I wrote the Quick Guide series of posts very early in the life of this blog, over 10-years ago but I’ve kept them revised and up-to-date ever since. Following a number of recent queries, I decided to add one more to the list done, because of the need for clarification on legal powers where patients abscond from one UK country to another and agencies then become interested in determining how to get people safe and then safely returned.
These are relatively rare situations albeit always fraught and complicated when they occur (hence this Quick Guide is longer than most!) … I only hope it helps!
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Michael./
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- This guide is an attempt to “operationalise” complex issues and you should refer to your area’s policy and your supervisors for specific local requirements.
- INITIAL CONSIDERATIONS
- Firstly, determine whether or not the patient is subject to the cross-border provisions between England and Scotland:
- You’ll need to know what kind of mental health law order they are on, in the country from which they’ve absconded.
- If it is accepted that police will need to be involved in the person’s re-detention, planning should occur with the hospital or area from which the patient is absconded for how they will be returned.
- Where necessary, this may involve mental health services local to the area where the person may be re-detained.
- Where there is doubt as to whether cross-border provisions will apply, consideration could be given to use of mental health law in the country where the patient is located, to safeguard them pending their return.
- ie, a Scottish patient found elsewhere could be detained under s136 MHA (or a130 MHO(NI) and / or then ‘sectioned’ and subsequently transferred to the country of origin.
- JURISDICTION TO ACT
- Someone may be re-detained in Scotland by a Scottish constable if – they are missing from a “corresponding measure” or “corresponding regulation” elsewhere in the UK.
- This means, if someone is missing from s2 or s3 in Wales or from s136 or s135 in England, Scottish officers may re-detain because these are corresponding laws to those available in Scotland.
- Someone may be re-detained in England, Wales or Northern Ireland by a police constable if – they are would be liable to re-detention in Scotland under section 303 of the Mental Health Act.
- This means if a Scottish officer would be re-detaining the person if found in Scotland, an English, Welsh or Irish officer can re-detain them if found.
- There is no authority for non-Scottish Police to travel in to Scotland and re-detain the absconded patient.
- There is no authority for Scottish Police to travel out of Scotland to re-detain the absconded patient.
- INITIAL ACTION
- Call an ambulance to EVERY re-detention made
- Remove anyone displaying a RED FLAG to the nearest A&E department
- Remove anyone not displaying a RED FLAG to a nearby location pending proper arrangements for their return – ie, an Emergency Department or other suitable, safe place that is not a police station.
- Removal to the hospital from which the person is missing will involve travel over a considerable distance: nothing in law prevents the police doing this, but it should done by proper healthcare transport organised by the hospital from which the patients is missing in accordance with the relevant Code of Practice.
- Ensure the Quick Guide for conveyance is your next read.
- LEGAL REMINDERS
- Authority to for Scottish Police to re-detain in Scotland is contained in Mental Health (Absconding Patients from Other Jurisdictions) (Scotland) Regulations 2008.
- Authority to for English, Welsh or Northern Irish Police to re-detain in their jurisdictions is contained in Regulation 8 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2008.
- There is no power of entry attached to either of the above powers.
- If English or Welsh officers need to force entry, they would need to justify it under s17 PACE (life and limb) or secure a warrant under s135(2) MHA.
- If Northern Irish officers need to force entry, they would need to justify it under a19 PACE(NI) (life and limb) or secure a warrant under a139 MHO(NI).
- Hospitals from which detained patients are missing owe a legal duty of care to their patients and should be actively involved in arrangements for their safe return.
- This may include granting authority to NHS agencies in the country where the patient was located or using local mental health law to admit or safeguard people at risk.
- This guide is about UK laws only – there is no authority for such cross-border interventions where patients are absent from non-UK jurisdictions or for non-UK jurisdiction to re-detain British patients found abroad. They would need to use local mental health laws.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions 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 