My reading of sections 5 & 6 MHA is that the MHA treats patients “admitted to hospital” from outside the hospital (s.6) and patients already in hospital (s.5) differently for the purposes of determining when that patient is admitted to detention under the MHA section.
By way of background, the patient here (P) was brought by the AMHP and escorts from East Anglia to a private hospital in the South East as there were no acute beds in the local area at the time. Thus, the P here was admitted pursuant to s.6 MHA and not s.5 MHA.
P was transported and conveyed to the care of the hospital using the powers to do so under s.6(1) following the AMHP’s completion of the application form founded on the two medical recommendations.
The questions then: when does this ‘take and convey’ power (and to detain en route) transform itself into the actual admission under s.2 MHA (and so for time to start running for the purposes of the up-to-28-days s.2 detention)?
If P had already been informally in the hospital, s.5(1) says: “and where an application is so made the patient shall be treated for the purposes of this Part of this Act as if he had been admitted to the hospital at the time when that application was received by the managers.”
There is no exact equivalent use of language requiring the HMs to receive the application for the purposes of s.6(2) which states: “Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subsection (1) above, or, being within that hospital, is treated by virtue of section 5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.”
S.5(1) is a deeming provision to work out when the patient is admitted for the purposes of working out when a s.2 starts for a patient already in hospital whereas the s.6(2) provision for new admittances does not have (nor, I would argue, does it need) any such deeming provision as the situation is one of fact – when did the patient move from the custody of the escorts who brought him to the hospital to the custody of the staff of the hospital?
The difference in legal and practical terms is that the authority of the HMs (to admit the patient to the hospital) has already (and necessarily) been given in advance to the AMHP who completes the application form so that the patient can be taken and conveyed to the named hospital on that form and that requires the HMs to confirm that a bed is available and that they agree to admit the patient to the hospital prior to the patient travelling there. It may also be the case that the AMHP has even sent a copy of the detention paperwork in advance to the MHA office, so they have it even before the patient is admitted. The HMs have in legal and practical terms pre-authorised and accepted the patient for admission.
Thus only for patients already in hospital is the s.5(1) proviso needed so that the section only starts when the HMs have received the section paperwork. Authority is ex post facto the completion of the section paperwork for patients already in hospital but before-the-event-of-admission when completing the section paperwork for patients yet to be admitted to a hospital from the community.