Exam question:  where someone has been assessed under the Mental Health Act 1983 by an Approved Mental Health Professional (AMHP) and two Doctors and the decision is taken to make a s2 or s3 application for admission to hospital, does this mean the patient is now “liable to be detained”? – by extension, would it mean that anyone in this position could be re-detained if they absconded after assessment, but before a bed is found and an application made?!

No – it doesn’t; and no – they can’t.

LIABLE TO BE DETAINED

“Liable to be detained” is a legal condition which arises once an MHA application has been made to a hospital by the AMHP.  Until an MHA application is made, the person who was assessed remains in whatever legal condition they were in during and before the assessment.  So if the person had been detained by the police under s136 MHA, for example, they would remain under s136 until the application is made or the 24hrs available under s136 expires, whichever occurs first.  If they were not legally detained in anyway, then the person would remain un-detained, because the AMHP has not finalised an application (due to the non-availability of a bed, in most examples I ever hear about).  Of course this then means, the person is at liberty to leave because to keep someone detained against their will without legal authority amounts to false imprisonment and this discussion came up recently on Twitter, following circulation of a flowchart purporting to come from the Royal College of Emergency Medicine which suggests people can be detained in ED, for MHA assessment, for example.  An interesting take.

So where a patient is assessed but no application made, they are not governed by any legal framework other than whatever existed before.  If nothing did, they at liberty and free to leave unless someone can identify another basis for interfering with their Article 5 rights.  Incidentally, this kind of thing is precisely why section 13 MHA states the AMHP “shall make the application” once the grounds for doing it are met – those grounds make no mention of ‘beds’, specifically.  The whole Act is written on the premise that beds are available when they are required so that AMHPs can act to mitigate risks when failure to do so may amount to neglect.  Section 140 MHA even requires the NHS to specify those hospiatls where urgent admission arrangements exists.  There have Coroners cases where the failure to make such applications, mainly connected to bed availability and a lack of effective s140 arrangements, has amounted to neglect.  This stuff is far from hypothetical and the exam question I’m answering in this post only arises because of that difficulty.  In fairness to all AMHPs and for the avoidance of all doubt: it’s not their job to identify and supply a bed, that’s a role for the NHS – specifically, it’s the responsibility of the first assessing doctor in the MHA assessment, the s12 doctor.  In practice, this is often delegated to bed managers in trusts who are often senior nurses, but that doesn’t guarantee they can magic up a resource.  That comes back to the importance of proper, reliable and effective arrangements under s140 MHA.

Patients shouldn’t really be waiting hours or days for beds, where there is significant risk associated with delay and where it does happen, it’s can amount to a breach of law, leading to the findings of neglect to which I’ve referred, or a failure to ensure Article 2 rights in respect of which there have been successful civil claims, etc..  Of course, if an application has not yet been made and someone does exercise their right to leave the location where they were assessed, it may well be the police receive a missing person report amidst a concern for safety and have to go looking for someone to safeguard them.  I’ve had this situation at work more than once and it means officers might have to think about the application of s136 MHA if the patient is found somewhere s136 can be used.  They could then be held at a Place of Safety whilst the search for the bed continues, giving 24hrs maximum.  If they are found somewhere s136 cannot be applied, back to the AMHP / NHS as it’s their responsibility to ensure suitable care and support after MHA assessment, including where no application is made.  The AMHP could secure a s135(1) warrant or finalise an urgent application … that’s a matter for them.

ABSCONDING not AWOL

Where a MHA assessment has occurred and an application has been made, patients are then “liable to be detained” and if they choose to leave the location where the assessment  took place there can be legal powers to intervene.  The question I received which prompts this post asked whether s18 is the relevant power – many are familiar with this power of re-detention, but it’s not the one we need here.  Section 18 MHA referes to the re-detention of patients who are absent without leave – ie, patients who left a hospital without authorised s17 leave, or failed to return from authorised or revoked s17 leave.  But s18 refers to those who have already achieved inpatient status – ie, they made it to hospital and were ‘detained’ there under the MHA after the application was made.

Where the patient was subject of an application but has not yet made it to hospital, they are not AWOL if they abscond, so s18 MHA does not apply.  Section 138 MHA is the power to retake someone who is liable to be detained – it’s also the power to re-detain someone who absconds from detention under s135 or s136 MHA.  The situation doesn’t occur very often, hence its a fairly obscure point.

The main point for me: we are again discussing what happens once the system has already gone awry – patients who have been assessed MHA as requiring admission have various rights – principally, to be admitted in a timely way to care which assists in mitigating whatever risk is the basis of the application.  For as long as that risk is unmitigated and agencies are improvising their safeguarding in various ways, we may continue to see avoidable police responses to vulnerable people or very necessary responses attempting to rescue emergencies before the worst occurs.

We need to stop doing the wrong thing righter.

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk