An AMHP and two doctors, one of whom is s12 approved, attend a patient’s home following concerns about their mental health deteriorating. They conclude the patient will require admission to hospital and that admission under s2 of the Mental Health Act will be required – the application is duly made under the Act so the patient is now ‘liable to be detained’, the precursor step to being detained in hospital. The patient is unwilling to travel and for a range of reasons, neither police nor ambulance crews are available to attempt to persuade, influence or effect the admission of the patient to hospital. A decision is taken to leave the patient at home with their family and try again the following day but by then, the bed in to which the patient was to be admitted is no longer available, it having been given to someone else overnight.
The MHA application appears to lie in tatters, but then a bed becomes available at the original hospital to which the application had been made and the ‘exam question’ arises –
How long does someone remain ‘liable to be detained’ once a Mental Health Act application has been made?
In other words, for how long could the AMHP rely upon the original application they made before the bed vanished to still justify taking the patient to the original hospital, now that a second bed has become available there? It’s a relatively easy answer: fourteen days. After that time, the patient would need to be re-assessed under the Mental Health Act and a fresh MHA application, with new medical recommendations made. But why do the police need to know this?! … it’s fairly obscure AMHP stuff, isn’t it?! Maybe … but not always!
Late last year, two officers were asked to remove a patient from their home to hospital, in exactly this kind of situation: a bed was available so an application was made, the patient wouldn’t agree to go and no resources were available to ensure that happened and eventually the bed was lost, but then another found. On the fifteenth day after the MHA application was made, a bed becomes available and the request is made of police officers could they execute a warrant under s135(2) and remove the person to hospital? It was an example of something I spoke about in Leeds yesterday whilst doing AMHP CPD, that police officers need to know the law for themselves. Because the warrant should not have been issued: the patient was no longer liable to be detained an no authority remained in place to take them to hospital.
SECTION 6 OF THE ACT
Many officers are now familiar with the power used to ensure someone’s safe admission where they cannot or do not consent to go to hospital. Once the AMHP has filled in that pink form with the name of the hospital, supported by two medical recommendations by two doctors, one of whom must be s12 approved, the person is then “sectioned”. This is an informal, non-legal term: the correct explanation of the person’s status is that they are now ‘liable to be detained’ under the Act and may be conveyed to hospital for admission and detention to take effect. Normally, such conveyance occurs as soon as possible after the application is made and this timescale scenario doesn’t arise.
However, the recent example brought it to the forefront. So we need to re-read s6(1) MHA to understand this –
Section 6(1) –
An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital at any time within the following period, that is to say—
(a) in the case of an application other than an emergency application, the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application;
(b) in the case of an emergency application, the period of 24 hours beginning at the time when the patient was examined by the practitioner giving the medical recommendation which is referred to in section 4(3) above, or at the time when the application is made, whichever is the earlier.
So if the application is made on a Tuesday, that counts as day one, whether the application was made at 1am or 11pm, Wednesday is then day two and so on. As the clock turns midnight to turn the second Monday after the application in to Tuesday, the ‘liable to be detained’ status ends.
ABSCONDING WHILST LIABLE
However, do things change if the person didn’t just refuse to move, but if they absconded? – does the effect of s6(1) mean that the person cannot be retaken and detained, if they are encountered on or after the fifteenth day?
No, it doesn’t – things are different where someone has ‘escaped’ whilst liable to be detained. If someone has escaped from legal custody in those circumstances, they may be retaken (by a police constable, an AMHP or anyone who had custody of him immediately prior to his escape) at any time during the period that would have applied if he had become absent without leave under the Act. In other words –
- If a s2 patient escapes whilst liable to be detained, they should be treated as a s2 patient who had become AWOL from hospital on that day.
- Such patients can be returned to hospital any time up to 28 days after they arrived, so you have 28 days to find them.
- If a s3 patient escapes whilst liable to be detained, they should be treated as a s3 patient who had become AWOL from hospital on that day.
- Such patients can be returned to hospital any time up to 6 months after their absence starts, so you have 6 months to find them.
So it’s not a major point being made here, in the sense that the answer to the exam question is ‘fourteen days’, counting the day on which an application is made as day one. The larger point, though, yet again, is that we need to know the law on this stuff because two officers may have been persuaded to force entry to a premises and force someone to hospital where no authority to do so existed. And this also taps in to some of the stuff I’ve been stacking up for Professor Sir Simon Wessely in his Review of the Mental Health Act – we need to simplify this stuff, because this scenario is a not-even-once-a-career type nightmare and who has the headspace to store legislative detritus like this just in case it might be needed once at some stage during the 2020s?!
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, 2019
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 – http://www.legislation.gov.uk