The United Kingdom for policing / legal purposes, operates in several seperate legislative theatres: a) England / Wales; b) Scotland; and c) Northern Ireland. There are then further jurisdictions for the Isle of Man and for Jersey and Guernsey – referred to collectively as the Channel Islands in English law even though they have seperate mental health law. This is further ‘helped’ in terms of clarity by the existence of extra health jurisdictions because England and Wales have separate health services despite their common legal jurisdiction for policing.
Before you tackle this post, you’ll need to remind yourself of the various circumstances in which someone can become Absent Without Leave, known as “AWOL”; and those who have absonded. Such circumstances are broadly similar across the jurisdictions, but look at the Mental Health Law page of this blog to access the legislation directly.
So, now you’re reminded and refreshed! – get yourself some paracetamol ready and consider this:
- If a Birmingham Community Treatment Order patient comes to the attention of police in Glasgow as being AWOL because they have been ‘recalled’ or their CTO revoked and they’ve failed to return to the hospital, can Scots’ police detain him and return him to England?
- If a detained Mental Health Order patient from Derry, absents herself from hospital without permission and turns up in Swansea, can the Welsh police detain and transfer back across the Irish Sea?!
- What about police officers crossing borders(?!): can English police detain an English AWOL patient in Scotland; or Welsh officers detain a Welsh AWOL patient in Northern Ireland?!!
- These problems are a harsh reality for Northumbria Police and Cumbria Police, amongst others, where cross-border activity is more frequent. The police in Scotland are likewise affected.
- What about if a patient absent without leave from the Jersey’s Mental Health Law 1969 is found in the Isle of Man?!
- Answers to the above: Yes, yes, no and yes.
These are the legal questions of nightmares to frontline cops because they are once-in-a-blue-moon situations. A common sense expert would tell you, that if the English police can detain and return a patient to an English hospital, then Scottish Police can do likewise. Irish police can do likewise and vice versa with all similar situations. Well actually, that’s correct: they can! … most of the time. Officers can operate legally in their own legal theatres: ie, English police can detain in England, etc., etc..
The easiest reference guide to start with is the Mental Health Act Reference Guide for England / Wales. Chapter 31 provides various tables of reference which summarise this stuff, in terms of people AWOL and absconded from one jurisdiction who are found in another. Summarised frankly: there is no easy rule of thumb by which to remember this stuff.
For those who like references, here are some of the main ones:
- The police in England or Wales can detain AWOL patients who are missing from —
- England and Wales – under s18 Mental Health Act 1983
- Scotland – under a8 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005.
- Northern Ireland – under s87 MHA 1983
- Isle of Man or the Channel Islands – under s89 MHA 1983.
- The police in Scotland can detain AWOL patients missing from:
- England and Wales – a8 Mental Health (Absconding Patients from Other Jurisdictions) Regulations 2008.
- Northern Ireland – a8 Mental Health (Absconding Patients from Other Jurisdictions) Regulations 2008.
- Isle of Man or the Channel Islands – a8 Mental Health (Absconding Patients from Other Jurisdictions) Regulations 2008.
- Northern Irish Police can detain AWOL patients:
- England and Wales – s88 MHA 1983.
- Scotland – a132 Mental Health (Northern Ireland) Order 1986.
- Isle of Man or the Channel Islands – tbc!?!
- Isle of Man police can detain AWOL patients who are missing from —
- Any ‘relevant territory’ under s95 MHA (IoM) 1998.
- “Relevant territory” includes England, Wales, Scotland, Northern Ireland and the Channel Islands.
Now – is that all clear?! There may be a test at some future point!
A WORD OF CAUTION
The main caveat to apply to all of this, is that regardless of geographical confusions, the ability to re-detain anyone who is AWOL or absconded is time-limited, even within one country. A person who absents themselves from a Birmingham hospital after having been detained under s2 MHA, can only be re-taken for period of 28 days after their original admission, even if found in Birmingham. This timescale would also apply to a Scottish constable, if that person were to be found in Glasgow.
However, if you are dealing with such a situation and finding yourself hideously confused or unable to obtain confirmations from health professionals about timescales or authorities: the urgent detention provisions of section 136 MHA in England / Wales, section 297 in Scotland and article 129 in Northern Ireland may still be used if the criteria are met. If it is subsequently established or confirmed that the person is AWOL and may still be detained, the subsequent AWOL authority can then be applied to return the patient to hospital.
Don’t forget, as long as you are acting in good faith, there are protections from liability for police officers under section 139(1) —
“No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.”
So, take any available opportunity to confirm details or take advice from healthcare professionals and then act in good faith under what appears to be available law. If you do that, should there be any confusion arising from this hideously complicated state of affairs, you will be protected from legal liabilities that may otherwise arise.
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