Can someone let me know what the situation is if:
AMHP completes application for s.3
Joint med rec for s.2
Jones states: “One of the two recommendations: As Eldergill has pointed out, it seems that neither this subsection nor subs(3) allows for the remedying of a defective JOINT medical recommendation”
Can anyone lead me to legislation/case law that talks about rectification of joint med recs
Here’s a quotation from page 269 of Anselm Eldergill, Mental Health Review Tribunals: Law and Procedure (Sweet and Maxwell, London 1997):
Joint medical recommendations
Section 15(2) allows the managers to give notice where “one of the two medical recommendations” appears to them to be insufficient. Section 15(3) provides for giving notice in respect of “either” of the “recommendations” where they are “taken together” insufficient to warrant the patient’s detention. However, section 11(7) provides that an application may be founded on a joint recommendation and subsections (2) and (3) do not seem to have been drafted with this in mind. If a joint recommendation is insufficient there is no longer even a single valid recommendation in existence and the application cannot be rectified.
Hi, rather than trying to change the med recs in this scenario, why not ask for a valid application instead? If the med rec is sufficient, then it will remain valid for 14 days from the last examination.If the patient has already been treated as detained based on this highly probably invalid application, then: The RC or hospital managers should probably discharge the section (whichever section is believed tio have been applied) via s23, the situaton should be explained to the patient, a new application should be sought and maybe section 5 should be applied whilst that is arranged. I’m saying ‘highly probably’ and ‘maybe’, because only a judge can decide that these situations are unlawful, and the potential ways to remedy the situation I’m suggesting could be argued against.
I agree rather than request new medical recommendations, I would look at a fresh application. There may be an argument on whether or not the AMHP has responded to the medical recommendations, and as such has rendered them ‘spent’. You would take such an approach if the AMHP had decided not to make an application, and the medics went ‘fishing’ for a different outcome.
Now whether or not the detention is unlawful, that will be something that the Courts can take a view on. The MHA Admins in the receiving hospital can request a view from their legal representatives, as ultimately the detaining authority will need to be satisfied of the lawfulness of the detention. They will likely err on the side of caution, and request an AMHP to attend, that’s been my experience.
The other problem with the Section 3 application is the issue of consulting with the NR and the objection ‘test’. Thats another potential problem.
Hi folks if I was faced with his ‘mess’ I would advise reconvening the MHAA and starting from scratch, alternatively I would approach the initial amhp and see if they were prepared to make an application for a S2 as the meds recs seem valid.
Sometimes there can be quite a dispute as to the appropriateness of s2 or s3 but amhps are normally making a case for the least restrictive outcome ie a s2. I wonder if there is an issue about avoiding S117 entitlement as I have come across this before
I think the scenario originally presented here involved a problem with the joint medical recommendation form (Form A7) rather than with the application form (Form A6). I’m not aware of any caselaw about joint medical recommendations.
I’ve had a look at s15 and the commentary in Jones, and the way I understand it now is:
- If the problem is inconsequential – de minimis – then it won’t make detention unlawful.
- If the problem involves an application or medical recommendation being “incorrect or defective” then it can be rectified within 14 days of admission. This seems to apply to a joint medical recommendation.
- If the problem goes beyond “inaccurate recording” and discloses a “fundamental” breach of law or procedure then it can’t be rectified under s15.
- If one of two medical recommendations is “insufficient” (or taken together they are insufficient) then there is a procedure for replacing one recommendation, but this procedure does not apply to a joint medical recommendation.
There are some examples of what de minimis, incorrect, defective, fundamentally defective, and insufficient might mean in the commentary.
I guess the approach to take here depends on the nature of the problem with the joint medical recommendation – @metoo, can you say what it was?
Are there really AMHPs out there who still think that s2 is somehow less restrictive than s3? A person subject to s2 may be secluded and restrained in the same building from which someone on a s3 is out on s17 leave for a fortnight. How is the s2 less restrictive of itself? It is what is being done to a person which might be restrictive, rather than the legal authority in place to authorise the restrictions. Saying that s2 is less restrictive than s3 is like saying that cheddar is less cheesy than Gruyere. They are both cheeses- they are different, but their differences lie in areas other than their cheesiness.
I have taken the view that the MHA considers the length of detention being commensurate with increasing degrees of restriction. I see a sliding scale, the longer the loss of liberty and interference with a person’s private and family life, the more checks and balances are required to authorise such action.
Section 5 powers can be considered the least restrictive when it comes to lawfully depriving someone of their liberty. Nurses up to six hours, Doctors up to 72 hours.
Section 2 up to 28 days, now you have three decision makers.
Section 3, up to six months, four decision makers, when you include the role and powers of the Nearest Relative.
Having considered Section 3 recommendations in the past, and decided that an application was not required, I saw the palpable relief of my decision in the patient who was detained under Section 2 at the time.
In my experience that up to six months can have a significant impact upon a person’s emotional wellbeing.