Earlier this year, the National Police Chiefs Council issued guidance on the topic of “Restricted Patients under s37 and s41 Who Abscond”. This is accompanied by a flowchart, summarising the ten page guidance document.
There are a few issues with this document, which I feel obliged to highlight —
Firstly, despite the title indicating the document is about ‘restricted patients’, there are various scenarios within the text which are not about restricted patients – it touches on wider issues. Secondly, I would argue some of the claims within are legally wrong, in particular those claims which relate to s138 and s137 MHA – I’ll explain why in a moment. But finally, there is a claim which is emerging in popularity in policing, which is to argue that hospitals are responsible for locating missing patients who are not restricted – it is this claim that is my main focus in this post.
HOSPITAL DUTIES
Where a patient has absconded from hospital or failed to return, the staff do have a duty of care towards the person. This doesn’t end just because the police have been contacted or become involved. It would be quite reasonable, for example, for the hospital to do the various telephone checks that would be required, to liaise with family, friends or other care providers to see what can be established. This would be needed by the police if they do begin an active missing person search and it would be faster for the hospital to just do this once the patient’s whereabouts are questioned, than the give all the necessary information to the police expecting officers to do it.
The ongoing duty of care remains true whether or not the patient is ‘restricted’ or considered especially vulnerable or dangerous but it certainly doesn’t extend so far as to be a unilateral responsibility to locate patients, which is what the document claims. Obviously, some patients in will be ‘missing’ (ie, we do not know where they are) and others will not (ie, the patient who refused to return from authorised leave and who is known to be at home, because the hospital have established telephone contact with a relative who confirmed this). Where the hopsital has exhausted the obvious and immediate enquiries they can do (like searching the hospital, telephone enquiries, visiting a patient’s home address), then the police may have responsibility to locate someone who is truly missing.
Think about why: only the police can do a live trace on someone’s mobile phone and obtain lists of calls in and out; only the police can put a marker on any vehicle in use so that its location or direction of travel can be determined; only the police can start asking banks for financial information to trace a person and if someone is located, the police have training to back up the powers of re-detention which although available to several professionals, may be realistically something for the police where it is a restricted (ie, more dangerous) patient.
SECTIONS 137/138
The document makes clear that where restricted patients have absconded from a hospital location without permission, they have ‘escaped lawful custody’ – this is a criminal offence and it applies equally to those restricted patients who escape secure hospital care as it could to those who escape from police or prison custody. The document states, “if a patient has escaped from legal custody, the police have a power to take the patient into custody under s138 Mental Health Act 1983 and a power to return the patient to hospital under s137 Mental Health Act 1983.”
I think these two sections need reading the other way around, because section 138 is the power to re-detain someone who has absconded from situations outlined in section 137. So let’s see what they say —
137–(1) Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.
(2) A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.
I am only intending to quote sub-section (1) of s138, but the link is above to check it further, if you need to.
138–(1)If any person who is in legal custody by virtue of section 137 above escapes, he may, subject to the provisions of this section, be retaken—
(a) in any case, by the person who had his custody immediately before the escape, or by any constable or approved social worker;
(b) if at the time of the escape he, was liable to be detained in a hospital within the meaning of Part II of this Act, or subject to guardianship under this Act, by any other person who could take him into custody under section 18 above if he had absented himself without leave.
- So section 137(1) is saying — “if you are in one of three specific legal situations, you are considered to be in lawful custody.”
- These situations are — 1) you have been detained or re-detained under the MHA to be taken somewhere OR 2) if you have been detained at a Place of Safety OR 3) if you have been detained under s42(6) MHA (which relates to an obscure, rarely used provision about producing restricted patients to courts or public inquiries),
- Any of those three situations: people are considered to be “in legal custody”.
- This would mean, for example, if you have been ‘sectioned’ by an AMHP for admission under s2 or s3 and you are being detained to be transport to hospital, you are in legal custody whilst being admitted; it would mean in the police have detained you under s135(1) or s136 MHA, you are in legal custody from the point of detention by the officers until the Place of Safety process concludes.
- Section 137(2) is saying — anyone doing any of those things has all the powers of constable in respect of that patient, whilst doing it (because some of these functions are done by others, like AMHPs, nurses or contractors who provide services for the conveyance of mental health patients.)
- Section 138 is saying — if someone has escaped legal custody in those three circumstances outlined, then the patient may be re-detained and either returned or taken to the relevant hospital or place.
- Section 138 needs to exist, because it relates to situations which are simply not covered by detention under Part II MHA (civil admission / absconding), Part III MHA (criminal admission / absconding) or Part X MHA (miscellaneous detention for assessment, eg, by the police).
EXPLANATION
So now let’s imagine a patient who has been sent to hospital by a criminal court, subject to a restricted hospital order under s37/41 MHA. It doesn’t matter for our purposes whether this followed a finding of guilt, insanity or unfitness to plead. Let us further imagine they have an absconded from the hospital without authorised leave. Are they covered by the three situations outlined in s137(1)? No, they’re not –
- They haven’t been authorised to be conveyed to any place (ie, for admission under s2, s3 or s4 MHA)
- They’ve haven’t been authorised to be kept in custody or detained at a Place of Safety (ie, under s135/136)
- Nothing in my vignette applies to producing patients to public inquiries.
So this is not a situation covered by s137 MHA, ergo s138 does not apply but this doesn’t mean the person hasn’t escaped lawful custody! – they have. But the power to re-detain a s37/41 restricted hospital order patient is s18 MHA because all hospital order patients, restricted or otherwise, are treated as being AWOL if they abscond without permission or fail to return from authorised leave, just like a s2 or s3 patient had done. This is shown by section 40(4) MHA.
What’s not in the document is also interesting, given the emphasis on ‘restricted patients’ – no mention here of s47/48/49 (restricted patients transferred to hospital from prison) or patients sentenced under s45A MHA (which means sentenced to prison but transferred to hospital for treatment). Both categories of patient are ‘restricted’ for MHA purposes and treated “as if” they were a s37/41 restricted hospital order patient whilst detained or absconded. Admittedly, the number of restricted patients under these two provision is lower than the number on s37/41 orders but s45A is becoming increasingly used over time for patients who have nevertheless been found guilty of a serious criminal offence but in need of hospital treatment. There are plenty of recent examples such as the man who entered Windsor Castle in order to kill the late Queen and Professor Jill Peay wrote about the increasing use of s45A over a decade ago.
So just be careful about what you read and believe (including this!) and as always, go back to the legislation and read it for yourself. Think about what it says and remember your ABCDE —
- A – accept nothing
- B – believe no-one
- C – check everything
- D – document it ALL (where you’ve made decisions you may need to defend, including any advice you were given).
- E – experts rarely stay in lane (so go back and start again): accept nothing.
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 