Quick Guide – Absent / Absconded

• This guide is an attempt to “operationalise” complex issues and you should refer to your area’s policy and your supervisors for specific local requirements.

• ABSENT (without leave)
• Patients who are AWOL from hospital under these sections –
• 2 – up until 28 days after their original admission to hospital
• 3 – up to six months after the date on which they become AWOL
• 4 – up to 72hrs after their original admission to hospital
• 5(2) – up to 72hrs after their original detention under this power
• 5(4) – up to 6hrs after their original detention under this power.
• 7 – up to six months after the date on which they become AWOL
• 17A – up to six months after the date on which they were recalled.
• 37 – up to six months after the date on which they become AWOL
• 37/41 – any time after they become AWOL.

• LEGAL REMINDERS
• All of these re-detentions are made under s18 of the Mental Health Act
• There is no power to force entry:
• Should forced entry be required – apply for a warrant under s135(2) from a Magistrate.

• PART II ABSCONDERS (from legal custody)
• Liable to be detained means an application for admission to hospital under the following sections has been made, but the patient has absconded before arrival there.
• 2 – up to 28 days from the date they abscond
• 3 – up to six months from the date they abscond
• 4 – up to 72hrs from the time they abscond
• Patients can also abscond before being received into guardianship under section –
• 7 – up to six months from the date they abscond
• 37* – up to six months from the date they abscond
• 37/41* – at any time after they abscond
• * These sections are under Part III, but by virtue of s40 MHA and for the purposes of absconding and absence they are treated “as if” under Part II.

• PLACE OF SAFETY ABSCONDERS
• 135(1) – if absconded before arriving at the PoS, up to 72hrs after absconding.
• 135(1) – if absconded after arriving at the PoS, up to 72hrs after arriving.
• 136 – if absconded before arriving at the PoS, up to 72hrs after absconding.
• 136 – if absconded after arriving at the PoS, up to 72hrs after arriving.
• LEGAL REMINDERS –
• All of these re-detentions for Part II and Place of Safety absconders are made under s138 of the Mental Health Act
• There is no power to force entry:
• Should forced entry be required – apply for a warrant under s135(2) from a Magistrate.

• PART III ABSCONDERS (from lawful custody)
• There are three sections where particular powers apply if the patient abscond from hospital whilst involved in criminal proceedings –
• 35 – remanded to hospital for reports: re-detain under s35(10)
• 36 – remanded to hospital for treatment: re-detain under s36(8)
• 38 – an interim hospital order after conviction: re-detain under s38(7)
• Only the police can re-detain these three categories of patient
• The police must return the patient to the court which remanded them.
• There is no power of entry under the MHA to exercise these powers, but! –
• Escaping from lawful custody is a criminal offence and a power of entry may be exercised to effect and arrest for it, OR
• Obtain a warrant under s135(2).

• TO READ MORE DETAIL SEE THIS POST ON ABSCONDING OR ABSENT?

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019

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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 – http://www.legislation.gov.uk

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