This
is by no means as straightforward an issue as it may seem, and can from time to
time create difficulties and anomalies.
While
as a general rule, a person cannot be subject to more than one section of the
MHA simultaneously, there are exceptions to this rule. There are also
implications regarding whether or not certain sections can continue once a
decision has been made.
I’ll
look at some examples.
S.5(2)
The
Code of Practice states that S.5(2) cannot apply “to a patient who is already
liable to be detained under section 2, 3 or 4 of the Act”(para18.7).
If
an informal hospital patient is detained under S.5(2) an AMHP has up to 72
hours to arrange an assessment with a view to detaining under S.2 or S.3. Once
a decision has been made, and an application completed for S.2 or S.3, the
S.5(2) detention ends. This also applies if the decision is made not to detain.
The Code of Practice states: “Although the holding power lasts for
a maximum of 72 hours, it should not be used to continue to detain patients
after the doctor or approved clinician decides that, in fact, no assessment for
a possible application needs to be carried out, or a decision is taken not to
make an application for the patient’s detention.”(para18.20)
Additionally,
it needs to be borne in mind that detention under S.5(2) does not permit the
patient to be moved from one hospital to another. If they are moved, for
example from a general hospital to a psychiatric hospital, or vice versa, then
the S.5(2) would automatically end.
What
about S.2 to S.3?
Ah.
If an AMHP assesses a patient who is detained under S.2 for assessment with a
view to detention under S.3 for treatment, and makes the decision not to detain
them, then, although best practice would be for the Responsible Clinician to
discharge them from S.2, there is no requirement to do so, so the S.2 could
legally continue to the end of the 28 day period of detention.
There
are situations in which this could be justified. An example that springs to
mind is where a patient has been detained under S.2 and the request to detain
under S.3 comes within the first couple of weeks of the original detention. The
AMHP may consider that it is too premature to consider detention under S.3,
which could last for up to 6 months, and may think that the patient’s condition
could improve sufficiently over the remaining time of the S.2 to make further
detention unnecessary.
S.136
A
similar rule as that for S.5(2) applies for detention under S.136. If an AMHP
and at least one doctor have assessed and decided that a patient detained under
S.136 does not need to be detained under the MHA, the S.136 can remain in force
only while any necessary arrangements are made for the disposal of the patient,
such as arrangements for informal admission or transport home. The Code also
points out that someone subject to S.135(1) or S.136 cannot be placed on
S.5(2), since S.5(2) only applies to inpatients.
The
S.136 will also remain in force while arrangements are being made for a
hospital that is able to take the patient if it has been decided to detain
under S.2 or S.3. Of course, this will only apply until the end of the maximum
length of detention of 24 hours.
Assuming
there is a bed, then the S.136 ends as soon as the relevant application has
been made. As the patient is then liable to be detained, this authorises the
AMHP, the police or any other relevant person to hold the patient in custody
until they can be transferred to hospital.
The
same will apply for a patient detained under S.135(1) who has either been taken
to a place of safety for assessment, or assessed at the place where the warrant
has been executed.
Guardianship
(S.7)
No-one
can be detained simultaneously under both Sec.3 and S.7, as the Reference Guide
states: “Once a patient subject to guardianship is admitted for treatment, the
guardianship ceases.” (para8.99)
However,
a patient subject to Guardianship can be detained under S.2 (and S.4)
(para30.36).
Community
Treatment Orders
Possibly
because Community Treatment Orders were added to the MHA 1983 by the 2007 MHA,
many years after the original drafting, it gets rather more complicated.
Because
people can only be subject to a CTO if they are detained under S.3, people on
CTO’s can be regarded as still subject to the original, latent, S.3.
The
Reference Guide states unequivocally that someone on a CTO cannot be made
subject to S.5(2)(para8.72). It goes on to explain that “because patients on
CTOs can be recalled to hospital for treatment if required, it should not be
necessary to make applications for their detention.”(para8.96) The Code states
that “where the person is known to be on a CTO and compulsory admission is
indicated, the recall power should be used”(para18.17)
You
might think therefore, that no other sections of the MHA can be used with
people on CTOs, but that is not necessarily the case. The Reference Guide
recognises that in practice patients may end up being detained under other
sections “if the people making the application do not know that the patient is
on a CTO"(para8.96). It goes on to state:
An
application for admission for assessment under section 2 or 4 does not affect
the patient’s CTO. Nor does an application for admission for treatment under
section 3 if, before going onto a community treatment order (CTO), the patient
had been detained on the basis of a hospital order, hospital direction or
transfer direction under part 3 of the Act. (para8.97)
So
this does mean that a police officer, not being aware of a person’s status as
being subject to a CTO, may legitimately detain someone under S.136.
Consequently,
an AMHP and a doctor would still need to assess in accordance with the
requirements of S.136, but if they decided the person needed to be admitted to
hospital, they could then make arrangements for their recall to hospital under
the rules for a CTO.
An
application for detention for treatment under S.3 would automatically end a
CTO, in the same way that a S.3 would end a Guardianship Order. However, the
Code says, “an application for detention should not be made in respect of a person
who is known to be on a CTO” (para15.17), so the correct procedure would be
recall to hospital, followed by revocation of the CTO if necessary. That action
will then reactivate the latent S.3.
If
in ignorance, perhaps because the person on a CTO has turned up in another part
of the country, they are then detained under S.2 or S.4, the recall and
revocation process can be initiated once the person’s true status is
known, and once the S.3 had been restored, any other sections would cease to
have effect.
I
hope that’s cleared up any confusion.