It seems that it’s been the week for Scottish mental health patients to journey to England, in a variety of legal situations that have subsequently confused the life out of police and mental health professionals alike. So we had the incident the other day about a Compulsory Treatment Order patient who turned up in the Midlands and today I’ve had a call about a Short-Term Detention patient who turned up on the south coast. The first confused the life out of the local police; the second confused the life out of the A&E department. These things being as they are: I’m expecting the third incident any time now to complete the set and I’ll just bet it has a twist or angle that I’m not about to cover here!
OK … two incidents is not that many, but it’s not the first time I’ve had a batch of ‘Scottish AWOL’ queries so I thought I’d best cover the topic in one post. First things first: abbrevations to make this easier to both write and read! —
- MHA(S) = The Mental Health (Treatment and Care) (Scotland) Act 2003.
- MHA(E) = The Mental Health Act 1983 in England / Wales.
Your legislative resources —
- The Mental Health (Treatment and Care) (Scotland) Act 2003.
- The MH (T&C)(S) Act 2003 Consequential Provisions Order 2005.
MAIN DETENTION PROVISIONS – SCOTLAND
Here is a list of the three main detention ‘civil’ provisions under the MHA(S) —
- Emergency detention certificate, under s36 MHA(S) – this provision allows one DR, preferably with involvement of a Mental Health officer (MHO) – a professional who is roughly the equivalent of an Approved Mental Health Professional – to detain someone in hospital for up to 3 days. The DR may act alone, if they cannot reasonably consult an MHO. Broadly, this is the equivalent of s4 MHA(E).
- Short-term detention certificate, under s44 MHA(S) – this provision allows a DR, where supported by a MHO, to authorise detention in hospital of someone for up to 28 days. Broadly equivalent to s2 MHA(E).
- Compulsory Treatment Order, under ss64/5 MHA(S) – this provision allows an MHO to make an application for a CTO where two DRs submit reports for consideration. This can involve admission to hospital, for up to 6 months, broadly equivalent to s3 MHA. However, it may also allow for the imposition of restrictions upon patients who live in the community, including a residence requierement and / or an attendance requirement (to attend somewhere for treatment). When considering an application for CTO, the Tribunal may decide to grant the application but only on an interim basis, allow for detention or restriction for a 28 day period.
AWOL FROM SCOTLAND
Firstly, AWOL is the English and Welsh term, under the MHA(E) – in Scotland they refer in law to ‘absconders’. Sections 301-303 cover the powers to re-detain Scottish mental health patients who have absconded from the above provisions and are still in Scotland.
- Section 301 – covers those patients who have absconded from a Compulsory Treatment Order. As you’ll recall, above: there are two kinds of CTO – the sort where you are detained in hospital, the sort where you are subjects restriction in the community. If a patient has absconded from any hospital in which they are detained by CTO or if they have breached a residence requirement of any ‘community’ CTO, then s303 MHA(S) applies to them.
- Section 302 – covers ‘other patients’, including emergency detention certificates, short-term detention certificates and CTOs, but also includes those detained under a nurse’s holding power under s299 MHA(S) and those who are subject to certain particular provisions of the MHA(S) that I’ll let you research for yourself, should you need to! If someone subject to any of these frameworks absconds OR if a Reponsible Medical Officer (RMO) issues a certificate under s114 or s115 MHA(S), then s303 applies to them. (Sections 114 and 115 relate to breaches of CTOs which don’t automatically qualify as ‘absconded’ but which require the RMO to authorise their qualification as ‘absconded’. Those who were paying close attention to a BLOG earlier inthe week about Scotland will remember that even if an RMO has authorised detention under s113(4) MHA(S) for a breach of other, general conditions of a ‘community’ CTO, this does not qualify as ‘absconded’ … as Nottingham city centre police now know!)
- Section 303 – covers the ability of various professionals to take anyone to whom sections 301/302 applies and return them to the relevant hospital. This includes, a Scottish police officer, a Mental Health Officer or anyone on the staff of a relevant hospital or authorised by the patient’s RMO.
Still following?! … not long to go now!! – once you’ve confirmed that the person has absconded from one of those provisions (ss36, 44, 64 or 65), or that an RMO has authorised detention of a CTO patient under ss114 or s115, then s303 would apply if they’d been encountered in Scotland so any police officer in England, Wales or Northern Ireland may take that person in to custody and return them to Scotland. This is made clear in Article 8 of the MHA(S) Consequential Provisions Order 2005. Such patients may also be taken in to custody by an AMHP in England / Wales or an ASW in Northern Ireland. To conclude this all with a little known fact: it is expressly into s135(2) of the MHA(E) and in to a129(2) MHO(NI) that a warrant may be granted by a Magistrate in connection with the need to exercise detention under Article 8 for a Scottish patient who has absconded to any other part of the UK. If you ever have that situation in the real world, I advise you to take a written copy of the MHA(E) / MHO(NI) to place under the nose of the court clerk or Justice of the Peace becasue I’m guessing they might say, “Eh?!” or simply not believe it’s a thing!
There you go! – all done. How’s your headache?!
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