This post is mainly aimed at police officers and is intended to ram home what the term ‘sectioned’ means – every police officer in England and Wales needs to understand it, so they can adjust themselves accordingly, if necessary! … and if you know a police officer, please spend 60 seconds of your life in the coming days telling them to learn this point! It is as important as knowing ‘reasonable grounds to suspect’ and other legal matter you would expect to have to learn.
This post intends to keep you out of trouble: nothing more and it’s necessary because of the sheer number of tweets, emails and other communications I get where this point has been badly misunderstood. I accept this is occasionally due to the way some mental health professionals explain the legal position that may be in play at a given moment in time and it may be we need to check more frequently the precise position in which we are placed as police officers by asking a closed question –
“Have you completed a written application for this person’s admission to a hospital under the Mental Health Act?”
Being ‘sectioned’ normally refers to someone being detained under s2, 3 or 4 in hospital. It is informal language and not a legal term that you will find in the Act itself. In addition to referring to the point where someone is detained in hospital, it also relates to other situations: like a ‘sectioned’ patient being on authorised leave: they remain ‘sectioned’ whilst out of the hospital, within the scope of how their absence was authorised. It also relates to a certain period of time just prior to admission and officers need to know precisely where it starts –
WHAT YOU *MUST* KNOW
This is the crucial part – you become ‘sectioned’ at the point where the AMHP undertaking the Mental Health Act assessment concludes that no alternative to admission is appropriate and makes an application for a person’s admission to hospital based on medical recommendations from the Doctor or Doctors required. For an application under s2 or 3, an AMHP’s application must be supported by two medical recommendations; for s4 they need just one – but all we’re interested in as police officers, is whether the AMHP has made the application! … or not?!
If an application is completed, the person becomes ‘liable to be detained’ and is in (the AMHPs) legal custody by virtue of s137 of the Mental Health Act. The AMHP can then – and only then – detain and convey that patient to the hospital and they may delegate authority for this to others. This tends to be where the police (and / or paramedics) become involved – by accepting an AMHPs delegated authority under s6. Once the patient is admitted to that hospital, they become an inpatient and are detained there.
Therefore this statement is also true – until the AMHP makes that application to a hospital, the person is not ‘sectioned’, they are not (yet) ‘liable to be detained) and s6 is of no application whatsoever. The situation that patient is in remains governed by whatever legal context was around them before they were assessed under the Act, which will often mean no legal context at all.
WHY AM I BANGING ON?
Officers keep contacting me – and they are very welcome to do so! Some of the questions or anecdotes show that these points are not widely understood. Typically, confusion arises after a Mental Health Act assessment where an AMHP indicates that the person they have just assessed ‘needs to be sectioned’. They could express this in any number of ways: including, “We’re recommending admission under section 2” or “we’re going to admit this person under section 3”. It’s important that police officers understand these phrases and seek clarification, if in any doubt at all about what they precisely mean.
An AMHP may have conducted a Mental Health Act assessment knowing that a bed is available; on other occasions they may have no idea at all where the bed will come from. In the first situation, it is just a matter of filling in the medical recommendations and the AMHPs own application and then s6 kicks in. In the second situation the AMHP may insist on delaying the completion of their application until the bed is identified and this means that s6 has not kicked in – whatever legal situation prevailed before the assessment prevails after it, until the AMHP completes the application.
So, some examples –
- AMHP and police officers doing an MHA assessment in someone’s home with no s135(1) warrant – let’s suppose, after the assessment, no application is made because there is no available bed and officers are asked to remain with the patient until the bed is found. If police officers choose to support this, it is important they understand the person is not yet ‘sectioned’ (by being liable to be detained) and officers have no legal powers at all. Therefore, remaining on that person’s premises is a question of seeking ongoing permission to remain and without such permission, officers have no lawful right to do so.
- Person detained under s136 or a s135(1) warrant and removed to NHS PoS unit – let’s suppose, after the assessment, no bed is immediately available and the process to find one begins. Although the person is not yet ‘sectioned’ they can remain detained under s135/6 until a bed is found OR until the 72hrs expires.
- Person arrested for an offence and taken to custody – where an MHA assessment concludes that admission is required, the person’s detention in police custody remains governed by PACE until such time as the AMHP makes that application. So all the normal rules of PACE apply – detention is a maximum of 24hrs (unless a superintendent extends it to a further maximum of 36) and even then detention remains subject to an ongoing need to review necessity in light of s34(2) of PACE. The custody sergeant must release someone from custody if a decision has been taken that they will not be prosecuted, either with or without bail.
SO WHAT DOES THIS ALL MEAN?
This should cause a lot of officers to reflect on their previous practice – how many times have you been at an assessment and the AMHP or DR says, “She needs to go to hospital under s2” and you assume that from that point on, you can lawfully keep the person detained, using reasonable force and restraint if absolutely necessary? How many times have custody sergeants seen AMHPs and DRs emerge from the medical room of the cell block and say, “We’re going to admit him under s3 MHA?” and assumed that they have lawful grounds under the MHA to continue detention?
The worst news in the world is: you don’t! Nothing legally changes at the point where you learn of the AMHP and DRs intentions – it changes when you learn of the AMHP and DR having made the application to hospital which then renders the person liable to be detained. So you need to be careful you’re not busy falsely imprisoning people and assaulting them, pending that confirmation.
And this makes things difficult, doesn’t it?! It begs more questions and complicated answers about what you do if you find that the mental health system has made you responsible for a person’s safety until the AMHP can find a bed. This aspect of our job, not to mention that of the poor AMHP and DR, is getting harder because there is a pressure on psychiatric inpatient beds. It is the DR’s legal responsibility to find the bed, not the AMHPs, so go gently on the AMHP if the system is quite coming up with the goods – it’s not their fault but in reality the DR will have filled in the medical recommendation and left the AMHP with it, having delegated the bed responsibility to someone in the MH trust.
In those situations above –
- Nothing prevents officers using s136 if a person leaves the premises of their own volition.
- You can’t re-impose s135(1) or s136 on someone after the 72hrs has expired, so it is incumbent upon the system to reach a conclusion – although examples exist of where it hasn’t, like the situation in MS v UK .
- You have to ask the AMHP to bring pressure to bear on NHS managers to sort the bed arrangements, suggesting that there could be legal breaches of the Act going on (s13 and s140 MHA) – I’ve written about this more extensively elsewhere including how to handle the situation of having to choose between releasing a vulnerable person into harm’s way or illegally detaining them!
HELP ME SPREAD THE WORD
The single thing I want you to leave this BLOG with: knowledge of precisely when a person is brought under the purview of the MHA when ‘sectioned’, mostly because the misunderstandings all involve officers thinking it has kicked in when in reality, it has not.
Question what you are told to seek confirmation – the question I use is always, “Have you completed a written application for this person’s admission to a hospital under the Act?” and all I’m interested in hearing is “Yes” or “No”. The answer then determines what legal authority, if any, I then have in the situation I’m policing. If the answer is negative, it’s about making sure the AMHP and the DR fully understand the legal position that then exists until they make the application.
Just one last time! – a person is ‘sectioned’ when an AMHP completes a written application for a patient’s admission to hospital and until that time, normal policing powers apply, if they apply at all.
Winner of the Mind Digital Media Award.