Giving option of informal or 5(2)

If an individual has agreed to go to hospital informally - whether that is through the course of an MHA assessment, from a community team direct to the ward, or gatekept at first presentation as not being suitable for home treatment - then, during admission, they ask to leave, should they immediately be put on Section 5(2) or Section 5(4) if there are concerns meriting same, or should they be told this will be the outcome if they want to leave ward, but they can stay informally?

To my understanding, telling someone that they are informal but if they ask to leave they will be placed on Section 5(2) or 5(4) is de facto detention, and circumvents many of the protections these sections offer (requirement for review, recs for Section 2 etc), and adds further hours to the timeframe they offer. However, some clinicians argue it also gives them the choice to go with the least restrictive (remaining informally v remaining in hospital under section). However, they are not really informal if they cannot leave.

Is this still de facto detention? Should one explanation be given, then consider other attempts as clear indication client wishes to leave and then follow up with Section?

Any thoughts / case examples?

I don’t have the case to hand but I recall that a judge set out the relevant info that a person must be given in order for them to decide whether or not to consent to an informal admission, and this included that, although as an informal patient they should be free to leave at any time, a nurse or doctor might consider using their holding powers under sec 5 to prevent them from leaving.

Secondly, sec 5 powers are only to be used if the patient is actually attempting to leave, so it is a threat and coercive to say that IF they attempt to leave, then they will be prevented (because the nurse/doctor must make their decision based on the facts at the time the patient is attempting to leave, not in advance).

Thirdly, one nurse (explaining the situation to the patient) cannot direct another nurse (on duty at the time of attempting to leave) to invoke sec 5. Each must make their own independent professional judgement/decision at the time. Ditto different doctors.

And consequently sec 5 papers must never be signed in advance “in case the patient attempts to leave”.

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The most directly applicable case at the ECHR level is: M v Ukraine 2452/04 [2012] ECHR 732

‘… the Court takes the view that a person’s consent to admission to a mental health facility for in-patient treatment can be regarded as valid for the purpose of the Convention only where there is sufficient and reliable evidence suggesting that the person’s mental ability to consent and comprehend the consequences thereof has been objectively established in the course of a fair and proper procedure and that all the necessary information concerning placement and intended treatment has been adequately provided to him.’

The general rules on consent for anything is that the persons must be given information on the nature, purpose and consequences of a treatment/decision. In relation to admission to a mental health ward it is a consequence that the MHA could be used - this is not a threat but a reality. This is different to the information relating to admission to an acute hospital for surgery where the MHA would not apply.

I completely agree with you.

I think the case is A PCT v LDV [2013] EWHC 272 (Fam). The judge listed the information considered relevant in that particular case to whether the patient had capacity to consent to informal admission (para 39). Richard Jones makes an interesting observation: “This list requires the patient to possess a high level of capacity. Indeed, some members of the hospital staff might find it difficult to satisfy this capacity test without the assistance of written prompts.” (MHA Manual, 24th edition, p613, para 1-1327).

Informal admission is for the most part an absolute shambles and something I tend to tell clients to be cautious about.

The frequency with which people are made informal who clearly don’t want to be in hospital and arent truly consenting is extremely worrying, especially where it is so overwhelmingly obvious in most cases that the only reason the RC has discharged is to get out of doing a Tribunal/Managers/Report

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One of the difficulties with informal admissions to a psychiatric ward is that if someone is unwell enough to be offered a bed, there are likely to be concerns for their welfare that merit use of section 5, if they decide to leave. This has to be presented as a possibility, and not as a threat, and the words used are crucial.
The bigger issue for me is the persistence of informal admissions of patients who lack mental capacity to consent, either to avoid use of the MHA or because of difficulties in arranging assessments. My Trust is concerned enough for us to monitor all informal admissions and require evidence of mental capacity (not ‘insight’, whatever that means) to be recorded in all cases.