Section 2: admission for assessment

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

Contents

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:

In relation to the application:

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

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. It always used to be that 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.
  2. 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’.
  3. Following a consultation (see Tribunal Procedure Committee, 'Reply from the Tribunal Procedure Committee' (following consultation on changes to section 2 listing, 19/10/22)) the deadline was permanently changed to 10 days by Tribunal Procedure (Amendment No. 2) Rules 2022 from 1/11/22.

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:

Other topics

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