Evidence of mental disorder required for s2 detention

Section 2 requires the presence of a mental disorder from which risk arises ( code of practice 14.4, 14.75 2.6). In my case the recommendation report documents that no mental disorder was found, but detention based on a perceived risk of suicide was carried out ignoring the explanation that the reason for suicide had been recognised as incorrect. The sectioning, if carried out correctly, implies mental disorder the apparent record of which can have implications for personal relationships and possible biased judgements by other bodies in the future. How can the recommendation and implementation be challenged to correct the situation? The Care Quality Commission won’t question perceived clinical judgement, The General Medical Council recognise a level of non compliance with their standards, but they are not serious enough to take further. It seems doctors and AMHPs do not have to follow statutory requirements.

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Hello Andrew. Thresholds for making an application for Section 2 will be considered on a case by case basis, and times may appear to be set too low, and on other occasions too high. Without knowing the details, where there is sufficient concern for a persons health, and/or their safety, and/or the wellbeing of others, then a period of assessment to investigate such concerns can be authorised.

This assessment can also consider the presence or not of a mental disorder, however this does not mean that the time of the application that a mental disorder has to be named/diagnosed.

If you believe that the information held by the Trust/Health Board is incorrect, and potentially prejudicial you could seek to rectify this by requesting this through the Information Governance team for the respective public body. Please see here The right to rectification | ICO

If you are wanting to challenge the detention, then one option is to make a formal complaint to the respective hospital. Also, each person involved in the MHA assessment will be registered with a professional body, and if you believe that there has been a breach in their respective Codes of Practice, you could raise this wth their professional body.

Section papers will go through clinical scrutiny by the trust to ensure the grounds are addressed in the text. There should be evidence of mental disorder identified by the examining doctors, although as has been mentioned, there is no requirement for a diagnosis.

Many thanks for such a rapid response. I will explore the right to rectification ICO. I have made formal complaints to the Trust and County Council ref the doctors and AMHPs, but they did not engage with the MHA and Code compliance issues except for a comment similar to yours regarding the presence of a mental disorder or a named diagnosis. The statement on the recommendation was ‘Today it is difficult to come to a definitive conclusion whether X is suffering from a mental health condition’. Section 14.4 of the Code is a copy of section 2 of the MHA and requires both the presence of a mental disorder and the risk arising from it. Section 14.75 requires the documentation of the behaviours and symptoms as well as the categorisation of the disorder. So unless my interpretation is faulty it does seem that the presence of a disorder has to be identified as well as credible arguments that risk arises from it, code 2.6 addresses this… The idea that the detention can be a period for clarification of a provisional diagnosis may be appropriate if suitably supported by signs and symptoms, I guess it is more of a period to assess the persistence of the disorder and the treatment necessary.
From an article in the press there seems to be some instances of sectioning ‘just in case’ which does not seem to be supported by the MHA and Code, anyone who does something anomalous may have a mental disorder e.g. drink driving which endangers others, but ‘may have’ is surely not good enough to detain against their will.
Perhaps I have misunderstood the MHA and Code of Practice, and you can correct me, but in any case thanks for your advice for me to follow up.

R v Kirklees MBC Ex p C [1993] 2 F.L.R. 187 may be applicable in this case. I would say the wording, “Today it is difficult to come to a definitive conclusion” could be read as “if he appears”

“…There is in my view, power to admit a patient for assessment under s2, if he
appears to be suffering from mental disorder, on the ground that he or she is so
suffering, even though it turns out on assessment that she is not."

This is what I was hoping the Forum would provide, previous cases, I have tried to look up the reference case and it seems to refer to a minor, does this still link in?
To explain the case further if that may provide more information for your consideration.
Your interpretation towards ‘if he appears’ is interesting. The recommendation report documents the subject denied symptoms of depression or intention for a further suicide attempt documented without rationally dismissing the reasons explained. Code 14.75 does require the reasons to be documented, so a statement along the lines of we think X has a mental disorder because of the these signs and symptoms, but further assessment is necessary to categorise the disorder etc. but there was none of that in the report. It is interesting that in the Code introduction para v that reasons given may be subject to scrutiny for sufficiently convincing justification.
What is worrying throughout this saga is the assumption by regulatory bodies and the health organisations that the doctors and AMHPs have carte blanche in these matters as opposed to having to comply with statutory requirements which in this case would have prevented unnecessary forced detention including a period of 10 days effectively in solitary due to covid control.
I should say that this is historical not a current situation.

This Forum discussion has been very helpful in helping me understand the MHA and Code. It is most interesting that there are often lots of angles, very well argued by the contributors, not too many sharp edge interpretations, but there are some fairly sharp ones. This is my interpretation of the points, biased towards my objective.

In the case I am dealing with the recommendation for section 2 recorded the following ‘Today it is difficult to come to a definitive conclusion whether X is suffering from a mental health condition’. From our discussions criteria for sectioning relies on ‘gold standard’ description of signs and symptoms of the presence of a mental disorder out of which risk arises, and the recorded assessment means that the conclusion that a mental disorder is present cannot be derived from the signs and symptoms. The MHA and Code do not provide for ‘just in case there might be a mental disorder’. No signs and symptoms proposed as indicating a mental disorder are recorded. Therefore the section 2 criteria are not complied with.

The sectioning was executed without the reviewing AMHP detecting the absence of the required criteria contrary to the Code 14.49.

The sectioning was accepted by the responsible clinician (RC) with no documented signs and symptoms of a mental disorder present. During detention non of the day to day surveillance reports indicated abnormal behaviour. From our discussions Code 32.18 requires the continued presence of the mental disorder with risk arising from it, if either disorder or risk is not present then the subject should be released. During detention the RC recorded that no depression or psychosis was found, still no release. Later the RP recorded not at risk if released, still no release, clearly non compliance with 32.18. Eventual release took place by a stand in RC when the assigned one went on holiday for the second time.

As you are not in possession of all the details you cannot come to a fully informed opinion. But there is probably enough there to make you think.

I’m sure some will have questions or contrary points of view which I will be happy to receive.

“The doctor is not obliged to do any more than complete the form according to his or her professional judgement in the prescribed manner. It would be wholly inappropriate to treat the part of the form which requires the doctor to state the reasons why detention is required in the same way as a reasoned determination following a tribunal hearing.” MHA Manual 22nd ed 1-175 referring to caselaw R. on the application of H v Oxfordshire Mental Healthcare NHS Trust [2002] EWHC Admin 465

Well perhaps I have misunderstood a lot of the preceding discussions where I thought there was a consensus that the recommendation for section 2 should document the signs and symptoms leading to the diagnosis that a mental disorder was present. So if the recommendation documented it could not diagnose the presence of a mental disorder and did not describe any signs and symptoms that may be relevant, it was not complying with MHA section 2 criteria for detention.
Did I get it wrong?

“Today it is difficult to come to a definitive conclusion whether X is suffering from a mental health condition” on its own does sound quite ambivalent but, as you said at one point, we don’t have all the facts (and I have to admit that I haven’t followed every twist and turn of the discussion). You asked on another topic for a legal opinion, and it would definitely make sense to speak in person to a solicitor who could obtain all the relevant information – I’ll reply to that topic with some ideas about who to contact.

Thanks for your information Jonathan. I have made some attempts along the lines of obtaining advice from people schooled in the law and I get the impression from the answers, or non answers, that it is not a topic anyone relishes taking on. I can understand possible reasons that going up against the presumed omniscience of psychiatrists and other professionals may be daunting, and anything involving suicide is scary. But in my perhaps too simple perspective there are two issues, one is do the documented points comply with the MHA and Code, a topic, that to me, just needs a logical mind and comprehension of language? That is the topic I want to pursue. The other issue is was the detention the right action irrespective of lawfulness, which isn’t up for discussion in this forum.

I have been complaining about a section 2 detention that as far as I can see and informed previously by some discussion with this forum does not comply with the MHA section 2 requirements for there to be clear evidence of the presence of a mental disorder the nature of which leads to risk to the subject or others. The latest response by the Trust responsible after review by their law section quotes, and this is their exact reference- R v Kirkles MCV Ex p - C (1993) 2 FKR 187 CA, in which they say that the judge stated -exactly as they presented it ‘in my view, there is power to admit a patient for assessment under section 2 if he or she appears to be suffering from a mental disorder … even though it turns out on assessment he or she is not’ the appears is underlined and the … after disorder presumably represents further text. I can’t find this exact reference to check it is accurate. In addition I am not sure that it changes anything relating to the case I deal with, the word appears has to be backed up with a list of signs and symptoms for it to appear to indicate a mental disorder. In my email discussions about this one law person said the MHA section 2 is appropriate if the subject MAY have a mental disorder which to my mind would cover anyone carrying out a potentially dangerous activity like drink driving. The MHA does not, as far as I can see allow for MAY except for the police for 136.
Any ideas what the reference is? There are some connections with detention of minors with other disabilities in possible contenders.