât. But actions speak louder than words. [Caution: I have named no organisation].
The straight answer is ânoâ.
I say that such applications of the law are outside the law. I can say that because the Courts said so in not exactly the same words.
No one piece of law clenches the issue. Iâve been prohibited from posting links. If you can find âSection 136: A Framework in Crisisâ and related materials you may gain a partial insight.