Am I right in thinking the 5(2) holding powers start the moment the doctor furnishes the form H1 to the internal mail system (assuming they’ve timed and dated it) and failure to complete part 2 does not invalidate this at all? In this case part 2 was not signed or dated by anyone but the patient was further detained under section 3 the same day. Thanks.
Yes it is the furnishing of the form that starts the power, not its receipt. There is 1990s Scottish caselaw that says furnishing means committed to an internal post system (which these days might mean emailed etc). Para 18.6 of the MHA Code is a good enough authority for this!
Mat (personal capacity)
Isn’t 18.6 of the Code out of date now we have the electronic version and the time depends on how it is served. I was also led to believe that if Part 2 wasn’t completed by someone authorised to receive it the 5(2) wasn’t valid.
I’ve always found this a curious quirk of the law - if s5(2) powers “kick in” when the form is fully filled out, it logically follows there is no power to stop a voluntary patient from leaving the ward they want to leave, which gives rise to the s5(2) power becoming required.
Surely the law allows for a doctor who must take such a decision to SAY the power is going to be used and THEN fill in the form?
This dilemma is not hypothetical: in the police-related death in custody case of Seni Lewis in London in 2010, Seni went to leave a ward where he was detained, a dangerous situation erupted when he was stopped by nurses and the police were called. After the police turned up and restrained him to stop him leaving, a doctor than said s5(2) MHA was going to be used, beginning the question I opened with.
Hi Michael! I think part of the answer to that is what s5(4) is designed to cover: it enables a patient to be held for up to 6 hours including when it is not practicable to secure the attendance of a doctor to furnish a report (s5(4)(b)). Of course even this ‘starts’ from the point a nurse records it in writing. My guess is that the drafters of the MHA thought that the very marginal period between the physical holding of the patient and the act of writing that s5(4) is active (or indeed maybe furnishing a written statement that s5(2) is in play) doesn’t somehow count. I think if a patient is in immediate danger then holding them in this marginal period (whilst completing the s5 requirements) probably doesn’t require a direct MHA authority… Richard Jones has long included in his MHA manual an appendix on other powers to restrain and/or detain mentally disordered patients and I think the marginal gap probably gets covered under what is discussed there. This is, needless to say, a personal view.
Would this be invalidated if part 2 never completed by nursing staff?
Yes, quite - it’s more my own musings about the difference in detention laws from my more familiar domain of policing where detention without an explicit basis can become false imprisonment within a minute and where an arrest for an offence merely requires words to be spoken.
Of course one problem with MHA ‘gaps’ of various kinds, not just s5(2) / s5(4), is we see permissible ‘gaps’ which are likely defendable being stretched. For example, when it use to take an hour or so to finalise a MHA application under s2/s3 for someone who’d been arrested, no-one batted an eyelid and before we knew where we were those gaps were not an hour or two but a day or two and a week or two is not unheard of!
I hope you’re well!
Michael./
I think (therefore once again my personal view) that failure to complete part 2 of Form H1 (i.e. for s5(2)) makes no legal difference to the fact that detention was authorised. This is the approach of Richard Jones in the MHA Manual and I’m sure that’s right. There’s no equivalent second part of Form H2 for the nurses’ holding power under s5(4) so the issue doesn’t arise in that circumstance.
Ok thanks - seems a pointless part of the form then doesn’t it. The forms only ask for a time from the doctors if they send in internal post so i wonder what time would be used if served by hand but never received in.
I suppose that Part 2 of Form H1 does establish when the 72 hours time-limit is calculated from. But that could have been achieved by making the doctor simply state a time on Part 1 of the Form. Across many of the H forms it seems clear that the intention is to have a nice neat ‘record’ of an action, which seems like sensible legal practice and/or bureaucratic fussiness depending on your point of view. Across them all, I think, failure to complete that record isn’t of great legal consequence. All the same, completion is a good sign of oversight and a key aspect to enable auditing, and may come in useful should there be subsequent dispute about time-limits etc.
Many thanks for your comments and insights everyone