Does a Section 2 Tribunal win imply unlawful detention?

Law and practice Mental Health Tribunal
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Patient won their tribunal under section 2.

I’m unclear on this as there is a lot of input surrounding ‘capacity’ or ‘insight’.

If throughout section 2 the patient showed no evidence of a mental disorder or illness and this was determined via the courts as a fact proving they do have ‘capacity’ and ‘insight’.

Doesn’t that mean that all of the personnel who may have assessed or said they were ‘lacking capacity’ or ‘insight into their illness etc’ were incorrect? Otherwise wouldn’t the patient still be under section and medicated?

If I have not explained my question clearly - please feel free to let me know - then I’ll do my best to make it easier to read.

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A s.2 MHA (1983) is used if the nature and degree of the possible patient’s mental state/condition is unverified. It is basically an inpatient assessment to consider a treatment plan, or to re-formulate a treatment plan.

In reference to capacity, the starting point is that the patient has capacity as outlined in the principles of MCA (2005). Capacity is a judgement call by the decision maker at fixed point of time to an action. Time is not a fixed variable and therefore whatever took place would be under a review. The court would not have been the decision maker in your example and even if they were, for a court to say that P lacked capacity infinitely would be going against the grain of the said act. Or if P did have capacity, they would be saying to their own assessment of events.

To consider insight of a patient of the given circumstances or context of a situation is a subjective statement by a clinician. More often than not, s.12/Drs do not always provide sufficient evidence to the patient’s insight. Insight to what? What did the patient say? What was the discussion subject?

All the Manager’s Hearing or MHRT is to do is abide s.23, and s. 73 MHA (1983).

So, given that the s.2 is referred to as an assessment order in broad terms, no one would be correct or incorrect, it was what it was at that point in time. Hence, the appeals process or s.23 discharge.

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Reading Kyle’s comments has confused me regarding the meaning of the words in the MHA and Code of Practice. But with reference to Deja View’s question my understanding is that there has been acceptance of ‘the appearance’ of a mental disorder in other words at the time of the MHA panel recommending section 2 there were documented behaviours and symptoms sufficient to conclude the presence of a mental disorder out of which risk arose. If subsequently during detention the behaviours and symptoms did not persist or were found to have been misjudged release should take place without the original decision if it was properly documented and sufficient being invalidated or the Doctors and AMHPs being at fault.

Returning to Kyle’s comments i.e.

This seems to fit with an interpretation of MHA that the person MAY have a mental disorder when the MHA and CoP require that there is sufficient evidence as documented in the report to conclude there is a mental disorder due to which risk arises.

Is there custom and practice out of which Kyle’s statement arises and would that supercede the regulations? Or have I misunderstood the regulations?

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If you are discharged by a Tribunal from section 2 it doesn’t, by itself, show there was anything legally wrong about the original decision to detain you.

There are several reasons for that. But the main one is that the Tribubal’s job is to decide whether you should CONTINUE to be detained. It isn’t deciding whether you should have been detained in the first place

Your original detention may or may not have been right, but that isn’t what the Tribunal is deciding.

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I find the whole premise a bit contradictory or silly when it comes to the tribunal outcome.

If the professional personnel made the decision to detain a patient due to their disorder, and then it was confirmed that the individual didn’t warrant that detention via a court hearing based on all the 28 days of reports about the patient etc. To me - that signals that there has been a mistake in what has been processed in the patient’s application for section.

It’s like a person applying for a role in marketing and sales - they do a great interview - succeed; get hired - but months down the line - it is proven they are consistently incompetent at doing their job after making no sales. As a result - after lengthy discussion in the management team - they decide to terminate that person’s contract. In essence this example would show that the management team that hired the person got it wrong and it shows a fundamental flaw in the system they use to recruit staff.

However, if the person met the job’s demands then they would remain in that position. Nothing would change.

The other example is - perhaps - a bit extreme haha. Someone is wrongly incarcerated for a murder, the police had no evidence apart from eye witness testimony that this person committed the crime. The person protested for years they were innocent. It was only until new evidence came about that proved this individual did not commit the murder - it was someone else.

Doesn’t these two examples above apply similarly to a person interviewed meeting the criteria for detainment. However, once in that position - the staff all can see that this person hasn’t got a mental disorder to the extent they lack capacity or insight. So, it would prove that the assessment team did not do an appropriate job in making sure that the person being sectioned had a disorder that was warranted. It shows a flaw in what they have done. A mistake.

How can the patient then prove that the original assessment or interview conducted or reported by a person in a professional position that got them sectioned was wrong?

I’m finding the idea of insight and capacity a ridiculous concept. As it is used constantly by those in authority as a reason to pardon themselves from their errors. It’s like moving the goal posts. The people assessing capacity do not have evidence to validate their biased opinions - yet - that is still used as fact to ruin someone’s life.

*To clear up my comment isn’t targeting what you have written Richard. It’s the system that is silly.

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The question is falsely premised on several counts:

If we look at Section (2) it provides that

An application for admission for assessment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

Please NOTE - the decision is not one of capacity. That is not at issue in the decision by the two doctors and the AMHP. At issue is simply does he have a mental disorder the nature or degree of which warrants detention for his own or others health or safety.

Equally the MH tribunal (following an application under S70 or S71) is not required nor has the power nor indeed would it likely be able to find whether that admission was wrongly made in the first place - that is not within the power of the tribunal.

Instead under Section 72 the Tribunal looks at the CURRENT situation - not the situation at the time of detention (albeit that it might have bearing.)

The language states “he is then” - meaning at the time the Tribunal decides.

Here is the language in the Act

(1)Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied—

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

There may be any number of reasons why the tribunal may direct the discharge OR not be satisfied that i or ii are the case: for example - the current crisis has passed, the patient has been medicated and is stable, the clinical team are not opposing discharge and have not put forward evidence, the clinical team may not be intending to pursue a Section 3 continuation of the detention or even perhaps that the clinicians lack time to provide evidence. This does not mean or imply that the admission was unlawful (or “legally wrong,” as the question phrases it,) in the first place.

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What legal process is there that does have the power to prove the admission was wrong in the first place?

Wouldn’t a tribunal verdict contribute in questioning whether or not the admission may have been incorrect?

Just to be open, and to prevent any misunderstandings - when you write at the end:

Are you Boffo unhappy with how I phrased my question? I’m not clear on the true meaning of questions; the validity of them, but from my understanding - a question can not be put as false. My question is not stating a fact (s). It is trying to understand something about a situation. To learn about something I do not know.

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Can I also have a go at clarifying? The section 2 detention process requires an AMHP, in conjunction with two doctors’ medical recommmendations, to be satisfied (i) that the patient has a mental disorder within the meaning of the Act, (ii) that at the time of the assessment it is of an underlying nature, or a degree of acuteness, to warrant hospital admission for assessment (which also permits treatment),and (iii) that at the time of assessment the patient ought to be so detained because of the risks they pose to themselves or to others (I paraphrase). No reference to insight or capacity in the criteria, as others have said- it’s a professional assessment of risk, at that point in time.

It’s quite common that a patient’s mental state improves following admission, so that by the time of their tribunal they no longer meet the detention criteria- from memory some 25% of patients succeed at tribunal, though others will correct my figures. But that doesn’t mean that the original decision to detain was ‘wrong’- it wasn’t a scientifically verifiable decision but a judgement call made at the time of the assessment, as others have said.

Best I can do! Hope it helps.

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It’s quite common that a patient’s mental state improves following admission, so that by the time of their tribunal they no longer meet the detention criteria- from memory some 25% of patients succeed at tribunal, though others will correct my figures. But that doesn’t mean that the original decision to detain was ‘wrong’- it wasn’t a scientifically verifiable decision but a judgement call made at the time of the assessment, as others have said.

The patient has documents from two medical doctors during S36 in hospital recommending release because on presentation it did not appear the person had a disorder that warranted admission in a hospital. It was only after seeking more collateral from someone close to the person a day later and a new doctor who was brought in by the AMHP - that those two opinions from the doctors was thrown out and replaced by this new doctor recommending section. It is also noted within the medical records how they were from day one of admission - never medicated and never symptomatic of any disorder.

My understanding is if a person has a SMI that warrants detention - usually these occur and stay for a while. Even past the 28 days. They would not be able to regain perception a day later and often be heavily medicated upon admission. Which I think is quite significant - they were not medicated at any stage.

I guess…that is the issue - it was a subjective judgement call. Is there a way to prove that this judgement was illegitimate?

Thanks Simon!

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So I’ll have one more go because I’ve really enjoyed reading the legal takes here already.

We’ve already established that the only thing required for an admission to be lawful is the S.11 & S.12 criteria to be met - this is based on the opinion of two doctors and an AMHP. So already you’d need to prove that judgement was “illegitimate”.

Hypothetically let’s assume both doctors and the AMHP were lying about the patient’s presentation & gave false recommendations.

Firstly - who would the claim be against? Not the NHS Trust - they’ve only accepted professional opinions & acted lawfully upon them. You’d have to either make it against the Local Authority as they are responsible for carrying out the assessment, or individually against the doctors/AMHP. In either case you’d need permission to bring proceedings under S.139 MHA 1983.

This test is set out in Seal v Chief Constable of South Wales Police [2007] UKHL 31 - essentially an “arguable case”. It would be very difficult to cross this threshold as you’d need to prove there is the potential that 3 professionals were outright lying.

Even if leave were granted, S.139(1) states that no professionals would be liable unless “the act was done in bad faith or without reasonable care”. Good luck proving that! It may be that they were the small minority of doctors that would have made that recommendation, but as long as it falls into a range of reasonable responses - the courts wouldn’t interfere with it.

I don’t think this issue is ever likely to crop up. Doctors aren’t going to give false recommendations for no reason, and AMHPs work hard to avoid hospital admissions unless absolutely necessary. There’s already a provision in S.12(3) that doctors with a conflict of interest cannot give recommendations so that’s out the window too - a valid recommendation by definition is made without competing interests.

I doubt a case like this will ever come before the courts unless there is genuine and provable malfeasance. And realistically doctors/AMHPs aren’t going to risk their careers to give recommendations in bad faith.

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Zac S is spot on. Diagnosing mental disorder isn’t a precise science. Psychiatrists do their best based on what they observe, but as time passes they might decide that their diagnosis needs to be changed, or- very occasionally- accept that the person doesn’t actually have a mental disorder after all, but that the troubling behaviour they observed originated from something else e.g. an acute grief reaction.

However, even then it doesn’t mean that their original opinion can legally be challenged. Provided their diagnosis wasn’t unreasonable based on the evidence they had at the time, they will not be held legally liable for their ‘honest mistake’. Successive court cases from Bolam onwards have confirmed that they are legally protected if ‘responsible’ doctors could reasonably have come to the same conclusion.

Bear in mind that a section 2 detention requires two doctors’ recommendations not one, to reduce the risk of someone being detained based on one ‘rogue’ opinion, and at least one of them must be a qualified & approved psychiatrist, who is presumed to bring their experience to bear on what they see. In addition the AMHP making the application, which is underpinned by the two medical recommendations, will generally check that they contain enough information to justify making it.

Also, as Zac says, it’s very difficult to get someone admitted to psychiatric hospital nowadays because of the shortage of beds. No AMHP will go to the considerable trouble of making an application if they are not satisfied that it is needed because of the risk factors.

You can get your medical records to be amended in the light of later thinking- this happens a lot, though the original diagnosis usually stays on the record to reflect the history. But unless you can convincingly demonstrate to a court that the original diagnosis was so out of step with medical thinking that no responsible doctor could support it- either because they were clearly negligent in their approach, or they actually acted maliciously- no legal action against the doctors will succeed.

You can have your own view about all this. I know from talking to former patients how frustrating it is for those who think that they were wrongly diagnosed. But that is how the system works.

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PS You refer to someone being under ‘S36’. That refers to a remand to hospital by a criminal court, based on medical recommendations, rather than an AMHP application under s.2. Are you able to clarify what happened? Not that it makes any difference to what I and others are saying, but I’d like to understand the situation you described!

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They may have meant S.136, Simon

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I apologise Simon - I meant under section 136.

The patient was taken from their home/bedroom to hospital by ambulance crew and two/three police officers - no AMHP was present - they were later assessed in hospital by a therapist, 2 doctors with a AMHP - later another doctor and the original AMHP.

However, the patient was never told about what section it was under - it is assumed by them based on what they have read on the opinion of another doctor (local GP) in their medical records.

Reading on the internet though - it sounds more like section 135. However, the patient does not recall anyone mentioning a ‘warrant’ from the magistrates from any ambulance staff or police members to have any authority to take them away. That would take time to complete; I assume. This was done instantly without any notice. They were forced to leave with them without any choice.

Sorry - keep editing this. Just looking at section 136 - they can do this without a warrant if (copied and pasted from the MIND.org website):

  • you appear to have a mental disorder AND
  • you are in any place other than a house, flat or room where a person is living, or garden or garage that only one household has access to, AND
  • you are "in need of immediate care or control’ (meaning the police think it is necessary to keep you or others safe).

Not sure if the ‘AND’ s mean that you must have each of the bullet points met in order to take someone to be assessed. But the patient was not in a public place - they were in their bedroom sleeping.