I was asked a while ago about a situation where a psychiatric unit had reported a “voluntary” patient as “AWOL” – absent without leave. In case you’re unaware, the specific legal status of “AWOL” applies only to patients who have been legally detained under the Mental Health Act and admitted to hospital on a compulsory basis. If initial discussions about patients suggest they are voluntary, then we either have a problem, a misunderstanding or some specifics to dig in to.
Voluntary patients in hospital cannot be AWOL – that’s not a thing we should ever hear.
I won’t list here the various provisions of the MHA which can apply to situations where patients either leave a hospital without authorisation or fail to return on time after having authorisation – but both of those situations apply to most of the day-to-day sections you are going to encounter, including sections 2, 3 and 37/41 which are probably the three most important ones to know about. You can check one of my resources pages for more detail, including the various timescales which apply to re-detention and all the other sections which can lead to AWOL status. And at the risk of really throwing confusion in to this: AWOL applies to people who have become inpatients in hospital already, so it doesn’t apply, for example, to those who abscond after being “sectioned” but before that patient arrives in hospital.
Again: that is all covered on the same resources pages.
MEANWHILE
Back to our scenario – you cannot be AWOL if you were voluntary when you went in, assuming you remained voluntary until you left the hospital. This confusion is very worth clearing up, albeit we should be plain in saying NHS staff should know or at least check the legal status of patients and report it accurately if they are contacting the police for some reason – it’s directly relevant to determining police powers and issues around patient autonomy and dignity.
Last year, an inspector from a north of England force asked me about this because his officers had treated an AWOL report at face value and upon finding the person after a short search, had used s18 MHA (the power to return AWOL patients) to force them back to the hospital reporting them missing, albeit and thankfully using only low levels of force to achieve this. No handcuffs were required and no injuries endured, it was not a massive drama but after the officers arrived back at the hospital discussion revealed the patient had been voluntary all along – there was no legal power to return, whatsoever.
The 999 tape confirmed the NHS had said she was “sectioned” and was now “AWOL” so it’s not the officers’ fault, but nevertheless it should be obvious why such detail is important. What if that patient had seriously resisted detention knowing they were voluntary and then more force had been used and we ended up with a restraint related death? You can imagine manslaughter investigations and gross misconduct notices flying around, with all the impact it has on the patient’s family and the officers and their family.
And all because someone doesn’t know you can’t be AWOL if you’re voluntary which is a pretty basic aspect of this piece of mental health law.
ABCDE
So you need to ask questions, don’t you? – remember your ABCDE.
If the police are deciding whether to deploy resources to a missing patient investigation or in support of the NHS and determining powers and policies which may apply, legalities about the patient are important and the situation needs clarifying because you can’t be both of those things. In some limited cases, a patient may enter on a voluntary basis and then be “sectioned” whilst in hospital. If that happened, them leaving or failing to return would mean they were, in fact, AWOL. But those situations are not too common and if you’re NHS staff reporting this, you may as well leave out the whole thing about voluntary because all that matters if the fact they were a detained patient when they left or failed to return and are now, in fact, AWOL.
Ordinarily, you’re going to want to know what section of the Act someone is AWOL from and when the authority to re-detain expires and in fairness, it’s often forgotten the Code of Practice to the Mental Health Act 1983 (paragraph 28.17 in England and paragraph 28.16 in Wales) points out hospitals reporting patients AWOL should inform the police of timescales which apply to re-detention. This should also be emphasised in local protocols between the Chief Constable and the NHS Trust(s) concerned but it’s worth call handlers and police officers being alive to the fact many staff reporting patients AWOL may not have read the policy, a policy may not exist and legal training on things like the Code is often limited or absent – so ASK … ABCDE.
Once the situation is clarified, you’ll know where you stand and you can get back to managing the request normally. Obviously, phase 2 of Right Care, Right Person relates to hospital walkouts or AWOL patients, so it may lead to application of the threshold of whether there are Article 2 or Article 3 obligations on the police. Remember: the NHS are told in the Code of Practice to report all AWOL patients who are “dangerous, particularly vulnerable or subject to Part III MHA”, regardless of whether anyone thinks the threshold is met, albeit you might imagine it usually would be if the “immediate risk to life” considerations are being correctly applied.
- Accept Nothing
- Believe no-one
- Check everything
- Document it all.
- Experts rarely stay in lane – so back to the start we go.
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 