What happens to S48/49 MHA for a defendant for whom CPS produces no evidence and crown decides is a free man?
S48/49 evaporates rather quickly via S51(2) - end off.
The defendant with a big grin on his face, waves bye bye to the Secretary of State.
Well, the s48/49 comes to an end and unless someone’s planned to make an application under s2 or s3, they are as you say, ‘a free man’.
The problem with these situations when totally unexpected, is that there is no lawful authority to return the individual to hospital in the absence of a Part II application. There are additional problems even when anticipated, as many courts either don’t allow mobile phones or have no signal, so communication is limited to landlines and it usually isn’t possible to make an application in advance of the s48/49 ending, assuming you’re looking at s3 as the Act requires that: (c) 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 [my emphasis].
The MoJ would have no remit so that Section would cease to be applicable. I’m not entirely sure, but would think if there was still a mental health concern under the MHA a usual S2/S3 would apply? Under safe discharge there would also need to be discharge planning.
Professionals should be able to access gov. WiFi which is common across most court buildings.
If not already in place senior management can seek a protocol giving access to specific job holders/email groups.
I note that the question was what 'happens to S48/49..’
Others move on to ‘what happens to the man’. Fair enough.
I have to exercise caution here. I don’t know the man, or his current state of mental health.
I will give my experience of similar situations. But first let me get the law in front of my eyes:
S48
(1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that
(a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(b) he is in urgent need of such treatment; and
(c) appropriate medical treatment is available for him;
I take up the word ‘urgent’. I’ve learned that a majority of my psychiatrist colleagues (the ones I’ve interacted with over 30 years), do not think ‘legally’ about what ‘urgent’ means in that situation. They’re expected to say ‘We are not lawyers’. Concepts of urgency are shaped quietly in the background by 'OMG - so what happens if he walks out of here and somebody ends up dead - I’m not taking the fall for that!‘. They don’t say those exact words - the sentence is an accumulation of ‘thought’ if you can call it that’.
The next issue is simpler, ‘if he met the criteria under 48(1)a then surely he must still need to be in hospital for treatment, else we would have said differently’ - or something like that.
So in the generality of my practice experience what happens next is a scamper to detain on a ‘civil section’ - from S5(2) up to Section 3. Done and dusted. Nobody is walking free anywhere.
Poor chaps and chapesses who thought they might wave bye bye to prison, hospitals and the Secretary of State, then have an ugly surprise. They discover that if nabbed on Section 3, although each detention period by law is limited, renewals are not limited. Managers’ and Tribunal reviews become elementary to manage. After many years in the business, you pick up the right form of words to put before them - and they love it! I can’t go into every nook and cranny of practice from the ‘inside’ in this space.
There are two types of honesty and integrity - the ones that see the light of day and the ones that don’t.
So for the people in his situation - ‘what happens to the man’ - may be more bad news.
I think part of the problem is that staff working under the MHA aren’t comfortable with DoLS. They just don’t use that pathway, when it might be a better safeguard, (and least restrictive), than a choice between a Section and informal.
DoLS allows for people to go out, but allows for some regulated restriction in the persons’ best interests.
The MCA is clear that one or another pathway should be used, with observation to the lesser restrictive, as a priority.
But we are in a cycle of mental health hospitals understanding MHA first and foremost, and care homes trying to keep up with the MCA, amid all of the challenges good staff have, under a commercial system.
Yes - and I want to expand on that.
Staff working ‘under the MHA’ are made to feel uncomfortable. The context of S48/49 is normally within forensic units - but there may be rare to uncommon exceptions somewhere.
My experience in forensic units when this sort of stuff (as in OP) happens is as follows. I’ll give ‘cumulative sentiment’ not what any single person has uttered.
- ‘DOLS - no way on a forensic unit. It’s just unmanageable. Our service is for forensic patients.’
- ‘So he can have leave to the grounds - and what if he absconds and kills somebody!’
- Management will of course be weighing in from the top to ‘get him out’.
- Then ‘We are not funded for this’ - with reference to various contractual arrangements that I won’t go into here.
- ‘Least restrictive’ - yes but within the parameters of detention. ‘DOLS is not detention - is it’.
Caution: I’m not asserting the above as my opinions. It is cumulative sentiment that I’ve picked up over the years. It’s what happens behind ‘closed doors’ as I know it. And it’s not supposed to be exposed. Now ‘you’ know why I have no friends.
The big issue is whether the patient is ‘held’ for a treatment purpose as defined by S145(4) of the MHA, without a MHA section. Keep in mind that 145 evolved through 1959 to now as a form of social care with a bolt on of ‘detention’ - medication was inserted via S58 and appears nowhere specified in 145. But ‘everybody’ seems to think about ‘treatment’ as if it is primarily ‘medication’.
So, sparing 2000 words which I will not be allowed - the vaporisation of S48/49 in effect for forensic units - means: ejection, or a section that affords S145 and S58 treatments (with or without transfer). I can’t go into all the variations so yes ‘not necessarily’ and ‘it depends’ always apply.