Discussion has emerged on X (Twitter) about whether AMHPs should be using section 2 or section 3 when they make Mental Health Act 1983 applications to hospitals for patients assessed in the community and it’s becoming really interesting. It follows the very sad case of Matthew Lynch who was killed in his garden in Handsworth, Birmingham in July 2023. He was brutally attacked by Kyle Doughty, with whom he shared supported accommodation and in proceedings at Birmingham Crown Court, Doughty pleaded guilty to manslaughter on the grounds of diminished responsibility. He received a restricted hospital order and remains detained in hospital.
At the inquest for Mr Lynch’s death, recently concluded, His Majesty’s Senior Coroner for Birmingham & Solihull, Louise Hunt, issued a Preventing Future Deaths report, some of which is intensely curious to me and leads to this post about section 2 or section 3. Mr Doughty had been a mental health patient for some while at the point of these tragic events and the BBC News article about the Coroner’s conclusions contains details you may be interested to read: you will note they contain nothing about Mental Health Assessments, admissions procedures or debates about section 2 or section 3. Mr Doughty was at liberty in the community and there was all manner of confusion and question about the care he received as he disengaged from medication for “treatment resistant” schizophrenia, but mental health law wasn’t in play or considered in his case, prior to him being arrested on suspicion of murder, after the attack.
But the Coroner is very clear: in her three “matters of concern” in the PFD notice, number 2 states –
“The inquest heard evidence that there were barriers to the use of S2 and S3 of the Mental health Act due to AMPH [sic] resistance, administrative challenges and resourcing. This raises a concern that incorrect MHA assessments are taking place and patients may be detained on an inappropriate section impacting patient care. A copy of a report prepared by [REDACTED] is attached.”
In keeping with the Coroner’s redactions not to name the author of the report mentioned, I will not do so either, even though it’s very easy to find out. The report has also been uploaded to the Chief Coroner’s website and is available to read.
SECTION TWELVE SURVEY
The report is based on a survey of “section 12” Doctors in the Birmingham and Solihull Mental Health Trust area and I find it curious, if I’m honest. First things first: the whole thing is water-marked “draft” so I’m not sure we’re reading the actual report or a report in development: the latter explanation would help us understand the typos, amongst other things. It’s also a survey of section 12 doctors – those who are authorised to make certain recommendations and decisions under the MHA – and it starts by asking the section 12 doctors whether they are section 12 doctors. Me either …
But the substance of the report is about feedback from those clinicians about their experience of giving medical recommendations to Approved Mental Health Professionals after MHA assessments. Now the whole section 2 or section 3 thing is the stuff of ages. If you raise that topic with AMHPs, doctors or lawyers, you disappear down rabbit hole from which you emerge thinking there’s little consensus about all this stuff and you can see these discussions online, especially in the main mental health law forum I use where the topic has been raised. Some of the perspectives we hear are obviously based on a principled attempt to understand and apply the law, some of them are based on custom and practice (areas do vary, as argued by the report author here) and others are sometimes influenced by pragmatic considerations, like beds.
In case you’re unaware:
- Section 2 can apply where a patient has a mental disorder –
“… of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period” and “he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.”
- Section 3 applies where someone has a mental disorder –
“… of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital” and “it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section” and “appropriate medical treatment is available for him.” (emphasis added – because it is important in a moment).
Whatever the principles or pragmatism of the debates amongst professionals, the requirement in s3 MHA for “appropriate medical treatment” means something important for doctors completing MHA recommendations and for AMHPs working with those doctors:
APPROPRIATE TREATMENT
In these days of inpatient bed shortages, the chances of a bed being available at a hospital with specific treatment capabilities is less than the likelihood of a hospital being available for s2 admission where that specific requirement is not a legal issue. Of course, you may wonder about the utility of admitting someone to hospital where it’s not clear the appropriate treatment is available but if you are a doctor conducting an assessment who is starting to think section 3 may apply, you might also be thinking pragmatically about getting someone in to a hospital where they can be kept safe, before worrying about whether it is precisely the relevant location.
There is also the argument, unmentioned in the report submitted to the Coroner, we should remember it is AMHPs who carry the ultimate legal responsibility for the decision about which section to apply for – this is enshrined in caselaw. will argue that almost all patients should be admitted under s2 MHA because, amongst other things, even where patients and their diagnosis are known, whatever period of time spent outside of hospital since any previous admission will mean that patient’s condition, their circumstances and of course, their mental state may have change or require at least some period of assessment, prior to any decision about treatment.
What we learn from the report here is Birmingham AMHPs appear slightly more likely than their national AMHP colleagues to admit patients under s2 than s3 and the report raises the idea of cultural practices in place in some areas which I would have to guess must be correct. We know police forces use legal powers differently, even in roughly similar population groups, so why wouldn’t AMHPs have a culture in a particular city which influences things? We also know Birmingham is a big, busy, diverse and challenging area with some of Europe’s poverty hotspots: it’s fair to remember, AMHPs in Birmingham are not AMHPing in rural Wales or even in the industrial north of England. Areas differ and who is to say what the “correct” balance actually is?
But back to the beginning: the discussion leading to the report as evidence at the inquest that Doctors perceived “AMPH resistance” [sic] amongst other things. I’m not sure how the section 2 or section 3 debate helps make that point: the resistance referred to is a supposed resistance to making a s3 MHA application, not to the making of any application. I’ve never met an AMHP who concluded a patient needed to be in hospital who was resistant to anything which brought about that admission and it’s always worth remembering:
It’s the doctors’ job to provide the bed, not the AMHP’s – so the NHS’s ability to serve that doctor’s legal duty may be what is influencing some AMHP decisions.
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, 2025.
I am not a police officer.
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