Let’s be honest from the outset: police time spent investigating the whereabouts of missing people is sometimes accompanied by a background of frustration. In my own experience this is often the case when the person who has gone missing is ‘persistent’ because of the number of times they have ‘gone missing’ and this is especially so if the circumstances amount to the whole thing being preventable or the responsibility of others.
Children’s Homes and mental health units feature prominently in the volumes of any area’s missing persons numbers and most officers have experienced that awful tension which is created by knowing that all reports must be taken seriously and promptly investigated, but that sometimes reports are made to the police because it gets the monkey of someone else’s back. Occasionally, this can be a person who could have prevented the person going missing in the first place. <<< There – I said it.
Mental Health professionals should read the case Savage v South Essex Partnership Trust and s127 of the Mental Health Act. When the family of a missing or dead mental health patient makes a criminal complaint under ‘section 127’ to the police, they have just as much of a right to expect that allegation to be recorded and investigated as any other potential victim of crime.
Update (Feb 2012): >>> They should also read the case of Rabone and another v Penine Healthcare NHS Foundation Trust which has brough about considerations of neglect and human rights relating to inpatients who are not formally detained under the MHA. There is a blog post on these cases for those who want to read more.
Such investigations never go down well with professionals of any organisation, especially when discussion may turn to an organisations policies, procedures and training and to their legal duties, as outlined in the ‘Savage’ case. In the future, one can imagine Corporate Manslaughter legislation being considered as a method to challenge the potential liability of organisations’ policies, procedures and training around security, physical maintenance, door-locking policies and external fencing meeting required specifications, where installed, etc., etc..
There are a range of situations in which a missing patient can be AWOL under the Mental Health Act:
- Absconder – a detained patient who leaves the ward without permission
- Fail to return – Patient who has been quite properly allowed authorised leave (under s17 MHA) and who fails to return to the location at the appointed time;
- Fail to surrender – A patient who has previously been in hospital, but has been released into supervised community treatment (known as a CTO or community treatment order) but then ‘recalled’ to hospital under the Mental Health Act for any number of reasons. Failure to surrender to recall at the correct time creates a condition of being AWOL.
- Recall of conditional discharge – a patient connected with criminal proceedings who has been properly released as a community patient (known as ‘conditionally discharged restricted patient’) who has been recalled to hospital under s42 MHA by the Secretary of State for Justice. The secretary of state will issue a warrant for the patient’s recall.
- NB – I’m going to do a separate blog about informal patients who go missing – ie, those not detained under the MHA. It is a post in its own right.
One of the challenges around AWOL patients and partnerships is that a missing patient for the NHS is not necessarily a missing person for the police.
For example: if a quick telephone call by ward staff confirms that a patient who was afforded s17 leave and who has failed to return on time is at their home address or other leave location – ostensibly safe and well – then they are AWOL from hospital without being a missing person because we know their whereabouts. Perhaps more importantly, the Code of Practice to the Mental Health Act states that such a scenario is primarily an NHS responsibility. (Para 22.13 CoP MHA). Let us just say that attitudes towards this particular legal guidance vary.
Section 18 of the Mental Health Act (and equivalent legislation in Scotland and Northern Ireland) is the legal power to return AWOL patients to their ward and it is not a power directed solely or even firstly at police officers. AMHPs (and MHOs / ASWs) as well as anyone else authorised by the hospital from which the person is missing may also do so.
s18 MHA is a power of ‘arrest’ for the purposes of the Police and Criminal Evidence Act 1984 and therefore reasonable force may be used under s117 PACE to discharge it.
In December 2011 a man walked into an A&E in my force area to ask for help after spending 3 days AWOL from a mental health unit in another part of the force. Although not injured or in need of A&E treatment he was an NHS patient who needed to be returned to the psychiatric unit – indeed he wanted to be returned there! He was not resistant or violent or aggressive and yet the first response of the A&E staff was to call the police, rather than the ambulance service or the psychiatric unit who are ultimately responsible for their patient’s repatriation.
The response of the A&E department when the police said, “either contact the ambulance service to do it, or contact the psychiatric unit” was shock, disbelief and demands to speak to police supervisor. Fortunately the sergeant concerned knows me and has me on speed dial.
If the police service are required to recover a patient – for example, because of RAVE risks or urgent unpredictability – then this should not lead to the police acting alone (unless there are urgent, high risks and delay would be unwise): it should just be to assist a mental health professional and / or the ambulance service.
This post continues in part 2 – AWOL Patients.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk