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?
Just to add to the mix that the wording of s.6(1) is ‘…take the patient AND convey him…’ Given that Parliamentary draftsmen don’t generally waste words saying the same thing twice, I read the phrase as disjunctive, i.e. ‘take’ and ‘convey’ refer to two different activities. The ‘convey’ is clearly the transporting (which as we know can be delegated). In my reading, ‘take’ refers to the power to capture & hold the patient pending availability of the transport, which can likewise be delegated. This interpretation is reinforced by the wording at s.137(2):… required or authorised to take any person into custody, OR to convey or detain any person…’
I must stress that this is just my interpretation. I believe Richard Jones doesn’t agree. However, I am not aware of any caselaw one way or the other, and I think it is at least arguable- and it would mean that staff would have the assurance that if they prevent the patient from leaving until the ambulance arrives they are expressly covered against an acusatio0n of false imprisonment rather than having to rely on common law etc.
I don’t know if that helps at all with Nick’s original query- I suspect not!
Hi Simon. Good to hear from you.
I think you make a very good point, and your interpretation of ‘take’ would be an AMHP’s defence if challenged. I can’t imagine, though, that those Parliamentry drafts people foresaw today’s world of bed unavailability and of ‘taking’ stretching into days or weeks. To the extent that sometimes AMHPs refuse to even attend to interview if no bed is available in order to avoid the impossible situations of either wanting to sign an application but being unable, or of signing an application in good faith only to find that the promised bed is no longer immediately available.