Wednesday, 23 August 2017

What happens when a hospital tries to prevent a nearest relative from discharging a patient?

Our AMHP Service recently had this rather contentious scenario.

Gerry was in his 20’s and was detained under Sec.3 MHA in a hospital for people with learning disabilities.

His mother, the Nearest Relative, had been unhappy for some time about the standard of care and treatment Gerry was receiving. This culminated in an incident in which he incurred significant bruising as a result of restraint by hospital staff. This incident triggered a safeguarding investigation.

She decided to exercise her right as NR under Sec.25(1) MHA to order the discharge of her son, by giving 72 hours’ notice in writing to the hospital, as required by this section. She sent this letter by registered post.

This section also gives the Responsible Clinician the power to bar such an order by the NR, by preparing a report within the 72 hour period of notice.

But Gerry’s RC did not do this.

Gerry’s mother duly arrived at the hospital after the 72 hours had expired, in order to take her son home.

At this point the ward psychiatrist detained Gerry under Sec.5(2) MHA.

The hospital then requested an assessment under the MHA.

I talked to the nearest relative. They told me that, while in the past they had had difficulties managing Gerry at home, they were now in a position to care for him, at least for a limited time. In fact, a community based residential placement had been found for Gerry, and they were just waiting for a bed to become available, which was going to happen in the near future.

The NR sounded like a grounded and sensible person, who was receptive to accepting support in the community.

I spoke to Gerry’s social worker, who knew him and his parents well, and he confirmed that there would unlikely to be any problem in Gerry returning home.

So this was my thinking. Assuming an AMHP assessed and concluded that the grounds for detention under the MHA were met:
  •  It would not be possible to make an application under Sec.2, because the patient had been detained under Sec.3, diagnosis and treatment needs were known etc.
  •  It would not be possible to make an application under Sec.3, because the NR would object.

The only other option left for an AMHP in that situation would be to apply for the displacement of the NR. But this could only be done it there was evidence that the NR was acting unreasonably.

In the circumstances, there was no evidence at all that the NR was acting unreasonably; quite the contrary.

Of course, if the Responsible Clinician had exercised their power to prevent the discharge, the NR would have been disappointed, but the AMHP Service would never have become involved.

We presented this to the Responsible Clinician, who instantly agreed with all the points, and rescinded the Sec.5(2) without the need for a formal assessment.

The NR and her partner were understandably delighted with this news, and Gerry went home that day.

And that is what AMHPs are for: to safeguard the rights of patients and their relatives, to apply a social perspective to the law, and to act as a constraint on the unfettered powers of the doctors.


  1. they allowed the patient to become informal....and then 5(2)'d him?? That seems utterly bizzare! Surely they couldn't have 5(2)'d unless his presentation had markedly changed, seems an abuse of process at best.

    Glad it worked out sensibly in the end but am baffled by the psychiatrists decision making here!

  2. Hi- not entirely relating to this blog BUT i need to ask you a question. My teen is going onto aCTO soon and if she is in crisis rather than a&e we need somewhere for her to go. Camhs say they dont have anything. Can we ask them to use a 'place if safety' for this or do you have any other ideas? There must be asafe room other than a police cell in our cityl? Local hospitals are not safe as she can just run out and a year ago she ended up in a side room with a matress and a guard.

    1. Anyone on a CTO, and indeed, anyone who is a MH patient and therefore subject to the Care Programme Approach (CPA), must have a detailed care plan and a crisis plan. This should explicitly include details of how to respond in a crisis.
      This could include provision for respite care in a care home. In any case, police cells should not be used to provide a POS for young people or children, and this would imminently be illegal under the changes to MHA by the Policing & Crime Act. This is supposed to become law sometime in September (although still not heard of a start date).

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  4. You haven't addressed the question of why a holding power was used instead of a barring order?

    1. Yes I did. The RC didn't issue a barring order within the 72 hour time limit, so they then used S.5(2), most probably illegally.