Receipt and scrutiny of detention papers policy (MHA 1983)

1 Introduction

Individual practitioners have a duty to ensure that detention papers, which are legal documents, are correct, as invalid papers may ultimately constitute not only an unlawful detention but also an infringement of a person’s human rights.

The responsibility for the receipt and scrutiny of detention papers is a duty which is delegated by the hospital managers to a limited number of officers, who within this trust includes the nurse in charge of the ward at the time of a patient’s admission.

All registered clinical staff must have had mandatory training on the Mental Health Act 1983 (MHA 1983) which includes the receipt and scrutiny of detention papers.

2 Purpose

The purpose of this procedure is to:

provide registered clinical staff with a clear framework in which to receipt and scrutinise the legal detention papers
provide a consistent approach across the Care Groups in the receipt and scrutiny of detention papers
detail the responsibilities and duties of registered clinical staff in relation to receipt and scrutiny
state what training is available to staff in relation to the receipt and scrutiny
detail what arrangements the trust has in place to monitor compliance with the legal requirements

3 Scope

The contents of this procedure apply to all registered clinical staff that work within the trust across the mental health, learning disability and forensic care groups.

4 Responsibilities, accountabilities and duties

4.1 The trust’s mental health legislation operational group

Is responsible for:

overseeing the implementation of the MHA 1983 within the organisation
the review and issuing of all policies and procedures which relate to the MHA 1983
monitoring the Trust’s compliance with the legal requirements of the MHA 1983
undertaking audit work and agreeing action plans in relation to the MHA 1983

4.2 Hospital managers under the MHA 1983

Whilst the MHA 1983 uses the term “hospital managers”, in NHS Foundation Trusts the trusts themselves are defined as the hospital managers. They have certain statutory duties they must fulfil under the MHA 1983 and some of these duties, including the receipt and scrutiny of detention papers, can be delegated to officers by the hospital managers but in delegating this responsibility they must be satisfied that:

the member of staff has received sufficient guidance and is aware of the key issues regarding the receipt and scrutiny of section papers
a record is kept, including when and by who receipt and scrutiny was undertaken
there are processes in place to monitor the receipt and scrutiny of documentation

4.3 Registered clinical staff

In relation to this policy all registered clinical staff must be aware of and comply with its contents by ensuring:

general checks are undertaken on all detention papers
specific checks are undertaken on all detention papers for sections 2, 3 and 4 of the MHA 1983
that invalid detention papers are identified, and action is taken to either notify their line manager or highlight the amendment required
that the receipt of detention papers is appropriately documented by completion of the nursing section paper checklist (appendix A)

Registered clinical staff should also:

attend any training which is provided in relation to this policy
complete all the necessary documentation required
implement any action plans which arise from the audit of this policy

4.4 Mental Health Act office staff

Within each of the trust localities where inpatient services are provided there is a Mental Health Act 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 checklist (appendix B)
taking immediate action if papers are found to be invalid and notifying the appropriate registered clinical staff and managers
ensuring that any errors found are amended within the 14 day timeframe
ensuring that the second administrative scrutiny check is undertaken by the matron
ensuring that the third administrative scrutiny check is undertaken by the medical scrutineer
ensuring there is ongoing monitoring of the receipt and scrutiny of documents and highlighting any areas of concern

5 Procedure and implementation

5.1 General checks for all sections

Receipt of documents will be undertaken by the nurse in charge of the ward and any person to whom the responsibility is delegated must be competent to make such a judgment and to identify any error in the documents which may require rectification.

Section 6(3) of the MHA 1983 allows the “receiving officer” to act upon the documents without further proof of the signature, qualifications or of any matter of fact or opinion stated in them.

Section 15 of the MHA 1983 provides for rectifiable errors to be amended by the person completing the form, within the period of 14 days beginning with the date the patient is admitted to hospital. However, section 15 does not apply to documents that are issued by the Court.

There is no provision in the MHA 1983 for rectification of CTO documentation. Significant errors or inadequacies in the CTOs themselves may render a patient’s CTO invalid and errors in recall notices or revocations may invalidate hospital managers’ authority to detain (MHA Code of Practice 35.16)

Only the original section papers can be accepted, and these must be:

on the statutory forms (paper or electronic) or in the case of patients detained by the courts, the court approved documents
papers must correspond to the section under which the patient is to be detained
must be fully completed
the patient’s name and address must be exactly the same on all documents
all documents must be signed, dated and timed, where appropriate
there must be an explanation on the form as to why informal admission is not appropriate

5.2 Specific checks

5.2.1 Section 4

The time at which the applicant last saw the patient must be within 24 hours ending with the time of the application.
The patient’s admission to hospital must take place within 24 hours starting with the time of the medical examination or with the time of the application (whichever is earlier).
If the section 4 is being converted to a section 2, the second medical recommendation must be received on behalf of the hospital managers not more than 72 hours after the time of the patient’s admission. The second medical recommendations must then comply with all the normal requirements except the requirement as to the time of the signature of the second medical recommendation.

5.2.2 Section 2 and 3

The date on which the applicant saw the patient must be within 14 days of the date of the application.
The dates of the medical “examinations” of the patient by the 2 doctors who gave the recommendations (not the date of the recommendations themselves) must not be more than 5 clear days apart (for example, if one took place on 1 March, the other can take place no later than 7 March).
The dates of the signatures of both medical recommendations must not be later than the date of the application.
The patient’s admission to hospital (or if the patient is already in hospital, the receipt of the documents) must take place no later than 14 days beginning with the date of the later of the 2 medical examinations.
One of the medical practitioners should be approved as having special experience in the diagnosis or treatment of mental disorder (section 12 approved).
One of the medical recommendations should come from a practitioner who had previous acquaintance with the patient.
Only one of the medical recommendations should come from a medical practitioner from the hospital where the patient is to be detained.
If neither of the medical practitioners had previous acquaintance with the patient there must be an explanation as to why on the application.
For section 3 only, the medical practitioners must have stated where appropriate treatment can be provided.

5.3 Errors on section papers

When detention papers are incorrectly completed, most errors can be corrected under Section 15 of the MHA 1983 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 section may have to be considered as invalid and a fresh application made.

5.4 Errors which cannot be rectified and would therefore render the detention invalid

Completion of wrong section papers.
An application or medical recommendation which is unsigned.
An application signed by a person not qualified to complete it.
A medical recommendation by a person without power to make such a recommendation.
If the medical examinations are more than 5 days apart (for section 2 and 3).
If the application has been dated and signed before the medical recommendation.
If the application has not been completed within 14 days of the later of the 2 medical recommendations.
If, under a section 3, the name of the hospital where appropriate treatment is available is not completed
Any amendment’s required on a joint medical recommendation

5.5 Errors which may be rectified (unless issued by a Court)

The following may be rectified within 14 days of the patient being admitted on a section:

any blank spaces which should have been filled in (other than signature)
failure to delete one or more alternatives in places where only one can be correct.
a patient’s forename, surname or address not being fully completed or being inaccurately stated or not being identical on all forms
spelling mistakes
genuine errors in entering dates
where each medical recommendation is valid but taken together, they do not comply with the MHA (for example, 2 doctors from the same hospital) one of the recommendations can be replaced with a new one. The section will be valid if together the existing recommendation and the new recommendation comply with the MHA. In this case the normal time period governing medical
recommendations (for example, 5 clear days) ceases to apply
a single medical recommendation for Section 3 which contains insufficient clinical description of grounds for detention may be disregarded and replaced with a fresh recommendation within the 14 day specified period. However, it is not possible to amend a joint medical recommendation as both will be found to be insufficient

5.6 Factors to consider when seeking “fresh” (replacement) medical recommendations

If a fresh (replacement) medical recommendation is required, the applicant (AMHP) should be notified. It is the responsibility of the applicant, not the doctor, to obtain the fresh (replacement) medical recommendation within 14 days of the formal admission to hospital.

A fresh (replacement) medical recommendation does not have to be made by the same doctor who completed the one considered insufficient. In cases where, for example, neither of the recommendations was from a section 12 approved doctor or the 2 doctors were from the same hospital or unit, a different doctor would be required.

Where one of the 2 recommendations renders the section insufficient to detain (for example, because the clinical description is inadequate or neither doctor is section 12 approved) a third medical recommendation may be obtained.

However, if a section application had 2 inadequate or invalid medical recommendations it is not possible to replace both. Neither is it possible to obtain a third medical recommendation to supplement a defective joint medical recommendation.

5.7 Action if the detention papers are invalid

Notify the patient’s consultant psychiatrist and approved clinician.
Notify line manager.
Notify the MHA office.
Notify the patient that as of now that they are not detained under a section of the MHA and the reasons for this. Advise the patient of their right to seek legal advice and discuss with them the need to accept medical or nursing advice about remaining in hospital.
If the patient is an existing inpatient and may meet the criteria for detention, consideration should be given to the use of section 5(4) or section 5(2).

If in doubt, seek advice from the MHA office, your line manager or the on call manager (if outside normal working hours)

5.8 Hospital orders

Section 15, which allows for the correction of errors in statutory documents does not apply to hospital orders or other documents issued by the court. Unlike civil sections, hospital orders are not “accepted” by the hospital managers and paperwork cannot be corrected. Any serious errors should be raised by the MHA office with the clerk to the court but should not be thought to invalidate the section unless there is a direction to this effect from the court.

5.9 Once the legality of the detention documents has been established

Registered clinical staff should complete the relevant form to formally receipt and accept the detention on behalf of the hospital managers (see appendix c for guidance on completion of the H3):

For sections 2, 3 or 4: complete form H3
For section 5(2): complete part 2 of form H1
For a patient transferring on section: complete form H4

5.10 Action to be taken by the MHA Office

On receipt of the detention papers the MHA Office will:

undertake an administrative scrutiny check of all section papers ensuring that they are valid
take immediate action if papers are found to be invalid and notify the appropriate registered clinical staff and managers
ensure that any errors found are amended within the 14 day timeframe
following scrutiny, sign and date the administrative scrutiny form
ensure there is ongoing monitoring of the receipt and scrutiny of documents and highlight any areas of concern.

5.11 Action to be taken by the matron

On receipt of the detention papers the matron will:

ensure that the second administrative scrutiny check is undertaken
highlight any errors or omissions as necessary
sign and date the administrative scrutiny form

5.12 Action to be taken by the consultant psychiatrist responsible for medical
scrutiny

On receipt of the detention papers the consultant psychiatrist will:

ensure that the medical recommendations and opinions contain valid reasons for detention (see appendix D for guidance)
highlight any errors or omissions as necessary
highlight any concerns regarding clinical practice
sign and date the medical scrutiny form

6 Training implications

All registered clinical staff working in Mental health, learning disability and forensic services will be required to undergo specific training in relation to the receipt and scrutiny of detention papers. Training will be provided as part of the trust Mental Health Act training matrix.

The registered clinical staff working in mental health, learning disability and forensic services will also be made aware of the review and reissuing of the policy in the following ways:

review and reissue of the policy to be included in the trust daily News bulletin
local induction for inpatient clinical staff
copy of the policy will be issued on the trust intranet

7 Monitoring arrangements

7.1 Compliance with the standards set out in this procedure and requirements of the Mental Health Act 1983 in respect of detained patients

How: Administrative and medical scrutiny.
Who by: MHA administrator.
Reported to: Local MH legislation monitoring group.
Frequency: Monitoring takes place on a daily basis with exception reporting on a monthly basis.

7.2 Monitoring of compliance against the procedure

How: Compliance audits.
Who by: MHA manager .
Reported to: Mental health legislation operational group.
Frequency: To be agreed by the MHLC as part of the audit compliance schedule.

8 Equality impact assessment screening

To access the equality impact assessment for this policy, please email rdash.equalityanddiversity@nhs.net to request the document.

8.1 Privacy, dignity and respect

The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, ‘not just clinically but in terms of dignity and respect’.

Consequently, the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity, and respect, (when appropriate this should also include how same sex accommodation is provided).

8.1.1 Indicate how this will be met

No issues in respect of the privacy, dignity and respect of patients have been identified during the development of this procedure.

8.2 Mental capacity act

Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individual’s capacity to participate in the decision-making process. Consequently, no intervention should be carried out without either the individual’s informed consent, or the powers included in a legal framework, or by order of the court.

Therefore, the trust is required to make sure that all colleagues working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason, all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005)to ensure that the rights of individual are protected, and they are supported to make their own decisions where possible and that any decisions made on their behalf when they lack capacity are made in their best interests and least restrictive of their rights and freedoms.

8.2.1 Indicate how this will be achieved

All individuals involved in the implementation of this policy should do so in accordance with the guiding principles of the Mental Capacity Act 2005 (section 1).

9 References

Department of Health, Code of Practice, Mental Health Act 1983, (2008) Jones R. Mental Health Act Manual, 26th edition, 2023.

10 Appendices

10.4 Appendix D Guidance for consultant psychiatrist responsible for medical scrutiny

When undertaking scrutiny of the medical recommendations the following points should be present:

an explicit statement about the presence of a named mental disorder and the reasons for believing this
descriptions of degree and nature of the mental disorder that warranted 24-hour hospital detention under the care of a responsible clinician
reasons for 24-hour hospital detention and why a less restrictive option (management in the community) was not possible
if the doctor stated that detention was in the interest of the patient’s health, clear reasons why
if the doctor stated that detention was in the interest of the patient’s safety, clear reasons why
if the doctor stated that detention was necessary for the protection of others, clear reasons why
reasons why informal admission was not justified

Document control

Version: 9.
Unique reference number: 86.
Ratified by: Mental health legislation operational group.
Date ratified: 17 October 2023.
Name of originator or author: Mental health act manager.
Name of responsible individual: Executive medical director.
Date issued: 13 November 2023.
Review date: 31 October 2026.
Target audience: Mental health, learning disability and forensic qualified nursing staff.
Description of changes: Full review resulting in minimal changes. Minor change to reflect removal of modern matron title to matron; incorporation of electronic MHA paper reference, change in reference to twenty-sixth version of MHA manual.

Page last reviewed: April 30, 2024
Next review due: April 30, 2025

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