Absconding or Absent?

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”

TIMESCALES

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

Badgewon 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

ccawards2013 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.

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13 thoughts on “Absconding or Absent?

  1. Has anyone ever been prosecuted for it? or anyone helping someone to do it? I’ve never come across it and perhaps a typo but in example 1 i think it should be a section 3 patient not a section 2 which apart from some special circumstances is limited to 28 days

  2. Thank you for this as always informative and factual blog. Although I work in NI as an ASW I can easily relate to this explanation and indeed all of your blogs have relevance to NI even if there are differences in legislation, service organisation and provision and also professional roles.
    In respect of ‘absconding’ the misuse of the language is more than just a lack of clarity; it is I believe about attitude. In NI often ‘voluntary’ patients in psychiatric hospital when they absent themselves from the hospital without the knowledge (permission?) of staff are frequently described has having absconded even though of course they are not escaping from lawful authority.
    The worst example of the misuse of the language was when a seriously delusional woman who should probably have been brought involunarily into hospital was left at home with her husband advised to keep (detain?) her in the family home. She ‘escaped’ and came to the attention of police officers a long distance from home in a locality which was unsafe for her and acting in a manner which could have attracted unpleasant attention. She was soon admitted involuntarily to hospital. This lady was later described as having ‘absconded’ from her husband

    1. Thanks for this feedback. More than happy to make additions or a separate post that works for Northern Ireland if that would help?

      I have done a few QUICK GUIDES on legal stuff and could add one for this as I was thinking of doing a QUICK GUIDE summarising this for England / Wales.

      Thoughts?!

  3. Working in forensic mental health and having had dealings with the local police on these matters, confusion can be caused by the differing terminology used. the DoH have specific terminology with regards to patients not being where the are supposed to be.

    All three are deemed AWOL. these are

    1. escape – a patient makes their way out of the secure area.

    2. Absconded. a patient makes off from their escort whilst on escorted section 17 leave outside the secure area.

    3. fail to return. a patient does not return from a period of undiscovered section 17 leave.

    whilst you refer to AWOL and absconded, as you can see these have differing meanings for MPH’ s than other agencies. it can be very confusing when we are using the same terms to describe different things.

    1. I use the term “absent” and “absconded” to reflect the difference between s18 MHA and s138 MHA – these are the two powers under which the police may re-detain people and there are different legal considerations for each, in terms of timescales or circumstances of becoming “not where you ought to be”. All three situations you mention above may be terminology used by DoH, but as you say, they are ALL examples of someone who is AWOL and who can be retaken under s18 MHA. For police purposes it doesn’t matter how they become legally AWOL, it is just the confirmation that they are AWOL that matters.

      I know from an incident my team handled last week where a patient liable to be detained under s2 MHA who “went missing” before being conveyed to hospital, that the officers started immediately thinking of being AWOL. When I pointed out that he wasn’t AWOL, they presumed there was no power to redetain. That is what caused the longer and shorter versions of this blog to be written, so officers are aware that when people abscond before or during conveyance to hospital under the Act, or absconding whilst en route to or from a PoS, that they have powers to Act under s138.

      I took a policy decision at the start of writing this blog about how to handle differences in terminology, given the minefield that we all know it represents. For example, I was challenged on Twitter yesterday for referring to Autism as a mental disorder. Both in that example and I here, I come back to my decision on how to handle it:

      I am a legal officer writing a blog substantially comprising how we handle laws, mainly for a police audience – I will therefore use legal terminology. I have often stated how I dislike the legal terminology, for example I think Mentally Disordered Offender is a dreadful term, but I persist with it because we can then all see what I mean. Autism is a mental disorder for the purposes of s1(1) MHA, your three example are people who are AWOL (as defined by section 18) and mentally disordered offenders is the term used in PACE and various other legal authorities.

      I realise the problems with this approach, but it allows me here to distinguish between two different sections of law and to do otherwise, would probably make it harder to explain.

    2. if my caredfor absconds again I would never take him back to be abused again . He still remains on a S3 If you return Patients under section to a place of safety then there is no reason to be prosecuted. However, helping an absconder to escape I think you could be looking at 6months in prison just make sure your not caught . I would first try the legal route with a Human Rights Solicitor.

  4. Hi There, myself and a colleague are in the process of setting up a private ambulance service for the conveyance of patients detained under the mental health act. We are presently compiling our policies and docs for presentation to CQC. We cannot find any information about the conveyance of informal patients and our responsibilities eg: the patient asks to leave the vehicle before journey end…what would our legal stand/responsibility be?

    Thanks, Kevin/Lee

  5. my carefor absconded under S3 because he had lost 3st is sick every day was given an unsuitable diet for his diverticulitis, rectal bleeding, has heart failure with a shortened life expectancy urinary problems, tumors and many more conditions he is alcoholic dependent but free from drink for 9 months the independent hospital that he is in refused any intervention for his many conditions with his specialist doctors he is very weak and frail he was escorted via x2 young support workers on a dental appointment they turned a corner and left him behind so he went through a door and hid in a bush called me for help . I came to his rescue and brought him back to his local hospital 170 miles away they gave him a bed for the night then sent him back to continue the abuse on the 4hr journey back they did not give him a comfort stop so he soiled his pants , they left him in soild clothing for 7 days took his phone of him, moved him to an isolation room checked on him through the night banging the door he does not sleep he begs every day for someone to intervene there is a list of abuse but its a closed shop everything is IN HOUSE even the GP works for the group Thank God the Laws changing and he has a Tribunal coming up thanks to this site I feel I am better informed wish to god I new of before I would of took off with him until his section was up. He has no index crime but has been chaotic in the passed but Docs gave him medication unlicenced for his condition. MY Q.is Can the police check the welfare of patients in independent hospitals because this man is 68yrs old and is petrified of the daily abuse and the isolation of no privacy or family life because I and his friends live too far away as it stands the law does not offer sufficient protection for older people who deliver substandard care, abuse or NEGLECT , nor does it provide a suitable deterrent to those who abuse or neglect older people. I UNDERSTAND THAT THE JUSTICE SECRETARY MICHAEL GROVE and the DIRECTOR OF PUBLIC PROSECUTIONS ALISON SAUNDERS is to raise her concerns , I hope it does not come too late for my caredfor because he is so weak now and still continues to lose weight they say its his fault. I want to NAME AND SHAME THIS HOSPITAL . ALL ADVICE WELCOME. kat .

  6. I believe if someone is deteriorating and the treatment plan is not working other options should be sought. I know of a patient being abused in the system and believe he will benefit from escaping . The doctors and the nurses cannot treat him. Instead have made him very ill.
    I know the staff don’t want him there and I know he doesn’t want to be there. The side effects of the medication are awful. How do I help him escape ? And what will happen to him after 6 months.

    1. I’m not telling you how to help him escape because I would then be guilty of conspiring to commit an offence under s128 of the Mental Health Act – and so would you if you tried to help him do that anyway. Don’t put yourself in the position of being liable o arrest and prosecution: there are legal methods of protesting against detention via a Mental Health Review Tribunal.

  7. If a section 2 or 3 patient absconds and the health care trust reports him missing to police… do the police need to obtain a section 135 (2 (b)) warrant to return him by force if found at a private address. I believe a 135 (2) needs to be obtained if entry is refused / declined, but can police use section 18 powers to retake the patient if entry to the premises is granted, but the patient refuses to return voluntarily?

  8. Superb blog and excellent post – very helpful for me as an HCP (currently having a discussion with a colleague about the practicalities of patients who leave the ward under section).

    P.S. FYI typo – 5(2) and 5(4) flipped

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