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Section 2: admission for assessment

This is a 28-day civil section for assessment (or for assessment followed by treatment).

Admission

Two doctors must make the recommendations, and the application is then made by an Approved Mental Health Professional (AMHP) (or in theory, but extremely rarely in practice, by the nearest relative).

In relation to the medical recommendations:

  • One doctor must be approved (under s12) as a mental health specialist and, if practicable, one doctor should have previous acquaintance with the patient.
  • The recommendations can be on a joint form or two individual forms.
  • The patient must be conveyed to hospital within 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation (s6(1)(a)).
  • There must be no more than five clear days between the two medical examinations (s12(1)). I.e. If the first were on a Sunday the second must be no later than Saturday.

In relation to the application:

  • An AMHP must interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need (s13(2)).
  • The applicant (usually AMHP, but could in theory be NR) must have personally seen the patient within the period of 14 days ending with the date of the application (s11(5)).
  • Where the application is made by an AMHP, he must, before or within a reasonable time after the application, take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient of (i) the application and (ii) the NR's discharge powers (s11(3)).

Section papers can now be served electronically: see Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2020 and the guidance in DHSC, 'Electronic communication of statutory forms under the Mental Health Act' (updated 13/1/21).

It generally lasts for a maximum of 28 days and should not be extended by a further section 2. It can, however, be extended during nearest relative displacement proceedings. Also, at any time during the s2, the patient can be put on s3. Otherwise, the section lapses at midnight on the 28th day (e.g. if the section began on a Sunday, it will expire at midnight on a Saturday/Sunday).

The criteria for admission under s2 are:

(a) he is suffering from 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

(b) 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.

(Note that the 'learning disability exclusion' does not apply to s2.

The patient is subject to the Part 4 ‘Consent to Treatment’ provisions. In other words, compulsory treatment can be imposed.

Remote assessments

During the coronavirus pandemic the Department of Health and Social Care published guidance stating that remote MHA assessments by doctors and AMHPs were possible, but the High Court disagreed and held that the assessors must physically be present: Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin).

The court case concerned admissions under s2, 3, 4 and 7, but the DHSC have encouraged a precautionary approach which applies the principle to other situations in which the clinician or AMHP is required to ‘examine’ or ‘see’ the patient: NHS England, 'Further legal advice on remote MHA assessments' (3/2/21). Advice to directors of adult social services was published in ADASS and LGA, 'Briefing on the implications of the Devon case for Local Authorities and the AMHPs they approve and/or authorise' (16/3/21).

The Mental Health Tribunal subsequently published guidance stating that if tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application (Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)).

Discharge

Routes to discharge
  • Mental Health Tribunal (s72)
  • Hospital managers’ hearing (s23)
  • Responsible Clinician (s23)
  • Nearest relative: subject to ‘dangerousness’ considerations (ss23 and 25). The nearest relative's discharge powers apply to s2 as they do to s3, the only difference being the NR's inability to apply to the MHT following an RC's barring order. It is therefore sometimes wiser for the NR to wait until the patient is on s3.
Tribunal applications
  • During first 14 days only (counting day of admission) – unless Tribunal office is closed on 14th day, in which case the deadline is extended until the next business day (R (Modaresi) v SSH [2011] EWCA Civ 1359M
  • Nearest relative: cannot apply, even following barring certificate. The nearest relative's discharge powers apply to s2 as they do to s3, the only difference being the NR's inability to apply to the MHT following an RC's barring order. It is therefore sometimes wiser for the NR to wait until the patient is on s3.
Types of discharge
  • Immediate, unconditional discharge
  • Deferred to future date (by Tribunal)
  • The patient may remain in hospital informally after being discharged from the MHA 1983
  • Community Treatment Order not available
References
  • Discretionary reference by Secretary of State for Health and Social Care. Although the right to apply to the Tribunal is limited, it is relatively easy to persuade the Secretary of State to make a reference outside the normal period.
  • Six-month reference by hospital managers (if section is extended that long)

The RC is under a continuing duty to consider the detention criteria and discharge if they are not met (Code of Practice para 32.18). This applies to all sections where the RC has a discharge power.

In relation to the hearing date:

  1. In s2 cases, ‘the hearing of the case must start within 7 days after the date on which the Tribunal received the application notice’ (Tribunal rule 37(1)). This is taken to mean that if the patient applies on, say, Wednesday then the hearing should take place on or before the following Wednesday. In practice, because of difficulties in arranging panels, the deadline is not always met.
  2. There is a proposal permanently to change this deadline from 7 days to 10 days: Tribunal Procedure Committee, 'Consultation on possible amendments to the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 on the timescale for listing Section 2 hearings' (from 11/2/20 to 7/4/20).
  3. The deadline was temporarily changed to 10 days by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 on 10/4/20. The amended rules allow the tribunal to ignore the new deadline if it is ‘not reasonably practicable’. These amendment rules will expire on the same day as s55(b) Coronavirus Act 2020. The TPC will monitor its effects before making a final rule-change decision (Tribunal Procedure Committee, 'Responses to the consultation (on changes to the s2 listing window) and reply from the TPC' (23/6/20)).

The criteria for the Tribunal’s consideration are set out in s72(1)(a), and state that the Tribunal must discharge ‘if it is not satisfied’:

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment); or
(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons.

The word ‘or’ means different things in the quotation above:

  • In order not to discharge a patient the tribunal must be satisfied of both criteria (Reid v Secretary of State for Scotland [1998] UKHL 43M, R (AN) v MHRT [2005] EWCA Civ 1605M).
  • In relation to criterion (i) it is sufficient for the Tribunal to be satisfied of either one of nature or degree (R (Smith) v MHRT South Thames Region [1998] EWHC Admin 832M).
  • In relation to criterion (ii) it is sufficient for the Tribunal to be satisfied of any one of health, safety or protection of others.

Other topics

The following topics are relevant both to s2 and s3, and will be considered in detail when looking at s3:

  • The meaning of nature and degree.
  • Discretionary discharge.
  • Deferred discharge.
  • Statutory recommendations.

INFORMATION


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