I would welcome colleagues’ views on the correct legal approach in the following scenario, particularly regarding the distinction between s135(1) and s135(2).
An individual was assessed in the community (at home) yesterday by an AMHP and two doctors. All agreed that the criteria for detention under s2 MHA were met. However, because no bed was available, the AMHP did not complete the s2 application.
During the assessment it was identified that the person would likely require police powers / a warrant to gain entry or facilitate conveyance safely to hospital (the person is actively refusing care/support and entry to professionals). The case was handed over to another AMHP the following day (still awaiting a bed).
The second AMHP is now pursuing a s135(2) warrant. This has raised some uncertainty for me because my understanding has always been that s135(2) applies where a person is already ‘liable to be detained’, whereas in this case no s2 application had yet been completed due to the lack of a bed. Therefore, although the assessment had concluded that detention was required, the person was not yet liable to detention (in the absence of a signed/completed application, as there are no beds yet available).
On that basis, I wondered whether s135(1) would technically be the correct route instead.
However, I am also mindful of the practical and legal implications of this interpretation:
If proceeding under s135(1), would a fresh medical examination effectively be required at the address, despite there already being two valid medical recommendations from the previous day?
Would the AMHP need to attend with a doctor again under s135(1), even though the substantive MHA assessment had already taken place?
Conversely, is one of the practical reasons practitioners may favour s135(2) in these circumstances because the person has already been medically assessed and the warrant is being used primarily for access/conveyance rather than assessment? Albeit perhaps erroneously.
If so, does this create legal risks if the person is not technically yet ‘liable to be detained’?
I would be particularly interested in any views on:
The interpretation of ‘liable to be detained’ for the purposes of s135(2),
Relevant Code of Practice guidance or case law, and
How others would lawfully manage this situation in practice where there is a delay caused by bed availability
My view would be that S135(1) would be appropriate in this situation - it makes reference to:
“to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care”.
I would say that a fresh medical examination would not be needed as the above statement infers that medical recommendations exist if the purpose of the removal is to allow an application under the act to be made.
The use of S135(2) in this instance would concern me as this person is not yet liable to be detained. I would expect this to be used only if the patient had gone AWOL whilst detained or had refused to present after being recalled from CTO.
What is stopping the AMHP making the application? If there is an identified hospital for admission (so that he can be conveyed there as a place of safety) then they can complete the application and then have 14 days to make arrangements including applying for a warrant under s135(2). The only reason I can see for using 135(1) is if they aren’t sure they are justified in making an application and wish to interview the patient in a safe place to determine this.
Assessment done, no application = not (yet) liable to be detained or absconded or AWOL, so s135(2) is of no application.
Nothing prevents the original AMHP who assessed from completing the MHA application once the bed is found, as long as the medical recommendations still have currency (14 days). At that point, the person is liable to be detained and s135(2) can work.
Section 135(1) probably if and only if, the bed is not found until after the med recs expire and fresh assessment is required.
NB: a dark area of this ‘no beds’ situation is the completion of the application by an AMHP who is not the original AMHP. Section 13(2) obliges the AMHP making the application to have interviewed the patient so a ‘new’ AMHP won’t be able to comply with s13(2) unless they undertake a further interview. If that is what is required - because the original AMHP is no longer available, for whatever reason - then a s135(1) warrant may be justified to allow the new AMHP to interview the person. I’ve had situations in police custody in the past where an original AMHP is no longer available and a new AMHP wants to sign up the application once the bed is found, but is the application lawful if s13(2) has not been complied with by the second AMHP?