Nursing staff have raised concerns where they are applying for the above, are no longer on shift or are on annual leave for when the hearing does eventually takes place, but a different nurse is willing to attend the hearing, give evidence, swear on oath etc. the judge refuses to speak with anyone other than the nurse who applied for the warrant.
Is there any way around this other than the nurse applicant listing all the dates/times they will be next on shift as part of their application etc?
There is no specific legal requirement for the person swearing out the warrant at court to be the person who made the written application and the police do that all the time, probably for similar reasons - that the service works 24/7 so it’s difficult to ensure staff working all hours can be the ones who go to court.
I’ve never known an issue with different officers doing it, so it might be something to ask your bosses to raise with the local magistrates court. There will be some kind of Court User Group in your area where agencies can take issues, the police will certainly know of it - I used to have to attend one every other month. But that can be raised there to a) see their reply; and b) ask that Magistrates be reminded of the difficulty it causes when they insist on something the law doesn’t demand.
Would be the first time Magistrates had misunderstood 135 warrants, either!
Normally speaking from an AMHP perspective, it is the case that if the orginal applicant is not available, than the applicant details are changed to the presenters details, but the evidence is used from the previous applicant.
The magistrate can be a lay person, circuit judge or recorder sitting in a county court.
I have known of cases where the applicant’s request has been dismissed for not having a check list or dressed appropriately when face 2 face hearing needed to take place.
Now days for mobile hearings, discretion is used but not if the magistrate is a stickler for details.
Is it possible that the Hospital Managers letter of authorisation that the staff member applying for the warrant needs to have would have a different person named and it is this that causes the issue?
The above named has been empowered by the Associate Hospital Managers of the Trust to act on their behalf in accordance with Section 18 of the Mental Health Act 1983.
They are therefore deemed by those Managers to be an authorised person under the meaning of the Act in seeking and executing a Section 135(2) warrant.