Section 2: admission for assessment
This is a 28-day civil section for assessment (or for assessment followed by treatment).
Contents
- 1 Admission
- 2 Remote assessments
- 3 Discharge
- 4 Other topics
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)).
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
- 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.
- 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 1359 M
- 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.
- 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
- 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:
- 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.
- 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’.
- 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:
- In order not to discharge a patient the tribunal must be satisfied of both criteria (Reid v Secretary of State for Scotland [1998] UKHL 43 M , R (AN) v MHRT [2005] EWCA Civ 1605 M ).
- 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 832 M ).
- 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.
- Representation
- The role of the mental health lawyer
- Ethical and other conduct guidance for lawyers
- Case preparation
- Section 2: admission for assessment
- Section 3: admission for treatment
- Section 4: emergency admission for assessment
- Section 5: holding powers
- Section 7: guardianship
- Community Treatment Order
- Section 37: hospital order
- Section 37/41: hospital order with restrictions
- Sections 47, 48 and 49: transferred prisoners
- Notional s37
- Section 45A: hospital direction
- Section 38: interim hospital order
- Section 135: Warrant to search for and remove patients
- Section 136: Mentally disordered persons found in public places
- Section 35: Remand to hospital for report on accused’s mental condition
- Section 36: Remand of accused person to hospital for treatment
- Section 37: guardianship order
- Section 43: committal by magistrates for restriction order
- Section 44: committal to hospital under s43
- Section 51(5): hospital order without conviction
- Detention under insanity legislation
- Admission order
- Patients who are eligible for aftercare
- The aftercare duty and its duration
- The definition of aftercare
- Charging for aftercare services
- Which authority pays for aftercare
- Ordinary residence .
- Tribunal Rules
- Preliminary legal points
- Standard and burden of proof (MHT)
- Delay (MHT)
- Re-sectioning after tribunal discharge
- Eligibility periods
- Change in status during tribunal proceedings
- Overriding objective (MHT)
- Applications (MHT)
- Parties (MHT)
- Representatives (MHT)
- Notice of proceedings, and listing (MHT)
- Medical examination (MHT)
- Remote hearings (MHT)
- Disposal without hearing (MHT)
- Hearing in a party’s absence (MHT)
- Decisions by a single judge (MHT)
- Reports (MHT)
- Evidence (MHT)
- Non-disclosure of documents and information (MHT)
- Directions (MHT)
- Adjournment and postponement (MHT)
- Withdrawal (MHT)
- Reinstatement (MHT)
- Decisions (MHT)
- Public hearing (MHT)
- Wasted costs (MHT)
- Patients who have a nearest relative
- Identification of nearest relative
- Nearest relative powers
- Nearest relative powers - introduction
- Nearest relative's right to receive information
- Right to apply to Tribunal
- Right to be consulted and to object to s3 admission
- Right to discharge from guardianship
- Right to request discharge of s2 or s3 or CTO
- Dangerousness criterion
- Delegation by existing nearest relative
- Displacement (appointment) by county court
- Contracts
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- Changes made by MHA 2007
- 16- or 17-year-old with capacity cannot be detained on basis of parental consent
- Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
- Additional safeguards for ECT introduced in new s58A
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
- Approved Mental Health Professional replaces Approved Social Worker
- Automatic reference scheme under s68 changed
- Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
- Civil partners are treated as if married when determining nearest relative
- Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
- Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
- Fundamental principles set out in Act and included in Code of Practice
- Higher penalties for offences under Act
- Hospital direction patients can no longer apply to Tribunal during first six months
- Hospital directions under s45A apply to any mental disorder
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- Limitation to the exceptions to the duty to instruct IMCA
- Mental disorder no longer split into separate classifications
- Minor drafting error in MCA 2005 corrected
- New cross-border arrangements for leave and transfer
- New definition of medical treatment
- New Independent Mental Health Advocate scheme
- New procedure for renewal of detention
- New regulations on conflicts of interest
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- NHS Foundation Trusts discharge power problem remedied
- Organisation of Mental Health Review Tribunal changed
- Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
- Patients can be transferred between places of safety under s135 and s136
- Procedure for making of instruments by Welsh Ministers set out
- Reference to Local Health Boards inserted into Act
- Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
- Restriction orders can no longer be time-limited
- SOAD certificate becomes invalid when patient loses or gains capacity
- Some exclusions to definition of mental disorder have been removed
- Supervised Community Treatment replaces Supervised Discharge
- Transitional provisions until full implementation of MHA 2007
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What links here:
- R (Modaresi) v SSH [2011] EWCA Civ 1359
- Tribunal Procedure (Coronavirus) (Amendment) Rules 2020
- Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2020
- Devon Partnership NHS Trust v SSHSC [2021] EWHC 101 (Admin)
- NHS England, 'Further legal advice on remote MHA assessments' (3/2/21)
- DHSC, 'Electronic communication of statutory forms under the Mental Health Act' (updated 13/1/21)
- 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)
- Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)
- Tribunal Procedure Committee, 'Reply from the Tribunal Procedure Committee' (following consultation on changes to section 2 listing, 19/10/22)
- Tribunal Procedure (Amendment No. 2) Rules 2022