This post has been specifically requested by my colleagues in the Metropolitan Police, texting me to say “Do you have anything on section 4?!” The fact is I didn’t and I was surprised I’d never thought to cover it, so this song – sorry this post – is dedicated to the Met because their request made me realise I haven’t written any substantive posts on the normal civil, admissions sections of the Mental Health Act 1983. I’ve explained them a few times in different posts and on reference pages, but never in a normal post. So here we go —
- Section 2 MHA – allows for a patient’s admission to hospital for assessment of a suspected mental disorder if founded on the application of an AMHP or a patient’s Nearest Relative and two doctors, one of whom must be ‘section 12 approved’. Once the patient is admitted, they may be detained for up to 28 days to allow for this assessment to occur and that period may not be extended at all. Of course, a new application for detention under s3 could be made.
- Section 3 MHA – allows a patient’s admission to hospital for treatment of a determined mental disorder, founded upon the application of an AMHP or a patient’s Nearest Relative and two doctors, one of whom must be ‘section 12 approved’. Once the patient is admitted, they may be detained for up to six months to allow for treatment to occur and that period may be extended, by a second six month period.
- Section 4 MHA – allows a patient’s urgent admission to hospital for assessment of a suspected mental disorder, founded upon the application of an AMHP or a patient’s Nearest Relative and just one doctor, who must be s12 approved and where there is insufficient time to arrange a second doctor. Once the patient is admitted, a second medical recommendation ‘turns’ a section 4 admission into a section 2.
So section 4 admission, is rather like a section 2 application, but undertaken with only one doctor. It is used where the admission is “of urgently necessity” and where waiting to gather two doctors together would cause “undue delay”. Use of section 4 is quite rare – I have never known it used and on social media I can recall many AMHPs stating that they’ve never used it either. Given that most applications under the MHA are made by AMHPs, I’m only going to refer to them in what follows but Nearest Relatives’ rights allow them to apply if they have one medical recommendation, perhaps from their GP. AMHPs are obliged to support NRs, where appropriate.
There are a few things to bear in mind about section 4 itself —–
SOME MORE TECHNICALITIES
If a Mental Health Act assessment takes place for potential use of section 2 or 3, any medical recommendations generated can be held by the AMHP and used at any time in the next fourteen days. So let’s imagine the AMHP, was not immediately convinced that admission was the right thing to do, but the doctors were happy it was justified, the DRs could leave their medical recommendations, the AMHP could arrange whatever community support they thought necessary and if it were subsequently thought that admission was required, the AMHP may still use those original recommendations for up to two weeks. With section four, the AMHP may only rely upon that single medical recommendation for up to 24hrs. This is also the timescale within which a patient has to be conveyed to hospital if section 4 has been used.
There is much written in the Code of Practice to the Mental Health Act about this kind of application. I’m sure you recall that it is chapter 4 in the Code that deals generally with applications for admission. That chapter is still relevant to these urgent applications, but so is chapter 5 which is specific to them. Chapter 5 stresses that there should be a genuine emergency and section 4 MHA should never used for administrative convenience. the AMHP and DR should have evidence to support their claim that it is an emergency, including one or more from –
- An immediate and significant risk of mental or physical harm to the patient or to others;
- Danger of serious harm to property; or
- A need for physical restraint of the patient.
Timescales for patients absconding from detention under section 4 vary from the norms we understand for section 2 or section 3: if a patient absconds before arriving in hospital, that s138 may be used for up to 72hrs from the time they abscond. If they absent themselves from hospital after arrival in hospital then s18 MHA may be used for up to 72hrs after they first arrived in hospital. In each case, there is no power of entry so a warrant would be required under s135(2) MHA and this can be obtained by an AMHP, a police officer or anyone authorised by the relevant hospital managers.
Given that section 4 was an application for urgent admission because of various potential risks and dangers highlighted above, finding a patient outside those timescales should probably cause officers to think about using s136 MHA if found in a public place and contacting an AMHP for an urgent MHA assessment if found in private. Of course, if the AMHP decides to attend urgently with just one doctor to do a further assessment under s4 MHA, they will need a warrant under s135(1) if they need the police to force entry.
All clear?! Excellent!
WHY IS NOT USED MORE OFTEN?
This is one of those provisions that we do not see being used very often, although the judge in the Sessey case did make it clear that this provision is there to be used. I have often thought that where the police or 999 services are called to mental health crisis incidents in private premises and think the situation is something where section 136 MHA would be used if only the officers were not in someone’s private home, section 4 may provide a useful way of speeding up the AMHP-led assessment. Bearing in mind, that if officers are suggesting that 136 would be appropriate if only they were in a public place, they are in effect stating that immediate intervention is needed, potentially by restraint because of various dangerous indicated above. You’ll remember in the Sessey case that the Metropolitan Police ‘used’ the Mental Capacity Act as a proxy and then agreed in legal proceedings that it was inappropriate to do so. The judge pointed out to everyone that local authorities have a duty to ensure sufficient AMHP provision to undertake urgent assessments and this would mean use of section 4.
That having been said, it would have to be for the genuine emergencies, but how hard should it be for an AMHP to attend a crisis incident with one doctor if 999 services are highlighting an immediate need for care or control? This is the answer if debate about extending police powers is to be extinguished and as I’ve consistently said – despite my being frequently suggested to have said otherwise(!) – I would welcome a mental health care response as the most appropriate, least restrictive method of assessing whether or not to intervene: more appropriate professionals, less restrictive, stigmatising practice. However, if Local Social Services Authorities don’t have sufficient AMHPs to respond in about one hour with one doctor, then it starts to become unrealistic. That is the choice to be faced, do we have enough AMHPs properly deployed and if we don’t, do we want to employ more or extend police powers? Failure to do either, is to cause a Sessey type situation where the legal answer may be to leave someone unsafe and that is also unconscionable and unfair on the police officers concerned.
If you’ve never stood in someone else’s private home with everyone, including AMHPs and Doctors, staring at you to “do something” when you know you are legally powerless to do ‘anything’, nevermind do ‘something’, you won’t understand what I mean. It is gut-wrenching. Section 4 and a 135(1) warrant could be the answer, but we need AMHPs and DRs available to do it.
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