When is a P "admitted" under s.2 MHA?

Law and practice Mental Health Act
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When is a P “admitted” under s.2 MHA?

H3 records that P admitted 1 am on 5.10.21

Care notes record that P came to the hospital on the evening of the 4.10.21 and was in bed before midnight.

s.2(4) says section 2 starts “when admitted”.

Jones opines that “admitted” when formally accepted for admission by someone authorised to do so. NB doesn’t say “when it is recorded on H3” so a matter of fact?

Factually it would seem that P was admitted on 4.10.21 (as one can’t be more “admitted” than being in bed in one’s room on the ward) regardless of when the H3 was completed and so s.2 expires midnight Halloween and not midnight on 1.11.21.

NR objected to s.3 and LA applies today (1.11.21) to displace NR and extend s.2 MHA, however s.2 MHA now expired if “admitted” on 4.10.21 and not 5.10.21 as 1.11.21 is the 29th day following admission if first day is 4.10.21.

All thoughts welcome.

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Hi there. If you check out page 735 of the manual the application is sufficient authority to detain. Section 6(2).

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I agree with you both. My understanding is that the Form H3 is just an administrative record, rather than an authority to detain, so the mistake on it has no effect. The s2 ended on Sunday so they missed the boat, as far as extending the s2 is concerned anyway. What happened in the end?

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Thank you both. I don’t think a strong argument can be made that the date/time on the H3 dictates when a patient is admitted as that would make the detention arbitrary as it would then be subject to vagaries of when someone filled in that form post admission and that cannot be correct. I agree with Jonathan and I have always seen the record of detention as an admin and not a legal form.

I have received an unsealed copy of the emailed s.29 MHA application which I will look at and speak with the client about later today (I have a CoP hearing this morning).

Fortunately I know the solicitor for the local authority so can hopefully have a sensible solicitor-solicitor conversation. I can see the hospital and AMHP going apoplectic in the circumstances and it will require careful management of the RC and AMHP as well as the client I think to avoid an unnecessarily unpleasant situation I fear.

I will keep the forum posted with what happens next.

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Hi,
it’s quite common for H3s to be completed incorrectly. The people completing them often don’t realise that the date/time of admission (or acceptance of forms for someone already detained) may be earlier than the date they actually complete/sign the H3. Chances are that in your scenario the person entered the time/date they were completing the form, rather than the date of admission. In an ideal world this error would be spotted by a MHA administrator as part of their scrutiny process, and the form would be amended. Rather than going apopleptic, I hope this prompts the hospital concerned to review its scrutiny process. And also encourages everyone not to leave these things until the last minute. Or, if circumstances force last minute action, then to double or triple check everything. Hindsight is marvellous, but a quick check of progress notes or a check with the applicant AMHP may have revealed the error in the H3.

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Thanks Nick.

I have just contacted the local authority solicitors and hospital to say that as the s.29 MHA application was more than “28 days later” after the s.2 MHA started and therefore expired at midnight on “Halloween” that my client is now unlawfully detained and await their response.

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The case was recently heard by a Tier 2 Judge in the context of NR displacement proceedings in which I and counsel represented P. The Judge concluded that P was admitted when the patient was actually admitted to the ward (and that was clearly before midnight on 4.10.21). As such the AMHP application to displace the non-consenting NR under s.29(3) and extend the s.2 under s.29(4) was ineffective to extend the s.2 and thus P was then unlawfully detained from midnight on Halloween 2021 until the s.3 was put in place in mid December 2021 (following the agreement of the LSSA officer as interim NR). As an aside, when it came to the final hearing the actual NR was not displaced and is now once again the NR.

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I find this approach difficult to reconcile with the terms of the Act. A person ceases to be “liable to be detained” in a hospital when the application is accepted by a person authorised by the Trust to receive it. The patient then becomes a detained patient. According to this judgment, he is a patient who is detained in a hospital without being admitted to that hospital.

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I’ve never really understand the whole “liable to be detained” thing but, for example, s72(1)(a) begins with “the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied…” so it looks like the person doesn’t necessarily cease to be liable to be detained once he is detained.

We don’t know when the application for admission was served in accordance with the regulations (reg 3(2)):

Any application for the admission of a patient to a hospital under Part 2 of the Act shall be served by delivering the application to an officer of the managers of the hospital to which it is proposed that the patient shall be admitted, who is authorised by them to receive it.

It might have been Monday 4/10/21 (when the person was detained) or Tuesday 5/10/21 (the date on the H3).

If service was on Monday 4/10/21 then there could be no dispute that the 28th day was Sunday 31/10/21.

I suppose your concern – that “he is a patient who is detained in a hospital without being admitted to that hospital” – would arise if the application was served on Tuesday 5/10/21, as s2 detention starts “beginning with the day on which he is admitted” (s2(4)). But would failure to serve the application on time under the regulations really mean that the patient had not been “admitted” under the statute? Would it make the detention in this case on Monday 4/10/21 and early Tuesday 5/10/21 unlawful, as the patient had not by then been admitted?

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Thanks both.

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.

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I had to read that three times, but I agree with you! I’d never thought about how it works in practice but, in addition to what you mention, the the commentary to s6(2) in the Manual says:

The application will be served by delivering it to an officer of the managers who will usually be the nurse in charge of the relevant ward: see reg 3(2) of the English and Welsh Regulations. That officer will check the documents for obvious errors and decide whether or not to accept the application. …

So it’s really unlikely that the application wasn’t “served” on the night of Monday 4/10/21 when the patient arrived on the ward.

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It seems to me that all of these s.6 questions about when sections are deemed to have ‘started’ (to put it crudely) hinge on what we mean by “admitted to hospital” and of course s.6 doesn’t define that term. As well as being relevant to when the section expires it can present immediate practical questions for staff as to the availability of s.19 if a transfer is deemed necessary for whatever reason shortly after the patient arrives. My view, and obviously there’s no direct judicial authority on this point, is that a court would approach “admitted” as a matter of fact rather than a matter of record i.e. a person having “accepted” the patient and the papers on behalf of the hospital managers and then recording that on an H3 would not preclude the patient not actually having been “admitted” in fact for the purposes of the Act.

If, for example, the hospital did not go through the kinds of processes associated with admissions (e.g. stuff like clerking in etc) and/or the patient did not have access to the kinds of facilities one would associate with being a hospital inpatient (e.g. access to medication) then arguably a court might find that they were never actually admitted. These considerations probably have more practical relevance to the “is s.19 available shortly after they arrive?” question than the one actually posed in this thread, but they hinge on the same points of law. I think that provided there is no argument as to whether the patient was in fact “admitted” following their arrival then it would be most logical to take the date and time that the hospital managers took custody of the patient at the hospital as a proxy for the date and time of admission for the purposes of s.6, but clearly until a judge actually rules on that point it’s impossible to be certain.

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“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)?”

I’d suggest the S2 does not start until the person has actually arrived at the hospital named in the application. Whether or not the papers have gone ahead (even in this new age of electronic delivery of forms where they are deemed ‘served’ as soon as they are received".) I don’t think it is possible to say that a hospital has admitted someone before they have arrived, even if they have agreed to accept them and had papers served on them.
Imagine, for example, a sad situation where the person dies whilst en route. In whose custody are they at that point? Would the hospital managers have to complete the notification to CQC of the death of a detained patient? Or would the person have died in a regulation limbo? I’m guessing a coroner would deem them to have been in state custody, but not in the custody of the hospital in which the person never set foot.

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Thanks Nick.

I think we are agreed. The formal start of the s.2 MHA does not (for the purposes of time running and the 28 days) start until the patient is actually “admitted” to the hospital.

What s.6(1) allows is that for a person who has had the AMHP and medical recommendations completed already and hence a hospital identified to which they will be taken, to be taken and conveyed to the hospital.

So, 6(1) power first to take and convey and s.2 power clicks in to effect when the patient passes the ward threshold and hears the clunk of the door behind them (think the sound of the door closing in the opeing credits of Porridge).

My point to Richard was that when a patient was being brought in from outside the hospital, the AMHP would have had to preagree and arrange with the hospital that the patient could be so admitted (i.e, that there was speace there and that the hospital could accommodate that type of patient/presentation and also of course, if it’s a private hospital that funding was in place or agreed).

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I think “admitted” in the statute would just be given the ordinary meaning of that word, and the regulations about service of the application are sufficiently separate not to make any difference. I don’t think any court would say a patient who arrived in hospital late on Monday night wasn’t really “admitted”, and so was not detained under the statute, until the paperwork was properly served the next day.

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That’s what the Judge agreed in the NR displacement case, in effect, hence why he found the patient was admitted the day before the H3 form was completed (albeit it was in strict chronology only a couple of hours either side of midnight between P being admitted and the H3 being completed).