A University College London presentation by Professor Anselm Eldergill on civil applications and orders under the Mental Health Act 1983. Excludes community treatment orders which are dealt with as a separate presentation.

1. 1
Part II of the
Mental Health Act 1983
Professor Anselm Eldergill, Judge in the Court of Protection, London
medicolegal@email.com
University College London, May 2021
§1 — Short-term Detention
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2. 2
Short-term detention
INFORMAL
IN-PATIENTS
PERSONS NOT IN
PRIVATE DWELLING
PERSONS IN A
PRIVATE DWELLING
Detention for 72 hours
under s.5(2) —
requires report by an
approved clinician
Detention for 6 hours
under s.5(4) —
requires report by a
senior nurse
Removal to a place of
safety by a constable
under s.136
Removal to a place of
safety by a constable
under s.135 — requires
a warrant
Section 5(2)
‘5.(2) If, in the case of a patient who is an in-
patient in a hospital, it appears to the
registered medical practitioner or approved
clinician in charge of the treatment of the
patient that an application ought to be made
under this Part of this Act for the admission
of the patient to hospital, he may furnish to
the managers a report in writing to that
effect; and in any such case the patient may
be detained in the hospital for a period of 72
hours from the time when the report is so
furnished.’
‘5.(3) The registered medical
practitioner or approved clinician in
charge of the treatment of a patient
in a hospital may nominate one (but
not more than one) [registered
medical practitioner or approved
clinician on the staff of the hospital]
to act for him under [section 5(2)]
… in his absence.’
The term ‘in-patient’ in this context does not include a CTO patient or a patient
who is already liable to be detained under a Part II application, e.g. under
section 2 or 3.
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3. 3
Using section 5(2)
 X is an informal patient.
 At 2.00am, he has a row with another patient and
decides that he wants to go home.
 The junior doctor on duty thinks that he ought not to
leave without first seeing the consultant, and detains
him under section 5(2).
 Is this lawful?
Section 5(4)
Section 5(4) applies if [1] it appears to a
nurse of the prescribed class that [2] a
person receiving treatment for mental
disorder [3] as an in-patient in a hospital:
 is suffering from mental disorder to such a
degree that it is necessary for their health
or safety, or for the protection of others,
to immediately restrain the person from
leaving the hospital, and
 that it is not practicable to secure the
immediate attendance of a doctor or
approved clinician for the purpose of
furnishing a report under section 5(2).
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4. 4
Using Section 5(4)
 X is an informal patient.
 He refuses medication at 10pm and becomes
threatening to the nurses.
 He retires to his room and starts to damage some
hospital property in the room, saying ‘F*** the lot of
you.’
 He is placed under section 5(4), given medication
and placed in seclusion.
 Is this lawful?
Section 135(1)
SECTION 115
115–(1) An approved mental
health professional may at all
reasonable times enter and
inspect any premises (other
than a hospital) in which a
mentally disordered patient is
living, if he has reasonable
cause to believe that the
patient is not under proper
care.
SECTION 135(1)
 Warrant issued by a JP following
an information on oath by an
AMHP.
 It must appear to the JP that there
is reasonable cause to suspect
that a person believed to be
suffering from mental disorder—
(a) has been, or is being, ill-
treated, neglected or kept
otherwise than under proper
control, in any place within the
jurisdiction of the justice, or
(b) being unable to care for
himself, is living alone in any such
place,
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5. 5
More about section 135(1)
 The warrant authorises ‘any
constable’ to:
 (a) enter, if need be by force,
any premises specified in the
warrant in which that person is
believed to be, and
 (b) if thought fit, to remove
him to a place of safety ‘with
a view to the making of an
application in respect of him
under Part II of this Act, or of
other arrangements for his
treatment or care’.
 The constable must be
accompanied by an AMHP
and by a registered medical
practitioner.
 The warrant authorises the
person’s removal to a place of
safety.
 135(1A) If the premises specified
in the warrant are a place of
safety, the constable executing
the warrant may, instead of
removing the person to another
place of safety, keep the person
at those premises for the purpose
mentioned in subsection (1).
[since December 2017]
 A patient who is removed to a
place of safety, or kept in the
specified premises, under section
135(1) may be detained there for
a period not exceeding 24 hours
(unless a 12-hour extension is
permissible).
What is a place of safety?
 135(6)In this section** “place of safety”
means residential accommodation
provided by a local social services
authority under Part 1 of the Care Act
2014 or Part 4 of the Social Services and
Well-being (Wales) Act 2014 . . . , a
hospital as defined by this Act, a police
station, [F18an independent hospital or
care home] for mentally disordered
persons or any other suitable place
F19....
 136A(1)A child may not, in the exercise
of a power to which this section applies,
be removed to, kept at or taken to a
place of safety that is a police station.
Mental Health Act 1983, s.135(6)
** In fact, the same
definition of a place of
safety applies to both
sections 135 & 136
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6. 6
Using section 135(1)
 An AMHP and two doctors are refused admission
to X’s flat in order to carry out an assessment of
his need for detention under section 2 or 3.
 The AMHP obtains a warrant under section 135(1)
and they return with the police, breaking in, and
removing him to a place of safety.
 Is this lawful?
Susannah Ward v. The Comm of Police for the Metropolis, St Helier NHS Trust
Court of Appeal (Civil Division), 30 July 2003
FACTS
A section 135 warrant authorized W’s removal. The warrant issued by the magistrates
stated: ‘You are hereby authorised on one occasion within one month of the date hereof
on to enter, if need be by force, premises at [ ] accompanied by Doctor AN Forrest
Consultant Psychiatrist, Mrs H Carcano-Harley an approved social worker and Dr DVP
Thomas a medical practitioner.’ In the event, the two doctors named in the warrant were
not present when W was removed.
HELD
(1) If the facts had occurred after October 2000, it would have been necessary to
consider the extent to which the statutory provisions were compatible with Article 5.
(2) Any condition which can sensibly relate to the execution of a warrant in a way which
protects the interests of the person liable to be removed, whilst furthering the object of
the grant of the warrant, may be imposed, if a magistrate considers it appropriate in a
particular case to do so.
(3) As the section entitles any social worker or registered medical practitioner to
accompany the police officer, a condition which circumscribes who in either category
may accompany the police officer seemed to be a perfectly proper exercise of the
power to grant the warrant.
(4) It followed that the warrant was valid but not its execution. Appeal allowed.
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7. 7
Section 135(2)
 The warrant is issued by a JP following
an information on oath made either by
an AMHP or by a person who is
authorised under the Act to take a
patient to any place, or to take or
retake a patient into custody under the
Act.
 It must appear to the JP that:
a) there is reasonable cause to
believe that the patient is to be
found on premises within the
jurisdiction of the justice; and
b) that admission to the premises has
been refused or that a refusal of
such admission is apprehended.
 The warrant authorises ‘any
constable’ to enter the
premises, if need be by
force, and remove the
patient.
 The constable may be
accompanied by a
registered medical
practitioner and/or by a
person who is authorised
under the Act to take or
retake the patient into
custody under the Act.
CONVEYING AND TAKING INTO CUSTODY
Section 136
Removal etc of mentally disordered persons without a warrant
136.–(1) If a person appears to a constable to be suffering from
mental disorder and to be in immediate need of care or control,
the constable may, if he thinks it necessary to do so in the
interests of that person or for the protection of other persons—
(a) remove the person to a place of safety …, or
(b) if the person is already at a place of safety … keep [them
there] … or remove the person to another place of safety.
(1A)The power … may be exercised where the mentally
disordered person is at any place, other than—
(a)any house, flat or room where that person, or any other
person, is living, or
(b)any yard, garden, garage or outhouse that is used in
connection with the house, flat or room, other than one that is
also used in connection with one or more other houses, flats or
rooms.
(1B) For the purpose of exercising the power …, a constable may
enter any place where the power may be exercised, if need be
by force.
Original Section 136
Mentally Disordered Persons
Found in Public Places
‘136.–(1) If a police
constable finds in a place
to which the public have
access a person who
appears to her/him to be
suffering from mental
disorder and to be in
immediate need of care or
control, the constable may
remove that person to a
place of safety if s/he thinks
it necessary to do so in that
person’s interests or to
protect others.’
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8. 8
More about section 136
 136.-(1C) Before deciding
to remove a person to, or
to keep a person at, a
place of safety under
subsection (1), the
constable must, if it is
practicable to do so,
consult—
 (a)a registered medical
practitioner,
 (b)a registered nurse,
 (c)an approved mental
health professional, or
 (d)a person of a
description specified in
regulations made by the
Secretary of State.
 A patient who is removed to
a place of safety, or kept in
the specified premises, under
section 136 may be detained
there for a period not
exceeding 24 hours (unless a
12-hour extension is
permissible) ‘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’.
 A constable, an AMHP or a
person authorised by either
of them under s136 may take
the person to another place
of safety during the period of
detention.
‘
Sections 135 and 136 and extensions
136B Extension of detention
(1) The registered medical practitioner who is responsible for the
examination of a person detained under section 135 or 136 may
[before the 24 hour period expires] … authorise the detention of the
person for a further period not exceeding 12 hours (beginning
immediately at the end of the period of 24 hours).
(2) [Such] an authorisation … may be given only if the registered
medical practitioner considers that the extension is necessary
because the condition of the person detained is such that it would
not be practicable for the assessment of the person for the purpose
of section 135 or …136 to be carried out [or completed] before the
end of the period of 24 hours …
(3) If the person is detained at a police station, and the assessment
would be carried out or completed at the station, the registered
medical practitioner may give an authorisation under subsection (1)
only if an officer of the rank of superintendent or above approves it.
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9. 9
Using section 136
 X is detained under section 136 in his front
garden.
 Y is detained under section 136 sleeping in his
caravan.
 Z is detained under section 136 at the local
cinema.
 Are these actions lawful?
R v ROSSARIO ROSSO (2003) CA, Unreported
FACTS
R was staying in a hotel. The television in D's room did not work and the hotel
permitted D to use another room for the sole purpose of watching television.
Having been assessed under the 1983 Act, an application was made for his
admission to hospital under section 2. A number of police officers were called in, to
assist with his removal from the room he was using to watch television.
The police forced entry and sprayed D with CS gas, following which D stabbed a
police officer. At his criminal trial, D contended that the police had had no right to
break in without a warrant, and he was therefore entitled to resist his unlawful
removal.
HELD
There was no factual basis to contend that the police were trespassing. They were
entitled to enter the hotel itself, and the only act of forcible entry was when the
police broke down the door. However, D had no right of exclusive occupancy and
no right to exclude others from the room he was in. His right was pursuant to a
licence granted by the hotel for one purpose, watching television. He therefore
had no right to deny anyone access to the room.
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10. 10
§2 — Applications under Part II
• Assessment (section 2)
• Emergency Assessment (section 4)
• Treatment (section 3)
• Guardianship (section 7)
Basic statutory framework
 The basic application framework dates back to 1959 and is the
same for sections 2 and 3 and guardianship.
 Emergency applications under section 4 are in essence simply
a section 2 application supported by a single medical
recommendation I the first instance.
An application
Supported by
medical
recommendations
Accepted by the
hospital managers
or local social
services authority
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11. 11
The applicant
 An AMHP shall make an
application under Part II if
s/he is—
a) satisfied that such an
application ought to be
made in respect of the
patient; and
b) of the opinion, having
regard to any wishes
expressed by relatives of
the patient or any other
relevant circumstances,
that it is necessary or
proper for the application
to be made by him.
 The applicant may be:
a) An AMHP, or
b) The patient’s nearest relative
 No section 2 or 3 or guardianship application
may be made unless the applicant has
‘personally seen’ the patient within the period
of 14 days ending with the date of the
application.
 Before making an application for the
admission of a patient to hospital, an AMHP
‘shall 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.’
 The AMHP must not be subject to a conflict of
interest under the regulations.
‘Relative’
 WHO IS A RELATIVE?
a) husband or wife or civil
partner;
b) son or daughter;
c) father or mother;
d) brother or sister;
e) grandparent;
f) grandchild;
g) uncle or aunt;
h) nephew or niece.
Unless there is a spouse or civil partner who is not ignored
under the above rule, includes a person who is, or prior to
admission was, living with the patient as their husband or wife
or civil partner for not less than six months.
Ignore spouses and civil partners who are permanently
separated from the patient, either by agreement or under a
court order, or who have deserted or been deserted by the
patient for a period which has not come to an end.
Include relationships of the half-blood.
Include adopted children.
Treat an illegitimate child as the legitimate child of its mother
(and as the legitimate child of a father with parental
responsibility).
i) [in effect] A person other than a relative whom the
patient has been ordinarily residing with for a period
of not less than five years (or was so residing with
prior to admission).
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12. 12
‘Nearest Relative’
WHO IS A RELATIVE?
a) husband or wife or civil
partner;
b) son or daughter;
c) father or mother;
d) brother or sister;
e) grandparent;
f) grandchild;
g) uncle or aunt;
h) nephew or niece.
ASCERTAINING THE NEAREST RELATIVE
The NR is:
1) The relative who ordinarily resides with or cares for the patient
(or did so prior to admission) − unless the patient is married or
in a civil partnership that is not to be ignored under the Act.
If category 1) does not apply then it is:
2) The person highest in the list of relatives.
• Ignore all people under 18 other than a husband, wife or civil
partner.
• If the patient is ordinarily resident in the UK, the Channel
Islands or the Isle of Man, ignore all persons not so resident.
• Where more than one person qualifies as the nearest relative
under the above rules, relationships of the whole blood are
preferred to relationships of the half-blood.
• If more than one person still qualifies, prefer the eldest.
i) [in effect] A person other
than a relative whom the
patient has been ordinarily
residing with for a period of
not less than five years (or was
so residing with prior to
admission).
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Example
Peter Jones was born in Dublin and is aged 25. He
separated from his wife three years ago and since
then has been living in London with his friend Bert.
They are not in a relationship. He has lived in
London since he was 17 years of age.
His blood relatives are:
His mother aged 49, who lives in Dublin
His father aged 48, who lives with his mother.
His brother aged 23, who loves in Cork.
His half-sister aged 21, who lives in Manchester.
Who is the nearest
relative?
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13. 13
The medical recommendations
The medical recommendations
must be signed on or before the
date of the application, and
must be given by registered
medical practitioners (‘doctors’)
who have personally examined
the patient either together or
separately.
Where the medical practitioners
have examined the patient
separately not more than five
days must have elapsed
between the days on which the
separate examinations took
place.
One of the recommendations
must be given by a doctor who
has been approved as having
special experience in the
diagnosis or treatment of mental
disorder.
Unless that practitioner has
previous acquaintance with the
patient, the other such
recommendation must ‘if
practicable’ be given by a doctor
who has such previous
acquaintance.
A recommendation may not be
given by a doctor if there would
be a conflict of interest under the
regulations.
Conflicts of interest
The Mental Health (Conflict of Interest) (England)
Regulations 2008 set out the circumstances in which a
potential conflict of interest prevents an AMHP making an
application and a doctor giving a recommendation. The
AMHP and doctors are collectively referred to as the
“assessors”.
An AMHP may not make an application, and a doctor may
not give a recommendation, if:
 S/he “directs the work of, or employs, … one of the
other assessors”; or
 S/he and the other two assessors are all “members of the
same team,” that is they are all “members of a team
organised to work together for clinical purposes on a
routine basis.”
 The Code of Practice states that the phrase “directs the
work of” refers to a line-management relationship.
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14. 14
The application must be accepted
 An application is just that: an application.
 A section 2, 3 or 4 application authorises the applicant, or any person
authorised by the applicant, to take the patient and convey him to
the hospital at any time within the following period (and the patient
must be admitted during this period):
Section
2 and 3
The period of 14 days beginning with the date on which
the patient was last examined by a registered medical
practitioner before giving a medical recommendation
Section
4
The period of 24 hours ‘beginning at the time when the
patient was examined by the practitioner giving the
medical recommendation which is referred to in section
4(3) above, or at the time when the application is made,
whichever is the earlier’.
 A guardianship application must simply ‘be forwarded to the local
social services authority within the period of 14 days beginning with
the date on which the patient was last examined by a registered
medical practitioner before giving a medical recommendation.
Time limits for admission
Rec 1
Rec 2
Applic
1 day 2 days 3 days 4 days 5 days
Day 2
Day 10
Day 9
Day 8
Day 3 Day 7
Day 6
Day 5
Day 4
Day 11 Day 12 Day 13 Day 14
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15. 15
The Part II application grounds
Serious mental
disorder
Risk
+
Mental disorder
of a nature or
degree that
warrants
detention
Detention
necessary for
health, safety,
protection of
others
Serious mental disorder + Risk
Section 2
Person is suffering from mental disorder
of a nature or degree which warrants
her/his detention in a hospital for
assessment (or for assessment followed
by medical treatment) for at least a
limited period.
s/he ought to be so detained
in the interests of her/his own
health or safety or with a view
to the protection of other
persons.
Section 3
Person is suffering from mental disorder
of a nature or degree which makes it
appropriate for him to receive medical
treatment in a hospital.
it is necessary for the health
or safety of the patient or for
the protection of other
persons that s/he should
receive such treatment and it
cannot be provided unless
s/he is detained under this
section.
Section 7
Person is suffering from he is suffering
from mental disorder of a nature or
degree which warrants her/his reception
into guardianship.
it is necessary in the interests
of the welfare of the patient
or for the protection of other
persons that the patient
should be so received.
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16. 16
R v MHRT for the South Thames Region, ex p. Smith, QBD, 4 August 1998
“The word ‘degree’ focuses attention on the extent to which the person’s mental disorder is currently
active. If a patient is acutely ill, his condition characterised by obvious and gross abnormalities in his
mental state, the degree of mental disorder present will generally be of a level which satisfies the first
ground of application.
... [However] Many mental disorders wax and wane because they are cyclical in nature, because the patient
enjoys periods of remission — for example, during periods of low stress — or because they are
intermittently alleviated by a course of treatment. A particular patient may have a long history of
readmissions indicative of a severe, chronic condition which is resistant to treatment or a record of poor
compliance with informal treatment following previous discharges. Although the degree of disorder may be
quite low at any given time, either in absolute terms or relative to his known optimum level of functioning,
the serious nature of the disorder is revealed by its historical course. Likewise, with illnesses of recent
onset, the prognosis associated with the diagnosis may point strongly towards the probability of a serious,
further deterioration of the patient’s condition in the near future.
In both instances, it may be the nature of the disorder rather than its degree which brings the patient within
the first of the grounds for making an application ... it is not necessary as a matter of law to wait until the
condition becomes acute before compelling the patient to receive the treatment which will prevent the
otherwise inevitable further decline.”
‘Nature or degree’
§3 — Sections 2 and 4
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17. 17
Serious mental disorder + Risk
Person is suffering from mental disorder
of a nature or degree which warrants
her/his detention in a hospital for
assessment (or for assessment followed
by medical treatment) for at least a
limited period.
s/he ought to be so detained
in the interests of her/his own
health or safety or with a view
to the protection of other
persons.
Section 2 applications
SECTION 2 SECTION 3
Detention for up to 28 days Detention for up to six months
Not renewable Renewable
Nearest relative has no power
to object
Nearest relative may object to
the application
No appropriate treatment test Appropriate treatment test
Does not revoke any pre-
existing guardianship or CTO
Revokes any pre-existing
guardianship or CTO
Emergency applications (s.4)
 No section 4 application may be made unless
the applicant ‘has personally seen’ the patient
within the previous 24 hours.
 Section 4 (‘emergency applications’) applies
in a case of ‘urgent necessity’.
 The application must include a statement that
‘it is of urgent necessity for the patient to be
admitted and detained under section 2 ‘ and
that compliance with the provisions of this Part
of this Act relating to applications under that
section ‘would involve undesirable delay’.
 In such a case, the application need only be
founded on one of the two medical
recommendations required by section 2.
 However, the patient will cease to be liable to
detention if the necessary second medical
recommendation has not been received by
the hospital managers within 72 hours of the
patient’s admission.
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18. 18
 The Code of Practice appears
to be incorrect insofar as what
it says does not accurately
reflect what Parliament
intended or the overall
statutory framework.
 However, it must be taken into
account.
14.27 Section 2 should only be used if:
 the full extent of the nature and
degree of a patient’s condition is
unclear
 there is a need to carry out an initial
in-patient assessment in order to
formulate a treatment plan, or to
reach a judgement about whether
the patient will accept treatment on
a voluntary basis following admission,
or
 there is a need to carry out a new in-
patient assessment in order to re-
formulate a treatment plan, or to
reach a judgement about whether
the patient will accept treatment on
a voluntary basis.
Using Section 2 or Section 3
§4 — Section 3
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19. 19
The section 3 criteria
3.– (2) An application for admission for treatment may be made in
respect of a patient on the grounds that—
(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 [‘treatability test’]
(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.
(4) In this Act, references to appropriate medical treatment, in
relation to a person suffering from mental disorder, are references to
medical treatment which is appropriate in his case, taking into
account the nature and degree of the mental disorder and all other
circumstances of his case.
Formalities
 Section 3 medical
recommendations:
“Enter name of hospital(s). If
appropriate treatment is
available only in a particular
part of the hospital, say which
part.”
Remember the learning
disability qualification.
 Remember the regulations
concerning conflicts of interest.
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20. 20
Applying the grounds
 X has an untreatable severe personality disorder and has
threatened to kill his wife.
 Y has a mental illness (schizophrenia) but takes medication
as prescribed. He has three convictions for robbery in the
past four years. He assaults a neighbour who damaged his
car when parking. The neighbour does not report the
matter to the police.
Can X and Y be sectioned?
‘Appropriate’ medical treatment’
145.—(1AB) References in this Act to
appropriate medical treatment shall be
construed in accordance with section 3(4) …
3.—(4) In this Act, references to appropriate
medical treatment, in relation to a person
suffering from mental disorder, are
references to medical treatment which is
appropriate in his case, taking into account
the nature and degree of the mental disorder
and all other circumstances of his case.
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21. 21
‘Appropriate medical treatment’
 23.11 The test requires a balanced and holistic judgement as to whether, medical
treatment to available to the patient is appropriate, given:
• the nature and degree of the patient’s mental disorder, and
• all the other circumstances of the patient’s case. In other words, both the
clinical appropriateness of the treatment and its appropriateness more
generally must be considered.
 23.12 The other circumstances of a patient’s case might, for example, include
factors such as:
• the patient’s physical health – how this might impact on the effectiveness of
the available medical treatment for the patient’s mental disorder and the
impact that the treatment might have in return
• the patient’s age
• any physical disabilities or sensory impairments the patient has
• the patient’s culture and ethnicity
‘Appropriate medical treatment’
• the patient’s gender, gender identity, sexual identity and sexual orientation
• the patient’s religion or beliefs
• the location of the available treatment
• the implications of the treatment for the patient’s family and social
relationships, including their role as a parent (where applicable)
• its implications for the patient’s education or work
• the consequences for the patient, and other people, if the patient does not
receive the treatment available (for mentally disordered offenders about to
be sentenced for an offence, the consequence will sometimes be a prison
sentence), and
• the patient’s views and wishes about what treatment works for them and
what doesn’t ….
 23.14 Medical treatment must actually be available to the patient. It is not
sufficient that appropriate treatment could theoretically be provided.
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22. 22
Example
 John has not been assessed by local mental health services but,
based on police and prison information, it is likely that (a) he was
sexually abused as a child and was taught that sexual relations
involving an adult and child are entirely normal and indeed a
proper expression of affection; (b) he is fully aware that society
disapproves and that this kind of activity is unlawful; (c) he has had
no treatment in the past from mental health services; (d) he
continues to present a significant risk to children because he has
not had treatment; (e) medical interventions have nothing to
offer; (f) he requires social supervision and rehabilitation, in the
form of specialist support from a social worker; (g) there is a
probation hostel in the area that accepts former sex offenders.
 What are the options now under the 1983 Act?
Example
Mr Jones is detained under section 3. His diagnosis is
anti-social personality disorder. His case comes
before a tribunal. He argues that the treatment he is
receiving in a private hospital 150 miles from his
home in London does not constitute appropriate
treatment. It is not culturally appropriate, there is no
psychological input, he has no contact with family
and friends and it is too far from home. Furthermore,
it is not medical treatment because the purpose of his
detention is simply public protection, not alleviating
or preventing a worsening of his condition.
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44

23. 23
§5 — Guardianship
Historical perspective
 Mental Deficiency Act 1913
 Mental Health Act 1959
 Mental Health Act 1983
 ‘Idiots’ and ‘imbeciles’ could be received into
guardianship. Parental application
accompanied by a certificate signed by two
doctors, one of whom was approved for the
purpose. The guardian had the powers of a
father over the patient.
 Extended guardianship to people suffering from
mental illness. The guardian possessed, to the
exclusion of everyone else, ‘all such powers as
would be exercisable by ... him in relation to the
patient if ... he were the father of the patient
and the patient were under the age of 14
years.’ Duties included ensuring ‘that everything
practicable is done for the promotion of his
physical and mental health.’
 Guardian’s powers limited to ‘essential powers’.
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46

24. 24
A guardian’s ‘essential powers’
 Accommodation
 Attendance
 Access
A
A
A
The section 7 criteria
1. The patient ‘is suffering from …
mental disorder … of a nature or
degree which warrants his
reception into guardianship …;
and
2. It is necessary in the interests of
the welfare of the patient or for
the protection of other persons
that the patient should be so
received.’
NOTES
 No appropriate
treatment criterion
 The meaning of
‘welfare’
 Different criteria
apply under section
37
 Minimum age of 16
 The guardian can
be the local social
services authority or
a private individual
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48

25. 25
Appointing doctors
Responsible Clinician
 The responsible clinician is
the approved clinician
authorised by the local
social services authority to
act as the patient’s
responsible clinician.
 This doctor is also the
appropriate practitioner
unless a private individual
has been appointed as the
patient's guardian.
Appropriate Practitioner
 If a private guardian is
appointed, that person must
nominate a registered medical
practitioner to act as the
patient’s medical attendant.
 This doctor [the ‘nominated
medical attendant’) is the
patient's appropriate
practitioner and s/he is
responsible for renewing the
guardianship where
appropriate.
 The RC appointed by the local
authority remains responsible for
exercising the power of
discharge in section 23.
§6 — Powers and duties once
the patient is under section
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26. 26
Powers and duties once the
application has been accepted
Leave of Absence
Absence without leave
Transfers
Discharging the section
Renewals
Section 17 leave
Section 17(1)
 ‘The responsible clinician
may grant to any patient
who is for the time being
liable to be detained in a
hospital under this Part of
this Act leave to be
absent from the hospital
subject to such
conditions (if any) as that
clinician considers
necessary in the interests
of the patient or for the
protection of other
persons.’
Terms of leave
 (2)Leave of absence
may be granted to a
patient under this section
either indefinitely or on
specified occasions or for
any specified period;
and where leave is so
granted for a specified
period, that period may
be extended by further
leave granted in the
absence of the patient.
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52

27. 27
Guardianship and CTOs
Guardianship and CTO patients
 Note that section 17 does not apply to these regimes
because the patient is not liable to detention.
S.17
‘Longer-term [section 17] leave’
 The 2007 Act introduced
the concept of ‘longer-
term’ leave, essentially in
order to encourage the
use of the new CTO
regime introduced into the
1983 Act by the 2007
amending Act.
 ‘17(2A) … longer-term leave
may not be granted to a
patient unless the
responsible clinician first
considers whether the
patient should be dealt with
under section 17A [making
of a CTO] instead.’
What is ‘longer-term leave’ (s.17(2B))
 Indefinite leave of absence
 Leave of absence for a specified period of more than seven
consecutive days
 An extension of a specified period of leave if the total period of leave
of absence will then exceed seven consecutive days
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28. 28
Conditions of section 17 leave
General
 The responsible clinician
may attach such
conditions (if any) to
the leave as that
clinician considers
necessary in the
interests of the patient
or for the protection of
other persons.’
Keeping the patient in custody
 ‘17.(3) Where it appears to the responsible
clinician that it is necessary so to do in the
interests of the patient or for the protection of
other persons, he may, upon granting leave
of absence under this section, direct that the
patient remain in custody during his
absence; [in which case] the patient may be
kept in the custody of
a) any officer on the staff of the hospital, or
b) of any other person authorised in writing
by the managers of the hospital or,
c) if the patient is required [by a condition
of leave] to reside in another hospital, of
any officer on the staff of that other
hospital.’
Revoking section 17 leave
Notice of Revocation
17.(4) it appears to the responsible clinician
that it is necessary so to do in the interests of
the patient’s health or safety or for the
protection of other persons, that clinician
may … by notice in writing given to the
patient or to the person for the time being in
charge of the patient, revoke the leave of
absence and recall the patient to the
hospital.
Limitation
17.(5)A patient to whom
leave of absence is
granted under this section
shall not be recalled under
subsection (4) above after
he has ceased to be liable
to be detained under this
Part of this Act;
The effect of a Notice of Revocation
‘18(1)(b) Where a patient … fails to return to the hospital … upon being
recalled under [section 17] he may, subject to the provisions of this
section, be taken into custody and returned to the hospital or place by
any AMHP, by any officer on the staff of the hospital, by any constable, or
by any person authorised in writing by the managers of the hospital.’
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56

29. 29
Absence
without
leave
(s.18) Patient detained under Part II
absents himself from hospital
without leave
Patient on section 17 leave
fails to return to hospital at the
end of leave period or on being
recalled to hospital
Patient on section 17 leave
absents himself from place he
is required to reside as a
condition of his leave
CTO patient is time absent
from a hospital to which he is
recalled under section 17E
Patient under guardianship
absents himself from place he
is required to reside by his
guardian
Patient may be taken into custody and
returned to the hospital or place by any
AMHP, officer on the staff of the hospital,
constable, person authorised in writing by
the managers of the hospital.
Patient may be taken into custody and
returned to the hospital or place by any
AMHP, officer on the staff of the hospital,
constable, person authorised in writing by
the responsible clinician or managers of
the hospital.
Patient may be taken into custody and
returned to the place by any officer on the
staff of a local social services authority,
constable, person authorised in writing by
the guardian or a local social services
authority.
More about absence without leave
If a patient can avoid
recapture for long
enough, s/he will
cease to be liable to
be taken into custody
under section 18.
WHEN A PATIENT CEASES TO BE LIABLE
TO RECAPTURE
 In the case of patients detained
under section 2, 4 or 5(2), the end of
the usual period of detention.
 In the case of patients subject to
section 3, a CTO or guardianship,
the later of the following dates:
a) six months beginning with the first
day of the patient’s absence
without leave;
b) the end of the period for which
(apart from section 21) the
patient is liable to be detained
or subject to guardianship or, in
the case of a community
patient, the community
treatment order is in force.
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30. 30
Renewing the section of
returned AWOL patients
 If a section 3 patient or a patient subject to
guardianship is absent without leave during
the final week of their section then the
section is extended for a week upon the
patient’s return.
 This enables the section which would
otherwise have expired to be renewed (if
appropriate).
 A similar rule operates for CTOs where the
patient absconds during the 72 hour period
of detention following recall to hospital.
Upon the patient’s recapture and return,
he may be detained for 72 hours following
his return. This allows the responsible
clinician time to consider revoking the CTO.
 See sections 21 and 21A.
 Section 21B applies where
a patient returns or is
returned more than 28
days after going AWOL.
 Within one week of the
patient’s return, the
appropriate clinician must
examine the patient and,
if it is the case, furnish a
report stating that the
same conditions as are
necessary for renewing the
section are satisfied.
 The section expires at the
end of the week unless this
is done.
Transfers and section 19
Patient liable to detention in
hospital A under a Part II
application
Patient subject to
guardianship under Part
Hospital B, managed by the
same hospital managers:
see s.19(3)
Hospital C, managed by
different hospital managers:
see s.19(2) + regs (Form H4)
Guardianship: see s.19(2) +
regulations (Form G6)
Liability to detention in a
hospital under Part II: see
s.19(2) + regs (Form G8++)
A different guardian: see
s.19(2) + regs (Form G7)
The Mental Health (Hospital) (England) Regulations 2008
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31. 31
Discharging the section
 ‘Orders for discharge’ are made
under section 23.
 An order for discharge must be in
writing and may be made by:
a) The responsible clinician
b) The nearest relative
c) The hospital managers (if the
patient is liable to be detained
under sections 2, 3 or 4)
d) The responsible social services
authority (if the patient is subject
to guardianship)
 The nearest relative has to give 72
hours notice in writing to the hospital
managers of her/his intention to
discharge a patient subject to
section 2 or 3.
 During that 72 hour period the
responsible clinician may bar the
discharge if s/he ‘furnishes to the
managers a report certifying
that in the opinion of that
clinician the patient, if
discharged, would be likely to
act in a manner dangerous to
other persons or to himself’.
 No further order for the
discharge of the patient may
then be made by that relative
during the period of six months
beginning with the date of the
report.
 In section 3 cases, the issue of a
barring order gives rise to a right
of appeal to a tribunal with
dangerousness as a criterion.
Section 3 renewal periods and criteria
Initial period of liability to detention 2nd period/1st renewal 3rd & subsequent periods
6 months 6 months One year at a time
l form can only be furnished if
professional has completed Part 2
hat the renewal conditions are
. This professional must have been
ionally concerned with the patient's
on other than that to which the
Original criteria Renewal criteria
He is suffering from mental disorder of a
nature or degree which makes it
appropriate for him to receive medical
treatment in a hospital
The patient is suffering from mental
disorder of a nature or degree which
makes it appropriate for him to receive
medical treatment in a hospital
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
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 that it cannot be
provided unless he continues to be
detained
Appropriate medical treatment is
available for him
Appropriate medical treatment is
available for him.
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32. 32
Section 3 renewal procedure
During final two months of period, examine the patient
Consider whether the renewal conditions are satisfied
Submit renewal form by completing Part 3 of Form H5 and ‘furnishing’ form to hospital
managers (renews the section)
Consult ‘one or more other persons who have been professionally concerned with the
patient’s medical treatment’
If renewal conditions are satisfied, complete Part 1 of renewal form (Form H5)
Unless the hospital managers discharge the patient under section 23, they shall ‘cause him to
be informed’
Renewal form can only be furnished if another professional has completed Part 2 of the
renewal form, stating that s/he agrees that the renewal conditions are satisfied. This person
must have been ‘professionally concerned with the patient's medical treatment but belong
‘to a profession other than that to which the responsible clinician belongs’.
Renewals
Commentary
 It seems inconsistent that recommendations from two medical practitioners
are required before a person may be detained under section 3 but the person’s
detention can then be renewed for 12 months on the basis of an examination
by a non-medically qualified person.
 Is a medical opinion a necessary prerequisite of detaining someone for six or
twelve months, or not? Is it a requirement of the European Convention or
not?
s20
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33. 33
Renewing guardianship
Initial period of guardianship 2nd period/1st renewal 3rd & subsequent periods
6 months 6 months One year at a time
During final two months of period, examine the patient
Consider whether the renewal conditions are satisfied (they are
the same as the original section 7 criteria)
Submit renewal form by ‘furnishing’ it to the responsible local
social services authority and any private guardian (this renews
the section)
If yes, complete the renewal form (Form G9)
Unless the responsible local social services authority discharges
the patient under section 23, they shall ‘cause him to be
informed’
Note that there is no
requirement for another
professional to be
consulted, or to confirm
that the renewal criteria
are satisfied.
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