Tuesday, 19 March 2019

Section 3 and “appropriate medical treatment”

In my last blog I looked at S.2 and S.3 of the Mental Health Act. When an AMHP is considering use of S.3 of the Mental Health Act, which allows detention in hospital for treatment, two medical practitioners have to provide medical recommendations. These will be completed on Form 7 (joint medical recommendation) or Form 8 (single medical recommendation).

However, it is not enough merely for the doctors to say that the patient needs medical treatment in hospital. The wording of the medical recommendation forms states:

We are also of the opinion that, taking into account the nature and degree of the mental disorder from which the patient is suffering and all the other circumstances of the case, appropriate medical treatment is available to the patient at the following hospital (or one of the following hospitals)

The doctors then have to state the hospital or hospitals where this appropriate medical treatment is available.

The Code of Practice makes it clear that it is a requirement of the Act for the doctors to state this. The code goes on the say:

Preferably, they should know in advance of making the recommendation the name of the hospital to which the patient is to be admitted. If that is not possible, their recommendation may state that appropriate medical treatment will be available if the patient is admitted to one or more specific hospitals (or units within a hospital). (para14.76)

Chapter 23 of the Code goes into some detail relating to what “appropriate medical treatment” means.

It points out:

The appropriate medical treatment test must be applied to ensure that no one
is detained (or remains detained) for treatment... unless medical treatment for their mental disorder is both appropriate and available.(para23.8)

It goes on to state clearly that:

In order to be deemed appropriate, medical treatment must be for the purpose of alleviating or preventing a worsening of the patient’s mental disorder or its symptoms or manifestations. It must also be appropriate, having taken account of the nature and degree of the patient’s mental disorder and all their particular circumstances, including cultural, ethnic and religious or belief considerations. (para23.9)

The appropriate medical treatment test requires a judgement about whether an appropriate treatment or package of treatment for mental disorder is available for the individual in question. It is not consistent with the least ‘restrictive option and maximising independence’ and ‘purpose and effectiveness’ guiding principles’ to detain someone for treatment that is not actually available or may not become available until some future point in time.(para23.10)

Until the MHA 1983 was revised and amended by the MHA 2007, doctors only had to say that medical treatment was required. It was an important change for them to have to think about what sort of medical treatment was required for the specific patient, as well as where that treatment was actually able to be given.

It is clear that, in order to comply with the Human Rights Act, a detained patient should be able to be given the treatment they need, otherwise they could be incarcerated indefinitely, while receiving no treatment at all.

I recall many years ago attending a Mental Health Tribunal for a patient who had been diagnosed with a personality disorder. He had been detained under S.3 and placed in a hospital where the appropriate treatment that he was deemed to require was available. This consisted of psychological therapy.

The patient appealed on the grounds that, although the treatment was available, the patient did not wish to have that treatment, and since psychological therapy cannot be administered against the will of the patient, he ought to be discharged.

The Tribunal found this to be a compelling argument, and discharged him.

More recently, I found myself in an invidious position regarding the detention of a patient with treatment resistant depression.

The patient was in the community, but well known to services, and had been receiving home treatment without any alleviation of their symptoms. She had in the past been treated in hospital with ECT, which had been very effective, and she had made a full recovery. The doctors therefore concluded that the treatment she required was ECT, and named several hospitals in the Trust area where treatment was available.

A bed was found in one of these hospitals, so I completed my application for S.3 with the consent of the nearest relative, and arranged for her to be conveyed to the hospital. The NR was in full agreement that she required ECT, and accepted reluctantly that she could not stay at home for this.

This is where it all unraveled.

The section papers were accepted by the hospital, and she was duly admitted. However, as I was about to leave, I was informed by the ward manager that ECT was not actually available in the hospital. All patients requiring ECT had to go to one hospital in the area that administered ECT, but as all the available slots were taken by existing patients, she would have to go on a waiting list, and it could be several months before she would be able to have this treatment.

Para23.4 of the Code makes it clear that this situation was not consistent with the guiding principles of the Act. While I had acted in good faith (and it is not the role of the AMHP to question what treatment might be required) I had been placed in a position in which I had acted otherwise than in the best interests of the patient. Had I known that ECT was not available, I would not have made an application for detention, but since the section papers had been received, I had no power to withdraw my application.

What constitutes “appropriate medical treatment”?

Back in 2013, the Moors Murderer Ian Brady appealed to a Tribunal against his detention in Ashworth Special Hospital. I wrote in detail about it here.

A Tribunal is required to ensure that appropriate medical treatment is available to the patient in question. Among Brady’s arguments was the contention that appropriate medical treatment was not in fact available for him.

The Tribunal accepted that treatment would not include the use of medication, and that “Mr Brady is very unlikely to take part in any psychological treatment.” They therefore considered at length the definition of “treatment”.

The Tribunal concluded that the nursing care he was receiving, which included building a therapeutic relationship, and acting to minimise conflict within the hospital, did indeed constitute “treatment”, and that Brady was receiving some benefit from this, whether he thought so or not.

Tuesday, 19 February 2019

Section 2 or Section 3?

These are the sections of the Mental Health Act that are the most commonly used when compulsory detention in hospital is being considered.

S.2 Mental Health Act lasts for 28 days, and its main purpose is to assess a patient in hospital (although it does also permit treatment). S.3 MHA lasts for a maximum of 6 months, and is for the purpose of treatment.

Statistics show a general increase in the use of compulsory detention between 2016-17 and 2017-18. Detentions under both S.2 and S.3 have increased.

In the year 2016-17 there was a total of 34,137 admissions under S.2, while in the years 2017-18 there were 37,408. While this shows an increase of 9% over the previous year, it does not approach the peak in the year 2015-16, when detentions under S.2 amounted to 40,063.

In the year 2016-17 there were 21,361 detentions under S.3, while in the years 2017-18 there were 23,073. This shows an increase of 7.5% over the previous year, but still it does not approach the peak in the year 2015-16, when detentions under S.3 amounted to 28,147.

Digging deeper into these statistics, 11,296 of the S.3 detentions followed previous detention under S.2 This indicates that 30% of people detained under S.2 were subsequently detained under S.3 for a longer period of inpatient treatment.

The Code of Practice states that S.2:

should only be used if the full extent of the nature and degree of a patient’s condition is unclear, or there is a need to carry out an initial in-patient assessment in order to formulate a treatment plan, or to reach a judgement about whether the patient will accept treatment on a voluntary basis following admission, or there is a need to carry out a new in-patient assessment in order to re-formulate a treatment plan, or to reach a judgement about whether the patient will accept treatment on a voluntary basis. (14.27)

The Code goes on to say that Section 3 should be used:

if the patient is already detained under section 2, or the nature and current degree of the patient’s mental disorder, the essential elements of the treatment plan to be followed and the likelihood of the patient accepting treatment as an informal patient are already sufficiently established to make it unnecessary to undertake a new assessment under S.2. (14.28)

Despite this guidance, making a choice between S.2 or S.3 is a frequent source of discussion among AMHPs. There are a number of reasons for this.

Some are strictly to do with professional clinical decisions and the imperative to explore least restrictive options. It may be felt, for example, that the shorter detention period of a S.2 is felt to be less restrictive than the 6 months of a S.3.

Some may be more to do with expediency, or more, shall we say, complex issues.

What factors might influence use of S.2 or S.3?

Here are a couple of scenarios. They are fictitious, but describe situations that will be familiar to AMHPs.


It is 22:00 hrs on Friday evening: an out of hours AMHP is asked to assess a patient detained under S.136.Jason is in York, where he was detained by police attempting to climb onto the altar of York Minister claiming to be the Second Coming of Christ.

The Police have established that he normally lives in Cornwall, where he is well known to psychiatric services, has a diagnosis of paranoid schizophrenia, is subject to S.117 aftercare, and recently went missing from the mental health hostel in which he was living.

On assessment, it is clear that Jason is thought disordered, but is unable or unwilling to reveal any information about his medication or mental health care. It is clear that he needs to be in hospital. Unfortunately, the AMHP is unable to contact mental health services in Jason’s area to obtain more information.

Should Jason be detained under S.2 or S.3?

Applying the principles for decision making in the Code of Practice, the AMHP is aware that Jason is well known to his local mental health services, and has in the past been detained under S.3.

But at the same time, the AMHP is unable to confirm this and discuss the situation with Jason’s care team. Because he is so far from home, neither the AMHP nor the doctors assessing him have had any previous acquaintance with the patient.

The AMHP might in these circumstances consider that S.2 is preferable even though Jason’s diagnosis and presumably treatment is well known. It is just that these things are not well known to the assessing team.


Jonathan is a well known patient with a diagnosis of bipolar affective disorder. He has recently stopped taking his mood stabilising medication and his care coordinator reports that he is becoming increasingly manic, spending profligately, not sleeping, is harassing his neighbours, and becoming sexually disinhibited. These are all warning signs of relapse.

An AMHP and two S.12 doctors assess Jonathan at home and conclude that he needs to be detained in hospital for treatment.

The doctors have a dilemma. No hospital bed has been identified prior to the assessment, and the bed managers can give no indication as to how long it would be to identify a hospital.

What should the doctors do?

The difficulty here is that, unlike medical recommendations for S.2, the doctors have to state on a S.3 recommendation the name or names of hospitals where appropriate treatment would be available.

In the real world, where there is a national shortage of psychiatric beds, especially for children and people with learning disabilities, doctors will often make recommendations for S.2 and then leave them with the AMHP. These can then be used at any time within 14 days from the date of the recommendations. The doctors do not have to be involved in another assessment.

But the doctors in Jonathon’s case would not be able to complete their medical recommendations, because they could not name the hospital in which the patient could receive treatment. So they can’t just sign the document and go on their way.

Might they be tempted to find some pretext that might justify detention under S.2 for assessment, rather than S.3 for treatment?

And would that be ethical?

The Nearest Relative

The rights and powers of the Nearest Relative of a patient are important factors that AMHPs have to take into account when considering detention under the MHA.

For a S.2, the NR should at the least be informed that detention has taken place, and should be made aware of their rights to order the discharge of the patient from hospital.

However, for a S.3, it is a legal requirement for the NR to be consulted if at all possible, because if they object, detention under S.3 cannot take place. The only option then for an AMHP is to go to the Courts to have the NR displaced. This can be a time consuming process, and it can take weeks for the courts to make a final decision.

This is where some interesting decisions might be taken to avoid consulting the NR, especially if it is known that they are likely to object to detention under S.3.

There is a body of Case Law relating to the NR and failure to consult them. Sometimes, AMHPs (and ASWs in the past) have got into considerable trouble.

One example is GD v The Managers of the Dennis Scott Unit at Edgware Community Hospital and The London Borough of Barnet, Queen’s Bench Division (Administrative Court), 27th June 2008.

In this case, there were real fears that the patient’s father might hide the patient if it was known that an assessment under the MHA was going to take place. The ASW did not contact the NR before the assessment, and only let him know by leaving a message when the assessment was actually taking place. When the NR returned the call 20 minutes later, the paperwork had already been completed. He then indicated in no unclear terms his feelings about this and his objection.

But the ASW had by then filled in the section of the form indicating that it had been “impracticable” to consult with the NR.

The Judge in the case found that the patient had been illegally detained because the ASW had deliberately failed to make adequate attempts to consult with the NR as he knew that the NR would object.

So an AMHP may be confronted with a dilemma. The AMHP might be clear that a certain patient in the community, who is well known to services with a clear diagnosis, and where it is known what treatment the patient requires, needs to be detained for treatment under S.3.

But the AMHP is also aware that the NR may object, making it impossible to ensure their admission and treatment, at least without having to go to a Judge to have the NR displaced.

So does the AMHP bite the bullet, make efforts to consult, then go through the necessary legal processes if the NR objects?

Even if this might put the patient in danger?

Or does this hypothetical AMHP consider that just maybe they can find some justification for detention under S.2, for assessment, hence avoiding the need to obtain the NR’s consent, and at the same time ensuring the patient’s safety?

The Mental Health Act Review

The recently published review of the Mental Health Act makes many recommendations for changes to existing law. Some of these relate to the use of S.2 and S.3.

The Review is keen to reduce the length of time that a patient can be detained in hospital wherever possible.

For a start, the Review is keen to reduce the use of compulsory detention at all. It is suggesting that the bar for justification of detention should be raised, and even where a patient is detained under S.2, the detention should be reviewed after 14 days, and a decision should then be made to either discharge or detain under S.3: “section 2 should only be used where it is truly necessary to assess someone."

It goes on to say:

Where the AMHP is aware that a person has been subject to detention under section 3 within the last twelve months, an application for detention under section 2 can only be made where there has been a material change in the person’s circumstances since they were previously detained under a section 3. We are also recommending that the Code of Practice makes it clear that section 3, rather than section 2 should be used when a person has already been subject to section 2 within the last twelve months.

At the same time the Review is also recommending a reduction in the initial maximum detention period under S.3 to 3 months from the present 6 months. There would be a further extension period of 3 months, and only after that could a person be detained for 6 months.

I am inclined to the view that, even though the Review’s recommendations have a long way to go before a change in the law might take place, an AMHP should still heed the Review’s opinions, especially as the recommendations are backed up by people’s rights under the Human Rights Act.

Wednesday, 9 January 2019

When is it appropriate to use the MHA when someone is causing a public nuisance?

When I was working in a community mental health team, I was once asked to attend a public meeting regarding a Housing Association tenant. The meeting was arranged following a large number of complaints from tenants of one of the Charwood social housing estates.

It was to be chaired by the Housing Association, with representation from the local District Council and the police. They also wanted someone from the CMHT, as it was thought that the tenant who was the subject of the meeting might have mental health problems.

So I somewhat reluctantly attended as a representative of the CMHT. I was reluctant, because I was not sure what would be expected of me. Having checked the name of the person, who I will call John, on our records, I knew that he had no previous involvement with mental health services.

The hall in the local community centre where the meeting was to be held was packed. I was one of the panel members situated at the front. The others were the local chief inspector and a senior housing officer from the district council. Being faced by several dozen hostile tenants felt quite intimidating, to say the least.

John had not been invited to attend, and was not aware that the meeting was taking place. I only knew that John was male, single, and in his 30’s.

The chairman, the chief officer of the housing association, summarised the reason for the meeting. They had received many complaints about the conduct and behaviour of John in public areas of the estate.

Almost immediately, people started making allegations about him. It appeared that he was often to be seen naked to the waist, swaggering around near the estate shops, brandishing a pair of martial arts nunchuks, and that he often verbally threatened passers by.

Allegations started to be made that he was a paedophile. The chief inspector intervened.

“Could you tell me on what basis you are making these allegations?” he asked.

“Just a few weeks ago he was chasing a 15 year old girl down the street. It’s good job she got away from him. We told the police, but nothing happened,” one of the tenants said.

“Let me put this straight,” the chief inspector said. “I am aware of the incident you are referring to. The person in question was actually running away from the police, who were trying to arrest him. The girl just happened to be in front of him.”

The tenant who had made the allegation looked momentarily deflated. “Yeah, but he’s a menace. He needs to be sorted.”

A woman in the audience, whom I recognised as being a patient of the CMHT, looked at me.

“What’s he doing here?” she demanded. “He must be a nutter. What are you doing about it?”

Both the audience and the other panel members looked expectantly at me.

I was not actually anticipating having to say anything. I was suddenly concerned about breaching confidentiality. But was it a breach to say that someone was not a patient?

“I am just here as a representative of Charwood CMHT,” I said. “I can tell you that he is not one of our patients. I know nothing at all about him, other than what I’ve heard today.”

“Well why don’t you know about him? He obviously needs sectioning,” another of the tenants said.

“Look, we honestly don’t go round looking for people to admit to hospital under the Mental Health Act. In order to be seen by the CMHT, their GP has to make a referral. And that has to be with the consent of the person. We’ve never had a referral for John.”

While the tenants were clearly not satisfied by my response, the chairman steered the discussion to what the housing association could legally do about John in response to the concerns expressed by the tenants, and I was not asked to comment again.

After the meeting, the panel members had a private discussion. I discussed with the chief inspector the potential use of S.136 if John appeared to be mentally disordered and in a public place, which would facilitate a formal MHA assessment.

I was struck in this meeting by two things. One was how people can make assumptions based on misinformation and prejudice. The other was the assumption that someone behaving in an unusual or antisocial manner must by definition be mentally ill.

What happened next?

I’d like to be able to say that John was never heard of by mental health services again.


A few months later John was arrested in a public place in Charwood during the evening. He was armed with a large knife, was stripped to the waist, and was threatening to kill anyone who came near him.

He was taken to Charwood police station and assessed under the MHA by the out of hours AMHP. He was reported to be floridly psychotic and too unwell to give any coherent account of himself. As a consequence of his dangerousness, he was detained under S.2 and admitted to a psychiatric intensive care unit (PICU).

I assessed him again a month later and detained him under S.3.

He remained a patient of the CMHT with a diagnosis of paranoid schizophrenia, and was detained under the MHA several times over the next few years, always after stopping his medication. On the last occasion, he was discharged on a Community Treatment Order.

After being made subject to a CTO, he remained well and did not require any further acute admissions. In fact, when the time came to consider extension of the CTO on two subsequent occasions, he made it clear to me that he liked the security of the CTO and wished to remain on it.

There’s no clear moral to this story. Even though John may have been mentally ill at the time of that public meeting, the anger of the local people did not in itself justify taking action to detain him under the MHA.

It’s often the role of the AMHP to unpick what’s really happening when complaints from members of the public are received. 

But people are allowed to be unusual or eccentric, or even mentally ill, as long as their behaviour is not putting themselves or others in danger.

It was only once John stepped over that line, from being a nuisance to posing a real danger, by possessing an offensive weapon in a public place, that it became appropriate to consider use of the MHA to protect John and the public from the consequences of his actions.