Repeated use of s5(2)

Got a situation where a patient has been placed on s5(2) and in the last hour of the 72, was told there was no AMHP but they would be putting another 5(2) in place. The notes reflect this.
In the MHA manual it states ‘as soon as the power is invoked, arrangements should be made for the patient to be assessed…’
The Code states at ‘18.38 Detention under section 5(2) or 5(4) cannot be renewed, but that does not prevent it being used again on a future occasion if necessary’. This situation is in Wales but their code isn’t as clear as England on this point.
It seems to me they have simply forgotten until last minute and put her back on the holding power.
Any thoughts on this or experience of something similar? Whether the repeated use of 5(2) could be said to be unlawful with no right of appeal?

I only remember this happening once, to a client years ago at St Ann’s in London. There was a slightly better reason than in your case, though I can’t remember it. The RC readily agreed that it wasn’t good practice and was probably unlawful, but said it was better than any available alternative. He might have had in mind the cliché about it being better to give evidence to the High Court than the Coroner’s Court.

We didn’t pursue it (can’t remember why) but in Bostridge terms even if always “detainable” and subsequently detained the patient might still have lost something, e.g. delayed involvement of the nearest relative or repetition of the “shock of capture”.

Sorry to be dumb but how could the patient appeal under s5(2) ?

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You are right. I was awake most of the night with an ill child so am tired (that’s my excuse anyway) and was thinking about s4… I’ve deleted the final sentence of my post above to avoid any further confusion!

That is good -I thought that I had missed something crucial!

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Hi Jonathan - I was almost certainly the MHA lead for St. Ann’s at that time and I frequently trot out that adage in these scenarios so it probably came from me!

There’s a piece of case law from the 80s referenced in Jones that states that consecutive 5(2)s are unlawful, but this was pre-HRA and pre-Rabone - which identifies that hospital managers have a positive Article 2 obligation to take steps to protect a patient’s right to life. If such an obligation exists it is difficult to see by what means hospital managers could discharge it other than via Section 5 given that these are the only detention powers that the MHA makes available to them. Failing that I would argue that there’s a statutory lacuna which the common law would stretch to cover, and failing that I would argue a Bostridge defence anyway on the same basis it has been successfully argued in the parallel scenario of patients being detained in places of safety longer than permitted by s.136 (in the sense that it happens all the time and nobody’s taken it to court to my knowledge).

Obviously the case would become murkier if weren’t able to make an Article 2 argument, but even then you could potentially argue Bostridge if the person met the criteria for s.136 and could have been detained by police under that framework - but in practice I can’t see trusts calling police onto wards to use 136 in these settings any more than they would release vulnerable people from the place of safety only to have the police immediately pick them up outside again, the outcome is that the patient still gets detained but under even more stressful circumstances, it adds nothing in practice other than a fig leaf that only serves the interests of the hospital managers rather than the patient.

Ultimately, patient safety has to be the priority in these cases and, as the adage goes I would always prefer to be arguing about a potentially unlawful detention than a tragic and preventable death.

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