Nearly four years in to writing this BLOG and Iâ€™ve never done a post explaining the main inpatient provisions under the Mental Health Act. I would argue that officers do need to have a sense of what they mean, because aspects of how these sections operate affect policing decisions that can be subsequently necessary â€“ so Iâ€™ve decided to cover it. From understanding the point at which someone becomes â€˜sectionedâ€˜, all the way to understanding timescales that might apply to the re-detention of a patient who has absconded from care â€“ all relate back to understanding various important sections of the Act.
The sections I am going to cover in this post are those contained in Part II of the Act, what sometimes are called the â€˜civilâ€™ sections of the Act (as opposed to the â€˜criminalâ€™ sections in Part III which are imposed within the operation of the criminal justice system).
MAIN ADMISSION PROVISIONS
There are two provisions officers need to know about as they are the ones that occur most frequently where patients are being â€˜sectionedâ€™ or are â€˜AWOLâ€™ â€“
Depending on how interested you want to get, there can be some fairly interesting debates amongst AMHPs for which provision should be selected as a mechanism to admit someone. My original understanding of these provisions led me to believe that patients were admitted under section 2 where they were not known to services or where they did not have a known diagnosis; section 3 was for known patients with a diagnosis. I thought this because thatâ€™s seemed to be how AMHPs decisions were taken when I worked as a custody sergeant. On one occasion, an AMHP wanted to make an application under section 3 for a young man arrested for a robbery. I remember feeling utterly confused when I was told that the application would not be happening because â€œhis nearest relative has objectedâ€. This young man was obviously very unwell indeed and I was simply astounded that an objection from a relative could prevent it going ahead but this is a peculiar aspect of section 3 â€“ it is for that reasons some AMHPs argue that admission to hospital should most usually occur under s2, to which NRs cannot legally object.
LESS FREQUENT PROVISIONS
There two less-frequently occurring sections that will occasionally pop up: they are simple to understand and Iâ€™ve had queries on both of these recently, where the NHS have rung the police in connection with application of AWOLs â€“
5(2) â€“ Any doctor may hold someone who is already an inpatient for up to 72hrs under section 5(2) of the MHA. An important point for officers to understand here, is that the 5(2) takes effect at the point where the doctorâ€™s written report is delivered to the hospital managers.Â It does not take effect at the point where the Doctor decides to start writing a report, so a recent example IÂ was contacted about meant hospital security were quite correct to refuse to rely upon this provision where a nurse was telling them to do so. The doctor had not yet completed his report and any detention would
5(4) â€“ A nurse of the prescribed class may detain a patient for up to 6hrs. During this time, a doctorâ€™s holding power under s5(2) may then be applied if a full Mental Health Act assessment cannot be convened in time. A nurse of the prescribed class typically relates to nurses who are trained in mental health, learning disabilities or child / adolescent mental health. Many nurses on acute hospital wards will not be authorised to use this power but all nurses are able to ask any hospital doctor to authorise detention under section 5(2) and they may also rely upon the Mental Capacity Act, where it applies.
Itâ€™s important to note on section 5 that it cannot be used in A&E because members of the public in that part of the hospital are not inpatients â€“ A&E is, in effect, a large and unusual outpatient clinic, legally speaking. Section 136 of the Act however absolutely can be used in A&E, notwithstanding arguments about it is a place to which the public have access (it is) and whether or not it is itself a place of safety (it can be)!
ABSENT WITHOUT LEAVE
All of these sections have different implications when patients are missing because of the timescales. In the Quick Guides section, you will find a full checklist for the timescales that apply to the re-detention of an absent patient, including the so-called â€˜criminal sectionsâ€™ under the Act â€“
It is a requirement of the Code of Practice to the MHA (paragraph 28.17) that police officers are told by medical or nursing staff the time limit for taking someone into custody. Iâ€™m sorry if this next point causes any upset to anyone, but itâ€™s worth double-checking what youâ€™re told against the timescales outlined: my own professional experience is that Iâ€™ve never, ever been told the correct answer in all the times Iâ€™ve asked for time limits to be explained. It may be easier for officers to ask the admission time / date (for s2 and s4) or the AWOL time / date (for ss3, 5(2) and 5(4) â€“ work it out for yourself from there!
If an inpatient has become AWOL, the power to re-detain them within the timescales is section 18 of the Mental Health Act. There is no power to force entry to premises in order to do this, so where it is necessary, a warrant under s135(2) MHA must be obtained. Police officers can apply to Magistrates for such warrants, where necessary. The Code of Practice prefers that mental health professionals accompany officers whilst executing them.Â If a person has been â€˜sectionedâ€™ under the Act and they abscond during conveyance before arrival at hospital, then the power to re-detain is section 138 MHA. Again: a warrant under s135(2) MHA must be sought, if entry is to be forced where s17 of PACE does not apply.
Donâ€™t forget, if you need to look up this stuff from time to time, there are various links on this BLOG that can be easily stored on your SmartPhone homepage â€“ just open the links one at a time and save them to a folder.Â Job done!
Winner of the Presidentâ€™s Medal from
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award.