Query from the south-west after a spirited but good humoured debate between the police and an Approved Mental Health Professional following execution of a s135(1) MHA warrant. Concern had been raised about an elderly patient with possible dementia living alone and after various failed attempts to see them by visiting their home, an AMHP had secured a s135(1) MHA warrant from a Magistrate. Officers ended up having to force entry to a property where they found the man in a condition of quite severe neglect.
He was removed to an Emergency Department for concerns about physical health conditions and with a view to the AMHP conducting an assessment under the Mental Health Act 1983 – all the indicators were the patient would probably be sectioned for assessment, but that process needed delay so physical healthcare could be prioritise in the Emergency Department.
Officers accompanied the patient in an ambulance – they were in the officers’ detention under the s135(1) warrant after all – and upon arrival the patient was triaged and settle in a cubicle. It was agreed between the police, the AMHP and the Emergency Department the situation was low risk and it was properly agreed (against the criteria outlined in the Webley case) that officers could withdraw and the AMHP and NHS would supervise things pending medical and then mental health assessment. The patient had been detained in their home under the warrant at 0940 (day one) and arrived in the Emergency Department at 1015 (day one)- the police officers left the situation just before 1100 (day one).
OVERNIGHT DEVELOPMENT
A 999 call was made to the police overnight, around 0100 (day two) whilst they were still in the Emergency Department as a Place of Safety – the patient had been so settled and unproblematic, they were not under constant supervision and they had left the department unnoticed. A quick search had found no trace within or immediate outside the hospital, so 999 was to report a vulnerable, missing patient who still required a MHA assessment.
They had been there for fourteen hours and forty-five minutes so far, detained in law initially under the s135(1) warrant executed by officers the previous day but then detained in the PoS under s135(3) by the NHS staff in ED who had agreed, with their security to oversee this, to take on responsibility for the patient. The MHA assessment by the AMHP had still not occurred because medical tests and treatment ha been ongoing most of the day and in to the evening. Because of the out of hours AMHP workload, MHA assessment and was due the following morning and because of what had become known about the patient’s health and their clothing at the point of absconding, it was agreed by everyone, the patient was a high risk missing person.
Exam Question: is there a legal authority to re-detain the patient if found and for how long would any authority last?
Our AMHP friend and the officers both agreed there is a power to re-detain. The question to me described as “the AWOL” power (ie, s18 MHA), but it’s not. Someone detained in a Place of Safety under a 135(1) warrant or under s136 MHA) cannot become AWOL, which means they have already become a detained inpatient in a hospital before absconding – usually under s2 or s3 MHA, but could include s37 or s37/41, amongst other provisions. In this case, being in ED under s135(1) warrant means they have absconded from lawful custody but they’re not AWOL, so the power to re-detain is section 138 MHA.
TIMESCALES
The disagreement between our overnight heroes was about the timescales to apply. One party said it was 24hrs after the person was detained under the warrant (so power would expire at 0940 on day two), the other said it was 24hrs after the patient went missing from the Emergency Department (so power would expire at 0100 on day three).
It ended up not mattering at all – patient found within a couple of hours and safeguarded for return under s138 MHA before the timescales mattered.
But actually, they’re both wrong! — it expires in this situation, 24hrs after arrival at the Place of Safety, so 1015hrs on day two. The patient having left the ED at 0100hrs on day two, it means there is just under 9hrs in which to find them and use s138 MHA, after which time other legal powers would need to be considered. This could include s136 MHA if the grounds are met in the circumstances of the encounter and it could necessitate a further warrant under s135(1) if it were thought the patient had re-entered a dwelling.
For the use of s138 after absconding from Place of Safety orders (s135(1) and s136 MHA) we need to know two circumstances and the power last for 24hrs in each case —
- After detention but before arriving at the PoS – 24hrs from the time of absconding.
- Absconding after arrival at the PoS – 24hrs from the time of arrival.
- Section 138 MHA can be used in a public or private place, but there is no power of entry.
- If entry needs to be forced and cannot be justified under s17 PACE, for example: a warrant under s135(2) can be obtained and the police can obtain this on their own, if absolutely necessary.
There we go – s138 and powers of entry, for those rare situations. You can find all of this post and other timescales for other weird situations summarised on the Quick Guide to Absconding.
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, 2024
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 