A new Preventing Future Deaths report has been issued already this year, concerning the subject of returning patients to hospital who are absent without leave under the Mental Health Act. It follows the sad case of Jack TAYLOR in Sussex who had been a s3 MHA patient in a local psychiatric unit and absconded during a period of escorted leave. Having been reported missing to Sussex Police, the Coroner’s report suggests various for the police and the mental health trust in resourcing attempts to return him. I am going to have to make an assumption about some of circumstances for the purposes of writing this post, so remember as you read, it is an assumption! – that the whereabouts of Jack was known in order to give relevance to the MH trust duty to return a patient.
Let’s start at the legal beginning –
- Where someone becomes AWOL after absconding from a mental health unit (including from escorted leave or by failing to return from authorised unescorted leave), s18 of the Mental Health Act allows that person to be returned to the hospital.
- This can be done by an Approved Mental Health Professional (AMHP), any “officer on the staff of the hospital”, any constable or anyone authorised by the hospital managers.
- Obviously, in some AWOL reports, the location of the patient is not known – the person leaves to destinations unknown and there needs to be search to find them, which could include checks of potential addresses to which the patient is linked so the search would normally be done by the police if whereabouts is not known.
- The MH trust must report AWOL patients to the police in three circumstances – where the patient is subject to Part III MHA (ie, the sections between 35-55 MHA), where the person is dangerous or where they are especially vulnerable.
- This is outlined in Chapter 28 of the Code of Practice to the MHA, which specifically relates to AWOL patients.
Jack was not a Part III patient (because s3 MHA is within Part II of the Act) and nothing in the PFD suggests he was dangerous. However, if he is believed to be at high risk (ie, of suicide or self-injury), then he may have been considered especially vulnerable and hence, the trust would be reporting him to the police immediately. The Coroner’s PFD makes repeated reference to Psychiatric Intensive Care Unit (PICU) patients, so it’s likely there was a high degree of vulnerability. Responsibility within the police for searching for Jack remained with a response team for nine hours and ultimately, the PFD doesn’t give us specifics to understand certain issues, hence the assumptions I’m making or questions I’m left wondering. To that end, it would have been helpful from the point of view of “lessons learned” if there were a little more detail available to aid other areas who may face similar challenges.
FACT v ASSUMPTION
The PFD report emphasises at some length an acknowledgement by the mental health trust that it is their responsibility to return a patient (within the first ‘matter of concern’ on p1). This is quite interesting in the context of other PFDs – I wrote previously about the inquest of Sasha Forster who died in nearby Surrey and during that inquest there was considerable debate about who carries responsibility for returning patients. Evidence was given by an assistant medical director who stated the trust did not have resources for it and the police would therefore have to do it. The Surrey Coroner wrote in the concluding PFD the Trust needed to ensure they had prepared to resource these obligations and when the Trust responded to the notice, their reply was equivocal as to whether they accepted this legal point. That is despite the fact that in Sasha’s case, here whereabouts were known – she was in A&E.
The PFD for Jack TAYLOR is ambiguous as to whether the mental health trust knew his location and paragraph 28.14 of the Code of Practice states, “The police should be asked to assist in returning a patient to hospital only if necessary. If the patient’s location is known, the role of the police should, wherever possible, only be to assist a suitably qualified and experienced mental health professional in returning the patient to hospital.”
In my experience, it is not usual for mental health trusts to search or enquire at locations to see whether or not a patient has gone there – of course nothing at all prevents them from doing so, but my experienced suggests their search enquiries are usually limited to phone calls from the hospital ward from which the patient is missing, for example to a next of kin or other known relatives, as well as. “If the patient’s location is known” – that’s my main question about Jack’s case and the trust acknowledgement of responsibility. Did we know where he was and, given fact he’s flagged as high risk, if there were reason to suppose he was at an address, what would prevent the police attending alone? I’d have to assume it was known, but the PFD stops a little short of saying so.
JOINT PROTOCOLS
This is not the only recent PFD to yet again draw attention to the quality, consistency and content of joint protocols. Regular readers of the blog will know that Code of Practice MHA requires five issues be covered in a joint protocol between a Chief Constable and the relevant NHS / local authority partners –
- Section 136 MHA & Place of Safety.
- Mental Health Act assessments in private premises, inc s135(1) warrants.
- Patients who are Missing / Absent Without Leave, inc s135(2) warrants.
- Conveyance
- The operation of s140 Mental Health Act 1983 – this is the “urgent beds” issue.
We repeatedly see examples that protocols are criticised by coroners in PFD notices, including recently in Thames Valley (s136), Bedfordshire (s136) West Midlands (s135) and now in this case, in Sussex (AWOL). I’m also still unaware of any area in the country which actually has a s140 protocol which achieves the basic purpose intended – to specify hospitals which can receive patients in circumstances of special urgency. The effective operation of s140 specifications has also sat beneath a number of deaths examined by coroners (Stacey / Abbott) and it seems there is still an amount of work to do to ensure AMHPs, the NHS and police are able to discharge their s6 Human Rights Act responsibilities of ensuring the ECHR matters to people, in the end.
DISSEMINATION
Of course, another issue with protocols, is whether they are actually known and understood, whether by training, by briefing or by whatever other means. The point here is: detail matters. In the end, it actually matters – because courts examine detail when things go wrong and they do it according to law, statutory and non-statutory guidance. Detail also matters when it comes to learning lessons and one valid, major criticism of all agencies which is often levelled by charities like Inquest and reflected in thematic reports like the Angiolini Review is that areas sometimes fail to share lessons across areas.
Jack Taylor died in Sussex amidst discussion about a mental health trust and the return of a patient who is AWOL, but that legal issue came up in Surrey for Sasha Forster and it’s a live issue day-to-day in most areas, because everywhere has AWOL patients most days. It’s for that reason I would have been interested in more detail than we have in the PFD.
So to what extent are areas satisfied that the content of their protocols is adequate, how do they know (given what we know Coroners say, on occasion) and even if they are good quality, how well known and how usable are they by frontline staff who, inevitably, are not steeped in the detail of all this stuff and need to refer to such matters only infrequently? These kind of considerations are amongst the reasons that I’ve argued for years, we need mental health tactical advisors, as we have for public order and firearms, amongst other issues.
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, 2022
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
Mental Health Cop 