Sections 23 and 25

Imagine you’re the front line police officer called in to a mental health ward. Reports have been received from a patient’s family that the patient is being held on the ward without authority and they want the police to assist in extricating the patient from their hold, alleged to be unlawful. The control room sergeant has spoken to the caller who said, “The patient is my brother, his mother is with me and she is his nearest relative.  Four days ago she gave written notice under s23 of the Mental Health Act that she was ordering the discharge of her son from hospital and as the hospital authorities have not issued a barring notice within 72hrs, they are obliged to release my brother – they are refusing to do so and he’s being held against his will, unlawfully.”

A few questions, then! –

• Is this actually any responsibility of the police?!
• Can the man’s mother actually order her son’s release against the wishes of the hospital?
• What’s a barring notice and how does it work?!

There are other, obvious questions, but let’s start with these just for today!

Yes – this can be the role of the police to referee this sort of thing, if it really comes to it. Firstly, there are questions of law at stake and one could imagine some situations in which the active debate or dispute could give rise for the police to mediate or even prevent a breach of the peace in some situations. Also, don’t forget, there is the issue of someone’s liberty with an allegation here someone is being unlawfully deprived of it. We would become involved to some degree in other situations where allegations are being made of people being held by others without legal authority, so why not this? You would intervene if your police colleagues unlawfully arrested someone (or at least escalate to more senior officers), so why not if the allegation is against NHS staff? It may or may not be something to get actively involved in, but you’d at least examine it.

Yes – the man’s mother can order his discharge from hospital, assuming that she is his Nearest Relative under the Mental Health Act. I’ve written about Nearest Relatives’ rights before – they have quite a number of weird and wonderful powers and privileges and one of them is section 23 of the Act: the right to order the discharge from hospital of a patient who is detained for assessment (section 2), treatment (section 3) or guardianship (section 7). Once this notice in writing is given to the hospital concerned, the person must be released unless the Responsible Clinician in charge of the patient’s care issues a ‘barring notice’ under section 25 of the Act. This is more than a relative’s opinion or agitation, it is a legal right that must be respected, subject to the specifics of section 23 and 25.

Section 25 itself allows the discharge to be prevented: however, it requires the Doctor concerned to certify for the record factors which are above and beyond those required to be ‘sectioned’ in the first place. In order to be admitted to hospital, the AMHP and DRs are saying the patient is ‘suffering from a mental disorder of a nature or degree which warrants the detention of the patient in hospital for …” assessment or treatment. In order to issue a barring notice under s25, a Responsible Clinician must confirm their view that “the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.” ‘Dangerous’ is not further defined, so it needs to be given its everyday meaning. What we do know, is that the word ‘danger’ does not appear in the criteria for admission under sections 2 or 3, so it has to mean something ‘extra’. Not all sectioned patients are ‘dangerous’ (something we are repeatedly reminded) so it’s clear that not all notices under s23 should be blocked. In any event, the barring notice must be issued within 72hrs of the Nearest Relative’s instruction to discharge.

IMPLICATIONS

Ideally and of course, this is not a police situation at all – apart from the obvious point that very few officers will ever have heard of s23 or s25 or be able to offer a view on it all(!), there’s the issue that hospital staff should understand, respect and apply the law. This BLOG post comes from a discussion on social media about a situation in which an NR was asking for advice about their notice being served on a Friday and come Tuesday, no barring notice had been issued and yet the hospital concerned had not released the patient and was reluctant to do so. Of course, there are other ways to see the dispute resolved – there are on-call senior clinicians and hospital managers, including Directors with access to legal support, to help trusts understand the situation. I can therefore understand the argument some officers put forward when I posed this question on social media, asking what they’d do. Many were reluctant to become involved, for the reasons given – but I have also known situations which centre on the lawfulness of detention and have involved requests by families or patients for their concerns to be escalated beyond NHS ward staff to be declined, for one reason or another. The police are therefore called as the ‘someone should do something!’ agency. That’s actually why we have a police service: “something’s happening that ought not to be to happening about which somebody ought to do something now!”

There are wider considerations in my view: the police become involved in refereeing disputes between individuals and other agents who carry coercive authorities in several, civil law situations. We become involved in disputes involving bailiffs, debt recovery grants and so on; we take a position on how to temporarily resolve conflicts on a range of family law matters where civil court judgements are in place, pending the ability to get the appropriate people, solicitors or courts involved. But I also like the argument that all public authorities – including the police – are state agencies who have a positive obligation to ensure the human rights of the public. Section 6(1) of the HRA 1998 makes it clear that no public authority (which includes the police or mental health trusts) shall behave in a way that is contrary to someone’s Convention Rights and the Act makes the proactive duty a clear, statutory one. Detaining someone in a hospital for more than 72hrs after a section 23 notice has been served by a Nearest Relative is to continue to detain someone outside processes prescribed by law, potentially an Article 5 violation – and as more than one mental health professional pointed out: it takes a Doctor around 10 minutes to fill out a barring notice and they have 72hrs to do it. The law clearly implies organisations need systems in place and the law generously affords them three days within which to operate.

Remember, when considering issues of false imprisonment, the burden rests with the person or authority undertaking the detention to demonstrate there is a lawful basis to it. So in the absence of any ongoing arguments or disorder, this is one that could be handled from afar. I could imagine asking, “If you agree you’re preventing the patient from leaving and that you received a section 23 notice more than 72hrs ago, I’m wondering what possible legal authority you have for preventing his release. I suggest you urgently escalate this to your senior managers before complaints are made of false imprisonment and they take urgent legal advice to satisfy themselves of the situation.” I could also agree that if a professional is fully acknowledging that they are deliberately detaining people without a clear and obvious legal authority by which to do so, that situation is something that does become legitimate police business. It’s another example of situations where the necessary partnership to focus on, is the one between the public and the police.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2017

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk