The person must be considered to be suffering from one of the four specific categories of mental disorder included in section 1 of the Act (see the question >what is the legal definition of a mental disorder?), AND it must be of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital (see >s3(2)(a) MHA). TreatabilityIn the cases of psychopathic disorder or mental impairment only, the proposed treatment must be likely to alleviate or prevent a deterioration of the condition (see s3(2)(a)). This is called the ‘treatability’ test. In other words, such people can only be detained under s3 if there is a reasonable belief that detention will lead to an improvement in their condition or at least stop it getting worse. The admission for treatment under detention has in all cases to be necessary for the patient’s own health or safety or for the protection of other people. A person can therefore be admitted under s3 solely in the interests of their health, or safety, even if there is no risk to anyone else. The two medical recommendation requirements are the same as for a s2 admission and so are the rules about an application in the name of an ASW or a NR being necessary. But if an ASW wishes to make the application, he or she must consult with the NR unless this is not reasonably practicable or would involve unreasonable delay – >s11(4) MHA. The ASW CANNOT proceed if the nearest relative objects, but the NR’s positive consent to admission under s3 is not required. In the recent case of Derbyshire, the judge reasserted that the nearest relative must be given an opportunity to respond: it is not enough, to comply with s11(4), merely to inform the nearest relative, ex post facto, that a s3 application has been made. However, it is not necessary actually to ask the nearest relative whether he or she objects to the application, as long as sufficient information is given to enable the relative to understand the nature of the application. .Although controversial, it is probable in law that since the word used here regarding consultation is ‘practicable’, and not ‘possible’, the ASW is allowed to decide not to consult if it could be severely disadvantageous to the client to notify the NR (eg. in cases where a NR from whom the client has fled, is alleged to have abused the client previously). (See topic of >Human Rights for further discussion). It should be noted that the Code of Practice does not endorse this approach, but that the existence of the Human Rights Act 1998 might require such an approach to be taken by practitioners, in the light of informed legal advice. This is because of the >s3 duty in the Human Rights Act to interpret and exercise statutory functions in such a way as is compatible with human rights, where that is at all possible. It might be a breach of human rights to consult with a NR in respect of whom an individual had a serious fear or loathing.In practice it is widely believed by ASWs that if the NR is mentally incapacitated, then that is a factor which makes it impracticable to consult with them, and thereby avoids the need to get them displaced by the County Court. This would lead to abuse, however, if a NR’s objections were regularly ignored on the basis that they were ‘obviously’ mentally incapacitated. Lawyers would say that the practice is unlikely to be correct, because otherwise what would be the point of providing as a ground for discharge, the incapability of the NR to fulfil the statutory role?The person can be detained under a s3 for up to 6 months commencing from the date of admission. This power can be renewed if the conditions for renewal are satisfied for a period of 6 months, and then for further periods of one year at a time. The RMO must examine the patient during the 2 months preceding the day of which the authority to detain the person is due to expire and decide whether to renew the order. Renewal criteria specify that in respect of a person suffering from mental illness or severe mental impairment, a reason for renewing an order is that the patient, if discharged, is unlikely to be able to care for himself, to obtain the care which he needs or to guard himself against serious exploitation . The Hospital Managers must refer to a MHRT any patient as soon as the s3 is renewed, if the person has not themselves applied for a Tribunal in the fi months. Treating the s3 patientThe patient can be treated for the mental disorder, throughout the duration of the s3 order under the ‘consent to treatment’ provisions contained in the Act or under the common law doctrine of necessity, if the patient lacks any capacity to consent. (See >Incapacity & Consent for further discussion).Discharge provisionsThe RMO can discharge a person detained under s3 at any time and this must be recorded in writing. The RMO can discharge the person without reference to the Managers.The Hospital Managers or a committee of 3 members may discharge the patient and the patient can make an application at any time. Again the Code provides guidance for the managers, and the RMO has no power of veto.A patient can apply ONCE while they are detained under s3 for a MHRT . There is no rule as to how long the Tribunal should wait before meeting to hear the application, and challenges are expected under the Human Rights Act to this aspect of the law. The Tribunal can discharge, defer discharge to a specified future date or reclassify the disorder. It may also recommend leave of absence, aftercare under supervision, transfer to another hospital or into guardianship. The NR can at any time request the discharge of a patient under a s3, again giving 72 hours notice of their intention. The patient’s RMO may bar the discharge if she considers that the person would be likely to act in a manner dangerous to other persons or to himself. This prevents discharge and any further discharge request for the next six months by the NR. But here, unlike the situation where a person is detained under a s2, the NR may apply to a MHRT to challenge the RMO’s decision to issue the barring certificate within 28 days of the report being issued.. Note that it can be lawful for a fresh s3 application to be made immediately after a Tribunal has decided to discharge a patient from a s2 order, or even from a previous s3 order. It has even been held (see > East London and the City Mental Health NHS Trust and Snazell, ex p Brandenburg) that this is so even where there is no significant change in the patient’s circumstances. That is because the doctors, social worker and managers must exercise independent judgment, having regard to Tribunal decisions, but not confined or restricted by them.
