Do you know the difference between someone who has absconded or someone who is absent under the Mental Health Act? There are two different conditions of “not being where you are supposed to be” under the Act: you are either absent without leave or you have absconded from lawful custody and there is an implication for police powers to return patients to where they were supposed to be.
This post is intended to provoke thought as to the distinction between the circumstances and to invite you to question what the police can do with regard to either situation because in some situations the police power to detain persists until the patient is found, on other occasions it runs out within days or months. That’s why we must question the precise legalities of what is being reported to us.
Firstly, however, I want to make it clear what this post is not about: informal patients who have left hospital without permission. By all means, the police can look for them if reported missing; what we cannot do, is legally return them; unless they happen to be chanced upon in a public place and section 136 is of application to the situation. (It won’t always be, despite the fact that they have been an informal inpatient.) When such patients are found, it is a matter of referring the location back to the relevant authorities to deal, perhaps by turning up to assess for admission under the Act or by getting a s135(1) warrant – but that is up to them.
QUICK LEGAL REMINDER – relevant to explaining my following summary:
- Detention under Part II of the Act is admission to hospital under sections 2, 3 or 4; or guardianship under s7.
- Detention under Part III of the Act is a remand to hospital under sections 35 (for reports) or 36 (for treatment); or a hospital order under s37 or an interim hospital order under s38.
- Hospital orders under s37 can be granted with or without a restriction order under s41.
All clear?! … excellent! You were obviously reading carefully on previous blogs. 🙂
ABSCONDING OR ABSENT?
- Absence (without leave)
- Sometimes referred to as AWOL and covers a range of scenarios –
- Detained in hospital as an inpatient (under Part II of the Act) or under guardianship and has left without permission.
- Granted s17 leave from hospital and has failed to return on time.
- Community Treatment Order (CTO) patient who has been recalled from it, but failed to turn up at hospital as directed.
- NB: someone who was detained in hospital under s37 MHA or s37/41 will be treated “as if” they had been admitted under Part II. This is made clear in s40 MHA.
- Legal Powers –
- With all of these different sections and scenarios: an AMHP, a constable or anyone authorised by the managers of the hospital, may act under s18 MHA to detain the person.
- Absconding (from legal custody).
- Someone who has been ‘sectioned’ in the community under Part II of the Mental Health Act (ss2, 3 or 4) and has run off before arriving at hospital.
- Someone who has been remanded to hospital under Part III of the Mental Health Act (ss 35, 36, 38) and has absconded from hospital.
- Detained for removal to a place of safety under s135 or 136 and run off either before or after their arrival at the PoS.
- NB: you will notice that s37 or s37/41 patients are not mentioned in this section – by virtue of s40, they will be treated “as if” they had been admitted to hospital under Part II of the Act, even though they weren’t! << I didn’t write this stuff, I’m just trying to explain it!
- Legal Powers –
- Where someone has absconded after being detained for admission, but before being received at the hospital or into guardianship, they may be retaken by the person who had immediate prior custody, a police officer or an AMHP. This is under s138 MHA.
- Where someone had been remanded under sections 35, 36, or 38 and has absconded, they may be retaken only by a constable under specific provisions within those sections – they are s35(10), s36(8) and s38(7) respectively.
- Patients who have absconded from s35, 36 or 38 detention must then be returned to the court who remanded them, not to the hospital from which they absconded.
- Where someone absconded whilst on their way to, or after arrival at, a PoS, they may be retaken for up to 72hrs by a constable.
- The 72 hrs is calculated either from a) the time they run off if they had not yet arrived at a PoS; or b) the time they run off if that had arrived and were pending assessment or admission.
Powers of entry – should entry need to be forced to a premises in order to detain someone, a warrant under s135(2) must be obtained whether they are absent or have absconded unless entry may be justified under s17 PACE to “protect life or limb”
The timescales which apply to these different authorities vary – make sure you ask nursing staff to specify when the authority runs out. They have a duty to provide this information (para 22.15 of the Code of Practice to the Act.)
- Some of the absconding powers’ timescales are covered, above.
- People who absconded from sections 35, 36 or 38 may be retaken without time limit because these are patients concerned in criminal proceedings.
- Patients who absconded after application to detain them under Part II of the Act, may be retaken under the timescales which would have applied if they’d made it hospital and gone AWOL.
- Detaining patients who are absent (without leave) has timelimits connected to the length of the section: it will usually be that they can be detained for up to six months, but the specific answer is the later of two dates:
- Six months after they first go missing; OR
- The end of the period for which they are detained or subject to guardianship.
- Except! – that those who went absent having been detained under the following sections may only be retaken during the period that the section would have run:
- Section 2 – 28 days from being detained MHA
- Section 4 – 72hrs from being detaine
- Section 5(2) – within 6hrs of having been detained by a nurse.
- Section 5(4) – within 72hrs of having been detained by a doctor.
Example 1 – a section 2 patient admitted MHA on 01/01/13 who becomes AWOL on 11/01/13 may be detained for up 28 days from 01/01/13.
Example 2 – a section 3 patient admitted MHA on 01/01/13 who becomes AWOL on 11/01/13 may be detained for up to six months after 11/01/13.
Example 3 – A section 37/41 patient – detained without limit of time – who was admitted on 01/01/13 who goes AWOL on 11/01/13 may be detained at anytime because the MHA section never runs out.
Nursing staff have obligations under the CoP MHA to specify these dates to the police when reporting patients missing, so if in doubt, ask them. Then check the answer!
Rather than provide hyperlinks to all the different sections on my favourite mental health law resource, I will just flag the index to the Mental Health Act and you can look up any of these sections for yourselves, if you need to.
You should also remember, it is a common law offence to escape from lawful custody and anyone in any circumstances where they are deemed to be in lawful custody, may be arrested for that offence and investigated. Of course, each case will turn on its merits and it would usually be preferable to utilise the MHA powers mentioned here and take any decision about prosecution in conjunction with mental health professionals involved after the patient has been safely returned. However, as escaping from lawful custody is a “recordable offence” should we be recording as crimes each instance of patients running off from mental health authorities?!
The Home Office Counting Rules would say so … I’ll leave that thought with you. 😉
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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.