RC Discharge from Section 2 if patient not detainable under Section 3

Good day to everyone.,
I am a long term follower of the forum, but this is my first post.

I write to seek guidance/advice on the issue of the Responsible Clinician’s duties with regards to discharging a detained patient from a Section 2 if they are found to be not detainable under a Section 3.

To further clarify:
The RC has a patient detained under Section 2 and are of the opinion that the patient now requires further detention under Section 3; they make a recommendation for the detention but the subsequent MHA Assessment by the AMHP and S12 Dr concludes that the patient does not meet criteria for detention under Section 3.

The patient still has a week left before the 28 day expiry of their Section 2.

In this case, what is the recommended guidance for the RC :

  1. Should they discharge the patient from the Section 2 - considering that the patient does not meet criteria for detention under S3?
  2. Should they allow the Section 2 to lapse?

Many thanks,

Did the AMHP and Sec 12 have all the relevant information when they made their assessment?

Have seen recent situations where MHA assessments were superficial and didn’t access all available risk information and tragedies resulted.

Thank you.
Yes - the recommendation from the RC was appropriate. Discussed nature, degree and risk to self and others and made recommendations for treatment.


Is there a s117 plan?
Indeed is one needed.

Thank you.

S117 plan will be established only after the patient is detained under a Section 3.
If patient is not detained under Section 3 (and has never before been detained) then a S117 may not be applicable.


Sect 2 allows for up to 28 days for assesement .
The RC could argue that more time is required to complete the assessment and get the patient reassesed just before the expiry of the sect 2 9n the basis that further assessment would enable a more informed decision re sect 3

Thank you.

I understand the 28 day duration and the RC requesting time for the full assessment.

However, my scenario was about what happens after the RC completes their assessment and recommends a Sec3.

For eg, if the RC makes the recommendation for a Section 3 on day 21 of the 28 days (of Sec 2) and the decision is that the patient is not detainable under a S3 on day 22, then how should the RC proceed for the remaining 6 days?

The RC has already indicated by their S3 recommendation that their assessment is complete, that they are satisfied that the patient meets criteria for S3 (nature, and/or degree, risk etc),but the AMHP + S12 Dr have the opposite view - hence S3 not completed.

Should the RC then discharge the S2 now or let it lapse?

Sorry, if I’m making this seem unnecessarily complicated. Please let me know If I need to expand or clarify further.

Thank you,

I should have clarified, to my knowledgeTheir is nothing in the act that says a section 2 automatically lapses once a section 3 assessment has been done (within the 28 day limit )were the assesement does not recommend a section 3 "
Each case can be looked at in the light of of its own particular circumstances.
For instance the RC may argue that the second doctor and/or the Amhp made their decision with little knowledge of the patient.
"Jones page 114 states "if a doctor who has been approached with a view to making a medical recommendation decides not to do so there is nothing to prevent an AMHP taking steps to see whether another doctor is willing to do so "
The RC has a duty of care towards both the patient and society therefore if he believes releasing the patient into the community will put either at risk of harm. He must act responsibly.
Other scenarios can include cases were the patient agrees to remain in hospital and accept treatment at which point the sect 2 should be lifted
I had a case were the RC imposed a 5.2 on the patient at the end of the 28 days automatically triggering another assessment.
In short each case must be looked at individually

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Thank you.
I understand this.
It is always within the RC’s power to discharge from Section - whether it is a 2 or a 3.
It is also the RC’s responsibility to ensure that the least restrictive principle is being followed.
So, the inference is that if the patient is not detainable under a Section 3, they will become informal after the S2 expires in any case; hence it would be appropriate to consider whether it is necessary for them to be detained on the S2 any longer.

I am still trying to find any examples or case law where the RC chose not to discharge the Section 2 after the patient was found not detainable under a Section 3.


I agree with Len that it depends on the facts of the case.

It might be that further detention under s2 is unnecessary, and that the RC should discharge – but I don’t think this would result inevitably from the AMHP and second doctor disagreeing about the s3 criteria.

Maybe your patient could judicially review the RC’s decision to continue detention, to find out how the court would see it. I can’t remember any reported decisions on similar facts.

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Thank you very much.
Sorry about the late reply.
I will feedback with any new developments in the case.


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I have just come across this in Richard Jones’s commentary on section 2 (23rd edition, para 1-046, page 36):

An order for the patient’s discharge from this section can be made at any time prior to the expiration of the 28-day period by his responsible clinician, the hospital managers or, subject to s25, his nearest relative (s23(2)(a)). A discharge cannot be effected by implication, e.g. by an assessment for detention under s3 concluding that the patient should not be detained under that section.

Thank you very much Jonathan.
This helps clarify my question.


Hi Bhuwan,
I’m really interested in what happened in this scenario. Was the patient put under a S.3?