I
decided to write this post after there was a discussion among our local AMHPs
concerning the use of s.4, in particular when involving assessments following
detention under s.136 or execution of a warrant under s.135(1).
S.4
Mental Health Act is explicitly referred to as “an emergency application”. It
is meant to be used only in cases of “urgent necessity”. The AMHP, when completing
Form A10, has to state:
In
my opinion it is of urgent necessity for the patient to be admitted and
detained under section 2 of the Act and compliance with the provisions of Part
2 of the Act relating to applications under that section would involve
undesirable delay.
Richard
Jones, in the Mental Health Act Manual, notes:
Under the MHA 1959, the equivalent procedure was misused
and became the most widely used form of compulsory admission. Subsequent to the
implementation of the Act, pressure from the Mental Health Act Commission was
largely responsible for a decrease in both the number and proportion of
applications made under this section. (21st Edition, p55)
He
is referring to s.29 MHA 1959. The wording was pretty much the same as for s.4.
While I practiced as a Mental Welfare Officer under the MHA 1959 for a couple
of years before the 1983 Act came into force, I never had to use this
particular section.
However,
between 1983 and 1990 I used s.4 on 11 occasions. In the 36 years of the MHA
1983 I have only used s.4 on a total of 18 occasions, the most recent time
being 10 years ago.
There
were several reasons for the frequent use of s.4 in the early years of the Act.
At
that time, community based mental health services were virtually unknown.
Community Psychiatric Nurses were almost unheard of. There were a lot of
psychiatric beds, but not very many consultant psychiatrists, and they were all
ward based. Fees for conducting assessments as s.12 doctors were around £30.
All
this meant that most requests for MHA assessments came from GP’s. An Approved
Social Worker would go out with the GP to assess the patient. It was almost
impossible to persuade a consultant psychiatrist to leave the hospital to
attend one of these assessments.
A
typical conversation with a psychiatrist would go something like this:
“Oh,
just bring them in on a section 4 and I’ll convert it to a section 2 once
they’re on the ward.”
So
even if the patient was not acutely unwell, if they needed to go into hospital,
waiting possibly days for a psychiatrist to deign to conduct a home visit meant
that detaining under s.2 would involve “undesirable delay.” The only upside to
all this was that there were always beds available.
The
current Reference Guide (2015) makes it clear that:
In exceptional cases, it may
be necessary to admit patients for assessment as an emergency before obtaining
a second medical recommendation (8.46)
The
Code of Practice goes into a lot more detail, stating:
An application for detention
under section 4 may be made only when:
· the criteria for detention for assessment under section 2 are met
·
the patient’s detention is required as a matter of urgent
necessity, and
·
obtaining a second medical recommendation would cause undesirable
delay. (15.2)
It continues:
Section 4 should be used
only in a genuine emergency, where the patient’s need for urgent assessment
outweighs the desirability of waiting for a second doctor. (15.6)
How often is s.4 used?
The use of Section 4 is
certainly in marked decline. A straw poll in the AMHP hub identified that out
of 5 AMHPs, I was the only one who had ever used this section.
This is backed up by
national statistics on the use of the MHA.
Health and Social Care
Information Centre Statistics for Use of the Mental Health Act for the year
2013-14 shows that between 2009 and 2014 the use of s.4 almost halved, from
nearly 600 in the year 2009-10, to little more than 300 in 2013-14.
(Unfortunately, I am unable give more recent statistics, as subsequent reports
did not include statistics for s.4, but it seems likely that this decline has
continued.)
When you take into account that in that year there was a total of just over 18,000 people detained under s.2 or s.3, it is clear that use of s.4 is rare nationally.
When you take into account that in that year there was a total of just over 18,000 people detained under s.2 or s.3, it is clear that use of s.4 is rare nationally.
Readers willing to delve
into my blog will find several anecdotal examples of my use of s.4 in the past (just
click on “section 4” in the labels column on the right hand side).
So are there circumstances
in which s.4 might be appropriate, outside of genuine unanticipated
emergencies?
The Code of Practice
suggests that:
To be satisfied that an
emergency has arisen, the person making the application and the doctor making
the supporting recommendation should have evidence of:
·
an immediate and significant risk of mental or physical harm to
the patient or to others
·
danger of serious harm to property, or
·
a need for the use of restrictive interventions on a patient
(15.8)
The code of Practice makes
it very clear that s.4 is not to be used in any routine way. It states:
Section 4 should never be
used for administrative convenience. So, for example, patients should not be
admitted under section 4 merely because it is more
convenient for the second
doctor to examine the patient in, rather than outside,
hospital. (15.7)
In the circumstances I have
outlined earlier, where it has not been possible to obtain a second doctor, the
Code is clear:
It is the responsibility of
clinical commissioning groups (and the NHS
Commissioning Board) to
ensure that doctors are available in a timely manner to
examine patients under the
Act when requested to do so by AMHPs. (15.9)
Where CCGs are deficient is
providing sufficient s.12 doctors (and this is a considerable problem in some
parts of the country, especially outside normal office hours) the Code goes on
to say:
If AMHPs find themselves
having to consider making emergency applications
because of difficulties in
securing a second doctor, they should report that to the
local authority on whose
behalf they are acting. (15.10)
Are there circumstances in
which it may be necessary or proportionate to consider use of s.4 for patients
detained under s.136?
When s.136 lasted for up to
72 hours, it would be inconceivable to use s.4, as there would be little excuse
for a failure to obtain 2 medical recommendations within that timescale.
However, since 2018, that time limit has reduced to 24 hours. This makes it
much tighter to obtain two doctors for an assessment, and I am aware that my
EDT colleagues are frequently unable to get 2 doctors our of hours.
However, I am not aware of
any insurmountable difficulties in getting two doctors to assess a patient
under s.136 with the current time limit, and it may be in exceptional circumstances that the time limit
could be extended by another 12 hours, if the reasons for a delay have been
because of the medical condition of the patient, or the fact that they have
been under the influence of alcohol or drugs.
My short answer, therefore,
is that use of s.4 in these circumstances could not be justified.
And what about s.135(1)?
Ah. I can visualise the
following scenarios.
Scenario 1
An AMHP turns up at a
patient’s house with a police officer and a doctor. One way or another, entry
is obtained to the property and the AMHP and doctor are able to speak to the
patient and conduct some form of assessment without removing them to a place of
safety where a second doctor can be available.
It becomes clear during this
assessment that the patient is in such desperate need of medical treatment
because of injury or an overdose, that using the s.135(1) powers to remove to a
place of safety, ie the local s.136 suite, would cause undesirable delay.
S.4 in this situation is
still not really appropriate, as the s.135(1) powers could be used to take the
patient to the A&E department of the local general hospital, and to hold
them there while they are receiving urgent medical treatment. In the meantime,
a medical doctor could be used for the second medical recommendation if
required.
Scenario 2
Same as Scenario 1, except
that there is no medical need to remove to a hospital. However, the patient
manages to evade the police and makes a run for it. This means that, unless
they can be apprehended within the 24 hour period, or what is left of it,
s.135(1) powers cannot be used to facilitate a second doctor assessing the
patient.
In this situation, it is
conceivable that the AMHP and the doctor could make an application under s.4,
so that s.6 powers to apprehend a patient “liable to be detained” could then be
used, and the s.4 allows 72 hours to locate the patient and take them to
hospital.
Are there any other
circumstances when s.4 could be used?
Interestingly, the Code does
suggest another situation in which s.4 might legitimately be used. This is
following use of a doctor’s holding powers for an inpatient under s.5(2).
Para 18.42 of the Code
reminds us that patients detained under s.5(2) cannot be transferred to another
hospital.
The Code visualises a
situation in which there is an urgent need for the patient to go to another
hospital for “treatment, security or other exceptional reasons”. However, it
points out that the patient would have to agree to this, or if lacking capacity
a best interests decision could be made under the MCA to move them. As the
original s.5(2) would then end, the receiving hospital could then consider
another use of s.5(2).
However, there is another
option. The Code suggests the following:
If the conditions are met, an emergency
application for detention under section 4 of the Act could be made to the
sending hospital. The patient could then be transferred to the receiving
hospital under section 19. Alternatively, an emergency application under
section 4 could be submitted to the managers of the receiving hospital.
