Patient under s5(2) - NR objection to s3

Law and practice Mental Health Act
1

Hi
So patient was initially under section 2 around 4 weeks ago - which was rescinded by the RC after about 3 weeks into the detention as patient had agreed to voluntary admission.

2 weeks into his voluntary admission the patient requested his own unsafe discharge and was made subject to s5(2) so that an assessment under s3 could take place. The NR objected and the LA legal team submitted an application for displacement - an urgent hearing could not take place and then it was the long bank holiday weekend.

Initially the RC wanted an unlawful back to back 5(2) when the first 5(2) lapsed however the LA legal team advised the RC to detain the patient under s2 - which he did with the duty AMHP/second doctor this went in place before the first s5(2) lapsed.

I am questioning the legality of the s2 because once formal steps have been taken to make an application under s3, it is not possible for an AMHP to overcome a NRs objection by making an application under s2 in respect of the patient.

My thoughts would be that the urgent displacement application should have made mentioned that the patient was under s5(2) and in the event an urgent hearing could not take place to displace the NR in the interim - the doctors/AMHP would continue to proceed to make an application for s3.

Jones says it is lawful to make an application under s3, including in a situation where s2 has been extended under 29(4), before the proceedings under this section have been resolved.

Hence my thinking it should be ok to proceed with the making of an application for s3 whilst the court is considering the application to displace the NR and whilst the patient is under s5(2) because once that lapses we have no legal framework in place.

What are your thoughts on this please?
Is the s2 ok?
Should we be advising an application under s3?

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Here’s a quick answer but not fully thought through.

  • A section 3 now would be unlawful as you never got an interim displacement order.
  • The section 2 is unlawful as it was to circumvent the NR objection (though you’d want to double check the authority for that statement).
  • A second s5(2) might be bad practice but might also be the “least worst” option.

Getting an interim displacement ASAP should be your main focus.

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3

The first thing to say here, is that if s.3 was indicated and the NR was objecting, an interim displacement order should have been sought from the moment that the s.5(2) started.
The failure to do so means that every ‘work around’ after the s.5(2) expired, is open to challenge; be it s.2 or a further s.5(2).

Why is the RC taking advice from the LA? Bizzare. If I were advising the RC, I would be suggesting that two med recs for s.3 should be sought immediately and if forthcoming, put them on the AMHP team’s table, together with a copy of a new s.5(2) if necessary. The s.5(2) would potentially be ruled as unlawful, but at least the patient would know what was going on and it would hopefully nudge the LA to get a move on.

Hopefully in the meantime, constructive dialogue with the NR would also be taking place.

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4

I agree with Guy as always. I’ve just noticed the timeframe – over two weeks later, any s3 would be a brand new one, so could be lawful if the NR doesn’t object this time or you get your interim displacement on time.

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Hi Guy/Jonathan

To confirm when the patient was under s5(2) and the NR objected to the s3 application the LA legal team had requested an urgent application/hearing to displace the NR - but the court could not accommodate the hearing knowing the 72 hour detention period under s5(2) was due to lapse on Sunday.

I’m unsure why the LA legal team was advising the RC and AMHP to go down the s2 route after finding out the hearing could not be accommodated and why the RC had not escalated the matter via NHS legal team for support and advice.

We have requested a response from the LA on the advice in respect of s2 and on the status of the hearing - no response received so far.

As the application to urgently displace the NR in the interim had been submitted to the court which was acknowledged by them including their response that they could not facilitate the hearing - I still stand by my view that the s3 application should have been made before the s5(2) lapsed AFTER the response from the court - instead of the s2. The LA legal team should then have updated the court by email regarding the s3 having been made in the absence of any other framework available and then leaving the matter with the courts to resolve the on-going displacement. Trying to be pragmatic here.

What do you think?

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I agree with Jonathan; s.3 would have been unlawful in the absence of an interim displacement order, because of s.11(4).

7

Guy is correct. For as long as the displacement application is unresolved the NR objection stands, so continuing with the s.3 admission would be unlawful. A fresh application under s.3 would only be lawful if the NR was consulted anew and this time made no objection.

The LA legal department should not have advised a s.2 application instead- as Jonathan has said, it would be unlawful to do this to circumvent a NR objection. (Sadly, as a former LA solicitor I know that many LA legal departments do not have expert knowledge of the MHA.)

I agree that a further s.5(2), preferably with a gap between them, might be the least worst option in the circumstances- that too would be open to challenge but is not automatically unlawful, unlike the other two.

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