Interesting situation on Twitter this morning which I thought it would make a decent BLOG post. It related to someone who had been removed to a Place of Safety by police officers under s136 and after a suitable handover, the officers had left the patient with NHS. This is what should happen – see Royal College of Psychiatrists Standards on s136; so I’ll have to assume it was with the consent of NHS staff involved. Many hours later, but before completion of the 136 process for that patient, they somehow became “lost” to NHS staff (the officer’s words, not mine). Staff end up searching and then following the patient home until they enter their home address; staff then ring the police to detain the patient under s136 MHA as the 24hrs is not yet up.
Very interesting! … paradoxically easier and more complicated than it first appears – very much my kind of policing / mental health law question!
First things first: you can’t detain someone under s136 in a house, so that’s not happening. Secondly, you can’t really detain someone under s136 who is already detained (in law) under s136 – there is a specific power to deal with the situation where someone has absconded from s136 detention (or from s135 detention): it is section 138 of the Mental Health Act 1983. Many officers are aware of the power under s18 MHA to re-detain a patient who is Absent Without Leave (AWOL) but that doesn’t apply here. ‘AWOL’ status relates to someone who has already become an MHA inpatient and then absconded or failed to return.
Detention in a Place of Safety does not make somebody an inpatient and that is why s18 MHA and discussion of ‘AWOL’ is legally irrelevant to this situation.
SECTION 138 MHA
Some quick facts about this power to detain someone who has ‘absconded‘ from the Mental Health Act (but who is not ‘AWOL’) —
- Firstly, this power CAN be used anywhere there is lawful access – public or private places, including people’s own private dwellings.
- You cannot detain someone in a house under s136, but you can re-detain someone in a house who has absconded from s136.
- There is no power of entry under s138 to premises – if you can secure lawful access to a place where there is a absconded s136 detainee, you can re-detain them under s138.
- But if access to premises is refused or where refused access is apprehended, you must secure a s135(2) MHA warrant from a Magistrate.
- Section 135(2) warrants can be secured by the police and can be expected by the police alone, although the presence of mental health professionals is considered ‘best practice’.
But amongst the most important things to understand about re-detention under s138 of someone who has absconded from s135/136 are the timescales which apply. This is especially true because they changed in 2017 when s135/136/138 were legally amended by the Policing and Crime Act 2017.
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 24hrs in order to allow assessment of their need for treatment or care. This detention period can be extended to 36hrs, if authorised by a doctor prior to the 24hrs mark. Should the person escape, they have absconded and can be retaken into custody for up to 24hrs (or 36hr, if authorised).
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 24hrs (or 36hrs) begins at the time of absconsion.
- If they absconded after arrival at the Place of Safety, the 24hrs (36hrs) begins at the time of arrival at the PoS.
EXAMPLES IN PRACTICE
Some examples to work through:
- If someone was arrested under s136 at 10am on 12th March and whilst in transit to a place of safety, they escaped at 10:15am, they can be re-detained under s138 MHA at any time until 10:15am on 13th March.
- If someone was detained in their own home under the terms of a s135(1) warrant at 2pm on 13th March and arrived at a place of safety for assessment at 2:30pm on the 13th, but escaped from there at 6pm on 13th, they could be retaken at any stage until 2:30pm on the 14th.
- If someone was detained under s136 at 11am on 14th March and arrived at A&E for treatment to injuries at 11:20am, they were then transferred to a MH-unit Place of Safety at 6:30pm on 14th March and on arrival, a doctor authorised extension of the 24hrs limit to a maximum of 36hrs and they absconded at 8pm on 14th March, they could be retaken at any stage until 11:20pm (36hrs after they first arrived at A&E).
It strikes me, however, there is a much more interesting question to address in the original scenario causing the officers enquiry. It’s not a question that will go down well with non-police officers, I suspect. Before I raise it, I would outline that this question arises from the law itself, not from any personal view of mine!
Should it be the police who do the re-detaining? Why not the mental health professionals who have followed this person to her home address. They have ultimately allowed her to enter the premises, which is potentially risky given that closure of the front door and denial of access considerably limits the ability of either mental health staff OR police to intervene. Remember from above: s138 MHA carries no power to force entry. Police officers attending once the door is shut would have no power to force entry under their own (PACE) powers – officers could have forced entry if they had been following as they have powers under PACE to enter and detain someone who is ‘unlawfully at large’ but ONLY where they are in immediate pursuit of the person.
The reason the question is interesting is that those mental health staff following the patient also have the powers to re-detain her under s138 MHA – the power may be exercised by anyone who had custody of the person prior to absconding, any constable or any AMHP.
THE COERCION BUSINESS
You’ll notice the staff having custody are listed first, constables listed second. This denotes something, in law about who should be doing it – legislation tends to list people in order of preference. AMHPs are last because they have powers under the Act but will often not have been involved prior to any absconding and if it were the AMHP who’d had custody last, then they ‘qualify’ on both grounds. But here’s another interesting reason: paragraph 28.14 relates to patients who are absent without leave and absconded. Chapter 28 is not JUST about AWOL patients. This particular paragraph makes it clear that the recovery of patients whose location is known is a matter for NHS staff, where possible. Police should become involved only as a support and only where necessary.
Come back to that recent post about a duty of care. If the hospital agreed to take over detention when the police originally left, they are the ones who owe a duty of care to the patient, until such time as circumstances and contact with the police trigger a new duty for officers. As such, deliberately allowing the patient to enter a property and close the door means any harm proven to have occurred because of the negligence of NHS staff not acting and prior to the police accepting or receiving a new duty, is for NHS staff to justify. All situations turn on their merits and I’ve no idea what the risks were perceived to be, precisely. But if they were high and urgent risks, calling the police and seeking their help may well be appropriate. I’m not arguing in this post that all scenarios like the question are definitively the responsibility of NHS staff – but I am arguing they cannot simply hope to call the police and that’s their legal duty discharged. And there’s a difference between what staff may reasonable consider themselves able to do; and the extent of legal duties owed by their organisation.
If the door has been closed by the patient, we’re in to the territory of requiring a s135(2) warrant from a court – and only the police may execute such a thing. The hospital from which the patient is missing are just as entitled to apply for them as the police so no assumption should be made that this is for the police either. In fact, history shows officers are often incorrectly turned down for these warrants by Magistrates who confuse s135(1) with s135(2) and assume we can’t apply for the second warrant, just because it’s well-known we can’t apply for the first.
THE REALLY BIG QUESTION!
This whole scenario comes back to that most interesting of questions: is all coercion in the community under the MHA for the police? And the legal answer to that is a loud and resounding ‘No!’, it’s not. There are some situations where the duty to act will sit with NHS staff, or AMHPs and a preference that the police responsible in law or agree to become responsible is grounded on nothing legal. If you are in the coercion business: health & safety law as well as human rights law implies very clearly that you should plan and prepared for that reality.
And whatever the view taken about ethics and morals, my Oath of Office as a Constable talked about policing according to law and upholding the fundamental rights of the public. I’m not an ethics or moral-enforcement officer: I’m a law enforcement officer.
If I’ve learned one thing in over 21yrs of policing, moral and ethical frameworks are never objectively defined and subjectivity tends to be moulded by perspective. This is why we have laws: to get to the consensus of what we have all agreed – and we have agreed mental health services may need to be both prepared and able to act coercively to keep people and patients safe. The police service cannot always prevent a gap which emerges from decisions not to act and as we saw in during the inquest in to the of David Stacey last year, this may still amount to negligence contributing to deaths and serious outcomes. We probably need to talk more about the law.
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
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
Mental Health Cop 