PART 5 - EMERGENCY DETENTION

64.     In an emergency, the need for a patient to be detained in hospital means that there might not be enough time to make arrangements for the usual procedures leading to short-term detention (see Part 6) or long-term detention (see Part 7) to be followed. Part 5 therefore provides an emergency procedure under which a patient may be removed to hospital and detained there for up to 72 hours on the basis of a certificate granted by a medical practitioner. The procedure for granting an emergency detention certificate is the same whether or not the patient was in hospital prior to being detained.

Section 36: emergency detention in hospital

Issuing the emergency detention certificate

65.     Any medical practitioner may grant an "emergency detention certificate" if the conditions in subsection (1) are met. Before granting the certificate, the medical practitioner must examine the patient (subsection (1)(a)). Regulations may provide circumstances which preclude a medical practitioner from carrying out an examination where there may be a conflict of interest.

66.     To reflect the urgency of the situation, a certificate can be granted only within the strict time limits which are set out in subsection (12). Those time limits are calculated by reference to the time when the medical examination is completed.

67.     A patient cannot be detained under the emergency procedure if, immediately before the examination is carried out, the patient was detained in hospital under any of the authorisations listed in subsection (2).

Consent of mental health officer

68.     The effect of subsections (3)(d) and (6) is that, where it is practicable to do so, the medical practitioner must consult and obtain the consent of a mental health officer before the proposed certificate is granted.

Criteria for emergency detention: tests applied by medical practitioner

69.     The certifying practitioner must be satisfied that the conditions in subsection (5) are met. However, the practitioner need only consider it likely that the conditions in subsection (4) are met. Subsection (5)(c) also requires the practitioner to be satisfied that the process of trying to obtain a short-term detention certificate in respect of the patient would involve undesirable delay.

Measures authorised by certificate

70.     Subsection (8) sets out the measures authorised by an emergency detention certificate: removal of the patient to hospital within the period of 72 hours from the time at which the certificate was granted; and detention in hospital for 72 hours. Subsection (7), however, provides that the patient's admission to hospital from the community and the subsequent 72-hour period of detention are only authorised where the emergency detention certificate has been given to the managers of the hospital in which the patient is to be detained. Subsection (8)(b)(ii), on the other hand, provides that where a patient is in hospital immediately before the certificate is granted, the 72 hour period of detention begins with the granting of the certificate.

Contents of emergency detention certificate

71.     Subsection (10) requires the medical practitioner who examined the patient and granted the certificate to state the reasons for believing that the conditions in subsections (4) and (5) are met and also to sign the certificate.

Sections 37 to 40: actions following emergency detention

Duties of medical practitioner who issued the detention certificate

72.     Section 37 places a duty on the medical practitioner who granted the emergency detention certificate to give notice to the managers of the hospital in which the patient is to be detained of the following matters:

• why the certificate was granted;

• whether a mental health officer consented to the granting of the certificate;

• where no consent from a mental health officer was obtained, why it was impracticable to consult a mental health officer;

• the alternatives to the granting of the certificate which the medical practitioner considered and why such alternatives were believed to be inappropriate.

73.     Subsection (1) states that the medical practitioner should provide notice of these matters when the emergency detention certificate is given to the hospital managers. Subsection (3) provides, however, that where it is impracticable for the medical practitioner to provide such notice when the certificate is given to the managers, it should be given as soon as practicable after the event.

Medical examination following admission

74.     Section 38 imposes on the managers of the hospital in which the patient is detained a duty to arrange for an approved medical practitioner to carry out a medical examination of the patient. Section 39 provides that the approved medical practitioner who examines the patient must revoke the certificate if satisfied that the criteria for emergency detention listed at section 36(4) and (5)(b) are no longer met or if it is no longer necessary for the patient to be detained in hospital on the authority of the emergency detention certificate. If the emergency detention certificate is revoked, the practitioner must inform both the patient and the hospital managers of the revocation (section 40(1)). The hospital managers must then inform the parties listed at subsections (4) and (5) of section 38 that the certificate has been revoked (section 40(2)).

Other duties following admission

75.     Section 38 places a further series of duties on the hospital managers. First, they must within 12 hours of receiving the detention certificate inform the parties listed at subsection (4) that the certificate has been granted. Second, they must notify the parties listed at subsection (4) of the matters which they were given notice of by way of section 37. Such notice must be given within 7 days of their receiving it from the practitioner who granted the certificate. Third, if an emergency detention certificate was granted without the consent of a mental health officer, the hospital managers must within 7 days of receiving the information required by section 37 give notice of that information either to the local authority for the area in which the patient resides or (in instances where the hospital managers do not know where the patient resides) to the local authority for the area in which the hospital is situated.

76.     The hospital managers are also required by section 230 to appoint an approved medical practitioner to act as the patient's responsible medical officer. The appointment must be made as soon as is reasonably practicable after the emergency detention certificate is granted. (See paragraphs 419 to 421 of these Notes).

Medical treatment during emergency detention

77.     Emergency detention, unlike short-term detention, does not give general authority to provide compulsory medical treatment under Part 16. Urgent medical treatment may, however, be administered under section 243.

Sections 41 and 42: temporary suspension of emergency detention

78.     Section 41(1) allows a patient's responsible medical officer to suspend temporarily the detention requirement when a patient is subject to an emergency detention certificate. The patient is not subject to that requirement for a particular period of time specified by that officer. Where, for example, the suspension is granted to enable the patient to attend an event, subsection (2) enables the period of time to be expressed as the duration of the event. In the circumstances set out in subsection (3), the suspension may be made subject to conditions. It is only the detention requirement which is suspended and the certificate continues to run. The authority to detain will revive when the period of suspension comes to an end.

79.     While a temporary suspension is in force, the responsible medical officer may revoke it if either of the conditions in section 42(2) applies. Where the responsible medical officer does revoke the suspension certificate, he must inform the parties listed at subsection (3). Included here are the relevant hospital managers who, under subsection (4), must then inform the persons mentioned in section 38(4) and (5) of the revocation.

Section 43: effect of an emergency detention certificate on a compulsory treatment order

80.     Section 43 deals with the situation where a patient is already subject to a compulsory treatment order (see Part 7) when an emergency detention certificate is granted. Subsection (2) provides that the measures authorised by the order are suspended for the period that the patient is subject to the emergency detention certificate. The order itself continues to subsist, however, and (provided it still has time to run) revives once the emergency detention certificate expires; and operates as it did before suspension. Subsection (3) provides that any medical treatment which was authorised by the compulsory treatment order may continue to be given during the period for which the emergency detention certificate is in force.

PART 6 - SHORT-TERM DETENTION

81.     Part 6 makes provision for a patient's detention in hospital for a period of 28 days for the purposes of assessment or treatment of his mental condition. Unlike the procedure under the 1984 Act, it is not necessary for the patient first to have been admitted to hospital on an emergency basis.

Sections 44 to 56: short-term detention in hospital

Procedure for initiating short-term detention

82.     Section 44 sets out the procedure for granting a short-term detention certificate. The detention is initiated by an approved medical practitioner who has examined the patient, determined that the criteria for short-term detention are met and obtained the consent of a mental health officer. The approved medical practitioner should also, unless it is impracticable, have regard to any views expressed by the patient's named person (see Chapter 1 of Part 17) concerning the proposed detention. Any approved medical practitioner may issue a short-term detention certificate provided that there is no conflict of interest in relation to the medical examination.

83.     Section 44(2) also provides that a patient may not be re-detained on a short-term detention certificate immediately upon the expiry of an earlier period of detention authorised by:

• a short-term detention certificate;

• an extension certificate;

• section 68;

• a certificate granted under section 114(2) or 115(2).

Criteria for short-term detention

84.     Section 44(4) sets out the criteria for short-term detention. These criteria are similar to the criteria for compulsory treatment orders (see Part 7). However, because short-term detention may be required when the nature and effect of the patient's mental disorder is not clear, it is unnecessary to demonstrate that medical treatment is available which would benefit the patient. Instead, the approved medical practitioner must be satisfied that it is necessary to detain the patient for the purpose of either determining what treatment should be given or administering medical treatment.

Effect of granting of short-term detention certificate

85.     By virtue of section 44(5), a certificate granted by an approved medical practitioner authorises three measures:

• removal to hospital within three days of the certificate being granted.

• detention in hospital for 28 days. The 28 day detention period starts at the beginning of the day on which the patient was admitted to hospital for a patient who is not already in hospital. For a patient who is already in hospital, the 28 day detention period starts at the beginning of the day on which the certificate was granted.

• the giving of medical treatment, in accordance with Part 16.

86.     Subsection (1) of section 45 provides that, on being asked to consent to short-term detention, the mental health officer must, if practicable, interview the patient and ascertain the name and address of the patient's named person. The mental health officer must also inform the patient of the availability of advocacy services under section 259 of the Act. Subsections (2) and (3) provide that if it is impracticable for the mental health officer to interview the patient and ascertain the name and address of the named person, the mental health officer must give to the approved medical practitioner a copy of a record which states the steps they have taken in attempting to comply with these duties.

Hospital managers' duties

87.     Section 46 requires the relevant hospital managers to give notice of the granting of a short-term detention certificate to the persons listed in subsection (2). Where a patient subject to a short-term detention certificate does not already have a responsible medical officer, the managers of the hospital in which the patient is detained must also appoint an approved medical practitioner to act as the patient's responsible medical officer. This duty is imposed by section 230 (see paragraphs 419 to 421 of these Notes).

Extension of short-term detention

88.     Subsection (1) of section 47 enables short-term detention to be extended for a further three days if the conditions in that subsection are complied with and an extension certificate is granted by an approved medical practitioner. For example, this procedure can be followed towards the end of the 28 day detention period if the patient's mental health suddenly deteriorates. The three day extension would give the responsible medical officer and the mental health officer additional time within which to prepare an application for a compulsory treatment order. Before an extension certificate can be issued, the conditions set out in subsections (2) and (3) must apply.

89.     Subsection (1) of section 48 requires the approved medical practitioner who grants an extension certificate to notify the persons listed in subsection (2) of the extension of the detention period and of the related matters set out in paragraphs (b) to (d) of subsection (1).

Revocation of detention

90.     Section 49 imposes on the responsible medical officer a duty to keep under review the need for the patient to be detained either under a short-term detention certificate or an extension certificate; and requires the certificate to be revoked if the detention criteria are no longer met or if it is no longer necessary for the patient to be detained in hospital on the authority of the certificate. Where a certificate is revoked, notification under subsections (3) and (4) must be made.

Revocation on application of patient

91.     Section 50 confers on the patient or the patient's named person a right to apply to the Tribunal for revocation of the certificate. A short-term detention certificate is also automatically revoked if a compulsory treatment order or an interim compulsory treatment order is made in respect of the patient (see section 70).

Commission's power to revoke detention certificates

92.     Section 51 confers a power on the Commission to revoke a short-term detention certificate or an extension certificate where it is satisfied that one of the tests in paragraph (b) is met. Section 52 provides that where the Commission exercises this power, it must give notice of the revocation to the parties listed in that section.

Temporary suspension of detention

93.     Section 53 allows a patient's responsible medical officer to suspend temporarily the detention requirement under a short-term detention certificate for a specified period of time. This is effected by the grant of a certificate by the patient's responsible medical officer. In the circumstances set out in subsection (3), the suspension may be made subject to conditions.

Revocation of temporary suspension

94.     Subsection (2) of section 54 enables the responsible medical officer to revoke the temporary suspension certificate on either of the grounds set out in that subsection. The officer must give notice of revocation to the parties listed in subsection (3).

Relationship between certificate and other measures under Act authorising detention

95.     Section 55 provides that the granting of a subsequent short-term detention certificate supersedes an emergency detention certificate.

96.     Section 56 similarly provides that where a patient is subject to a compulsory treatment order and a short-term detention certificate is subsequently granted in respect of that patient, the compulsory treatment order will not authorise the measures specified in it during the period that the patient is subject to the short-term detention certificate.

PART 7 - COMPULSORY TREATMENT ORDERS

97.     Part 7 sets out the procedures for making and the effect of a compulsory treatment order. This is an order which is made by the Tribunal and which authorises detention in hospital and various other community-based measures. A compulsory treatment order lasts for 6 months unless revoked before then. However, it may be extended on the application of the patient's responsible medical officer for a further 6 month period and then for periods of 12 months at a time.

98.     Part 7 also provides for an interim compulsory treatment order which the Tribunal may grant while the application for the compulsory treatment order is being considered. An interim order lasts for up to 28 days and may not be extended, although the Tribunal may make more than one interim order provided that the total detention period authorised by those interim orders does not exceed 56 continuous days. The measures authorised by a compulsory treatment order and an interim compulsory treatment order are specified by the Tribunal but may be subsequently varied by the Tribunal. The responsible medical officer has power to suspend the effect of the order for temporary periods or to revoke it. The patient and the patient's named person also have the right to apply to the Tribunal for revocation or variation of the order.

Chapter 1: application for, and making of, orders

Pre-application procedures

Sections 57 and 58: medical examinations and mental health reports

99.     Applications for compulsory treatment orders may be made only by a mental health officer. A mental health officer is under a duty to make such an application on receiving two mental health reports. One of these reports must be compiled by an approved medical practitioner while the other may be provided by an approved medical practitioner or the patient's general practitioner. The information which each practitioner must provide in the mental health report prepared by him or her is set out in subsection (4) of section 57.

Sections 59 to 62: duties and powers of mental health officer on receiving reports

100.     On receipt of the mental health reports (defined in section 57(4)) produced by virtue of section 57, the mental health officer is required to interview the patient and comply with the other requirements in section 61(2); to take steps to identify the patient's named person (section 59); to co-ordinate the preparation of a proposed care plan in respect of the patient (section 62); and to prepare a report and application to the Tribunal (sections 61 and 63).

101.     Section 57(7) requires the application for a compulsory treatment order to be submitted to the Tribunal within 14 days of the later of the two medical examinations.

102.     Before making an application, the mental health officer must give notice to the persons listed in section 60(1) of the fact that an application is to be made. Notice need not be given to the patient if a mental health report provided by an approved medical practitioner has indicated that notice should not be given. However, the mental health officer may override the advice of the approved medical practitioner where he or she considers it appropriate and may give such notice all the same. This provision does not, however, relieve the mental health officer of the duty to inform the patient of the proposed application and of the availability of advocacy services at the point at which the mental health officer is preparing the report required under section 61.

103.     Section 61(4) sets out the information which must be included in the mental health officer's report. The mental health officer is required by section 57 to submit an application whether or not that officer considers the powers sought are appropriate; but he or she may nonetheless express views on the mental health reports (section 61(4)(f)). Any difference in views between the mental health officer and the medical practitioners will be a matter for the Tribunal to consider. The report must also give details of any advance statement (see sections 275 and 276) which the patient has made and of which the mental health officer is aware.

104.     Section 62 requires that the proposed care plan be prepared by the mental health officer in consultation so far as practicable with the medical practitioners who produced the mental health reports and with other persons or agencies who will be providing services, treatment or care to the patient. The plan must contain the information set out in subsection (5).

Application for order

Sections 63, 64 and 67 to 69: consideration by the Tribunal

105.     Section 63 deals with the application for a compulsory treatment order. Subsection (2) sets out the matters that must be stated in the application and subsection (3) lists the documents that must accompany the application.

106.     For patients who are already subject to a short-term detention certificate (or an extension certificate), section 68 provides that once an application under section 63 has been submitted to the Tribunal, the patient's detention in hospital under authority of the certificate is automatically extended for a further five working days. This is to enable the Tribunal to have sufficient time to come to a decision on the application. Section 69 requires the Tribunal either to make an interim compulsory treatment order or determine the application for the compulsory treatment order before the end of that extended period.

107.     On receipt of an application for a compulsory treatment order, the Tribunal must make arrangements under section 64 to consider it. Subsections (2) and (3) require the Tribunal to afford various parties an opportunity to make representations. Tribunal rules made under schedule 2 to the Act will set out further procedural requirements.

108.     Section 64(5) sets out the conditions which the Tribunal must be satisfied are met when deciding whether or not to make a compulsory treatment order. If so satisfied, the Tribunal must consider which of the measures from the list set out in section 66(1) are appropriate in the patient's case.

Outcome of application

Section 65: interim compulsory treatment order

109.     Where an application for a compulsory treatment order has been made, the Tribunal has power to grant an interim compulsory treatment order. The Tribunal may do so at its own discretion or on the application of any party with an interest in the proceedings. An interim order may last for any period of up to 28 days. The Tribunal may grant more than one interim order in respect of a patient. In that case however, the total period authorised by the interim orders must not exceed 56 consecutive days.

110.     Section 65(5) stipulates which persons must be afforded the opportunity to make representations to the Tribunal before an interim order can be granted.

Section 66: measures which may be authorised by a compulsory treatment order or an interim compulsory treatment order

111.     A compulsory treatment order (or an interim compulsory treatment order) authorises the measures set out in it. The measures are drawn from the list in subsection (1) of section 66. The measures include detention of the patient in hospital and various measures which are delivered in the community. Whether or not the patient is in hospital, the compulsory treatment order may specify that the patient is to be given medical treatment in accordance with Part 16.

Sections 67, 70, 71, 75 and 76: actions following the making of a compulsory treatment order

112.     Where a compulsory treatment order or an interim compulsory treatment order is made, the order will provide the authority for the patient to be removed to the hospital or other place specified in the order (section 67) within 7 days. Other duties which must be carried out once either of these orders has been made include:

• the appointment of a responsible medical officer by the hospital managers (if the patient does not already have a responsible medical officer) (section 230- see paragraphs 419 to 421 of these Notes)

• the preparation of a social circumstances report by the mental health officer (except where this would serve little or no practical purpose) (section 231- see paragraph 422 of these Notes)

• the preparation of a care plan by the patient's responsible medical officer. The responsible medical officer must ensure that this care plan is placed with the patient's medical records (section 76- see paragraph 119 of these Notes).

113.     Section 70 provides that where an interim compulsory treatment order or a compulsory treatment order is made while a patient is detained on short-term detention, the certificate which authorised the short-term detention is automatically revoked upon the making of the subsequent order. Similarly, section 75 provides that where a patient is made subject to a compulsory treatment order while already subject to an interim compulsory treatment order, that interim order shall be revoked on the making of the 'full' compulsory treatment order.

114.     Section 71 introduces schedule 3 and provides that Chapter 1 of Part 7 applies where a patient is subject to a hospital direction made under section 59A of the 1995 Act or a transfer for treatment direction made under section 136 of the 2003 Act subject to the modifications of that Chapter set out in schedule 3.