I did some CPD for mental health leads in acute trusts recently and in one of the questions which came up, I was asked something I’ve never been asked before – I didn’t realise it was a “thing” as the yoof might say. One acute trust MH lead asked me about police officers bringing Mental Health Act “Absent Without Leave” (AWOL) patients to A&E after mental health units declined to receive their patients back following re-detention by the police.
This all sounds very dubious – both legally and morally – not least because the questioner had concerns about the police delivering these AWOL patients t0 A&E and then leaving entirely, assuming NHS staff would sort out the situation and take over compulsory detention and any use of force required to give effect to it. There is no legal obligation on A&E staff to do that, at all.
We need to go back to some legal basics for a moment and I say this amidst a depression that legal knowledge on these topics seems to be going backwards at an increasing rate of knots – I hope I’m wrong.
SECTION 18 MHA
There are a number of circumstances in which a Mental Health Act patient can become Absent Without Leave –
- Leave a mental health unit without authority.
- Fail to return on time to a MH unit having been given authorised leave.
- Fail to return to hospital having had authorised leave cancelled before it was scheduled to end.
- Fail to return to a MH unit having been recalled from a Community Treatment Order.
The law makes clear that once a person is AWOL, s18 of the MHA permits various professionals to return the person to the hospital from which they’re missing or to which they have been recalled. I do think it’s worth setting out the wording of the whole section –
Section 18 – Return and readmission of patients absent without leave.
(1) Where a patient who is for the time being liable to be detained under this Part of this Act in a hospital—
(a) absents himself from the hospital without leave granted under section 17 above; or
(b) fails to return to the hospital on any occasion on which, or at the expiration of any period for which, leave of absence was granted to him under that section, or upon being recalled under that section; or
(c) absents himself without permission from any place where he is required to reside in accordance with conditions imposed on the grant of leave of absence under that section.
he may, subject to the provisions of this section, be taken into custody and returned to the hospital or place by any Approved Mental Health Professional, by any officer on the staff of the hospital, by any constable, or by any person authorised in writing by the managers of the hospital.
[Bold is my emphasis.]
The other “provisions of this section” can be found in s18(2) MHA to s18(7) but none of them authorise those professionals to take someone to A&E and leave them there. I would argue to do so is to risk a finding of negligence if the patient were to leave the hospital
EMERGENCY DEPARTMENTS
If I worked in A&E, I would be pointing out to the police who turn up that they have no authority to ‘return’ the patient to an A&E department and leave them there – that I would want the patient taken to the hospital from which they are missing or to which they have been recalled and if the police are having difficulties with that NHS mental health unit, it is something to be resolved by escalation to police and NHS mental health on-call managers.
It’s just not a matter for Emergency Departments at all, unless the person has additional medical issues.
Of course the background to all of this is the ongoing reality that we do not have enough mental health beds in this country for the ebb and flow of inpatient admissions and discharges. We know that psychiatric hospitals are operating near capacity and would often struggle to admit or re-admit people when necessary, without a massive delay whilst they shuffle things around. But that practical reality doesn’t alter the law of England to any degree and section 18 states the person “may be taken in to custody and return to the hospital or place”.
Returned to the hospital – not to a hospital.
Everyone needs to remember the Webley case from 2014, which isn’t an identical situation, legally speaking, but it outlines how the High Court looked at how to establish whether an organisation had acted negligently.
WEBLEY AND ST GEORGE’S
Mr Webley had been arrested and taken to custody and then sectioned from Wimbledon police station for admission to a nearby mental health unit. The police assisted the ambulance service in conveying him from custody under s6 MHA – the AMHP’s delegated authority to ‘take and convey’ someone who is liable to be detained under the Act. En route to hospital, Mr Webley appeared to experience some form of seizure, so given how serious that could be the ambulance diverted to an Emergency Department at St George’s Hospital in south-west London.
Upon arrival, the London Ambulance Service did the clinical handover and left and the Metropolitan Police service then began discussion about leaving Mr Webley with NHS staff in A&E. One of my concerns about this case was always that conveyance was being done under s6 MHA – an AMHP’s authority – and after having to divert to an unintended location, nobody went back to the AMHP to become reinvolved in the situation after the change of destination. This all went unmentioned in the judgment and discussions between the Met and St George’s did not involve that detail either. The Met just invited St George’s to take over detention and responsibility now that he’d be spending time there and agreement having been reached, information exchanged and NHS security having been briefed and involved, the police left.
Mr Webley later left A&E unchallenged and seriously injured himself, to a point of requiring life-long care. In the legal case, the High Court held that Met were not negligent because they had only left the situation after agreeing the handover of responsibility with an other organisation who agreed to take it and after appropriate information was exchanged so they did realise what they were agreeing to.
AWOL TO A&E
In our scenarios, however, there are some differences to note.
If the police have re-detained someone who is AWOL and then been told the original psychiatric hospital is not able or willing to receive the patient back, we need to think about the legalities of things. A&E staff are not automatically authorised by s18 MHA in this situation. Look at s18(1), quoted in full, above and think about who has legal permission to act –
- Approved Mental Health Professional,
- Any officer on the staff of the hospital
- Any constable, or
- Any person authorised in writing by the managers of the hospital.
For A&E to have permission to Act, they would need to be authorised by the mental health unit which is declining to receive their patient and we should: why would A&E choose to seek that authority and they’re obviously obliged to accept such authority, even if it were offered.
The police can’t authorise A&E staff or NHS security to keep someone legally detained and in any event, none of this is fulfilling the intention of s18 MHA, which is to return the person to the hospital from which they’re missing or to which they’ve been recalled.
There is no legal basis for the police service to remove an AWOL patient to A&E and leave them there with NHS staff and there is no obligation on A&E to accept this state of affairs, either. In fact, there is every reason to think A&E would be wise to push back on this and make the police resolve the problem with the mental health trust, because anything else is failing to deliver on the statute’s intentions of returning people to a place where appropriate care can be given – A&E corridors will rarely, if ever, cut that mustard.
Awarded the President’s Medal, by
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, 2026
I am not a police officer.
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
