Scenario is as follows:
1 - P was placed on S37/41. Hospital A became aware that P’s case could be remitted, so they placed P on S3. HMs then lifted the S3 on the grounds that P could still be treated under S37/41 as it remained in place at the time.
2- P was transferred to hospital B. P’s case was remitted and hospital B placed him under S3 in the event the S37/41 was quashed and it was 2 months after the S3 commenced. P was bailed to hospital B and remains detained under S3.
Was the S3 valid on both occasions? P has been seeking discharged throughout detention.
Thank you.
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I found it hard to follow the chronology, but think I got there! The case Richard mentioned was about a conditionally discharged patient being detained under s3. I wonder in the case of a restricted patient who is still detained whether s3(2)(c) would make a difference:
it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section
Jonathan, there’s also another case R (Wirral Health Authority) v Dr Finnegan, re DE [2001] EWHC Admin 312 - Mental Health Law Online.
Bit convoluted, but relevantly the MHRT ordered deferred discharge from (unrestricted) s37, a new RMO thought patient still needed to be detained, so s3 application made before discharge took effect. RMO was then told by lawyers that s3 & s37 detention couldn’t co-exust, so discharged the s37. The judge found this was an error of law on the part of the RMO (citing the CD case I mentioned previously).
Notably, neither case seems to have focussed on the wording of s3.
That said,
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if the wording of s3(2)(c) would ordinarily rule out concurrent detention under s3 & s37, then arguably it would also ordinarily rule out concurrent s3 & CD - because how could s3 be necessary if the patient could just be recalled instead ?
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even if it did normally rule it out, I suspect the courts might be more flexible in the case of a precautionary s3 of the type that prompted this thread. The argument would be that although s3 isn’t immediately necessary to ensure the patient gets treated, it is nonetheless necessary because the concurrent s37 might be rescinded at any moment, at a time and place when the patient might well be outwith the detaining hospital’s control.
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It’s interesting that the judge DE cited the Stewart case as authority for the proposition that s3 and s37 can run concurrently, when that’s not what the case was about at all – though I see what you mean about the availability of recall, which makes it similar. Anyway, I agree with you that the court would likely be “flexible”. I’m nowhere near the MHA Manual now, but I think it mentions using a concurrent civil section when it’s thought a s48/49 might end. I think I vaguely remember this cropping up in MHA vs MCA detention cases too.