Monday 22 January 2018

Can a person be detained under more than one section of the Mental Health Act at once?

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.

23 comments:

  1. Can I ask a question? Is it legal for a person subject to a CTO to be a voluntary patient in a MH hospital after being detained under Sc136? Also if one of the conditions of the CTO is to take medication via depot injection but the patient refuses but ends up as a voluntary patient is the whole CTO actually illegal? Patient was discharged day before tribunal

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    1. Someone on a CTO can be detained under S.136, but could then agree to informal admission. This does not affect the CTO. If the patient is refusing to adhere to the conditions, eg refusing to take medication, then they would have to be recalled, even if an informal patient, at which point they can legally be given medication. They could then be discharged from hospital, remain as an informal patient, or have their CTO revoked.

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  2. If P is subject to CTO, then arrested, then Police later discover CTO and inevitably there will be a wait for a recall bed, can P be made subject to s136 (ie when Police know they are subject to CTO? ) - logic is that place of safety preferable to police station during waiting time.

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    1. Theoretically they could be, if the requirements for s.136 were met,but this would not be good practice. A police officer is required to consult with a mental health professional prior to a decision to use s.136, and if the facts were known, they would be unlikely to be advised to detain under s.136.

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  3. Any thoughts from anyone about concurrent CTO and Guardianship? A complicated CAMHS /medium secure discharge case

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    1. It's tricky to have a deprivation of liberty with a CTO condition, so Guardianship could cover that.

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    2. Yes but could someone be on guardianship and a CTO?

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  4. What if someone on a cto is in hospital as an informal patient however require sectioning in an emergency when in hospital can they be placed on 5(4) or 5(2)?

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    1. The RC can recall them to hospital. That then gives 72 hours to decide whether or not to revoke the CTO. It only takes a letter.

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  5. Dealing with a case today where the patient on CTO was admitted to a general ward and it was decided to serve them with CTO3 recall paperwork. The problem now is that the patient is not medically fit to be discharged from the medical ward. Can he be recalled to the general ward? If not what legal framework can be used to keep the patient on the ward who is actively trying to leave?

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    1. I guess they could be theoretically admitted to a psychiatric ward and given s.17 leave to the medical ward. If the general hospital has a Mental Health Act Administrator and can accept MHA paperwork, then they could be officially recalled to the medical ward. If the general hosputal has a liaison psychiatrist, then that psych. could be the RC.

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    2. Good point did not think of that. For the time being the hospital are the patient on DOLs; but if the treatment on the ward is prolonged they may explore recalling to the general ward.

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    3. And of course the CTO could be revoked and the underlying s.3 would then come into play. Not really any need for DoLS.

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  6. P has been admitted to acute ward and cto expires in 3 days. Rc has recalled to recall hospital not current hospital. What legal framework does current hospital have in relation to preventing p leaving?

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    1. Suitable transport should be arranged to transfer him to the recall hospital, providing they are medically fit. Section 17E(6) states: "A notice under this section recalling a patient to hospital shall be sufficient authority for the managers of that hospital to detain the patient there in accordance with the provisions of this Act." Section 17F(3) states: "(3) If he is so transferred to another hospital, he shall be treated for the purposes of this section (and section 17E above) as if the notice under that section were a notice recalling him to that other hospital and as if he had been detained there from the time when his detention in hospital by virtue of the notice first began." So I think that gives either hospital the powers to hold the patient.

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  7. Section 3 has expired. Would a fresh application be needed and in the interim place on a 5(2)?

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    1. It ll depends on whether the patient is accepting inpatient treatment. If they are agreeing with the ward regime, they can remain as an informal patient, if they are objecting, and wanting to leave, then they would need to be detained under s.5(2) and then assessed for a further s.3.

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  8. If SU been detained on s.3 when admitted and now an informal patient, however issues around accepting depot medication still observed while in the hospital and potentially accepting social care support in the community. Could application of CTO be appropriate as a framework for SU to hopefully keep her mental health stable in the community? Would application CTO off the table now that the SU is informal?

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    1. You can only use a CTO for a patient actually detained under s.3 (or s.37), not an informal patient.

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  9. If someone is recalled during a weekend and the out of hours decline to revoke the cto and the person wishes to leave what powers can be used to prevent the person from leaving?

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  10. The CQC and Mind both state that under a CTO, if you don't consent to treatment it cannot be forced upon you under any circumstances if you have capacity to consent. Also, a 136 place of safety cannot be used to get a recalled patient back to hospital if you do not consent. So effectively you would be under house arrest which is very shady practice

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  11. An AWOL patient on sec 2 was placed on a sec 136 by police because they didn't know at the time, the conveyed to the nearest ED as there was no 136 bed, the Liaison team then realised they are actually on sec 2 and an AWOL from one of the wards. My question is does the sec 136 automatically becomes invalid just because it been known that patient on sec 2 and AWOL? There's a confusion that a sec 136 becomes invalid when its been established patient are on CTO or AWOL sec 2. Could you kindly clarify. As it is my understanding that patient on sec 136 whether by ignorance of the police or not still needs an AMHP to rescind the 136 section.

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    1. The patient would still need to be seen by an AMHP and a doctor. They then make a decision that the s.136 is no longer necessary, and the s.2 then continues.

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