Who’s responsible for assessing under s.3 for a patient detained under s.2?

Across England and Wales, because of the desperate shortage of suitable psychiatric hospital beds, huge numbers of people needing acute hospital admission are being moved out of their locality to hospitals often hundreds of miles from their home. As I pointed out in my last blog post, most of these hospitals are private.

Quite apart from the distress and difficulties this causes to patients and their relatives, it also creates enormous logistical problems for local authorities and their AMHP services.

This is because of the legal duties relating to assessment under the Mental Health Act.

s.13(1) states:

If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

What this means is that, regardless of where the person normally lives, if they happen to be somewhere else, but requiring assessment under the MHA, the duty falls on the AMHP service where they happen to be at the time.

Here’s an example from my own AMHP service. Gerry lives in local authority A, but goes on holiday in local authority B, which is 100 miles from his normal home. He becomes mentally unwell and is detained under s.136 by the police. LA B has the legal duty to undertake the assessment. In the case of Gerry, the decision was made that he needed to be detained under s.2 for assessment, although the mental health trust in his home area, where he was registered with a GP, was responsible for finding him a bed.

But things can get even more complicated than that.

I recently received a call from an AMHP in in a London Borough (X), many miles from our LA, concerning a patient whom I will call Patrick. Patrick normally lives in our area (LA Y), but had been staying with friends in their area when he became unwell and was assessed by one of their AMHPs who detained him under s.2. Our local MH trust found him a bed in a private hospital, which was in LA Z, nowhere near either X or Y.

After a few weeks, a request was made by this hospital for assessment under s.3 for treatment. The request went to X. The AMHP in X contacted our AMHP service to inform us of this, and to instruct us that we had a duty to undertake this assessment.

I drew his attention to paragraph 14.37 of the Code of Practice, and read it out to him:

If a patient is already detained under section 2 as the result of an application made by an AMHP, the local authority on whose behalf that AMHP was acting is responsible for arranging for an AMHP to consider the patient’s case again if the local authority has reason to believe that an application under section 3 may be necessary. This applies even if the patient has been detained outside that local authority’s area.

(By the way, for any Welsh readers of this blog, paragraph 14.27 of the Welsh code of Practice says the same thing.)

This means that an AMHP from area X has the legal duty to do the assessment, even though Patrick was from area Y and was now in a hospital in area Z.

This unfortunate AMHP wasn’t sure about this.

“Ah,” he said, “there’s case law that overturns this.” And he made some comments about “ordinary residence”.

I knew what he was referring to. He was referring to the Care Act 2014, and its changes to s.117 MHA, which relates to the duty to provide aftercare to patients detained under s.3 and some sections in Part III of the MHA.

s.117(3) states that the responsibility to provide aftercare lies with the LA and CCG for the area in which a patient was “ordinarily resident” at the time of their detention under s.3.

s.39(1) of the Care Act defines “ordinary residence” as being in “the area in which the adult was ordinarily resident immediately before the adult began to live in accommodation of a type specified in the regulations”.

s.39(4) then explicitly applies this to s.117 aftercare, stating:

An adult who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as ordinarily resident in the area of the local authority in England or the local authority in Wales on which the duty to provide the adult with services under that section is imposed.

He certainly had us bang to rights – as far as aftercare goes. If Patrick was detained under s.3, our area would be responsible with providing him with aftercare.

But this had no bearing on the duty to assess under s.3. Paragraph 14.37 trumped this, and an AMHP in area X was going to have to do the assessment, even though Patrick was no longer even in their area.

It’s a tough call, but the law is the law. And it applies to every AMHP Service in England and Wales.

In practice, local AMHP Services are often obliging, and may consider doing an assessment for s.3 on behalf of the relevant LA if the patient is in a hospital in their area. Our area has several private hospitals, who often receive patients detained under s.2 from all over the country. If we have capacity, we will deal with a request for s.3 from another LA – if they pay us.

But not all LAs are so obliging.

Do you remember Gerry, who was on holiday in our area when we detained him under s.2?

He was admitted to a hospital in his own area, and after a few weeks there was a request to assess for a s.3.

You might think that his local AMHP Service, seeing that he was a patient who lived in their area, and who was in hospital in their area, and who would have s.117 responsibility for him, would see it as reasonable to do this assessment.

But no. They stuck to para 14.37, and insisted that one of our AMHPs went to their hospital to assess their patient.

If anyone involved in the Association of Directors of Adult Social Services (ADASS) happens to be reading this, perhaps they’d like to bring the whole matter up with their association.

Because of the current ongoing and apparently endless crisis in provision of adequate mental health beds, nearly all LA’s are experiencing these problems, and either having to send AMHPs hundreds of miles away at huge expense (which can entail overnight hotel stays and two full AMHP days for one assessment), or paying other AMHP services to do these assessments on their behalf.

Isn’t there a simpler and cheaper way to tackle this?