I have covered AWOL patients on various blogs and in various situations, the police have a power of arrest under section 18 of the Mental Health Act to retake patients and convey them to the hospital from which they are missing or to which they have been recalled. There is no power for officers to force entry in order to exercise this authority and a warrant must be secured under s135(2) in order to do so. AWOL situations include:
- Those who absent themselves from hospital without permission; OR
- Those who fail to return from authorised leave on time; OR
- Those who fail to surrender to recall whilst on a Community Treatment Order.
- It also includes ‘conditionally discharged‘ restricted hospital order patients where the Secretary of State for Justice has issued a warrant to recall them.
Absconding or Escaping (from lawful custody) is different and it involves individuals who escape or run off after they have been detained for removal to a place of safety OR who run off before arriving at hospital having been “sectioned” – it covers the PoS situations under both s135 and s136 and all the “sections” under Part II of the Mental Health Act, like s2, 3 and 4.
There is a power to retake such absconders under s138 MHA.
TIMESCALES AFTER ABSCONDING FROM s135 OR s136
Where someone has been detained for removal TO a place of safety; or detained AT a place of safety, they are in legal detention for up to 72hrs in order to allow assessment of their need for treatment or care. Should they escape, they are regarded as having absconded and can be retaken into custody for up to 72hrs. The precise time limits for re-taking a patient depend on when they ran off.
- If they absconded after being detained by the police but BEFORE arriving at a place of safety, the 72hrs begins at the time of absconsion.
- If they absconded after arrival at the Place of Safety, the 72hrs begins at the time of arrival at the PoS.
So, if someone was arrested under s136 at 1000hrs on 02nd October and whilst in transit to a place of safety, they escaped at 1015hrs, they can be re-detained under s138 MHA at any time until 1015hrs on 05th October.
If someone was detained under the terms of a s135(1) warrant at 1400hrs on 03rd October and arrived at a place of safety for assessment at 1430hrs on the 3rd, but escaped from there at 1800hrs on 03rd, they could be retaken at any stage until 1430hrs on the 06th.
Officers in south Wales attended a premises with an AMHP and DRs to potentially assess a resistant man under the MHA for admission. As it happened, there was no need to force entry because he opened the door when they knocked on it and allowed access. Upon entering, they found the house to be in some disarray and felt it was not an appropriate environment to conduct a proper assessment. The decision was taken that he would go to the place of safety, but because they did not want to agitate him by making explicit mention of compulsion and detention, he was not informed of the warrant and it was not executed. He had been asked if he would go the place of safety and had agreed to do so. He was allowed to collect some possessions and entered a room to get clothes from the drawers. He then went straight out of a window, running off.
There then broke out a dispute between the MH services and the police officers’ sergeant about whether the police could / should have prevented the absconsion and whether he was ‘unlawfully at large’ or had ‘escaped lawful custody’.
Had he absconded? No – the warrant had never been executed so he was ‘free’ to leave in the sense that he had not yet been detained. Could the officer have executed the warrant to detain him as soon as it was obvious he was going out of the window? Well, possibly – it depends on whether they could physically prevent the escape. Has the patient committed an offence of escaping from lawful custody? No – because he had never been detained.
Of course, he could be detained under s136 if found in a public place or if he returned to the home address and the police re-visited it within 28 days of the warrant being executed, it could still be used to detain and remove to a place of safety. Had the warrant been executed, the 72hrs would have commenced at the point where he absconded with three full days in which to utilise the authority afforded by s138 MHA.
RARE & OBSCURE CIRCUMSTANCES – A LEGAL ODDITY
Some of the ‘other things’ than come up in Absconding & Escaping which are NOT situations where someone is AWOL, including patients who are detained in hospital under sections 35 or 36 of the Mental Health Act – where they have been remanded to hospital by criminal courts during the pre-trial or trial process. Such remands for forensic assessment include a provision that if such a remanded patient absconds they may be retaken without warrant ONLY by a police officer. This is in contrast to almost all other AWOL and Asconding situations where AMHPs and / or other staff authorised by relevant hospitals may re-detain patients and return them. The provision, under s35(10) instructs the detaining police officer to remove the person not to hospital, by to the court who ordered the remand to allow them to re-consider the case.
So absconding from Part III remands means only the police may act and when they do, they must remove the patient back to court, not back to hospital.
The Mental Health Cop blog
– won the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
– won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs
– was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
– was commended by the Home Affairs Select Committee of the UK Parliament.