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MENTAL HEALTH ACT 1983
ADMISSION, RECEIPT AND SCRUTINY OF STATUTORY DETENTION PAPERS
Author: Mental Health Law Manager
Sponsor/Executive: Medical Director
Responsible committee: Quality, Safety & Governance Committee
Ratified by: Quality, Safety & Governance Committee
Consultation & approval:
(Committee/Groups which signed
off the policy, including date)
Mental Health Law Policy & Practice Group
This document replaces: V1.2
Date ratified: 15th March 2018
Date issued: 15th March 2018
Review date: 1st March 2019
Version: V 1.3
Policy number: P141
Purpose of the policy:
Ensuring that there is a process of ensuring the
lawfulness of applications for detention and
compliance with the legal requirements outlined in
section 15 of the MHA.
If developed in partnership with
another agency, ratification details
of the relevant agency:
N/A
Policy in-line with national
guidelines:
Mental Health Act 1983 and CoP
Mental Health Act Reference Guide 2015
CQC Guidelines
Signed on behalf of the Trust: ……………………………….……………………
Tracy Dowling, Chief Executive
Elizabeth House, Fulbourn Hospital, Fulbourn, Cambs, CB21 5EF
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Version Control Sheet
Version Date Author Comments
1.0 November
2011
Orna Clark
Mental Health Law Manager
Ratified and approved by the Mental Health Act Committee.
1.1 January 2012
Orna Clark
Mental Health Law Manager
Minor amendments: Change to title of sponsor, adding appendix 1 (H3 sample)
1.2 November
2014
Orna Clark
Mental Health Law Manager
Scheduled review – Minor changes to role titles.
1.3 February
2018
Orna Clark
Mental Health Law Manager
Scheduled review of the policy.
Minor changes to:
Role titles and Meetings/Group names
Addition clarity on the responsibilities of the MH Law Office.
Minor update to Appendix 2 Inclusion of new Appendix 5 (Administrative and Medical scrutiny forms, as well as CTO scrutiny form)
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Contents
Section Page
1 Introduction 4
2 Scope 4
3 Roles and responsibilities 4
4 General Procedure 5
5 Errors on Mental Health Act Detention Papers 6
6 Invalid Application 8
7 Action to be taken if the Trust accepts a detention is unlawful 9
8 Action to be taken if the Trust does not accept that a detention is Invalid.
10
9 Application for Community Treatment Order (CTO) 10
10 Monitoring Arrangements 10
11 Training 10
12 Principle References 11
Appendices
Appendix 1 Sample of H3 - “Sections 2,3 and 4 – record of detention in hospital”
12
Appendix 2 A list of Statutory forms that are needed for every detention 14
Appendix 3 Ward Admission and Receipt of Section Papers checklists 15
Appendix 5 Detention Papers Scrutiny Forms (Administrative, Medical and CTO)
17
Appendix 4 CQC - Scrutinising and rectifying statutory forms for admission under the Mental Health Act 1983
20
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Admission, Receipt and Scrutiny of Papers
1. Introduction: 1.1 Patients can only be detained lawfully under the Mental Health Act 1983 as amended
in 2007 (thereafter referred to as „the Act, or the MHA) if the correct documentation has been accurately completed within the timescales permitted and in accordance with all other legal requirements. Where there are failures the patient‟s detention may be unlawful. The policy is based on Section 15 of the MHA, as well as the Statutory requirement outlined in Chapter 35 of the MHA Code of Practice (COP).
2. Scope of the procedure: 2.1 The arrangements in the procedure are:
Applicable to all new Applications - including applications where a patient has previously been detained under another section.
NOT applicable for Guardianships - Section 7 (The responsibility for the correct administration of this section lies with the Local Authority).
NOT applicable where a detention is renewed or reclassified, or for Community Treatment Order (CTO) Applications.
2.2 This procedure is concerned with the process of ensuring the lawfulness of applications for detention. It does not apply where a patient feels that they do not meet the criteria for detention under the Act: in that case they should exercise their right of appeal to the Mental Health Act Managers, or the Mental Health Review Tribunal. If, however, the issue is not whether the patient meets the criteria for detention, but whether the procedure used to detain them is lawful, reference should be made to this procedure.
3. Roles and responsibilities:
3.1 Chief Executive The Chief Executive is the accountable officer but will delegate responsibility to manage the receipt and scrutiny of detention papers to an appropriate executive lead.
3.2 Director of Operations & Director of Nursing and the Medical Director Director of Operations, the Director of Nursing and the Medical Director are the Mental Health Act executive leads and have responsibility to ensure the effective delivery of the Trust policy relating to the receipt & scrutiny of detention papers and for seeking assurance that this policy is monitored and reviewed.
3.3 All professionals who are responsible for completing, receiving and
scrutinising detention papers. (Section 12 Doctors, AMHPs, Consultant Psychiatrists undertaking medical scrutiny, Ward Nurses in charge) The policy, as well as the Trust‟s Scheme of Delegation Document, detail specific duties and responsibilities for these staff in relation to receipt, scrutiny and approval of detention papers. In addition, they:
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Are accountable for their own practice;
Will be aware of their legal and professional responsibilities relating to their competence;
Will be responsible for keeping up to date with the relevant mental health law, this policy and all other associated Mental Health Act policies ratified by the Mental Health Act Committee;
Should ensure that they attend any associated training to support them to adequately discharge their functions.
3.4 Modern Matrons and Ward Managers Modern Matrons and Ward Managers in inpatient areas have responsibility for:
Ensuring that their staff have access to and an awareness of this policy;
Ensuring that inpatient staff members attend any associated training relevant to their work.
3.5 Approved Mental Health Professionals (AMHPs)
Each healthcare professional is accountable for his/her own practice and will be aware of their legal and professional responsibilities relating to their competence and the requirements of the Act. The AMHPs must be satisfied the criteria for detention are met and the application forms and medical recommendations reflect this.
3.6 Mental Health Law Manager
The Mental Health Law Manager has responsibility for:
Ensuring that this policy remains current, in line with legislation, and that arrangements are made for regular monitoring and review;
Ensuring that the Trust‟s checklist for receipt and scrutiny is being used by all members of staff within the Trust who have the delegated responsibility for this;
Providing guidance and support to any staff member with queries regarding the policy;
Ensure that significant and repeated errors are reported to the relevant lead for action.
Report and investigate significant errors on Datix
Acting as the Trust lead in liaison with the Care Quality Commission‟s Mental Health Act Commissioners and their recommendations with regard to implementation of this policy.
Providing the Mental Health Law Policy & Practice Group members with the outcome of the scrutiny and monitoring process, as part of the quarterly and annual Mental Health Law Compliance Assurance Report - which is submitted to the Quality, Safety and Governance Committee and the Board.
3.7 Mental Health Act Administrators (Mental Health Law Office)
Within each of the Trust localities, where inpatient services are provided, there
is a Mental Health Law Office and in relation to this procedure the staff working
in these offices are responsible for:
Undertaking an administrative scrutiny, check of all detention papers and
ensuring that they are lawful and that this scrutiny check is documented by
completion of the Administrative Section Paper Checklists.
Taking immediate action if papers are found to be invalid and notifying the
Mental Health Law Manager and appropriate registered clinical staff and
managers.
Ensuring that any errors found are amended within the 14-day time frame
Ensuring that the Nurse Scrutiny check is undertaken by the ward band 5 and
above nursing staff.
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Ensuring that the third medical scrutiny check is undertaken by the
medical scrutiniser
Ensuring there is ongoing monitoring of the receipt and scrutiny.
Ensuring that there is an adequate supply of legal statutory documentation in all
inpatients areas;
Providing guidance and support to any staff member with queries regarding this policy.
4. General Procedure:
4.1 An Application under the Act may be made in the community or for someone who is already in hospital on an informal basis. When the application is made in the community, the person to be detained is conveyed to the admitting unit together with the completed documentation (i.e. Medical Recommendation(s) and Application. The responsibility for this rests with the Approved Mental Health Professional (AMHP) although the task itself may be delegated to others, for example, the ambulance service or the police.
4.2 The statutory documentation should be received on the unit by the Nurse in charge
who will accept the patient, check that the detention papers are correct and valid and complete and sign “Form H3” (appendix 1) with delegated authority from the „Hospital Managers‟. (Appendix1. Also see Appendix 2 for a complete guide list of MHA papers). The Nurse in charge should check the detention papers for errors following the guidelines of the “MHA Detention Papers Checklist” (Appendix 3). Where the application has been made by an AMHP, the AMHP has a duty to check the accuracy and validity of the medical recommendations. Wherever possible the AMHP should check the accuracy of the documents with the nurse in charge (CoP 35.9) to avoid unlawful detentions, or the return of the detention papers to the applicant(s) in order to rectify errors.
4.3 When checking detention papers, the Nurse in charge should accept in good faith
and at face value, the information on them. Minor errors that can be rectified (see below) should not prevent the application from being accepted and the Form H3 from being completed to document this.
4.4 If the Nurse in charge finds an error which cannot be rectified, the detention papers are defective and the section may deem to be unlawful. Providing that the patient is in the ward, short „Holding powers‟ (s5(4) and 5(2) of the Act can be used if the patient refuses to stay in the ward until a new assessment under the Act can be arranged. (‘a patient who has been unlawfully detained is clearly an in-patient, and it surely cannot be improper for the patients consultant to utilise the only provision that is available to her to prevent a patient who might have been diagnosed as being either dangerous or suicidal, from being discharged from hospital’ R. Jones MHA manual 17th Edition 1-076). See further guidance in item 4.5. (*Patients brought into the ward under section 136 are not “admitted” and can only be considered to be “informal patients” if following an assessment, they were admitted informally to the ward).
4.5 It is necessary that all detention papers undergo both Administrative and Medical
scrutiny (See appendix 5) to ensure that they are technically correct and that the clinical reasons given are sufficient for detaining the patient under the Act. The Mental Health Act Administrator will carry out the Administrative Scrutiny and a consultant who is not involved with the patient concerned will carry out the Medical Scrutiny in accordance with local practice.
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4.6 Once scrutinised and corrected the original papers will be stamped as such and kept in the patients “Section Papers” file. This file is kept at the locality Patient Information Team (MHA Administration) Office. Following the scrutiny process, the MHA Administrator will send a yellow copy of the MHA papers to the ward and this copy should be filed in the patient‟s health records, under the MHA divider in chronological order. Any earlier copies (which may still show uncorrected errors) must be destroyed by ward staff.
4.7 Faxed copies of original MHA papers may lawfully be used providing that the
recipient confers with the person who completed the form to confirm that the form was indeed completed by the signatory. In such cases, the original MHA detention papers must follow at the earliest opportunity. (Record of the arrangement must be entered in the patient‟s clinical notes and the MHA Administrator must be informed by the ward nursing staff of this agreement.)
5. Errors on MHA Detention Papers 5.1 When detention papers are incorrectly completed, most errors can be corrected
under Section 15 of the Act within 14 days of formal admission and the patient can continue to be legally detained for this period. Certain faults cannot be corrected and in those cases the application will be considered as invalid and a fresh Application must be made.
5.2 Examples of faults which cannot be rectified:
If the form is not signed by someone who is empowered under the Act to do so, or is not signed at all.
If the time limits of each section are not complied with (See Appendix 3 “MHA Detention Papers Checklist” for time limits).
For Section 3 Applications, the patient has been admitted to a different Hospital to the one specified where treatment is available on the Medical Recommendations.
S5 holding powers cannot be rectified under S15
S4 applications cannot be rectified after 72 hours, unless converted to S2 (a per S15 4)
5.3 If any of the above faults are found, there is no legal authority for a patient‟s detention. Authority can only be obtained through a fresh Application. 5.4 If fundamental errors are identified and the patient is already an inpatient on an
informal basis, they can be detained under Section 5(2) or Section 5(4), while a new application is being completed.
5.5 If fundamental errors are identified and admission has not taken place then it is only
possible to hold the patient under Common Law powers. This would have to be considered as an emergency – in situations where allowing the person to leave would cause immediate and serious risk to themselves or to other people. The Common Law should only be used where there is no alternative under statutory law.
5.6 Errors which can be rectified - unless the documents have been issued by a
court:
The following may be rectified within 14 days of the patient being detained if the application or medical recommendations are incorrect:
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Spelling mistakes
A patient‟s forename, surname or address not being identical on all forms
Genuine errors in entering dates
or defective:
The leaving blank of any space on the form other than the signature
Failure to delete one or more alternatives
5.7 Where each Medical Recommendation is valid but taken together they do not comply with the Act (e.g. two doctors and AMPH from the same team): one of the Medical Recommendations can be replaced by a new one. The detention will be valid if together the existing and the new recommendations comply with the Act.
If one of the 2 Medical Recommendations for Section 3 contains insufficient clinical description of grounds for detention, it may be disregarded and replaced by a fresh Medical Recommendation within the 14-day specified period.
5.8 The person who signed the form concerned must rectify such errors and initial and
date the correction, within the specified timescale. This does not apply when a Medical Recommendation is considered insufficient. In which case, a fresh Medical Recommendation must be completed.
5.9 Notes on “Fresh” Medical Recommendations
If a Medical Recommendation is insufficient and needs to be replaced, the Applicant (generally the AMHP) should be notified. It is the responsibility of the applicant to obtain the fresh Medical Recommendation within 14 days of the formal admission to hospital, (MHA S15(2) though in practice it may be agreed for this to be done by the MHA Administrator.
A fresh (replacement) Medical Recommendation does not have to be made by the same doctor who completed the one considered insufficient. Indeed, in cases where, for example, neither of the recommendations was from a Section 12 approved doctor or 1 doctor works under/or directs the work of the other doctor, a different doctor would be required.
A doctor can add to his/her Medical Recommendation where such additions are minor in nature. It is however difficult to define minor and where doubt exists, a completely new Medical Recommendation should be made.
If a fresh Medical Recommendation is completed, the MHA Administrator will ensure that the old (insufficient) Medical Recommendation is struck through and that copies of both new and insufficient Recommendations are filed in the patient‟s health records. A record (note) explaining the reason for the new Medical Recommendation(s) must also be made, attached to the original documentation and filed in the patient‟s Section Papers file (Patient Services Office)
Note that if an Application has two inadequate/invalid Medical Recommendations (or joint Medical Recommendation) it is not possible to replace both.
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5.10 Rectification of errors may be made at the ward level by AMHP/Doctor/Nursing staff (as appropriate) when receiving detention papers (paragraph 3.2 above) or later by the MHA Administrator. If there are rectifiable errors, the person responsible for the error, (the doctors or the AMHP concerned) should be asked to return to rectify the papers within 14 days of formal admission. If this appears impractical, the MHA Administrator may send the detention papers by recorded delivery to the Applicant. In this case, copies must be kept as a record until the rectified papers are returned.
6. Invalid Applications 6.1 The situations in which an unlawful detention may be discovered will vary and could include:-
A Nurse receiving the MHA paperwork on the ward at the time of the admission
The MHA Administrator Administrative and Medical Scrutiny of the MHA paperwork.
The MHA Managers/MHA Tribunal Panel conducting an appeal hearing.
An advocate or solicitor acting on behalf of the patient who is reviewing the case and has seen the MHA paperwork.
Following an audit, or inspection by the MHA Care Quality Commissioner.
6.2 Where the lawful authority of the Application to detain and treat the patient is being questioned the following steps should be taken:-
If the questions have been raised by anyone other than the locality MHA Administrator, it should immediately be brought to their attention.
The MHA Administrator should gather and review all the facts/evidence and if there seems to be a real doubt about the lawfulness of the detention, discuss them with the Trust‟s Patient Information/MHA Manager - as a matter or urgency.
The Patient Information/MHA Manager will make a decision about whether the detention is unlawful. Where necessary advice will be sought from the Trust‟s solicitors to establish the legal position. Advice will always be sought from the patient‟s Responsible Clinician (RC)/AMHP.
In no circumstances should any action be taken to discharge a patient from detention until the above has been gone through. This remains true even if (e.g.) a detention is challenged by (e.g.) a solicitor on a Friday evening and the above action cannot be carried out till Monday. The law allows a reasonable period of time for the Trust to establish whether or not a detention is invalid,.
6.3 It is our policy always to rectify minor errors. It should however be noted that minor
errors such as misspellings, even if left uncorrected may not invalidate the application (principle of de minimis). In the event of a dispute where the Trust believes that an Application is valid, the position is that the detention remains lawful unless set aside by a Court.
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7. Action to be taken if the Trust accepts a detention is unlawful.
7.1 If the Patient Services Manager/MHA Professional Lead declares on the authority of the „Hospital Managers‟ who legally detain the patient that a detention has always been or is as of a particular date unlawful the following apply:-
The patient‟s RC will be contacted to find out if in their opinion the patient is still suffering from a mental disorder which requires treatment in hospital under a section of the Act.
This may necessitate the RC visiting to assess the patient‟s current mental state and willingness to remain in hospital voluntarily.
The issue will be discussed with the Nurse in charge of the ward, where the patient is detained, to ensure an appropriate Nurse informs the patient that they are not detained under the Act and of the reason for this. The Nurse should also advise the patient of their right to seek legal advice and of accepting medical/ nursing advice about remaining in hospital.
A letter will be sent to the patient to confirm this information in writing.
If the RC‟s view is that the patient does not meet the criteria for detention, the patient may be given advice from both medical and nursing staff to stay in hospital, but is free to remain or leave as they choose (The MHA Administrator must be informed of this by the RC/Ward nursing staff).
If the patient is an existing inpatient and meets, or it is felt he/she is likely to meet the criteria for detention, consideration should be given to use of Section 5(2) should the patient attempt to leave hospital.
If the patient has not been admitted, consideration should be given to use of common law powers to detain.
In all cases the letter will advise the patient about his/her legal rights including their possible claim for financial compensation under the Human Rights Act 1998/2007.
8. Action to be taken if the Trust does not accept that a detention is Invalid.
8.1 The action to take in these circumstances will vary according to where the challenge to the detention is coming from. If it is from Trust staff, no action needs to be taken other than to ensure a full note of the issue and the reason for upholding the detention are placed in the patient‟s health records, as well as the Section Papers File.
8.2 If the challenge is directly from the patient or their representative, it is up to them to take legal action in the form of a judicial review or a writ of Habeas Corpus. The Trust will respond as necessary and obey any decision by the Court.
9. Applications for Community Treatment Order (CTO) 9.1 Applications for placing a patient on Community Treatment Order (Section 17A,
CTO) together with supporting documentation must be sent directly to the MHA Administrator for scrutiny (appendix 5) and for the acceptance of the application to be arranged. For further details, see Trust‟s Community Treatment Order Policy.
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10. Monitoring Arrangements. 10.1 In addition to the detailed Administrative and Medical Scrutiny process and in order
to ensure that high standards are maintained, the MHA Administration Team will regularly audit MHA documentation, as part of the Trust‟s MHA quarterly monitoring plan. A report of the outcome of the Administrative and Medical Scrutiny process will be included in the Quarterly Quality Assurance Report that is submitted to the MHA Committee. A Monitoring Outcome report will be disseminated to Directorate Management Teams, Team Leaders and Ward Managers.
10.2 Checks will also be made periodically by the MHA Administrators prior to Mental
Health Act Managers and Tribunal Hearings. 10.3 As part of their visits to hospitals or units, the Care Quality Commission (CQC) will
inspect MHA documentation and may raise issues. 11. Training. 11.1 Training on the receipt and scrutiny of MHA papers will be given by the Patient
Information and Mental Health Law Manager and the Mental Health Administration on an ad hoc basis and as part of ward based awareness talks and the regular monitoring visits.
11.2 This area will also be covered by the Trust‟s Mandatory Mental Health Act Training. 12. Principal References.
12.1 Staff should be familiar with and make reference to the following:
1983 Mental Health Act, as amended in 2007:
Procedures for hospital admission - Sections 2- 6
General provisions as to applications and recommendations - Sections 11-15 Mental Health Act Code of Practice 2015
Receipt and Scrutiny of documents – Chapter 35 Mental Health Act Reference Guide 2015
Professional Responsibilities
Care Quality Commission
Mental Health Act Commission Guidance Note - 2/98, “Scrutinising and Rectifying Statutory Forms for Admission under the Mental Health Act”
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(Appendix 4)
F
Form H3 Regulation 4(4) and (5) APPENDIX 1 Mental Health Act 1983 Section 2, 3 and 4 – record of detention in hospital
COMPLETE FORM LEGIBLY USING CAPITAL LETTERS FOR NAMES AND ADDRESSES (To be attached to the application for admission)
PART 1
(Name and address of hospital)
(PRINT full name of patient)
Complete (a) if the patient is not already an in-patient in the hospital.
Complete (b) if the patient is already an in-patient.
DELETE THE ONE WHICH DOES NOT APPLY.
(a) The above named patient was admitted to this hospital on
(Date of admission to hospital)
at (time)
In pursuance of an application for admission under section (state section) of the Mental Health Act 1983. (b) An application for the admission of the above named patient (who had already been
admitted to this hospital) under section (state section) of the Mental Health Act 1983 was received by me on behalf of the hospital managers on
(date) at (time) and the patient was accordingly treated as admitted for the purpose of the Act from that time. Signed On behalf of the hospital managers PRINT NAME Date
NAME OF WARD NAME OF HOSPITAL HOSPITAL ADDRESS
PATIENT’S FULL NAME (Initials not allowed)
/ /
:
COMPLETE ALL 3 PARTS OF THIS SECTION (a) IF PATIENT NOT ALREADY IN HOSPITAL WHEN APPLICATION MADE
STATE SECTION PATIENT DETAINED UNDER
STATE SECTION PATIENT DETAINED UNDER
/ / :
X
BAND 5 NURSE OR ABOVE
X / /
COMPLETE ALL 3 PARTS OF SECTION (b) IF PATIENT WAS ALREADY AN INPATIENT BEFORE SECTION MADE
DATE AND TIME PAPERWORK ACCEPTED
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PART 2
(To be completed only if the patient was admitted in pursuance of an emergency application under
section 4 of the Act)
On (date) at (time) I received, on behalf of the hospital managers, the second medical recommendation in support of the application for the admission of the above named patient. Signed
On behalf of the hospital managers PRINT NAME Date
NOTE: IF THE PATIENT IS BEING DETAINED AS A RESULT OF A TRANSFER FROM GUARDIANSHIP, THE PATIENT’S ADMISSION SHOULD BE RECORDED IN PART 2 OF THE FORM
G8 WHICH AUTHORISED THE TRANSFER.
BAND 5 NURSE OR ABOVE
X
X / /
X / /
X :
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Appendix 2
FORMS NEEDED FOR EACH SECTION
Section Form What it is
S5(4) 1 x H2 Section 5(4) - record of hospital in-patient (nurse‟s form)
S5(2) 1 x H1 Section 5(2) - report on hospital in-patient (Dr‟s form)
S4
1 x A11 Section 4 - Medical recommendation
1 x A9 or Section 4 – application by NR
1 x A10 Section 4 – application by AMHP
1 x H3 Sections 2,3 and 4 – record of detention in hospital
S2
2 x A4 or Section 2 – medical recommendation
1 x A3 Section 2 – joint medical recommendation
1 x A1 or Section 2 – application by NR
1 x A2 Section 2 – application by AMHP
1 x H3 Sections 2,3 and 4 – record of detention in hospital
S3
2 x A8 or Section 3 – medical recommendation
1 x A7 Section 3 – joint medical recommendation
1 x A5 or Section 3 – application by NR
1 x A6 Section 3 – application by AMHP
1 x H3 Sections 2,3 and 4 – record of detention in hospital
S17A(CTO) 1 x CTO1 S17A - Community treatment order
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Appendix 3
ADMISSION FOR ASSESSMENT (S2) OR TREATMENT (S3)
MHA DETENTION PAPERS CHECKLIST To be completed by the Ward Nurse in Charge (preferably with AMHP, if applicable)
Patients Name:
RiO Number:
Part 1 - APPLICATION Yes No Rectifiable?
Has Application been received either on: Form A2 (Sec 2 AMHP) or Form A1 (Sec 2 Nearest relative) Form A6 (Sec 3 AMHP) or Form A5 (Sec 3 Nearest relative
No No
Are all the names and address on the document correctly spelt? Yes
Have any alterations or crossing out on the forms been initialled and dated by the person signing the form (if originator is still on the ward ask them to initial all amendments)
Yes
For section 3 application – Is the Application made out to the (or one of the) hospital(s) named in the Medical Recommendations?
No
Is the Application made out to the hospital to which the patient was admitted? Trust name, or merely address of hospital is not sufficient
No
Is the name and address of the hospital correctly spelt? Yes
Have all alternatives/options been deleted? Yes
Is the Application signed? No
Is the Application dated? Yes
Has the Applicant seen the patient within the period of 14 days ending with the signing of the Application?
No
Is the Application date the same as / or after the date of the Medical Recommendation? (The Application must not be dated before the Medical Recommendations date)
No
For section 3 Application - Has the Applicant consulted the Nearest Relative or made every effort to contact them?
No
If applicant has not consulted with NR have they recorded their reasons for this
Yes
For section 3 Application – Has Nearest Relative NOT objected to Application being made (If NR has objected Application cannot proceed (S11(4))
No
AMHP report (SOC 323) included ensuring details on how the nearest relative was identified and consulted
Yes
Has the patient been admitted within 14 days from the date of the latest medical examination (NOT the date of the medical recommendation or the Application). If not, application is invalid and detention will be unlawful.
No
Are all: (i) blank spaces on forms which should have been filled in been completed (ii) alternatives/options deleted
Yes
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Part 2 – MEDICAL RECOMMENDATIONS Yes No Rectifiable?
Have 2 medical recommendations been received either on: One Form A3 or two on Form A4 (Sec 2) One Form A7 or two on Form A8 (Sec 3)
No No
Are all the names and addresses on the document(s) correctly spelt?
Yes
Are the examination dates of the two medical recommendations 5 or less days apart?
No
Are the recommendations dated on or before the date of the Application?
No
If neither doctor was previously acquainted with the patient has the applicant explained why they could not get a recommendation from a medical practitioner who did?
Yes
Is one doctor approved under Section 12 of the MHA 1983? No
For section 3 only: Recommendation(s) state that appropriate medical treatment will be available if the patient is admitted to one or more specific hospitals (or units within a hospital) (COP 4.77). Trust name only is not acceptable.
Yes
Are any alterations or crossings out on the forms initialled and dated by the person signing the form (if originator is still on the ward ask them to initial where amendments have been made)?
Yes
Are the recommendations signed? No
Are the recommendations dated? Yes
Part 3 – FORM H3 (Record of detention in hospital)
Complete form H3 ensuring that names and addresses are spelt correctly and that the admission/section time is recorded accurately.
Yes
Where non-rectifiable errors are detected the detention documents must be declared INVALID and there is no authority to detain the patient. New detention forms must be provided. Any amendments to other errors must be done within 14 days of the patient‟s admission. If the originator of the form is there, they can correct them, if not, the locality MHA Administrator will follow up these issues as part of the Administrative and Medical Scrutiny process.
Checked & completed by: __________________________________________________ (Name of Ward Nurse in Charge who completed the checks) Signed: ____________________________________________________Date_________________ (Signature of Ward Nurse in Charge who completed the checks)
PLEASE NOTE! A copy of this MHA Detention Papers checklist should be uploaded onto RiO together with the
section papers and the original submitted to the MHA Administrator with all original MHA detentions papers within one working day of detention to the ward.
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Appendix 4
MHAA Checklist section 2, 3, & 4 - Mental Health Act 1983
Patient‟s Name: _______________________ Section No: ___ Section Date: __________
Yes No
1. The correct forms for the section have been completed
2. All papers have been signed and dated correctly
3. Full name & address of the patient is entered correctly on all forms
4. SECTION 3: The medical recommendations state where appropriate treatment is available one of which is this hospital
5. All parts have been completed, where necessary
6. Full names and address of the doctors and AMHP are on the forms
7. Deletions have been made where appropriate
8. Where the application has been made by an AMHP has it been made within 14 days of them seeing the patient?
9. SECTION 3: Has the AMPH consulted with the NR or stated the reason for not consulting.
10. Application is addressed to this Hospital (Trust name not sufficient)
11. The medical recommendations are signed and dated on or before the date of application.
12. If neither doctor knew the patient has the AMHP stated why?
13. SECTION 2 & 3: Where there are 2 separate medical recommendations – not more than 5 clear days have elapsed between the days on which the examinations took place.
14. SECTION 2 & 3: Where there is a joint medical recommendation the dates of examination are the same.
15. SECTION 2 & 3: At least one of the doctors is section 12 approved
16. SECTION 2 & 3: The patient has been admitted within 14 days beginning with the date of the latest medical examination.
17. The medical recommendations state the grounds on which his/her opinion is based and why detention in hospital is necessary
18. SECTION 2, 3 & 4: Form H3 has been completed correctly
Signed: ____________________________________________ Date: ________________
Non-rectifiable errors: Rectifiable errors (within 14 days of date of section)
-absence of a medical recommendation or application or the wrong form being used -lack of signature on any form -the correct hospital is not specified -The application and med recs do not all relate
to the same patient
-blank spaces (apart from signature) -failure to delete an alternative where only one can be correct -Discrepancies in spelling of patient‟s name -incorrect dates (only if simply an error in the way the form was completed).
Note: If a medical recommendation is found to be insufficient due to the reasons for detention, it is possible that the section can still be valid if a fresh medical recommendation that complies with requirements under the act (excluding dates) is submitted before the 14 days are up.
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Medical Scrutiny Checklist - Mental Health Act 1983
Patient‟s Name: ____________________________________________ Section No: __________ Section Date: ____________
For all Sections: Yes No
1. No more than 5 clear days have elapsed between the two examinations. For joint medical recommendations the examination dates must be the same.
2. At least one of the doctors is section 12 approved
3. The medical recommendations state the grounds on which his/her opinion is based
4. The medical recommendations state why detention in hospital is necessary
5. The medical recommendations state where appropriate treatment is available (not applicable for section 2)
6. The reasons given appear to be sufficient to support the conclusions stated.
7.
I have found the recommendations to be sufficient (if the recommendations are found to be insufficient please complete your reasons below)
Signed: ______________________ Date: _________________ Print Name: ___________________Job Title:____________________
Insufficient Grounds For Detention My reasons for finding the medical recommendations to be insufficient are: ________________________________________________________________
________________________________________________________________
________________________________________________________________ Signed: ______________________________________Date:_______________ MHA Admin: Letter sent to applicant stating Med Rec insufficient & replacement must be provided within 14 days from section or patient must be discharged. Signed: ____________________________________ Date: _______________
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MHAA NEW CTO Checklist - Mental Health Act 1983
Patient‟s Name: ________________________ RiO Number ________________________ Date of CTO: _______________________________
TO BE COMPLETED FOR ALL NEW CTO’s Yes No
1. Part 1, 2 & 3 of CTO1 have been fully completed 2. All 3 parts have been signed and dated 3. Part 2 has been signed and dated on or after Part 1 4. Part 3 has been signed & dated on or after Parts 1 & 2 5. Full name & address of the patient is entered correctly 6. Full name & address of the RC is entered correctly 7. Full name and address of AMHP is entered correctly 8. All parts have been completed, where necessary 9. RC has stated the non mandatory conditions
10. Start date and time of CTO is on or after the date of signature on Part 3
11.
The „In my opinion‟ statements on Page 1 part b (It is necessary for i, ii or iii) match the list of statements at the bottom of page 3 i.e. RC has deleted the same statements from each one.
12. Deletions have been made where appropriate Signed: Date checked:
Note: There is no authority under section 15 to correct errors on SCT paperwork and therefore if errors are detected within the timescale a replacement form must be requested immediately. If errors are detected after the time allowed to complete the process please contact the MHA lead without delay.
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Appendix 5
Scrutinising and rectifying statutory forms for admission under the Mental Health Act 1983
This guidance relates to England only
Previously issued by the Mental Health Act Commission October 2008
1. Introduction
When an application is made for a person to be admitted to hospital compulsorily,
the Mental Health Act 1983 („MHA 1983‟) imposes certain requirements. It is
essential that those responsible for administering MHA 1983 understand those
requirements, not only to ensure that patients‟ legal rights are respected, but also to
protect themselves from legal liability.
The Care Quality Commission recommends that health authorities, NHS trusts, and
independent hospitals include the following information in their policies and
guidelines concerning the scrutiny and rectification of statutory documents.
Further guidance on this topic may be found in the MHA 1983 Code of Practice,
chapter 13; and the Reference Guide to the Mental Health Act 1983, paras 2.96 –
2.110.
2. Use of statutory forms
Under MHA 1983, section 32(2), the Secretary of State may make regulations
prescribing the form of any application, recommendation or report required by Part II
of the Act. The prescribed forms are those specified by and set out in the Mental
Health (Hospital, Guardianship and Treatment) Regulations 2008.
This note provides guidance to administrators on the scrutiny and rectification of statutory documents relating to admission to hospital for assessment and/or treatment under the Mental Health Act 1983.
The Care Quality Commission urges health authorities, NHS Trusts and the proprietors of independent hospitals to include the following information in their policies and guidelines about the administration of the Act.
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3. Documentary irregularities
After a patient has been admitted to hospital under MHA 1983, the requisite
statutory forms should be scrutinised by the hospital managers to ensure that
any irregularities are identified and, if permissible, rectified within the period
prescribed by the Act.
Documentary irregularities fall into three broad groups:
Those that are both incapable of retrospective correction and sufficiently
serious to render the patient‟s detention invalid.
Those that may be rectified within 14 days after admission, but which, if not
rectified, are sufficiently serious to render the application invalid at the expiry of
that period.
Errors and omissions that, even if they are not corrected within the statutory
period, are not sufficiently serious to render the admission application invalid.
The appendix to this note describes some of the most significant irregularities found
in applications and medical recommendations, and it summarises current opinion as
to the legal consequences that may follow. Ultimately, however, the lawfulness or
otherwise of a patient‟s detention can only be determined by the courts.
4. Rectifying mistakes
MHA 1983, section 15 provides a mechanism for rectifying applications for
admission to hospital that are not in the correct form. MHA 1983, section 8(4)
makes similar provision in respect of Guardianship applications.
4.1 Defects and errors
MHA 1983, sections 15(1) and 8(4) are concerned with applications and
recommendations that are found to be “incorrect or defective.”
Applications for admission under Part II
MHA 1983, section 15(1) provides that an application or recommendation that is
found to be incorrect or defective may, with the consent of the hospital managers, be
amended by the person who signed it. However, any such amendment may be made
only within 14 days of the patient‟s detention in hospital. Once amended, an
application or recommendation is deemed to have effect as if it had always been in
its amended form. The managers may authorise an officer to consent to the
amendment of a document on their behalf.
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Guardianship
MHA 1983, section 8(4) makes similar provision for amending a guardianship
application, or a medical recommendation given in support of such an application,
which is found to be incorrect or defective. Any amendment must be made within 14
days of the date on which the application was accepted, and it requires the consent
of the local social services authority. Provided it does so in writing, the authority may
authorise a designated officer to consent to the amendment of a document on its
behalf.
The ambit of sections 8(4) and 15(1)
The Reference Guide to the Mental Health Act 1983, para 2.98, confirms the
Commission’s view that remediable defects include the leaving blank of any spaces
on the form which should have been filled in (other than the signature); failure to
delete one or more alternatives in places where only one can be correct; or
discrepancies in the spelling or recording of a patient’s name in the documents that
do not raise any doubts as to whether the documents refer to the same person.
The common opinion over the limits of rectification is expressed by Hoggett:
“ ’Incorrect’ probably means ‘inaccurate’ in the sense of mis-stating
names, dates, places or other details which had they been correctly stated
would have justified the admission. It does not mean that a document
which accurately reflects the facts can be rectified if those facts do not fall
within the legal requirements. For example, a frequent fault is that the
medical recommendations are undated or dated later than the application
… If in fact they were signed on or before the date of the application, the
mistake can be rectified. But if they were signed later, then the
application is invalid and the detention illegal.
„Defective‟ probably means „incomplete‟ in the sense that all the
information required in the forms has not been given. It cannot mean that
forms which are complete and accurate statements of the facts can be
falsified in order to provide legal justification for detention where none
exists…”1
11
B Hoggett (1996) Mental Health Law, Sweet and Maxwell, 4th edition.
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4.2 Recommendations insufficient to warrant detention
MHA 1983, sub-sections 15(2) and (3) provide that a fresh medical recommendation
may be completed during the 14-day rectification period, where it appears to the
hospital managers that one of the original recommendations, or their combined
effect, is insufficient to warrant the patient‟s detention.
One of the recommendations insufficient
Medical recommendations should be scrutinised by someone with appropriate
clinical expertise to check that the reasons given appear sufficient to support the
conclusions stated in them. Doctors must give reasons for the opinions stated in
their recommendations. When giving a clinical description of the patient‟s mental
disorder as part of these reasons, doctors should include a description of the
patient‟s symptoms and behaviour, not merely a diagnostic classification.
MHA 1983, section 15(2) provides that where it appears to the managers that
“one of the two medical recommendations” on which the application is
founded is insufficient to warrant the patient’s detention, they may, during the
14 days following the patient’s admission, notify the applicant in writing of that
fact. If such a notice is given, the medical recommendation will be
disregarded and the application deemed always to have been sufficient,
provided:
1. a fresh medical recommendation, which complies with the relevant
statutory provisions (other than those relating to the time of signature
and the interval between examinations), is furnished to the managers
within that 14 day period; and
2. that recommendation and the other recommendation on which the
application is founded together comply with those provisions.
Medical recommendations taken together insufficient to warrant detention
The combined effect of the two recommendations may be insufficient to
warrant detention (see Appendix, note 3 for examples). MHA 1983, section
15(3) provides that where, “taken together”, the recommendations upon which
an application for admission is founded are insufficient to warrant the patient’s
detention, a notice under section 15(2) may be given in respect of “either of
those recommendations.”
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5. Approach of the care quality commission
Because the lawfulness of an application or order is a matter for the courts,
Mental Health Act Commissioners must be cautious about expressing an
opinion as to the validity of an application. In particular, they may not suggest
that a particular patient is entitled to be released forthwith, even if there has
been a clear and fundamental breach.
Where, during a visit to a NHS or independent hospital, Commissioners form
the opinion that a statutory form may be invalid, they will invite the managers
to:
1. furnish the Commission with a copy of all the statutory documents relating
to the current period of detention;
2. urgently review the authority for the patient’s detention and whether there
are any other grounds that might authorise it;
3. notify the Commission of their findings and any steps taken as a result;
4. ensure that the patient is informed that s/he may not be lawfully detained,
and that s/he is assisted, if required, to obtain independent legal advice.
6. Conclusion
The documentation required by and under MHA 1983 gives NHS Trusts and the
proprietors of independent hospitals the legal authority to detain patients and, where
necessary, treat them against their will. It is vital, therefore, that procedures
designed to ensure compliance with the Act, and also to protect staff from legal
liability, are vigorously applied. Hospital managers should ensure that arrangements
are in place to audit the effectiveness of receipt and scrutiny of documents on a
regular basis, to ensure that statutory forms are lawful and the procedures to
scrutinise and rectify them are adequate (see MHA Code of Practice, paragraph
13.20).
Any questions about this guidance should be sent to: The Care Quality Commission Edgeley House Riverside Business Park Tottle Road Nottingham NG2 1RT Or emailed to: [email protected]
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Appendix A
Rectification of applications and recommendations 6
Points for consideration
1. Is the application duly made and founded upon the necessary medical recommendations?
Irregularity
Unsigned application or medical recommendation.
Application made by AHMP with a conflict of interest (see Mental Health (Conflicts of Interest) (England) Regulations 2008) & therefore disqualified under s.12A.
Application completed by a person otherwise not qualified to complete it, e.g. not an AMHP, not the nearest relative, not a person authorised to exercise the relative‟s functions.
Rectification provisions
None – fundamentally flawed applications cannot be retrospectively validated (see Reference Guide, 2.94).
Unsigned documents and documents completed by persons not qualified to complete them do not constitute an application or recommendation. It is not so much that the application or recommendation is insufficient, rather the document is not an application or recommendation at all.
Effect on an irregularity
The application is of no effect.
2. Is the recommendation sufficient to warrant the patient’s detention in pursuance of the application?
i.e. does each document comply with the various statutory formalities when considered individually?
Recommendation completed by a practitioner who is not fully registered: see Medical Act 1983, ss.47 & 48.
Recommendations which contain insufficient grounds/reasons for the doctor‟s opinion that the statutory criteria are satisfied.
Section 15(2) provides that the hospital managers may notify the applicant of their opinion that the recommendation is insufficient, in which case the recommendation is disregarded. The applicant may then arrange for a fresh medical recommendation to be furnished within the statutory 14 day period. Section 15(2) does not apply to guardianship applications and no provision is made for a substitute recommendation in such cases.
If a fresh sufficient recommendation is provided within the period allowed, the application is retrospectively validated. If not, the validity of the patient‟s detention depends on the correctness of the managers‟ opinion that the recommendation is insufficient. In guardianship cases, the guardianship is always invalid if a recommendation is insufficient.
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3. When considered together, are the recommendations sufficient to warrant the patient’s detention in pursuance of the application?
If both forms when considered separately are sufficient to warrant the patient‟s detention, the next question to address is their combined effect.
Neither medical practitioner is approved under s.12(2).
More than five clear days elapsed between the days on which the doctors furnishing the two medical recommendations conducted separate examinations of the patient.
Both recommendations were provided by doctors from the same clinical team, regulation 6(3) of the Mental Health (Conflicts of Interest) (England) Regulations 2008
Section 15(3) provides that the hospital managers may notify the applicant of their opinion and, in doing so; they shall stipulate which recommendation is to be disregarded. The applicant may then arrange for a fresh medical recommendation to be furnished within the statutory 14 day period. Section 15(3) does not apply to guardianship applications and no provision is made for a substitute recommendation in such cases
.
As before, if within the 14 day period the applicant furnishes to the managers a fresh medical recommendation which, when considered together with the other remaining recommendation, is sufficient to warrant the patient‟s detention, the application shall be deemed to have always been valid.
If not, the validity of the patient‟s detention depends on the correctness of the managers‟ opinion that the recommendations are collectively insufficient. In guardianship cases, the guardianship is always invalid in such cases.
4. If the application and both medical recommendations are sufficient to warrant detention, whether considered separately or together, are any other errors or defects in the forms apparent?
Leaving blank spaces on the form, which should have been completed, other than the space for signing it or for recording the doctor‟s reasons for believing that the statutory criteria are satisfied.
Failure to delete one or more alternative clauses in places where only one can be correct.
Errors in the spelling of names, addresses or places.
Sections 8(4) and 15(1) provide that an application or medical recommendation which is in any respect incorrect or defective may, with the managers‟ consent, be amended during the 14 days following admission or reception into guardianship.
Once the amendment has been made, the recommendation is deemed to have effect as if it had been originally made as so amended. If the error or defect is not corrected, the validity of detention or guardianship depends on the significance of the error or defect. If trivial, the authority is unlikely to be affected.
6. Originally sourced from A. Eldergill (1997) Mental Health Review Tribunals – Law and Practice (Sweet and Maxwell) p .271 and subsequently revised by the Mental Health Act Commission
