And, if an application has been made, it is not at all clear that the patient is straightforwardly in the AMHP’s custody during a prolonged wait. I’m not aware of any caselaw which has defined the scope of ‘take and convey’ in s6. That section says that an AMHP (after ‘duly completing’ and application) has the power to ‘take and convey’ the patient ‘at any time’ within the 14 days. Does that mean that a patient is in the AMHP’s custody for potentially 14 days? Or just that they could be placed in the AMHP’s custody at any point once the ‘taking and conveying’ starts to happen? Is that what ‘liable to be detained’ means in this scenario? I’ve often heard AMHPs say that they take custody at the moment their application is signed until the patient arrives at hospital. I’m not so sure.
I think this is a really important point, not least because I’ve wondered how an Article 2 inquest would test these questions if it arose, for example, that an AMHP had completed an application and then delayed the conveyance during which time the patient absconded and died by suicide of killed someone else.
In many other forms of “custody”, you would engage the mechanism until you’re ready to give effect to it, but in fairness, police / immigration, etc are in control of their conveyance and “custody” buildings. AMHPs are in a very different situation where they may want to make immediate application and conveyance, but the mechanisms are beyond their immediate scope of control.
And if the AMHP were to wish to deliberately delay admission for a day or so (for example, attempting a less restrictive option before resorting to admission), I presume they’d delay making the MHA application until that other option had failed and admission became unavoidable?