When should you, or shouldn’t you, use section 4?

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. (21^st 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.

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.