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.

Jason

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.

Jonathon

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.

27 comments:

  1. When 28 days Section 2 have elapsed could a section 5(2) be imposed to detain a patient for a further 72 hours, followed by a new section 2 for a further 28 days? Could this scenario (switching between 2 detention statuses) apply indefinitely?

    Thanks for the excellent blog, keep up the good work!

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    1. If a s.2 has lapsed without an assessment under s.3, and the patient remains as an informal patient, then s.5(2) could be used. However, unless there had been some very significant change in the patient's presentation, then s.3 should be used, as the need for and nature of treatment ought by then to have decided. No AMHP would be keen on a series of s.2's followed by s.5(2) followed by a further s.2, and it would be against the spirit of the MHA to do this.

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  2. Thanks a lot; very helpful

    Again, great blog!

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  3. I was s2'ed the week I left TA, in middle of my university Honours assessment. No explanation, no apparent reason.
    I'd been isolated from everyone for 9 years, mostly in a council flat. One day, the Mental Health people came back. The little old lady in neighbouring flat used to play extremely loud music. I guess they blamed me.
    So, I was s67'ed, s2'ed (twice) and s3'ed. My neighbour still maintained the noise afterward. I felt lobotomised. But, managed to contact police regarding a series of attempted murders.
    They still don't take me seriously. They just insisted I was suicidal. Trust me, I wasn't!

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    Replies
    1. I feel for you. My experience was very similar multiple times. Xx

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  4. Thank you for this amazing blog

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  5. Thank you I've just found your blog at a time when my daughter is in desperate need having been in crisis for months. She has been S2ed multiple times in the last 6 months. Each time it has been ended early (within days sometimes) and then she has been discharged, only to be sectioned (S136, S2) again within weeks. She is currently an inpatient S5(2) waiting for an assessment due to escalating behaviours. Two weeks ago the AMHP carried out an assessment and determined that she didn't need to be sectioned. Something I strongly disagreed with, as did the police. I had no contact from the AMHP team before, during or after the assessment so had no opportunity to express why I felt she would need to be detained. Is this legal?

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    Replies
    1. While it is not illegal not to consult with the nearest relative, or others with knowledge of the patient, it is highly desirable, and is a legal requirement if a s.3 is being considered. There will also have been two doctors assessing your daughter, who would have to make medical recommendations. The AMHP, however, does not have to make an application even with two med recs, but will have to state their reasons in a report. The AMHP has to take into account "all the circumstances of the case" - but they should at least have made an effort to make contact with you, if you are the nearest relative, before making as final decision.

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    2. Thank you. She is now on a S2 but unwell in a medical hospital due to continuing risky behaviours. I'm so pleased I've found your blog - It's very helpful. Thank you

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    3. Thank you, I'm glad you found the blog helpful.

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  6. I am really scared for my daughter she is about to be formally assessed under section 2 of the act. She is unwell has been for many years since teens. I’m worried about what medication she will be given where the MH bed will be as I hear they can place out of area. I believe she will resist she very paranoid about medical professionals and medication. I understand she needs help but very scared medication and detainment will make her worse and start a cycle of these types of detainments. I’m worried her trust in me will be broken and she will have no one else. I’ve never been in this position and am so very afraid for her. What will happen? Will they bring the police? What are these mental health wards like? I’m terrified for her I hear such terrible experiences. I want her to be well I don’t want her to come to any further harm.

    ReplyDelete
    Replies
    1. An AMHP should take into account your concerns and fears and explain the assessment process to you. They have no control over where she would be admitted if detained. A s.2 is for assessment, although medication an be given if necessary.

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  7. My son has been assessed at home because he has stopped meds and now been put on a s3,he has never been sectioned in the last year of him being ill, now waiting for bed at m.h
    Does the n.r have a right to still challenge this decision we've been told no it's done.

    ReplyDelete
    Replies
    1. As NR should should have been consulted when a s.3 was being considered and asked if you had any objection to the s.3 being made. If you did not object at the time, and the s.3 was duly completed, then you cannot challenge the decision. All you can do is request the admitting hospital to discharge the patient.

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  8. My sister has been in a hospital under a section 2 what are the grounds for a section 3 tow be ishued? we are in the uk. thanks 🙏

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    1. This is the wording of the Mental Health Act:
      3 Admission for treatment
      (1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.
      (2) An application for admission for treatment may be made in respect of a patient on the grounds that—
      (a) he is suffering from mental disorder of a nature or degree which makes it
      appropriate for him to receive medical treatment in a hospital; and
      (c) it is necessary for the health or safety of the patient or for the protection of other
      persons that he should receive such treatment and it cannot be provided unless he is
      detained under this section; and
      (d) appropriate medical treatment is available for him.
      (3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—
      (a) such particulars as may be prescribed of the grounds for that opinion so far as it
      relates to the conditions set out in paragraphs (a) and (d) of that subsection; and
      (b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

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  9. My daughter is currently on a S3. They are looking for a secure rehab placement funded by health. She's 23 and has lived in Manchester for 3 years. I've just been contacted by the social worker who has told me that they are trying to determine which local authority is responsible for the S117 - I've never heard of a S117. Apparently it may be Dorset as that's where she was sectioned as a teenager. Can you tell me what the S117 is and why Dorset would need to be involved when she hasn't lived in the area for 3 years? She has been on multiple sections in Manchester over the last 12 months. Thank you.

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    Replies
    1. Anyone who has been detained under s.3 is entitled to s.117 aftercare on discharge from hospital. The is no charge for any costs of aftercare. If this is the first time she has been detained under s.3, then the local authority covering her address at the time she was detained is responsible for providing this aftercare. If she has been detained previously under s.3, while living at a different address in a different local authority area, then it will be that LA which would be responsible.

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    2. Thank you. Does this mean she will be brought back to Dorset for the aftercare? This in itself would be a problem as there are many triggers here that caused her to leave in the first place. We tried to bring her back on one of her discharges last year (she's been an inpatient for over a year) and she spiralled so quickly we almost lost her.

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    3. An aftercare plan should take into account factors such as you are describing. Assuming you are her Nearest Relative, they should involve you and consult with you in aftercare planning.

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    4. Thank you. Really appreciate your help

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  10. Thank you. There are posts on this blog giving more detail about s.117 aftercare.

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  11. Hi my in law has been sectioned due to dementia under S2 there is talk of of DoLS or s3 she is none verbal aggressive throws things and needs constant supervision to protect herself and residents. I could do with some advice as she should have been on DoLS before. When is one used above the other? Should she be S3 if kept in secure ward? There seems to be lots of grey areas. She is not getting better and is rapidly declining therefore the family are thinking s3 due to risk to other vulnerable adults.

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  12. Hi is it right to say that a s.2 is less restrictive compared to a s.3?

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    1. Yes, because it only lasts 28 days, compared to up to 6 months for a s.3, and it is predominantly designed for assessment rather treatment. Also, an appeal has to be heard within a few days.

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  13. My daughter is being threatened with a section 2 even though she has been in daily contact with various mental health teams for the last 4 months and was discharged from hospital 6 weeks ago after a 7-week stay during which the liaison psychiatry team saw her daily. Since discharge she has been under the care of two different secondary care MH teams who have seen her regularly. She has a complex set of physical and mental health problems but is now being threatened with a section 2 admission to an eating disorder unit because her medical condition has caused her to become dangerously malnourished. I agree that she needs urgent intervention and have supported all the steps to ensure that happens (with which she has complied). But both she and I (as her NR) feel adamant that an eating disorder unit is the wrong place for her treatment as she has had disastrous previous admissions to these units and it is accepted by all teams involved that her major issue is a medical and not mental illness. I have argued that the MHA does not apply as the treatment required is not for a mental illness but this has been ignored. So I am now seeking to argue that a s2 would be inappropriate as she has already been assessed at length and they know what treatment they want to give her. Do you think this is a valid argument? I realise it’s high-risk as s3 is so much longer but I’m hoping that if it got to a court hearing, I would have a very strong and rational case to argue against the eating disorder unit admission on the basis that it is not the right care plan for her.

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