When is someone considered detained under Section 2 of the Mental Health Act 1983? Is it when the AMHP signs the application, or when the H3 form is completed?
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Hi, When H3 is completed and signed by the receiving hospital. Until then patient is liable to detention.
When the application for the bed has been made the person is detained under the AMHPs Section 6 powers to detain and convey (which can be delegated to any person and often the police/ambulance/secure transport if the recommendation for section is after a S136 detention).
Once they are accepted onto the MH ward they are then under the section 2/3.
Thank you for your response. Do you have any book or reference I can read, or could you tell me what your explanation is based on? I’m slightly confused, as I was under the impression that a section starts when the AMHP signs the application, especially since patients can sometimes spend 2–3 days in A&E. However, I recently reviewed one of my client’s section papers: the AMHP saw and signed the application on 12/03/2025, but the Form H3 was signed on 13/03/2025 for a section 3. Could you please explain what happens regarding 12/03/2025? Why isn’t that date counted, even though the client was in A&E, and why does the section only start on the H3 date?
Hi,
an AMHP’s application is just that. An application to a hospital to accept/admit and detain the patient. The period of detention (‘the section’) does not start until the hospital managers accept the patient onto the ward (in the hospital named by the AMHP on their application). This function of the hospital managers is usually carried out the by the nurse in charge of the ward, who will physically accept the patient. The form H3 they subsequently complete is just a record of what has happened. So the form may be completed some time after the period of detention (‘the section’) has started. So, ‘the section’ can start before form H3 is completed.
‘The section’ does not start when an AMHP signs their application. A signed application gives the AMHP the powers of a constable to take the patient and convey them to hospital. A power they will frequently delegate to an ambulance or to the police. In situations where an AMHP has signed an application and then no conveyance happens immediately, things can become a bit tricky, because there may be no express power to deprive the patient of liberty during the wait, and there is no power under the MHA to provide any treatment for mental disorder against a capacitated refusal. What is clear is that the patient is not ‘under section’ just because an AMHP has signed an application. They are in the strange situation of being ‘liable to be detained in hospital’, a status which is frustratingly difficult to define precisely. The Reference Guide provides a definition which looks useful on first reading, but becomes less clear the more you look to it for clarity (para 1.37):
“The Act sometimes, but not always, distinguishes between people who are
detained and those who are ‘liable to be detained’. This latter term includes
people who are actually detained, eg people who are in hospital and would
be stopped from leaving if they tried to, and people who could lawfully be
detained but who, for some reason, are not, eg because they have been
given leave of absence from hospital. ‘Liable to be detained’ includes certain
part 3 patients who have been conditionally discharged from detention in
hospital, but who may be recalled if necessary (see chapter 27). It does not
include patients who are subject to CTOs, even though they too may be
recalled.
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