Where someone is absent without leave from hospital, is it correct in law to say the NHS hospital from which they’re missing has a legal duty to locate or a legal duty to return their own patient? This should be a simple enough question, benefiting from a ‘yes’ or ‘no’ answer, but alas it’s not: as with all too many things policing and mental health related. I want you to keep a couple of situations in mind –
- Situation 1 – a patient is AWOL, their location is not known to anyone and the NHS have reported the person missing. It is the NHS’s responsibilty to ‘locate’ the patient?
- Situation 2 – a patient is AWOL, their location is known because someone has informed the NHS mental health trust the patient has turned up at their house. Is it the NHS’s responsibility to ‘return’ the patient?
You can imagine variations on a theme here: patients can become AWOL in a few different ways – they could abscond from an inpatient unit, they can fail to return from authorised leave, they could be recalled from a Community Treatment Order. All of those things create the AWOL condition and those various ways of becoming AWOL will affect how an incident has led to the question of who has responsibility for locating or returning someone. As ever, all cases turn on their individual merits.
The police undertake missing person’s investigations every day, hundreds of times and there is national policy about missing people. The Code of Practice MHA stipulates to NHS trusts that certain categories of mental health patient should be reported immediately to the police. This includes patients regarded as ‘dangerous’ or ‘especially vulnerable’ (whatever that means, because it’s not defined) and patients who are AWOL from Part III of the Mental Health Act 1983 (MHA) – Part III are the various orders which result from criminal proceedings, the sections between 35 and 55 of the Act. As such, the police will have some responsibilities for locating patients, especially where their location is not known – but that doesn’t mean it’s the sole responsibility of the police. Having said that, powers of redetention for some Part III patients are only enjoyed by the police, so you need to be careful and knowledgeable about those rare situations involving patients absconded from sections 35, 36 and 38!
NHS organisations reporting people missing to the police may be better placed to do certain things, such as telephoning relatives of the patient to see if they know where they have gone and to ensure relatives are aware of the need to report the patient turning up. They are better placed to do this, because they actually do have whatever friends’ or relatives’ details are known whereas the police won’t automatically have them. It’s just faster for the NHS to pick up the phone than for them to give the details to officers who then pick up the phone.
CODE OF PRACTICE
After the very sad death of Sasha FORSTER in Surrey, the Coroner issued a Preventing Future Deaths (PFD) report. The inquest had examined the fact Sasha had been on s17 leave from hospital and that this leave should have been revoked to enable her return to hospital to be safeguarded. Amongst other things, HM Coroner stated (in the PFD notice) –
“Evidence was given during the inquest by SBP staff on the ward concerned, that the reason SBP staff did not arrange to collect Sasha and return her to the ward when her s.17 leave had been revoked, was that they did not have the resources to allow them to do this despite it being their legal responsibility to do so.”
(The bold emphasis is mine, not the coroner’s.)
It is also worth noting paragraph 28.6 of the Code of Practice MHA states “… responsibility for the safe return of patients rests with the detaining hospital.” Paragraph 28.14 of the MHA Code of Practice also 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.”
So, there is a clear push in the direction of hospitals being responsible but it’s important to note this guidance is not law: it is guidance. It is (important) statutory guidance, but you can depart from a Code of Practice if you have what the House of Lords (now, the Supreme Court) called “a cogent reason for departure”. The fact something appears in the Code does not make it law, however. What legal obligations exist will be a matter of the specific circumstances in a particular case but there are inquests where trusts have accepted they are obligated to some degree.
LEGAL OBLIGATIONS
So what if police force X encounter a person who is AWOL from a hospital in the area of police force Y? Let’s suppose officers from police force X have had to re-detain the person under s18 MHA to safeguard them and now consideration needs to be given to returning the person to the hospital in police force Y. Whose legal duty is this to complete? Well, on the one hand, police force X have exercised a legal power to re-detain the person and safeguard them, so they now owe a duty of care because the person is in their custody. But the hospital from which the person is missing also has some duty towards their patient – the legal duty of care does not stop just because the person became AWOL but a duty of care in general terms may not necessarily extent to specific obligations. We know the Department of Health & Social Care responded to HM Coroner for Surrey after the PFD for Sasha FORSTER and disputed the Coroner’s claim that it is a legal duty for the hospital to return patients.
The Parliamentary Under Secretary of State wrote –
“The department does not agree that care providers have a legal responsibility to arrange for the return of patients whose section 17 leave has been revoked … wherever possible, all organisation involved in an individual’s care and safety should work together to ensure the safe and timely return and readmission of patients absent without leave.”
So whose legal obligation is it, where police force X re-detain someone AWOL from police force Y’s area?! – firstly, it sits to a large degree with police force X because they have immediate custody. When the music stopped, they were the ones detaining the person so in the absence of anyone else stepping forward, that police force needs to do something and that may involve having to return the person, in-ideal though this may be. Secondly, the Code of Practice is obviously not irrelevant so paragraph 28.6 and 28.14 do become live issues: the Code expects the detaining hospital to be involved, albeit my experience varies as to whether they will willingly embrace that option. What remains ambiguous from the Secretary of State’s response is the obvious question flowing from her hope that all agencies would work together – what if they don’t? It’s a theme in the last two decades of my life that people keep hoping organisations will “work in partnership” only for me to repeatedly see that they don’t see that aspiration extending very far in to operational situations that cost resource, money and time.
I had this ‘X / Y’ situation a couple of weeks ago when someone missing from my own area turned up elsewhere in the country. The other police force and the detaining hospital both expressed the view that the legal responsibility sat with us, which seems the least likely of the three options! The person was missing from my area, but they were not in my custody now and they were not my patient either, hence it seemed awry to argue it was my responsibility (and I did). In the end, police force X and hospital Y were encouraged to talk to each other directly and work it out between them. Paragraph 28.14’s wording is clearly hinting at situations where the location is known but no professionals are there to effect the patient’s return. It is discouraging NHS organisations from just ringing the police and asking for officers to undertake the task and we know that where officers have done so as part of missing person’s investigations, it doesn’t always end well and leads to questions about why the police were there alone, without support from mental health or health professionals.
CONFUSED LANDSCAPE
This appears to leave open the potential for a game of bluff: which organisation can be most effective in persuading the other to take the lead where the question of legal responsibility is not always obvious? It’s all very well quoting the Code of Practice, but it’s just a Code – it’s not, of itself, law. And it’s all very well asserting the NHS has a legal responsibility for something, but simply saying that doesn’t necessarily make it true. This is presumably why the Code of Practice also states that hospital managers should have local policies which are agreed with Chief Constables where these matters can be clarified so they are not being argued over case-by-case at 9pm on a Tuesday. But a local policy between police force X and hospitals in area X may be of little use when the patient turns up in police force Y and that force take a different view of their obligations, as they often do.
Many reports of missing mental health patients will trigger duties for the police under Article 2 or Article 3 ECHR because of the situation amounting to an “immediate risk to life, which is present and continuing”. In such a circumstance, regardless of the fact hospitals will still owe a duty of care to their missing patient, the police will also have a duty of care once they know of the incident because they are uniquely positioned to undertake certain tasks relating to people who are missing when their life is at risk.
It’s a blog post for another to untangle what is meant by “immediate risk to life” but for now, the main point I’m hoping to land in this blog is just this:
It’s not-at-all straight-forward to argue psychiatric hospitals are responsible for locating and returning someone who is missing from MHA admission. Whether they are will depend on many specific factors which will all need to understood and considered in their particular and unique context. Whatever discussions, debates or disputes are relevant between organisations with competing interests and opinions, resolve it in a locally-agreed joint protocol – as required by the Code of Practice itself.
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, 2023
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 