Worth reflecting on a few issues to do with the return, recall or revocation of those patients who are absent without leave (AWOL) or liable to be detained, under the Mental Health Act 1983. I’ve had a number of queries, questions and quandaries in that last few weeks so I thought a post on it may help. This post relates, therefore, to patients who either are or at some point were sectioned in hospital under the MHA and are now outside the hospital in one of several circumstances —
- Some patients may have left the hopsital without authorisation and are AWOL.
- Some may have had such authorisation but have failed to return to hospital on time – and are now also AWOL.
- Some patients may have had such authorisation cut short by service of a notice revoking their s17 leave – and are now AWOL.
- Some patients may have been previously discharged from hospital on a Community Treatment Order and then been recalled from that – and are now AWOL.
- This list is not exhaustive – could do on to add s42 warrants of recall or those who have absconded from detention under the MHA before they arrived in hospital. So consider wider relevance.
Basic points of law for what follows —
- Anyone who is AWOL (no matter the specific circumstances leading to that condition) can be re-detained by an AMHP, a constable or anyone authorised by the relevant hospital, under s18 MHA;
- Anyone who absconded from detention and is liable to be detained may be re-taken under s138 MHA by an anyone who had custody immediately prior to absconding or by a constable or an AMHP.
- No power of entry exists to use these powers (unless s17 PACE applies for police because of a risk to ’life or limb’, so a warrant would be required under s135(2) to force entry and such a warrant can only be executed by the police.
RECALL AND REVOCATION
Where it has been agreed someone can leave hospital (authorised s17 leave or a CTO), then they are at liberty. This may last for a fixed period, such as the duration of that authorised leave or it may be indefinite, like a CTO. In each case, however, if a patient deteriorates it is open to the psychiatrist in charge of their care to bring them back to hospital. Section 17 leave may be revoked by service of a letter (s17(4) MHA) and someone may be recalled from a CTO by service of a recall notice (s17E MHA).
It is worth noting the difference between revocation of s17 leave and recall from a CTO – both involve notices being served in writing but the Code of Practice MHA gives specific guidance about the methods and timings of CTO recall notices, where as it just reinforces that s17 revocation must occur in writing to the patient.
A CTO notice can be served in one of three ways —
- Personal service upon the patient – notice takes effect immediately.
- Delivery to their address – notice takes effect the next day (whether or not it is a working day).
- 1st class post to their address – notice takes effect two working days later.
This third example is crucial: if a notice is posted 1st class on a Thursday, it may well arrive at the patient’s address on the Friday morning but it does not take legal effect until Monday; that being the second working day after Thursday. Of course, if it were a bank holiday Monday at the end of August, the notice wouldn’t take effect until the Tuesday, almost a week after being posted! CTO patients and s17 leave patients become AWOL once the notice is served and takes effect.
WARRANTS under s135(2) MHA
The Code of Practice MHA points out that where access to the patient at home cannot be obtained, it may be necessary to secure a warrant under s135(2) MHA. This warrant may be issued by a Justice of the Peace where it appears that a person who is liable under the Act is in a certain premises and where access cannot be gained or is likely to be refused. Once a revocation or recall notice is served, the person is liable under the Act and a warrant may be secured.
Have you now seen where I’m going with this?! …
If a CTO recall notice is posted on Thursday, the patient is not liable under the Act until Monday, so a warrant cannot be lawfully issued or sworn out until the following week when the notice takes effect. It is important that Magistrates confirm the person’s status to ensure the warrants they issue are lawful and that police officers check before the start forcing off someone’s front door that once they are inside, the person is in fact AWOL under the Act and able to be returned.
In the case of Sasha Forster, a young woman had been taken to an A&E department after a potential overdose whilst on s17 leave. The police were openly mentioned because NHS staff felt it would be necessary to return Sasha to the psychiatric unit where she had previously been a s3 patient but the obvious problem with this was, that no-one had revoked her s17 leave. If police had been contacted (and assuming officers asked accurate questions to get at the legal position), its entirely likely the police would have pointed out she’s not AWOL and declining to become involved until she was. In fact, going one point further, evidence was heard at Sasha’s inquest about how the police would have cited para 28.14 of the Code of Practice MHA which points out that even if she were AWOL and able to be returned, it is the role of the hopsital to return her because her location was known – she was in A&E.
ATTENTION TO DETAIL
The whole point of this blog is an ongoing submission that legal literacy is not where it needs to be: I’ve my own experience of seeing Magistrates decline s135 warrants they could authorise because they confused the requirements of s135(1) and s135(2); I’ve known MH professionals become frustrated with police officers for not knowing what a CTO recall is; and I know of cases where the police are being required to do things they can’t legally do or shouldn’t be asked because those functions not only can be but should be undertaken by other agencies. Paragraph 28.14 refers to other agencies returning patients, but only the police can execute a s135(2) warrant – it’s important to understand who can and who should do the various things which can be done, in law.
The recent questions, queries and quandaries surrounding recalls and revocations show we still have this underlying problem: taking them at face value, we have warrants being issued for those who are LIABLE UNDER THE ACT who not not, in fact, liable; police asked to execute warrants on people who have every right to remain outside hospital because the recall or revocation does not yet apply to them; and officers who I must assume need more detailed training to spot all of this. I mention once more that HMIC in 2018 found that police training on mental health (inc mental health law) remains inadequate and needs revisiting.
One final legal point about detail — where someone has been re-detained under s18 MHA after becoming AWOL or liable to be detained under the Act, the power is to return the patient to the hospital. NB: not a power to return them to a hospital, but to the hospital – this means the one from which they are absent or to which they have been recalled in the recall or revocation notice. We see examples of where services will say a patient is in need of return, recall or revocation but because they have given away that person’s bed to someone who needed it, they ask for the patient to be taken elsewhere – occasionally, a considerable distance out of the NHS or police area. There is no obvious legal power for this, under section 18 – the power is to return the person to the hospital. If the NHS wish to move that patient elsewhere after return, they have powers under section 19 MHA to transfer the patient from one hospital to another – and obviously, to own responsibility for any conveyance required to give effect to it.
Detail always needs checking: whether this should be the case is a different debate – the police are policing the world they’re operating in, not the world they’d prefer to be operating in where everything is correctly understood and clearly explained.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2021
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 – www.legislation.gov.uk