Holding powers and re-detention after tribunal discharge

This is now a hypothetical situation however would like to know for future reference.

S2 Patient applied for a tribunal and the outcome was that they were discharged with immediate effect. The team and patient were told this information. The RC was not happy with the tribunal’s decision and started talking about the use of holding powers if they wanted to leave the hospital due to the complexity of family life they would be returning to and potential risk.

The patient told the tribunal they would stay informally however MDT believe they will change their minds if they were successful in winning their tribunal.

I wondered what the advice was around using holding powers if necessary after tribunals have discharged the section.

I know AMHPs cant lawfully make an application unless they have significant information the tribunal were not aware of at the time of the hearing.

If the patient changes their mind and says, “I would like to leave today please” with no change in presentation, would the hospital just have to let the patient go? Would they need to sign discharged against medical advice as the plans was initially for them to stay in hospital for treatment as an informal patient.

Would changing their mind be classed as a significant change as that was not was agreed when the tribunal weighed up the evidence etc?

If the patient changes their mind but has a negative and significant change in presentation suggesting suicidal ideation etc, would that be grounds to use holding powers?



What was the purpose of the patient agreeing to stay informally? How much weight did the Tribunal place on this? I would want to see the Tribunals summary of their decision and go from there. If I was the AMHP asked to consider an application I would want access to the reports and the summary.

My view is that you look at the risks to health, self and others. There will be clear red lines where holding powers could come into play as could another MHA assessment. A patient stating that they want to leave the ward to end their life, would need reviewing, and possibly holding powers to undertake an initial risk assessment. The same consideration would also likely be required should a patient state they want to leave the ward to harm another.

Outside of these 'red lines, then you consult with your unsafe discharge policy and look to offer Home Treatment, Crisis Resolution, increase visits and monitoring as a way to support the person in the community, If the person rejects any follow up/aftercare then it’s time for the MDT to get together and discuss and action the concerns.

Case law (Brandenburg) has established that following a Tribunal discharge an application can only be made if the applicant is aware of material circumstances of which the tribunal was unaware. The purpose of the doctor’s holding power is to enable an application to be made, Using the holding power in the situation you describe would be counter to that principle and likely to be found unlawful if challenged in court. A doctor may disagree with a Tribunal, but can’t just override that decision, unless there has been a significant change in circumstances. I don’t think the patient changing their mind about staying informally would count as a significant chang, as the Tribunal will already have anticipated the possibility.

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Hya Ashley
I agree with Stephen. What would be the point of a decision to discharge is the Dr was just able to ignore it. If there is a significant change in presentation of the patient then it would need to be sufficient to counter the tribunal decision and place a stay in order for a fresh assessment to take place

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Depends on the circumstances. There is no statutory times agreed of how much has to pass to use holding powers again. This could be from 5 minutes to several hours. But if the RC decides to use Section 5(2) then the RC has to justify why to the AMPH, because a Section 5(2) will probably trigger a Mental Health Act Assessment for subsequent Section 2 or 3 of the MHA.
Here there are two scenarios, one in which the circumstances and information available justifies a new evaluation of the use of the MHA or not. If the RC decides to use the Section 5(2) the patient without any changes in circumstances (defiant to the Tribunal) then the patient could raise it with the advocate that it was an unlawful detetion and trigger an investigation and legal actions towards the RC.
Because of the fluidity of the Mental Health risks, the circumstances can change drammatically, e.g. If the patient has homicidal tendencies only after using illicit drugs, and there is evidence of illicit drugs consumption, then does not matter how much it spend after the discahrge of the Tribunal, the new circunstance allows for a new Section 5(2) to be implemented. Bottom line is that is the RC call to use the Section and has to be fullyt justified according to the risks.