This post arises from a specific event, but it’s far from unique. I want to use it as an example of something so straight-forward and obvious, yet complex and intractable and which raises a number of questions I suspect are often overlooked or set aside. It relates to the conveyance of patients who have absconded from hospital and then turned up out of area – ie, out of the area of the police force to which they’ve been reported missing. It’s about the return of AWOL patients (those who are absent without leave under the Mental Health Act 1983) but it allows me to cover a few things I’ve mentioned before, in a new context of a real incident. So apologies to those who’ve read of some of these things before, but I’m re-painting the Forth Bridge here, as requested!
Last week at work, another police force had re-detained a patient in their area who was missing from a hospital in our area. When the patient was reported missing to us by the hospital, we had undertaken certain initial enquiries and asked the other force to conduct an address check over a hundred miles from us. This is standard stuff and we obviously conduct such checks in our area if patients missing from elsewhere are believed to have travelled to us. The patient, who was absent without leave under the MHA, was found when the check was done. As such, and quite rightly, they re-detained the person to keep them safe, using a power under s18 of the Mental Health Act. Now, the patient somehow needs to get from where they were re-detained to the hospital ward which had reported them missing (yes, they did still have a bed available.) – a distance of over a hundred miles.
How should this be done?! … there are a few options in the real world. Let’s consider them before thinking about what the law and relevant guidance says about all this —
There is also an option or two which wouldn’t involved transporting the patient immediately – the police who found them could involve their local mental health services and seek temporary support, either a safe place to be until the conveyance is arranged; OR the patient could be admitted to a local psychiatric hospital until the arrangements for return are made, perhaps the following day (this thing happened on a night shift). The MHA and its Codes of Practice allow for this but it does depend on willingness and capacity at the ‘other’ end, which isn’t always there.
What does the law say?! A few things to consider –
So Chapter 17 of the Code of Practice (conveyance) and chapter 28 (Absent Without Leave) become important (chapter numbers are the same in both the English and Welsh Codes). It should be remembered when we consider the contents of this document: this is statutory guidance. Inconvenient, problematic or unrealistic though it may be considered to be by some, it is statutory guidance and the implication of its contents were considered by the UK’s highest court in 2005:
In the Munjaz case, a legal action was brought against an NHS hospital, precisely because they handled a patient in a way that was contrary to the Code of Practice. The claim was (more-or-less) “because you breached the Code, therefore my safety, dignity and rights were compromised – I have a claim for my treatment”. This case was argued three times before the High Court, the Court of Appeal before eventually reaching what we now call the Supreme Court. It was an interesting case I’d like to explain to ram home the point I’m making because we shouldn’t just casually dismiss its contents for a want of things being difficult. And in particular, commissioners and leaders need to understand this point:
Mr Munjaz was detained in Ashworth high secure hospital after criminal proceedings and whilst held under the Mental Health Act was ‘secluded’ (isolated from other patients for therapeutic and safety reasons). The Code of Practice has a chapter on seclusion which outlines when it can be considered how, when and by whom that seclusion must be reviewed, etc.. Mr Munjaz was not reviewed and secluded in accordance with the chapter’s requirements, hence his legal claim. He originally lost his claim but appealed and when the Court of Appeal heard it, they found in his favour. In essence, Mr Munjaz argued that the Code amounted to a binding instruction and if he was not treated in accordance with it, his safety, his dignity and his rights were violated.
The NHS argued that the Code was not binding instruction and they were entitled to follow its requirements where relevant, but they were not bound to do so – the guidance was ‘advice’. This became a matter for the House of Lords to resolve: what exactly were the implications of a Code of Practice to an Act of Parliament? Must we follow its contents to the letter or is there scope for deviation? If so, in what circumstances can we decide to deviate rather than follow?! Mr Munjaz argued ‘binding instruction’, the NHS argued ‘merely guidance’ that didn’t obligate them.
The test offered up by the law lords was somewhere in between, but much more towards the idea of ‘binding instruction’. They stated that the Code was more than advice that could be taken or left – it was important statutory guidance, issued under a statutory authority by Secretary of State (for Health) and organisations should comply with it unless they have “a cogent reason for departure”. The Court then applied that test to Mr Munjaz and found that Ashworth Hospital, as a very specialist mental health care provider for a small group of particularly unusual patients, did have good reason to deviate from the Code. The seclusion chapter was concerned with seclusion generally, affecting all kinds of psychiatric patients and Mr Munjaz was within a small number of specialist patients which justified a different approach. The court found that Ashworth’s reasons were thought through and clearly documented after consultation.
So Mr Munjaz lost his case: and we now know about the need to comply with the Code unless we have “a cogent reason” for doing otherwise.
So where does this leave the police with AWOL patients round out of area?
Well, paragraph 28.6 of both Codes make it clear the detaining hospital is responsible for the return of their patient – and they should comply with this obligation unless they have a cogent reason for departure. The re-detaining police force have a legitimate right to expect compliance with this responsibility, not least because a failure to comply with it pushes the police force in to a similar quandry of their own. In the absence of ownership of this by the hospital and if they should find the local NHS services (mental health or ambulance) are unwilling or unable to support them, they may be tempted to “just get on with it” and return the patient to hospital by police car. That is, in itself, a prima facie breach of the Code of Practice because chapter 17 states that patients being conveyed under the Mental Health Act should not be conveyed by police vehicle.
Ultimately, would probably be able to argue a cogent reason: if they’ve asked the detaining hospital to sort something and that hasn’t worked, if they cannot engage their local NHS services at all (for whatever reason and in whatever way) and they are then faced with sitting a patient down in a police station or A&E for hours, if not days, then perhaps a decision to expedite the patient’s return may be considered better than dragging the thing out and delaying their return to the care they need? It’s a perfectly natural argument and I do understand it. It just needs to be balance against a few factors, undertaken only as a very last resort.
It’s been a historic work-around for these situations, for the police forces to arrange to meet up halfway and share the responsibility. There are various problems with this and it’s one reason I would generally decline to become involved after another force has re-detained someone; AND why I wouldn’t ask another force to become involved if we had detained someone. So my attitude on this works both ways and I can prove this! Hampshire police had absolutely no knowledge whatsoever of the incident where a patient from their area turned up on us many years ago because my force sorted it, along with local healthcare partners in our area, pending the NHS from Hampshire attending to re-convey the patient back to hospital. Hampshire Police only found out when we advised them they can cancel their missing person report because we’d found the person and the NHS were sorting it amongst themselves.
But the ability of NHS areas to support and cooperate with other is key to some of this – and it varies, frankly. My colleagues last week felt it was impossible to countenance asking their local services to help keep the man safe whilst conveyance arrangements were made – yet that’s exactly what our MH colleagues did some years ago in the Hampshire example. I also worry that we don’t seem to have commissioned or planned arrangements to undertake the conveyance back to hospital. The reason police forces start reaching for options which inherently amount to a breach of the Code, is because they often feel or find they have no other choice.
And yet its a fairly predictable, isn’t it? – is there ANY mental health trust in the country who predicts they will NOT at some time during 2020 have to work out how to get a patient back from another part of the UK?! It may not be an every day event, but it’s predictable in general terms, even if relatively infrequent occurrance. But the question for the police is deeply complex: with immediate access to people and vehicles do they just “get it sorted” to ensure the patient’s swift return to care; or do they stand by the importance of the Code and accept they may be looking after someone for hours in order to reinforce the point they won’t just “get it sorted”, in order to ensure the patient is conveyed with dignity and to encourage the NHS to ensure the availability of proper mechanisms? If I’m frank, I’ve known mental health professionals say that one of the reasons viable arrangements don’t exist or can’t be accessed quickly is because they wonder about the need to commission them when the police seem all too willing just to “get it sorted” for them.
But the dangers in doing so are considerable, if somewhat rare. The Independent Office for Police Conduct have had to investigate cases where patients being conveyed in police vehicles have become suddenly unwell or violent in transit – in one case, police force X was travelling to police force Y but had to stop halfway in police force Z and ring 999 for help, because of a serious event. First question: “why is this patient in the middle of nowhere in a police vehicle when they’re seriously mentally unwell”?! If the answer to that question is “because we tried absolutely everything else and none of it worked and we felt overall this was the least worst option” then perhaps fair enough.
But I admit to thinking that if the hospital which is responsible for returning the patient is not going give effect to that duty, then the person can be removed to the local psychiatric hospital or A&E and remain there under clinical supervision until it’s sorted. If that means officers remaining with them for hours, well at least those officers won’t be subject to serious investigations if the patient becomes seriously unwell and at least it means I can escalate on their behalf to the NHS managers who are responsible and overtime, the point will be reinforced that the police are not going to breach statutory guidance to just “get it sorted” when it can involve compromising the safety, the dignity and the rights of patients.
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, 2020
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 – http://www.legislation.gov.uk