Hi all
Patients s2 lapsed at midnight due to NR objection for s3. A doctor then proceeded to apply a questionable 5(2).
If the AMHP felt the NRs objection was unreasonable I know they can ask their LA legal to look at displacement proceedings. If this happens can the court authorise the patient to continue to be detained in hospital until the proceedings are concluded - if yes under what section would this be as the s2 can no longer be extended by virtue of s29. Please help.
As the section 2 has lapsed they would have to ask for an urgent displacement to enable S3 to be put in place and then have an arguement on how long the order should be in place depending on the grounds used by the local authority.
You could have the hearing that day if the court has availability.
S29(4) reads that the application to displace has to be made before the expiry of the section 2. So in this case it is too late to apply. The s5 looks questionable on its face given that there has (presumably) already been an assessment for section 3 so the purpose of the s5 here (to allow for an assessment) may not be very genuine.
Yes, with it being clear that the purpose of s.29 is to extend s.2; unless there are cogent reasons for allowing the s.2 to lapse before any thought was given to a potential s.3 objection, if challenged you are likely going to have to hold your hand up to a period of detention without sufficient authority. Despite that however, I would usually advocate the use of s.5(2) in the meantime; it’s purpose being to detain for the short period necessary for a s.3 application to be made and in your case, that application has not yet been made. Whilst potentially questionable in retrospect, it may appear to be a less arbitrary approach to detention, such that the patient must be given relevant information about what is happening at that time.
Since the s.2 has lapsed. There is nothing stopping the AMHP in conducting the s.3 assessment but not making the application. Then making the application to the county court for displacement of the NR and why under s. 29. Since you have to document this out as to why a s.3 is application is required and why you are displacing the NR and with whom.