- Common law is not a thing here: there is a statutory framework and it needs following.
- You can’t flip-flop to abuse of the MCA to cover the gap
- Areas should have effective arrangements in place for urgent admissions, otherwise they cannot ensure protection of fundamental human rights but s140 doesn’t go far enough in ensuring those arrangements exist, beyond a paper-exercise and that’s assuming the LSSA complies with the duty! Many don’t and it’s un-policed by the CQC and / or NHS England.
All that can happen here (and arguably it should) is MHA application to the hospital where the Place of Safety is under s2 MHA and hold the person there until a ‘proper’ bed is found, then transfer them. This is, for example, what happened to Valdo Calocane in September 2022 when he was ‘sectioned’ - he spent nine days in the Place of Safety until a PICU bed could be found.
We need a far more robust culture of people who trot out “common law” being challenged for making things up and being complicit in violating the fundamental rights of patients - there’s no doubt that’s what it amounts to.
Almost finally(!), AMHPs in this position probably need to think about what the High Court judge said in the Surrey v PC ors ruling last year. The police brought an action because someone was rotting away in custody and the judge remarked the LA had a greater responsibility than was reflected in the actions leading to the hearing.
Actually finally, there have been PFD notice about failing to consider the PoS option as a swing bed, where a man went on to die by suicide - that must be a hard time giving evidence before a patient’s family. “Yes - I could have done this thing which would have protected your loved one, but I didn’t and there isn’t really a reason why it couldn’t have happened.”