You know when you don’t get a question on section 5 of the Mental Health Act for ages and then three come along at once?! That … typical. It struck me the three queries grouped by theme would make a blog post, so where we go. As an introductory reminder, section 5 of the MHA contains two ‘holding powers’ for patients who are already in hospital as inpatients. The purpose of the ‘holding power’ is to allow for Mental Health Act assessment in cases where it’s thought possible someone may need to be fully ‘sectioned’.
Things to know —
- Section 5(2) MHA – allows ANY registered medical practitioner to hold an inpatient for up to 72hrs at the hospital where the power was applied, pending a decision by an AMHP and two doctors as to whether a formal application under the MHA is required.
- Section 5(4) MHA – allows a registered mental health nurses or learning disabilities nurse to detain an inpatient who is already in hospital receiving treatment for a mental disorder and hold them for six hours where no doctor is available to consider s5(2) MHA.
- These powers can only be used in inpatient settings – so typically, they can’t be used in Accident & Emergency Departments. A&E is, essentially, a massive outpatient clinic for unscheduled care.
- Anyone who absconds from detention under s5 is Absent Without Leave and may be retaken under s18 MHA and returned to the relevant hospital – but this can only occur whilst the power remains ‘live’.
- So a 5(2) patient can only be re-detained within 72hrs of that holding power being applied; s5(4) patients can only be re-detained within 6hrs of the power being applied.
- The Code of Practice to the MHA states that hospital staff should consider their powers under s5 rather than call police officers to hospital wards to instigate powers under s136.
THREE SCENARIOS
In our first situation – a patient who had been detained on s5(2) MHA by a doctor absconded from a hospital ward after violently resisting being detained and this involved an assault on an NHS staff member. Having reported the patient missing and high risk to the police, officers located the person and returned them to the ward. Upon arrival, NHS staff refused to allow the patient back on the ward because of the violence involves and insisted that officers were legally wrong to return the patient and that they should have used s136 MHA to remove the person to a Place of Safety. An unresolved disagreement led to the patient being assessed in a police van outside the ward(!) and they were subsequently ‘sectioned’ to psychiatric intensive care unit in another hospital.
The exam question was: should officers have used s136 and were the staff ‘right’ to refuse admission to the patient?
In our second situation – a patient was detained under s5(2) MHA and then identified as requiring A&E attention for an injury. They were taken to A&E by NHS staff from the MH unit and then tried to leave. They were prevented from doing so by hospital staff and because of the extent of the resistance, police were called to assist. After completion of assessment for injury, the patient was returned to the original MH unit where the s5(2) was applied and the debate began about completion of the MHA assessment.
The exam questions here were: a) was the 5(2) still in effect at the A&E department to allow for detention there, pending assessment; and b) was the 5(2) still in effect upon return to the original hospital?
In our third situation – a patient absconded from a MH unit having been detained under s5(2) MHA by a doctor, after a registered MH nurse had used s5(4) MHA to allow for that doctor’s decision. Prior to MHA assessment, the patient absconded. They were found by officers within the 72hrs and returned to the ward where ward staff then argued that the MHA was very urgently required because the original 5(2) expired as soon as the patient left the ward.
The exam question here was: does the 5(2) expire when the patient absconds but whilst still within the original 72hr period?
THREE ANSWERS
I deliberately haven’t answered these along the way, as I’ve given you the answers in the opening introduction! Did you get them right?! If you didn’t think it through, stop reading here and go back – give it bash. This stuff is nowhere near as complicated as people think it is – it’s usually just unfamiliar and that breeds distrust and uncertainty. If you continue to read from here, you’ll have this delivered on a plate and you’ll regret not wading fearlessly in to the hypotheses!
In our first situation – the power were quite right to remove the patient back to the ward from which they’re missing. The hospital who cared for the patient and had legally detained them under s5(2) continue to have a duty of care towards the patient and returning someone to clinical supervision and a clinical environment is to be preferred over s136 processes which may (depending on the precise situation in play with demand and PoS provision) result in removal to A&E or in a situation where there is nowhere to remove the person anywhere. Nowhere has a legal duty to receive someone detained under s136 so the person could end up bouncing around the system. Whatever difficulties may be encountered in receiving the patient back to an environment where there has been challenging behaviour, it may (depending on specifics) be more appropriate than the other alternatives. And given the Code of Practice stipulates a clear preference to use s5 rather than call the police to use s136, it must follow, (surely?!) that returning someone to s5 detention is preferable to a s136 process which may mean the person can’t go anywhere? Ultimately, that hospital have a clear and unambiguous duty of care – difficulties in discharging it are for escalation to NHS managers, not a matter for the police.
In our second situation – a) the 5(2) was no longer in effect at A&E, after the person left the hospital in which the holding power was instigated – patients may not be transferred between hospitals whilst detained under s5 powers therefore any transfer done without patient consent must be justified under another law. For example, transfer may be urgently justified under the Mental Capacity Act, if the situation is sufficiently serious; and b) if the patient who went to A&E arrives back in the hospital where the 5(2) was originally applied, as long as the overall 72hrs has not been exceeded – so, if someone is taken to A&E 5hrs after the original application of the holding power and then returned to the first hospital 12hrs after the original hold, there are 60hrs left under s5(2) MHA. If the person absconded from A&E or seemed likely to do so and the police were called, officers cannot rely upon s5(2) MHA in the A&E department and would need to consider other laws, for example s136 MHA, just as if they’d been called without the s5(2) ever having happened.
In our third situation – we’ve touched on this exam question in the previous two answers. As long as the 72hr or 6hr periods are still running, anyone who has absconded from s5 MHA is Absent Without Leave (AWOL) and may be re-detained under s18 MHA. (Officers would need PACE justification OR a s135(2) warrant to force entry, however.) But once the patient is returned to the ward, they have a duty of care to re-admit the patient or make other arrangements for their care (see answer to question 1) AND / OR they can rely upon the original authority to keep the person detained, as long as its maximum duration has not been exceeded.
BREAD AND BUTTER
These questions have rammed home to me a point which I never enjoy making but which I feel I must do to help frontline police officers – this is especially true as I became a frontline police officer again today as an inspector in the West Midlands Police ‘Force Response’ department. You need to know enough about your powers or at least know where to go because you cannot always rely upon the legal views you may get from some mental health professionals. All of the above question came to me via situations in which the mental health nurses on wards were getting this stuff legally incorrect, insisting on police action as a result of their misunderstanding that would have been highly problematic for patients and officers. I recently wrote a cynical mantra on Twitter to summarise how I think officers should approach all policework, but especially this stuff on MH law –
- Accept nothing
- Believe no-one
- Check everything
- Document it all
- Expertise rarely stays in its own lane – refer to points A-D.
It’s possible to graduate in mental health nursing from a University in the UK with one hour of mental health law training. Many mental health nurses a properly impressive legal eagles, some have studied mental health law formally but the operational difficulty for officers is working out which is which. Formal enquiries in to mental health treatment in the UK have had to make recommendations for training on the law which most of us in policing would think was bread and butter stuff. Like officers knowing stop & search or arrest powers. Legally informed / qualified mental health professionals don’t wear a badge to make the distinction, so you do need to work it out each time and that probably means knowing your mental health from your mental capacity law in enough detail to confidently survive contact.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
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 – http://www.legislation.gov.uk
Mental Health Cop 