Summary of the detaining sections
The most common sections which you will come across in practice are sections 2, 3, 37, 37/41, and 47/49. These, together with other detaining sections, are summarised briefly below. Information relating to whether or not the "consent to treatment" provisions, and relating to Tribunal eligibility, can be found elsewhere. [DRAFT NOTES]
Section 2: admission for assessment
This is a civil section for assessment (or for assessment followed by treatment). Two doctors must make the recommendation, and the application is then made by an AMHP. It lasts for a maximum of 28 days and cannot be extended. At any time during the s2, the patient can be put on s3; otherwise, detention expires at midnight on the 28th day. [To add: criteria]
Section 3: admission for treatment
This is the long-term civil section. An AMHP makes an application for admission, based on the recommendations of two medical practitioners. The initial period for which detention is authorised is six months, but it can be renewed by the RC for a further six months, then for further periods of 12 months.
The criteria for admission are set out in s3(2):
- (a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
- (b) [repealed]
- (c) 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
- (d) appropriate medical treatment is available for him.
Section 4: emergency admission for assessment
Section 4 is used when it is of urgent necessity for the patient to be admitted and detained under section 2 (s4(2)). It is similar to s2 except:
- Only one medical recommendation is required (as opposed to two for s2) (s4(3)).
- It lasts for a maximum of 72 hours (as opposed to 28 days).
- The applicant (usually AMHP) must have seen the patient in the previous 24 hours (rather than 14 days) (s4(5)) and certify that getting the second doctor would "involve undesirable delay" (s4(2)).
A second medical opinion should be sought as soon as possible. A second medical recommendation converts s4 to a s2 (s4(4)) which is treated as beginning when the s4 began.
Section 5: holding powers
This includes two separate powers:
- Doctor: One doctor; when inpatient; 72 hours. Criteria.
- Nurse: One nurse of specified level; when inpatient; 6 hours. Criteria.
Section 7: guardianship
This is not a detaining section but is included here for ease of reference. A person may be made subject to guardianship if (s7(2)):
- (a) he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this section; and
- (b) it is necessary in the interests of the welfare of the patient or for the protection at other persons that the patient should be so received.
The guardian may be either a local social services authority or any other person. His powers are (s8(1)):
- (a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
- (b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
- (c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.
A guardianship residence requirement could amount to a deprivation of liberty (as defined in JE v DE and Surrey County Council [2006] EWHC 3459 (Fam): the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses) but government policy is that guardianship cannot be used to authorise a deprivation of liberty.
Section 37: hospital order
Either the Crown Court or magistrates court can impose a hospital order. It is usually given after conviction. The effect is largely the same as an admission under s3.
Section 37/41: hospital order with restrictions
The restrictions under section 41 may be given only by the Crown Court, and if "it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm": s41(1). It is the harm which must be serious rather than just the risk of harm.
The main effects of the restrictions, which are set out in s41(3), are as follows:
- The section need not be renewed at the usual periods: it continues indefinitely until discharged.
- Only the patient can apply to the Tribunal (there is no nearest relative).
- The Justice Minister's consent is required for (a) s17 leave of absence, (b) s19 transfer, or (c) s23 discharge.
- If the patient goes AWOL the ability to return him is indefinite.
Also, the types of discharge available are different: either a conditional (where the patient is liable to be recalled), or an absolute discharge, is possible under s73. Almost invariably a patient's discharge from hospital will be conditional, but he may seek an absolute discharge from the MoJ or MHT at a later date.
Section 38: interim hospital order
An interim hospital order is a temporary hospital order made under s38 in the case of person convicted of an imprisonable offence other than murder, where there is evidence that it may be appropriate for a hospital order under s37 to be made.
It can last for a maximum initial period of 12 weeks, and can be extended 28 days at a time up to a maximum of 12 months. The section cannot be ended except by the court and so there is no right of application to the Tribunal.
Section 47: transfer direction (from prison)
A prisoner can be transferred to hospital under s47. Under s47(3) he will be treated as if subject to a s37 hospital order - so s47 on its own is often informally called a "notional s37". A patient subject only to s47 cannot be transferred back to prison under the MHA.
Section 47/49: transfer with restrictions
A "restriction direction" under s49 made alongside a transfer direction is given in nearly all cases when moving a prisoner to hospital. The restrictions cease on the prisoner's release date, and then the patient is treated as if he had been detained under s47 on that date.
If a prisoner is very near his release date then the s49 restriction direction might not be given, as it would soon cease to have effect anyway.
The restriction direction has the same effect as a restriction order and means the patient becomes a restricted patient.
Section 45A: restriction direction
This is an order which the Crown Court can make at the same time as imposing a prison sentence (except where the sentence is fixed by law, i.e. murder) upon an offender who suffers from mental disorder: s45A(1),(2). A "limitation direction" must also be given: s45A(3).
A hospital direction has the same effect as a transfer direction under s47; a limitation direction has the same effect as a restriction direction under s49.
The sentenced person goes straight to hospital but is treated as if he had been transferred to hospital from prison under s47/49. Before the end of the sentence he can be transferred "back" to prison to serve the remainder of the sentence.
At his release date the restrictions cease; however, for convenience, in these notes s45A patients are always treated as restricted.
Notional s37
The term "notional s37" is not mentioned in the statute, but is a often used informally in the following cases:
- Where a patient is transferred under s47 but without a restriction direction under s49. See s47(3).
- Where he was transferred under s47/49 but, on the release date, the restriction direction has ceased to have effect, he will be left with the s47 on its own and the notional s37 begins when the restrictions cease.
- Where he is subject to s45A but the release date has passed, as for s47/49 patients.
- The admission order under the old CPIA 1964 s5 is sometimes also called a notional 37.
Generally, therefore, the term refers to a s47 patient who is notionally treated as if subject to a hospital order under s37.
A patient subject to a notional s37 (except those under an admission order) can apply to the Tribunal in the first six months. Those subject to a real s37 cannot. The difference is said to be because the latter have had their case considered by a court, whereas the former are under their current status because of an administrative action or the passage of time.
Other sections
Other sections include:
- Section 35 (remand for report). The Crown Court or a magistrates’ court may remand an accused person to a hospital specified by the court for a report on his mental condition. [Etc.]
- Section 36 (remand for treatment). The Crown Court may, instead of remanding an accused person in custody, remand him to a hospital if the criteria in this section are met. [Etc.]
- Section 43 (committal by magistrates for restriction order (to custody rather than to hospital). If the magistrates feel that a restriction order is necessary they may, if the criteria in this section are met, commit him in custody to the Crown Court to be dealt with in respect of the offence. [Etc.]
- Section 44 (committal by magistrates to hospital under s43). The magistrates may, if the criteria in this section are met, order that the patient be admitted to hospital rather than custody. [Etc.]
- Section 51(5). Hospital order without conviction
- Section 136 (mentally disordered persons found in public places). This section allows a constable to remove an apparently mentally disordered person from a public place ("a place to which the public have access") to a place of safety for up to 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an AMHP and of making any necessary arrangements for his treatment or care. The place of safety could be a police station or hospital (often a special s136 suite).
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