Section 3 - Refused due to objection of NR - what would happen if the patient tried leavimg

Law and practice Mental Health Act
1

Scenario

Patient was initially admitted on July 26th informally, he tried leaving on July 28th and was placed on a S5 (2) which subsequently resulted in a S2.

Section 2 commenced on July 31st, patient was removed from this on August 25th and remained informal until September 21st, due a decline in mental health on said date, patient was placed on another S5 (2) on September 21th - AMPH agreed, but NR objected.

Displacement proceedings being considered, but not necessarily decided on - decision being made on this by Multi-Disciplinary Team on September 28th

As the S5 (2) will have expired on September 24th, what (If any) powers can be used to detain the patient if they attempted to discharge themselves or seek leave from the Hospital between September 24th and September 28th?

Would there be any difference in available powers if an urgent displacement application had been lodged (but outcome still undecided by 28th September).

As I understand it S2 cannot be used again as the patient has previously been detained in the same admission under S2.

Could Section 5 (2) be used in the hope the Urgent Displacement application is processed by the time this expires?

Even though doing this would be ‘Bad Practice’ as technically nothing has changed in terms of what prevented the S3 validity initially - well, not until the NR displacement is decided and this is a gamble as there is a chance it will not be.

Let me know if any further info needed.

2

A second Section 2 is considered to be abuse of power under the Act. Further Section 5(2)’s are unsuitable in this instance (and indeed bad practice, as you mentioned). The only option is for the AMHP to apply for an emergency interim displacement order. This would be heard as an emergency by a Judge, who could temporarily nominate a Nearest Relative until the standard displacement application is heard. This could then allow for the Section 3 to go ahead, including its safeguards and holding powers in relation to the patient.

3

I studied your post carefully for a few hours. I will not be asking for further info as I am not engaged in a consultation or giving of advice. Nothing in this post means that a detaining authority or other entity is wrong. The original post I drafted contained hyperlinks. However, I am prohibited from posting hyperlinks so all have been stripped out.

The situation you outlined runs far deeper that what might be discerned at first glance. So I am applying my knowledge to the situation for CPD purposes (anonymised copy kept for my records). I can be wrong of course, and I will stand corrected where logic - not rhetoric - prevails.

Therefore I am not advising you on the situation, though the dates and timeline matters.

Date Status
26 Jul Informal admission
28 Jul S5(2) → S2
31 Jul S2 commenced
25 Aug S2 expired → informal
21 Sep Mental health decline → S5(2) (AMHP agreed, NR objected)
24 Sep S5(2) expires (72 hrs)
28 Sep MDT decides whether to initiate displacement proceedings

Some important disclaimers: I accept no liabilities, implied by or arising from this response. Always consult a qualified and recognised expert in mental health law. I am nobody of importance, except that I upset ‘apple carts’ far and wide.

“Section 2 cannot be used again” is not the law. Nothing in the Mental Health Act 1983 bars a second application for admission for assessment after an earlier S2 has ended. Section 5(1) even allows an application in respect of a patient already in hospital. Here the earlier S2 ended on 25 August and the patient has been informal since. A further S2 is available if the criteria are met, and a documented deterioration is a sound basis for re-assessment. The real constraint is purpose: a S2 must genuinely be for assessment, not a disguised admission for treatment.

The holding powers are a thin bridge. If the S5(2) has lapsed and the patient is again informal, a nurse may hold for a maximum of six hours under S5(4), and that power is not renewable. A second S5(2) is technically possible once the patient is informal again, because S5(6) only excludes patients already liable to be detained. But the Code of Practice (Chapter 18) says a holding power should not be used as an alternative to making an application, and a chain of holding powers used to bridge a gap is exactly the arrangement most exposed to an Article 5 challenge.

The gap only exists if nothing is done before 24 September. The Act already contains the mechanism for this situation. If, immediately before a S2 is due to expire, a displacement application under S29 is pending on the ground that the nearest relative has unreasonably objected, then S29(4) extends the S2 until that application is finally disposed of, and for a further seven days if an order is made.

That is the lawful route: place the patient back under S2 on the deterioration, and issue the displacement application under S29(3)(c) before the S2 expires. Section 29(4) then carries the detention forward while the displacement question is resolved. The Court of Appeal described this as the preferable course in R (AX London) v Central London County Court [1999] EWCA Civ 988.

What if an urgent displacement application is lodged but still undecided by 28 September? If the patient is under S2, S29(4) operates automatically and there is no gap. If the patient is not under S2, lodging the application confers no power by itself. S29(4) attaches only to a S2.

The without-notice interim route. The county court can displace the nearest relative without notice and on an interim basis, but the power is statutory, flowing from S38 of the County Courts Act 1984, not inherent. The Court of Appeal in AX London confirmed it applies to the S29(3)(c) ground. R (Holloway) v Oxfordshire County Council [2007] EWHC 776 (Admin) is close to these facts: a patient held under S5(2) while the authority applied without notice to displace an objecting nearest relative, an interim order made, and a fresh S3 following it.

Three cautions attach to that route.

  1. an interim displacement order does not itself authorise detention; detention rests on the S3 application that follows.
  2. if the interim order is later not confirmed, the S3 may have to be unscrambled and continued detention becomes vulnerable to habeas corpus.
  3. a court’s jurisdiction survives procedural failure, even a culpable failure to notify the nearest relative goes to appeal, not to nullity. But the price of without-notice relief is full and candid disclosure, and a prompt return date.

A hospital acting on the face of a valid application or court order is protected by S6(3). But that is protection from liability, not a declaration that the detention is lawful. It does not prevent release once an underlying defect is shown.

The captioned situation ‘has happened before and will happen again.’ Battle Star Galactica new series fans - labelled as they are - will appreciate.

4

Thank you for your reply, can you confirm why a Section 5 (2) is not appropriate?

Is it on the basis that while a decision regarding displacement is yet to be concluded, it should be reasonably assumed the Sectioning outcome is liable to be exactly the same as it currently is - or is there another reason / explanation for this?

5

Something else crossed my mind. I had to wonder really - ‘bad practice’ and ‘unethical practice’ concerns now seem to rule over what is lawful.

Passing strange is the flipside: ‘unlawful practice’ trumping ethical and legally sound practice. For example?

  1. Numerous situations in the land of consent and capacity - unseen by regulatory systems.
  2. S62(1) abuses - no specifics and too many to mention. My FOIA exposed the pile.
  3. S136 failures - apparently unnoticed by regulatory systems.
  4. Consultants and fake consultants in certain (nameless) necks of woods, cancelling other doctors’ medical recommendations for detention.
  5. Detention without lawful provisions - yes a minority perhaps but nobody knows how many nationally - it’s a secret. I’m talking about what I’ve seen with my own eyes. Do minority situations matter? Open question.

My preference is lawful bad practice, that is fully defensible. An ‘apple cart’ may tumble but nobody dies on my watch.

6

“Section 2 cannot be used again” is not the law. Nothing in the Mental Health Act 1983 bars a second application for admission for assessment after an earlier S2 has ended. Section 5(1) even allows an application in respect of a patient already in hospital. Here the earlier S2 ended on 25 August and the patient has been informal since. A further S2 is available if the criteria are met, and a documented deterioration is a sound basis for re-assessment. The real constraint is purpose: a S2 must genuinely be for assessment, not a disguised admission for treatment.

Agree with the above. Similar situation occurred when I was an AMHP. Agreed a Section 2, older person presented as depressed, care home no longer able to provide care. P recovered to the point where P was able to consent to an admission and begin the process of returning to placement. Just at the point of discharge the same patient became acutely psychotic. Very different presentation. RC was advised by the MHA Administrators that a Section 2 was not available, as it “had been used.”. The RC could not explain this new ‘illness’, it was very different from previous cause for admission. RC had yet to test for infections etc, when asked, RC agreed that further assessment was required. NR objection was not in my mind, as I was satisfied that a Section 2 was appropriate in this case. Had a dispute with the MHA Admin who was unhappy with “another 2”. I advised they seek advice from legal, which was done, and the 2 was considered valid.

7

Of course I’ve been there several times with ‘MHA Administrators’. I will share my experience of situations related to them over the last 3 decades. I see nothing wrong in sharing my own experience which I declare I am not generalising to the whole country. If I say ‘they’ or similar it is specific to the what I have observed. My experience:

  1. They receive some training for their roles.

  2. By experience - sometimes individually and sometimes as a group - their word is taken as ‘golden’ by RCs and even by medical directors and clinical directors.

  3. They are usually less qualified legally and less experienced than me legally (a matter specific to me).

  4. On about 50% of occasions I have disagreed with them, which is to upset ‘apple carts’ - apples all over the floor. Caution: I will have maintained my conduct appropriately as required by GMC standards.

  5. Some - a minority - obsess about missing commas and full stops in address fields on forms.

  6. They may know ‘of the law’ but their legal knowledge of mental health law is limited. It’s like some lawyers on occasions, who think they know medicine (not medication) through years of dealing with personal injury cases.

  7. Most MHA Administrators do not know relevant case law and the vast majority of course will have no real medical knowledge.

  8. Some treat the MHACOP as statute.

  9. A significant proportion - and I have not kept logs - talk about ‘bad practice’ and ‘unethical practice’.

  10. They tend to respond non-verbally as if I have disrespected them by disagreeing when only quoting the law.

This is seemingly about ruling in/out organic causes of ‘mental disturbance’ that may account for clinical presentation. I perceive it as RCs sent chasing their tails for a ‘reason’ to do nothing more. The law does not prevent a person being detained under the MHA if that person has an organic cause of mental disorder. [There are nooks and crannies that I do not explore here.]

Good on you.

Yes. It happens ‘all the time’. I call it ‘climbing authority trees’. It’s a busy world with little time for deep thought, so if authority can win they’ll reach for it. From my experience on a minority of occasions, that activity causes delay. Then ‘legal’ may respond after taking their merry sweet time, that the RC (namely me) was right. Ooooh.. you wish you were there to catch the looks on people’s faces, as they restack the ‘apple cart’.

Concluding: I am not saying that my experience is shared widely with my medical colleagues. It cannot because my path woven between forensic psychiatry and other domains is pretty hard to replicate. To avoid a perception of bias, I have met some very sound MHA Administrators and some actually know more than me and apply the law soundly. What I can say is that I will remain cautious and vigilant about the utterances of all non-clinical and non-legal folk. This is not a prescription for ‘everybody’. There is a vast amount of good information available to all on the net. Everyone with internet access can find, take time to read and understand. No lawyer qualifications required to do that.

8

One final question regarding this scenario, if displacement proceedings are ongoing with a view to ultimately enforcing the S3, does the fact the s3 application is effectively still live have any impact on the ability to go down the S2 route? I’m assuming not based on previous comments.

Do they effectively operate completely separately from one another for all intents and purposes?

I’m thinking if this scenario occurs it would be relatively unusual, reek of ‘undesirability’ from a procedural perspective (and possibly ethical), but is ultimately permissible and legal per se, if this assumption is correct, the patient ends up on a new S2 in the interim and if the displacement hearing is successful and the NR is displaced the original S3 application then supersedes the S2?

If it is unsuccessful, the patient is then kept on the S2 indefinitely (until the NR is displaced, or persuaded to change their mind and agrees to any subsequent S3 application’s). If a recent application has already failed to displace the NR, what is the consensus or rationale to believe a subsequent attempt to displace (within the relatively small frame of time we are talking about) would be both credible and successful? Maybe multiple AMPH’s applying for displacement adds ‘credibility’ to any subsequent attempts of displacement - it certainly wouldn’t hurt - if this is possible and fails twice, rinse and repeat until the court gives in and agrees to displacement…

Just makes me wonder if the above situation subsequently occurred and both the Hospital and NR won’t back down and the patient isn’t fit for discharge according to the Hospital, but the NR insists otherwise and the court have already sided with the NR recently, would it result in them effectively being placed on multiple Section 2’s until the patient ‘Recovers’ as far as the Hospital goes, or the NR is persuaded to change their mind or subsequently displaced - interesting scenario and probably unheard of, I appreciate.

9

To clarify my earlier comment about Section 2 being considered an abuse of power - of course, if criteria are met (I.e. something has change indicating further assessment is required), it would be considered lawful. Good luck!