Since the bed crisis across the country became acute, this has become one of the most perplexing problems facing AMHPs and Emergency Department staff attempting to keep patients safe whilst they carry out their duties under the Act. The opportunity to address it was sadly missed in the 2025 Act. Lawyers with whom I have spoken have been inclined not to see it as a legal problem at all, but simply as a practical one: there aren’t enough beds for an application to be made when the patient needs one, and the law-pace s.140 MHA-cannot produce them.
I recently assessed a patient myself in a local ED and proposed to make an application founded on the two medical recommendations I obtained, when a bed became available, only within the hour to have the ED Consultant discharge the patient into the care of their family, in part yielding to the argument made by one of them that two medical recommendations did not provide authority to hold the patient-which is true. The family immediately removed the patient out of London and in a short time out of the country.
I do not believe that it is lawful to employ an urgent Deprivation of Liberty Safeguards authorisation in such a case: the patient is clearly objecting to admission to a hospital for psychiatric care. If the ED staff believed the patient was about to throw themselves off a building they might have employed common law powers to prevent this, but the difficulties with this are obvious.
I commonly resort if asked to the judgement in Sessay (2011) at para. 57:
We do not accept that there is any lacuna in MHA in relation to the period when a person is at the hospital pending an application under s.2 or s.4 MHA. Each case necessarily turns on its own facts. However in our view it is unlikely in the ordinary case that there will be a false imprisonment at common law or deprivation of liberty for the purposes of Article 5(1) ECHR if there is no undue delay during the processing of an application under ss.2 or 4 MHA for admission.
To my mind this affords some basis for keeping a patient in the hospital pending an application, and if the hospital staff are persuaded by it, but of course it is littered with qualifications: “unlikely” that there will be a breach (so possible there will be); “in the ordinary case” (so which are the ordinary cases); “no undue delay” (so what would due and undue delay look like); and where of course do the limits of “processing” lie, are they just about filling out the papers, or about finding a bed?
Once when there were beds, having the patient kept under no obvious authority for half an hour, an hour, might have seemed justifiable: when patients can sometimes wait a day, a week, without such obvious authority to hold them, it’s perfectly clear that some other remedy needs to be found, and surely the 2025 Act has failed here as in so many other areas.
