Section 5 amends the criteria for detention under section 2, 3 and 5 of the 1983 Act, and the criteria for renewal of detention under section 20. It makes provision as to the level of risk that a patient must pose in order to be detained. This will change the detention criteria to ensure that people can only be detained under these sections of the 1983 Act if they pose a risk of serious harm either to themselves or to others. This change supports the principle of least restriction, to minimise restrictions on liberty so far as is consistent with ensuring patient wellbeing and safety, and public safety.
	Apart from aligning the grounds for discharge with the grounds for detention, these changes do not otherwise affect patients who will be detained under Part 3 of the 1983 Act, as orders and directions under this Part already have distinct considerations in relation to risks posed by those in the criminal justice system.
	Section 5 subsection (2) amends section 2 subsection (2) (admission for assessment) of the 1983 Act by introducing risk criteria. The new provisions set out two new tests that must be met to meet the risk criteria for detention: firstly that "serious harm may be caused to the health or safety of the patient or of another person" and secondly that the decision maker must consider "the nature, degree and likelihood of the harm". The timeframe in which harm may occur may also be a relevant consideration when considering the detention criteria and further guidance on this will be provided in the Code of Practice.
	The purpose of these changes is to provide greater clarity as to the level of risk of harm that a person must present in order to be detained. Firstly, the "serious harm" test sets out the severity of the harm a patient must pose in order to fulfil the criteria for detention under section 2 of the 1983 Act. The Act does not define serious harm, further guidance will be provided in the Code of Practice. Secondly, the "nature, degree and likelihood" test introduces a new requirement that the clinician must consider the likelihood that this harm will occur, when deciding to admit the individual under section 2. "Likelihood" should be considered holistically alongside the nature and degree of harm. It does not require the decision maker to conclude that it is more likely than not harm will occur.
	Subsection (3)(a) amends section 3 (admission for treatment) of the 1983 Act. It inserts new wording on risk in alignment with the changes to section 2 described above. Section 3(2)(c) of the 1983 Act is amended so that the previous wording, which sets out that an application for admission for treatment may be made in respect of a patient on the grounds that "it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section" it now sets out at subsection (2) (d), "the necessary treatment cannot be provided unless the patient is detained under this Act". The purpose of this change from "section" to "Act" is to clarify that, in cases where a patient satisfies the criteria for detention under section 2 and section 3, a choice can be made about which is the most appropriate section to use.
	Whilst the makes no change to the requirement that appropriate medical treatment must be available for the patient as one of the grounds of detention under section 3 of the 1983 Act, it provides a new definition of "appropriate medical treatment" in section 8 (Appropriate Medical Treatment: Therapeutic Benefit). This definition requires, when considering whether medical treatment under the 1983 Act is "appropriate" for a patient, consideration to be given to whether there is a reasonable prospect that the outcome of the treatment would have a therapeutic benefit for that patient. The reference to appropriate medical treatment in section 5 therefore introduces the principle of therapeutic benefit to the detention criteria for patients detained under section 3.
	Subsection (4) amends the risk criteria for section 5 (detention for six hours pending application for admission) of the 1983 Act, again in alignment with the changes to section 2 of the 1983 Act.
	Subsection (5) amends the risk criteria for section 20 (renewal of authority for detention of patient detained in pursuance of application for admission for treatment etc.) of the 1983 Act, in alignment with the changes to section 3 of the 1983 Act so that when a patient’s detention is renewed, the new criteria will apply. This change will also apply to Part 3 unrestricted patients, to whom section 20 applies with the modifications in Schedule 1 Part 1.
	Subsection (6) has the effect of ensuring that the amended risk criteria will apply when a Part 3 patient, who is already subject to orders or directions, has their detention renewed.
Grounds for detention and community treatment orders Section 5: Grounds for detention