A patient in the community is subject to a Community Treatment Order and the NHS staff providing care want to take them to hospital to administer medication they have recently refused to accept, amidst concerns about a deterioration in their health. It’s stated they have recalled the person from their CTO and obtained a warrant under s135(2) Mental Health Act 1983 (MHA) because they anticipate access to the premises will be refused. The request being made of the police is to execute the warrant and then take the person to a health-based Place of Safety where the medication can be administered during the 72hr recall period. If the patient accepts the medication, they will then be discharged from the recall and resume life as a CTO patient in the community. If they decline it, they may be fully revoked from their CTO and again become a s3 patient in hospital, albeit the NHS will need to identify a bed for them.
Today’s exam question is: do police officers have powers to execute the warrant by forcing entry and then remove the person to a Place of Safety for discussion about medication and decisions about discharge or revocation?
WARRANTS
A s135(2) warrant authorises entry to a premises in connection with someone’s removal but it can relate to several types of background legal situation, not just Community Treatment Orders. The patient may be a s2 or s3 AWOL patient, they may be someone who has absconded from detention under s135(1) or s136; or absconded after being “sectioned” but before arrival in hospital. And of course for our scenario: someone recalled from a CTO, who is also now AWOL, can be subject to a warrant to enter.
The warrant itself talks about removing the person but crucially, it doesn’t say to which location they must or could be removed. This is where the patient’s background legal framework kicks in –
- If they are AWOL from s2 or s3, they should be returned to the hospital from which they’re missing.
- If they absconded from s135(1) or s136 Place of Safety detention, they should be retuned to the relevant Place of Safety.
- If – by way of an even rarer, weird example – a warrant is issued by the Ministry of Justice under s42(4) for a conditionally discharged patient who is to be be recalled, the s42 warrant will specify the hospital.
- CTO patients, of course, should be taken to the hospital specified in the recall notice, which needs to be served upon them to make their recall lawful.
So which hospital is specified? – that’s the key to the question of whether the person can be taken to a Place of Safety for discussions about medication compliance and then any consideration of whether the CTO needs to be fully revoked. If hospital A is specified and it does, in fact, have a Place of Safety, you can crack on and fill your boots – use that PoS location, assuming the PoS manager is happy to allow it given it’s not actually a s136 situation! If hospital A does not have a PoS but hospital B does, there is no power to remove to hospital B for these considerations, before then removing the person to hospital A if revocation is the decision.
It may also be worth noting, on CTO recalls specifically that for a warrant to be issued lawfully, the patient concerned must already be liable to be detained after the service of their recall notice. I’ve known it previously where thought is given to securing a warrant to enter the premises, serve the recall notice there and then return the patient. I would argue this could be legally problematic because s135(2) states the warrant may be issued in respect of someone who “is liable” (ie, already / now).
“If it appears to a justice of the peace … by any constable or other person authorised … to take into custody or retake a patient who is liable under this Act …”
[Bold is my emphasis.]
Hospital B simply wasn’t specified in the recall notice – and that’s the key to the exam question, above. The power is to return the patient to the hospital specified in the recall notice (or the other relevant hospital, for those variations in the bullet points, above).
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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 