NB: If you are after quick information about legal powers for cross-border absconding between UK countries, there is now a Quick Guide to Cross Border Returns available on this, with legal references.
We’ve previously covered the topic of cross-border returns where a patient subject to Scottish mental health law moves across the border to England and the question then emerges about whether English police have a power to re-detain the person to start the process of return. We could equally well ask about such things where the direction of travel was reversed, from England to Scotland. When I was first given a situation of this kind to grapple with, I thought it would make an excellent example of a once-in-a-blue-moon situation which demonstrates the point: no-one can know everything and some situations are so rare, you just need to know where to look rather than thinking you need to fill your head with spurious information you will almost certainly never need. Nobody needs to wander about with the answers to this stuff in their head, because it happens rarely.
But you need to know where to get the answers when the situation does come up, because they’re always tricky situations.
Can the English police re-detain a (Romanian) man who is absent from Scottish mental health law if he’s found somewhere in England? This poor guy had been found sleeping rough in an especially vulnerable condition in English city by a Police Community Support Officer (PCSO) who sought help from an officer. They worked out who he was and a PNC check revealed his Scottish legal status – absent from a “CTO” in Scotland. They sought advice from the force mental health lead where the first confusion arose because a CTO in Scotland (Compulsory Treatment Order) is not the same thing as a CTO in England (Community Treatment Order) – and who needs to know that?! So first things first: what kind of ‘thing’ is a Scottish CTO? … and then once we’ve worked that out, if absent, can the English Police re-detain him?!
I received a phone call asking for advice and if I’d heard of this before and I proudly announced “I haven’t got a clue” — not least because I’d never had a similar situation brought up and never had to care about the answer until that point, but two things occurred to me:
- If the English police are so concerned about someone in immediate need of care or control, nothing prevents them just using s136 Mental Health Act (England and Wales) to safeguard the man and get him somewhere warm with access to a shower, some food and drink. Police and mental health services can then untangle the legal conundrum at a Place of Safety in slower time rather than try to do that in a backstreet of a city centre near the wheelie bins.
- Secondly, I knew exactly where to find out the answer — but it turns out the first reaction about s136 MHA(EW) would be helpful because the answer isn’t straight-forward. It will be revealed at the end of the post!
SCOTTISH MENTAL WELFARE COMMISSION
The Mental Welfare Commission based in Edinburgh is a goldmine of information about Scots’ mental health law. Amongst many resources about mental health law, including inspection reports, there is an advice line about Scot’s mental health law(!) and they have various online, readable resources including a fact-sheet about cross-border regulation for planned transfers between Scotland and other UK jurisdictions and for patients who abscond across borders.
A recent query I received on this was the other way around: a man who detained under s3 MHA in England had travelled to family near Aberdeen. Efforts were being made to see if the Scottish police could locate him and the question emerged about whether they would have a power to re-detain the man if found. Of course, there would then loom large the question of how and by who the patient was returned to the hospital in England, but first things first: what powers exist to allow for this, if any?
Well, Scotland obviously has its own legislation (as does Northern Ireland), distinct from England and Wales. The Mental Health (Treatment and Care) Act (Scotland) 2003 (MHA(S)). Section 303 of the Act relates to powers to re detain patients who have absconded and it includes powers for police officers to do this, but somewhat obviously, that relates to patients who have absconded and then been found again in Scotland. Is there provision around cross-border situations for this and how well-known is the answer to ensure police officers or other agencies get this correct, when necessary?
ANSWERS
Section 309 MHA(S) allows for ministers to issue regulations which cover this, so we need to look at the Mental Health (Absconding Patients from Other Jurisdictions) (Scotland) Regulations 2008. Flows off the tongue, does it? These regulations (Regs 6 and 7) make it clear that if a patient from a “corresponding measure” or “corresponding regulation” elsewhere in the UK is in Scotland, then s303 MHA(S) applies to them. Such patients can be re-detained by the police in Scotland (as well as by certain mental health professionals) and arrangements made for return. As s3 MHA is a measure which corresponds to a CTO in Scotland, it would apply (as would s2 MHA, detention for assessment corresponds to a short-term detention certificate in s44 MHA(S)).
So – can the English police re-detain the man who is missing from a CTO in Scotland? You’ll love the answer: it depends! A CTO is a combination of what the English / Welsh MHA would call a s3 detention in hospital or a CTO in the community. It can be used in Scotland to compel inpatient care and also to framework some restrictions on community care after discharge from hospital. So if someone was hospitalised and left without permission, then the English / Welsh police can re-detain the person to return them. This is outlined in the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2008, regulation 8. However, if the person was receiving community care under this kind of provision, it would depend on what kind of restriction they had breached and whether the patient’s doctor had authorised a recall. So it depends and you may need to know the patient’s specific circumstances by speaking to a professional who knows. That can obviously take time, hence the advice about s136 MHA(EW) was probably the best approach to take and untangle it all at the Place of Safety. (Incidentally, in the actual situation, it took the best of part of two days to untangle.)
The hyperlinks in the two paragraphs above are what you need to know about for cross-border absconding. The first covers patients missing from England, Wales or Northern Ireland found in Scotland; the second covers Scottish patients found in England, Wales or Northern Ireland.
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 