This post follows on from part 1 on AWOL Patients —–
Police officers who recover an AWOL patient should always call an ambulance – Dorset Police knows why and chapter 11 of the Code of Practice says so.
(Equivalent guidance in Wales, Scotland and Northern Ireland. Also see the BLOGs legal resources, above).
So which situations should automatically be reported to the police? Well, the Code of Practice talks about three situations should always and immediately be reported:
- Patients subject to ‘part III’ of the Mental Health Act – this means patients connected to criminal proceedings, either before or after trial / conviction.
- Patients who are ‘dangerous’;
- Patients who are ‘particularly vulnerable’ – if anyone has a grey pencil of the correct shade to help us understand where vulnerable becomes particularly vulnerable, I’d be grateful to learn where you got it!
Nothing else MUST, by law be reported immediately or at all. However, as the police carry the responsibility of searching for people whose location is not known, so expectations around AWOL patients outside of the above three situations should be set out in a clearly defined protocol. This document should include:
- The duties of NHS staff before, during and after making reports:
- A search of the hospital – so that a dead patient is not found in the shower four days after ‘going missing’, for example!
- Information should be provided to the police – the future date upon which a police ability to use s18 MHA to bring the patient back expires <<< you should see the look on some nurses’ face when you ask for this. (Para 22.15 CoP MHA.) It is a duty for the reporting MH professional to specify the date, not leave the police to work it out.
- Finally, the Department of Health laid to rest in national guidelines the myth than MH trusts cannot take and provide photographs of missing patients, to assist police missing persons investigations.
A final point for me: if a patient is missing for more than a certain period of time, the NHS will often ‘re-allocate’ the bed to new patients. I’m told some areas use a 24hrs or 48hrs timescale.
If the patient is found after this time, there is no authority in law to hold that person in police cell until bed management arrangements can be sorted out. Section 18 allows that AWOL patients “subject to the provisions of this section, be taken into custody and returned to the hospital or place”. In this sentence ‘taken into custody’ does not mean taken into a police ‘custody’ area! It means taken into a condition of ‘legal custody’; ie, by the detaining authority exercising a duty under s18 MHA.
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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.
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Mental Health Cop 
Sir, having recently dealt with a job to recover an AWOL (S3) patient that was watched leaving the hospital grounds by ward staff (who said they were not allowed to recover them after they left the hospital, seems to be incorrect that one) could I ask where the option or legal authority to use force comes from?
1) There appears to be nothing in S18 MHA that mentions “force”. S135 as an example mentions force can be used on entry but nothing in relation to the actual detention.
2) S3 CLA does not (to me) appear to apply, S18 recovery is not an arrest to me (whereas S136 would be), unlawfully at large I understand relates to HO prisoners who have absconded. I think streching ‘prevention and detection of crime’ is pushing it, I may have no belief that they were going to commit an offence.
3) S117 PACE not applicable
4) Common Law is neither applicable
Is there something I have missed somewhere? Perhaps a section in the MHA that is conferred on police officers?
It is implicity within the Act, rather than explicit as with the authorities you mention for PACE, CLA, etc., etc.. It is correct that a right to use force exists, because the wording of different sections like s18, s135 and others talks about ‘take into custody’ and ‘remove to a place of safety’ etc.. You still have the right to do these things even if patients are resisting, creating a de facto right to use force. Also, the Code of Practice talks about the use of force in a range of MHA situations, to set principles such as ‘least restrictive method’ and ‘dignified’ etc., etc.. Be assured it’s there; it just not overt and worded as police are used to.
Does that help?!
Actually, having re-read your post I would remind that ss18, 136, 138 are ‘arrests’ by virtue of Schedule 2 of s26 PACE and therefore your powers from s117 apply to ‘arrests’ made under those sections of the MHA. First answer remains true, though and applies to other authorities, like s6 (to detain and convey after a patient gets ‘sectioned’ and for s135 which is NOT an arrest, because it is a detention under warrant either to remove to a place of safety (s135(1)) or to return to hospital (s135(2)).
Most helpful Sir thanks, I must admit I have not read the PACE Schedules but have found the answer and interesting that it also covers remand to hospital (37/38), which I have only ever heard of one used once but never actually seen. I guessed that transports from court to hospital were undertaken by the usual court contractors like Reliance/GeoAmey – do you know if its normal on S37/38 orders for the suspect to be transported by police to hospital?
Always done by contractors in my experience, like Reliance, etc..
Patient dead on MH ward for four days –
http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/west_yorkshire/4541403.stm
I believe informal, but clearly a risk to himself.
Transport of s37/41, s38 patients from court to hospital…..
Usually transported by the nurses from the hosppital, who will have brought the patient from hospital to court – most common situation is for the patient to already be in hospital prior to sentence, with doctor from that hospital providing one of the medical reports needed.
Some secure facilities – including one in Birmingham – do use contractors. IMHO this raises a whole series of issues about accountability and also the skills, and attitudes, of the nurses.
Never seen police do the whole transport job. Have seen police support the nurses in a couple of cases – eg. Risk of particularly villainous relatives/associates ‘rescuing’ the patient en-route.
Hi I’m finding your blog really helpful. Could you be more specific about the DH national guidance that would permit the taking of and sharing photos of patients in the event they go missing?I’ve searched for it and nothing obvious is coming up
Many thanks
Louize
This is the NPIA Guidance on MH and LD, jointly badged by DoH. See para 6.10.3 which highlights that the police may “quite properly” seek a photograph. Having been involved in the production of this guidance we did ask the question about whether NHS trust would have a right to take pictures for contingency planning in the event of absence without leave and were told, “Yes.”
I hope that helps as I know it’s a moot point!
I have two questions I am after a little help for.
1. A Sec 2/Sec 3 patient manages to get out and goes home. To get him back we need a 135(2) warrant?
2. A sec 41 patient has a curfew 0700 – 1900. Continually breaches it. Is found on the street by Police at 2100 hours. Can force under Sec 18 be used to return them?
Thanks
1. It depends! – if you can gain lawful access to the property, then no warrant is required. Indeed a s135(2) warrant can’t be lawfully issued by the Magistrates unless you have tried to gain entry already OR reasonably anticipate you won’t get in if you try.
2. I’d need more information – if this patient has s17 leave from hospital from 0700-1900, then yes, because they’re AWOL at 2100hrs by virtue of failing to return to hospital on time. If this is a community patient (called a conditionally discharged patient) who is not in a hospital, but is living in supervised accommodation of some description with a curfew, then it’s not automatically AWOL. So precise detail of the legality of why they have a curfew would be necessary to know whether by breaching it they are AWOL. Need to confirm whether it’s s17 leave with a 1900hrs deadline to return.
Hope that helps!