Hello All,
I have heard of case were an aggressive patient, was assessed at home by virtue of a sec 135 warrant. he was placed on section 3. DR and nurse want to rapid tranquilise, to make journey safer.
Patient did not consent to this.
Patient did not have capacity so it was administered on those grounds. Was this legal ?
I am under the impression that you cant use the MCA when the MHA criteria are met. Is this wrong ?
Can you use the section 3 powers to treat on a patient who is liable to be detinned on section 3 but not yet detained?
Can you force treatment apart of the sec 135 warrant?
are you allowed to rapid tranquilise under common law?
if anyone knows the answers to these questions or docs ect they could sign post me to , that would be lovely?
P:S: Iām sorry if its very simple Iām just trying to start to get my head around the act and AMHP before i train
Hi Taylor, s.56(3) says that Part 4 consent to treatment provisions spply to a patient who is liable to be detained, apart from the short-term sections (s.136, s.5(2), etc). So on the face of it the patient could be treated for their mental disorder without their consent while awaiting transportation to hospital. That only wotks if an application has been duly completed, though.
Treatment under the MCA would not apply here, but as a matter of good practice treatment should only be given under these circumstances if it is in the patientās best interests. So at least the spirit is right!
Capacity should always be assessed following MCA, even when treatment is authorised by the MHA, I believe. I. E., if there are reasons to think itās lacking.
I canāt see how this is legal. Being arrested under Sec 135 from a private place only allows the Police to take the individual to a place of safety further to a full assessment. If the individual has been given medication this could cloud the whole assessment. I have never heard of this happening during my career of 37 years as a mental health nurse.
Thanks for the pointers.
At what exact point would the patient become liable to be detained, when the:
A) decision to detain is made
B) forms are complete
C) ward have received forms
D) forms have been upload on to notes
E) patient and forms are on ward
As having read section 63 it appears that as long as the Patient was liable to be detained he could receive forced treatment regardless of him not Physically being in a ward building. So there for the legality of any forced treatment hangs on the exact point that he becomes liable to be detinned? dose that seem right?
thanks for the help
I donāt think a patient in this situation becomes āliable to be detainedā under S3 until they are actually admitted to hospital.
It is admission that triggers the power to detain. Until then, the application only gives a power to convey to hospital. See section 6(2) & (1) respectively.
As such, the treatment provisions in Part 4 of the Act wouldnāt have applied until admission. Which means the Mental Capacity Act (MCA) would still have applied until then.
So, in principle, the rapid tranquillisation might have been lawful under ss5 & 6 MCA if it was in the patientās best interests abd proportionate to the risk to the patient.
This is interesting, Iām eager to understand the underpinning rationale. My automatic response to the question āwhen does a patient become liable to be detained ?ā, like Simon, was to say at the point of the AMHP signing and creating āa duly completed applicationā. However, Richard interestingly points to the fact that s6(1) only enunciates a power to take and convey to a hospital. S6(2) provides the power to detain solely upon admission, which would include acceptance of the application. The term āliableā in law, I believe, means being subject to a legal duty or obligation. On Richardās view, does this duty/obligation, therefore, only arise at this point because the application and admission has been accepted by the hospital - as there is no duty to accept the application, nor to admit the patient, solely on the basis of an application alone (see the Blackpool case)? The duty/obligation to be detained therefore arising from the fact that the patient, from this point, is now in a position to be detained at that hospital? In which case, to be detained and to be liable to be detained, in this context, are synonymous ā which seems a little curious! However, I can see that the Reference Guide at 1.37 does state that āliable to be detainedā can include both those actually detained (interestingly, see s5(1) in regard to its reference to a s2 patient) and those who could lawfully be detained, but are not actually detained at that moment.
Alternatively, in section 56(3) (referred to above by Simon) Richard Jones states there is a difference between the two terms in the context we are discussing. The patient is āliable to be detainedā, upon a duly completed application being āmadeā, and distinguishes this from its acceptance and subsequent actual detention by the hospital. Iām interested, can there be a duty\obligation on a patient to be detained at a specified hospital when there is no duty on that hospital to admit that patient? On Richard Jonesās view it would appear that s56(3) would apply in the way that Simon described.
As the term āliable to be detainedā potentially unhelpfully encompass both those patientās actually detained and those who could lawfully be detained, language doesnāt help us. Is there a definitive reference in the statute that does?
Sadly, John, āliable to be detainedā is not defined in the MHA.
Always unwise to argue with Richard Jones, but in this context I question whether the comment you quote can be right. I canāt believe the drafters of s56 envisaged that patients would be subject to treatment without consent under s63 for as a long as 14 days before being admitted to hospital simply because an application had been duly completed.
Moreover, if s56 applied as soon as an application is completed, then so would s18 (leave of absence), s19 (transfer between hospitals etc), ss23 & 25 (discharge), ss81 & 83 (removal to Northern Ireland etc) and ss130C &130I (IMHAs). Again that canāt be what was intended (and certainly isnāt how they are usually understood). It would mean that hospital managers had powers and duties in respect of patients whom they had not accepted - indeed of whose existence they might, in theory, be wholly unaware.
Getting more techy, there is one express clue in the Act that Part 2 patients only become āliable to be detainedā once admitted. s19(2) says,
ā(2)Where a patient is transferred in pursuance of regulations under this section, the provisions of this Part of this Act (including this subsection) shall apply to him as follows, that is to sayā (a) in the case of a patient who is liable to be detained in a hospital by virtue of an application for admission for assessment or for treatment and is transferred to another hospital, as if the application were an application for admission to that other hospital and as if the patient had been admitted to that other hospital at the time when he was originally admitted in pursuance of the application;ā
In other words, it assumes that a patient liable to be detained has already been admitted to a hospital.
This reading of āliable to be detainedā doesnāt make the phrase redundant, Patients who are actually detained are obviously also āliable to be detainedā. But so, too, are patients who are not currently detained because they are on leave of absence or (more counterintuitevely) conditional discharge (see the wording of s56(3)(c)). CTO patients arenāt liable to be detained - but only because s17D(2) expressly says so.
This whole thread is interesting. Iām surprised to hear that someone would be restrained and given IM using the MCA, and in a context where they are being taken to a place of safety for a MHA assessment. People are often in a very distressed or angry state at this point but Iāve not heard of anyone being forcibly medicated. As I understand it, in law there is a distinction between a formal power to do something and a legal defence against having done it. As I understand it, s5 MCA does not provide a power to IM someone. Rather it provides a defence if you did. But you would have had to establish that capacity was lacking, and properly establish that the best interests test was met. Obviously, best interests doesnāt mean āit was best for themā. Perhaps the fact that s5 provides a defence, not a power, is why this is a rarity and should continue to be?
If it is accepted that a patient who is the subject of a duly complted application is āliable to be detainedā and therefote comes with the scope of s.56, the patient could be provided with urgent treatment under s.62 if an approved clinician has been identified for the patient for the purposes of s.63. This would enable a very ill patient to be treated in the community while waiting for a hospital bed to become available. I accept that this is interpretaion is controversial and that Richard Rook does not agree with it, which does give me pause for thought!
If it does become accepted, the Code of Practice would need to be updated:
36.7 Even if the patientās main treatment needs are not immediately clear, it will be
necessary to allocate a responsible clinician promptly upon the patientās detention
in hospital.
And it would be challenging (not impossible, but challenging) to keep track of the three month ātreatment clockā in s58(1) (b)
Nick, in my opinion it would be possible to allocate an approved clinician for the patient without the patient having become on in patient. There appears to be no legal bar preventing this.