What follows is the full, amended text of section 138 Mental Health Act 1983, as it will be following a commencement order that brings it in to effect. For the ‘new’ section 135 and section 136 MHA, including sections 136A, 1336B and 136C, see those related posts.
NB! – this is NOT the current law as of 03rd March 2017 – this is the law as it will become, following a commencement order yet to be laid before Parliament.
Section 138 – retaking of patients escaping from custody
(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 mental health professional;
(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, [F2or a community patient who was recalled to hospital under section 17E above,] by any other person who could take him into custody under section 18 above if he had absented himself without leave.
(2) A person to whom paragraph (b) of subsection (1) above applies shall not be retaken under this section after the expiration of the period within which he could be retaken under section 18 above if he had absented himself without leave on the day of his escape unless he is subject to a restriction order under Part III of this Act or an order or direction having the same effect as such an order; and subsection (4) of the said section 18 shall apply with the necessary modifications accordingly.
(3) A person who escapes while being taken to or detained in a place of safety under section 135 or 136 above shall not be retaken under this section —
(a) in a case where the person escapes while being removed to a place of safety in the execution of a warrant under section 135(1) or under section 136(1), after the end of the period of 24 hours beginning with the escape;
(b) in a case where the person escapes after the beginning of the period that is the permitted period of detention in relation to the person under section 135(3ZA) or 136(2A), after the end of that period (taking into account any authorisation under section 136B(1) that was given before the person escaped).”
(4) This section, so far as it relates to the escape of a person liable to be detained in a hospital within the meaning of Part II of this Act, shall apply in relation to a person who escapes—
(a) while being taken to or from such a hospital in pursuance of regulations under section 19 above, or of any order, direction or authorisation under Part III or VI of this Act (other than under section 35, 36, 38, 53, 83 or 85); or
(b) while being taken to or detained in a place of safety in pursuance of an order under Part III of this Act (other than under section 35, 36 or 38 above) pending his admission to such a hospital,as if he were liable to be detained in that hospital and, if he had not previously been received in that hospital, as if he had been so received.
(5) In computing for the purposes of the power to give directions under section 37(4) above and for the purposes of sections 37(5) and 40(1) above the period of 28 days mentioned in those sections, no account shall be taken of any time during which the patient is at large and liable to be retaken by virtue of this section.
(6) Section 21 above shall, with any necessary modifications, apply in relation to a patient who is at large and liable to be retaken by virtue of this section as it applies in relation to a patient who is absent without leave and references in that section to section 18 above shall be construed accordingly.
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the Royal College of Psychiatrists.
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