A report was made to the police of a section 3 Mental Health Act (MHA) patient who had been granted leave from hospital under s17 MHA and whilst out of the grounds, absconded from an escort and failed to return, rendering themselves Absent Without Leave (AWOL). The patient had been on a psychiatric intensive care unit but was given leave because the process was already underway to transfer them to an acute mental health ward, their condition having improved. As the police were taking initial details for the missing person investigation, it became known the consultant in charge of the patient’s care had rescinded the section 3 – completely cancelled it – and the officer was asking about police powers if and when the patient is located.
Well, in short, you may as well forget all about the fact compulsory admission had occurred at all because no powers arise from that fact if the s3 is rescinded. The background is obviously important in terms of influencing what the officers may think about risk or vulnerability once found, but legally speaking it’s irrelevant. Police powers will be as for any other contact with any of us experiencing serious problems with our mental health —
- Section 136 MHA, if found in a relevant place and the grounds for that power are met
- Refer to an Approved Mental Health Professional to consider a new MHA assessment for admission under the Act, inc a s135(1) warrant, where necessary.
IMMEDIACY
Of course, s136 MHA may only be used outside of a dwelling and we know from some limited research in to street triage schemes in the last decade that most police contacts occur inside dwellings. But assuming the person is genuinely thought to be in immediate need of care or control because of a mental disorder, s136 is in play, in principle. The immediacy of risk is important, because it’s not automatic the s3 background and AWOL status before the order was rescinded means the grounds will be met – the situation must be judged on its individual merits at the point of contact.
As for situations where s136 cannot be relied upon, this is where the consultant’s decision to rescind the order may become problematic. If officers conducted an enquiry at an address and located the patient, there would be no powers at all and we know from history and experience that by freshly contacting an AMHP to consider a MHAA and / or a s135(1) warrant, it will take time – potentially many hours. It’s rare we learn of responses to these situations within a few hours because AMHPs are not an emergency service and in all fairness to them, they need to get many ducks in a row to conduct a new assessment. This would include finding two doctors to support the assessment and we know some AMHPs have to ring thirty-five doctors (yes, really) before locating one who is willing and able to assist. Good luck finding the second one if it took thirty-five phone calls to find the first one.
Had the consultant not rescinded the order, s3 patient would have remained AWOL for up to six months after they absented themselves and the officers at that address would have been able to re-detain the patient under s18 MHA regardless of whether they encountered them in public or private.
So why do it at all?
RESCINDING
The doctor had apparently stated it was simply a practical point about the fact the person was no longer an inpatient and could be re-admitted if necessary. It was stated, “There’s a limit of the benefit of retaining the section”. That’s correct, of course – but the fact there is some limit of what it can achieve doesn’t mean it’s entirely pointless. Crucially takes away the s18 MHA power from any officers, nurses or others who come across the person and is then powerless to take them in to safe custody to protect them – so we’ll all have to hope there is no immediate risk in a private place, should that happen.
Coroner’s have been interested in the past in difficulties securing a MHA assessment and in non-use of s18 MHA when it may have been available. It has also led to successful human rights challenges in the civil courts against AMHP services. In the case involving Mr Michael Thompson in London, a coroner issued a PFD regarding AMHP service problems, including a failure to respond in a relevant timescale to the risk and Mr Thompson set fire to his home whilst extremely unwell and died as a result. His daughters subsequently brought the civil challenge against the AMHP service and in both legal processes, suggestion was made that it came down to a police failure to safeguard him when police and ambulance attended, but ultimately, there was no criticism of that decision by the coroner’s jury or the civil court, because there were no powers by which to safeguard him. The AMHP service was found to have violated Mr Thompson’s Article 2 ECHR rights and thereby, those of his family as indirect victims of that breach.
Police officers need to know how to navigate this situation where they may be concerned about risk and yet find themselves powerless to act.
ANY BENEFITS
I was left wondering what the benefits are of rescinding the s3? – I couldn’t really think of any, except that it gets the case “off the books”. It doesn’t affect the ability to allow a new patient to be admitted to the bed left vacant by the absconding – we know AWOL patients’ beds are given away because demand on them is high. But rescinding the s3 doesn’t help the bed problem created after finding the person if they require re-admission – if they can’t be readmitted to the bed they had previously occupied, you then need to search for a new one, just as the AMHP would need to do after a new MHA assessment.
So I’m left thinking it’s fairly pointless – unless someone can think of anything I’m missing – but it does crucially mean someone may end up at risk when found, for a lack of powers to safeguard them and we know that can end up associated with serious adverse outcomes for vulnerable people.
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 