Written and recorded by Steph Barber, Law Hound
hello. Welcome to this mental health law training session from Data Law. This session is looking at police powers and search and removal Well, jean ing with AWOL or absent without leave patients. My name is Steph Barber Andi. I'm a consultant at Law Hound. I'm a retired solicitor, and I was previously on the Law society's mental health specialist panel. Section 18 off the Mental Health Act 1983 or the M A J is concerned with patients who are absent without authority from the hospital or other registered provider where they are liable to be detained or it had authority to leave but failed to return or upon recall. Or they're absent without permission from any place where they are required to reside. So these absent without Leave or AWOL patients include patients who've left the hospital in which they are detained without any leave. Having Bean agreed by their responsible condition under Section 17 off the act would also include patients who have failed to return to the hospital at the time required to do so under their conditions of leave. Under Section 17 it would include patients who are absent without permission from a place where they are required to reside as a condition off their section. 17 leave or have failed to return at the end of section 17 leave or when Section 17 leave has, Bean wrote. It would also include community treatment order patients, or CDO, patients who have failed to attend hospital when recalls, and CDO patients who have absconded from hospital after having bean recalls. It would also include conditionally discharged restricted patients whom the secretary of state for justice has recalls the hospital. So Section 41 patients on could include patients who are guardianship patients who are absent without permission from the place where they're required to live by their guardian. So what happens to a well patients, while Section 18 provides that any detained patients who are a will can be taken into custody and re detained on return to the hospital or health care provider by an A m hey HP, anyone on the staff of the hospital, a police constable or anyone with written authority from hospital managers or, as appropriate, the guardian if they're a guardianship patient or local services authority. Quite clearly, hospitals require the support of police to assist in both locating a well patients on, sometimes returning them to hospital. And so, of course, on that basis, hospitals and other registered providers do need very clear policies which needs to be agreed with the relevant police force as to when their intervention is required with detained and CTO patients on. Those policies must include guidance about the circumstances in which the police should be informed. Who's responsible for informing the police on the information that the police should be given when and how an application should be made for a warrant on the Section 135 subsection two off the MH A, which would enable the police to enter premises in order to remove a patient who's missing and how and by whom patients are to be returned to the place where they ought to be on. Of course, who is responsible for organizing any necessary transports? So when should the police be involved? Well, code of practice relating to the MH A or the code makes it very clear that the police should only be involved in returning a patient to ah hospital or registered provider if it's necessary. Instead, where possible code recommends that the police should only be asked to assist a suitably qualified and experience mental health professional in returning the patient to hospital, such as, for example, when the patient's location is unknown. Whether patients location is known. The code recommends that the role of the police should wherever possible, only be to assist the suitably qualified on experience mental health professional on DSO very much taking a back seat in any processes or procedures that take place. Of course, it also needs to be remembered that if a missing patient is located, then the police can't force entry to the premises where there's no consent to enter them on. Therefore, it is necessary to build in procedures so that AH warrants may be required and applied for under Section 135 subsection two off the MH A. The code also provides guidance as to when the police should be informed and the circumstances where that will be appropriate. On the code advises that the police should always be informed if a missing patient is considered to be particularly vulnerable or considered to be dangerous and or involved in any criminal proceedings. The police should also be involved where it's restricted patient, a section 41 patient and also in cases where the police is help is not required. But the patient's history makes it a least desirable to inform the police that that patient is a well within their area. So what is a Section 135 warrants? Well, it's a warrants for removal to a place of safety. Andi would need to be considered where an AWOL patient has bean located, but there's no consent to actually enter those premises. And Section 13 family allows unapproved mental health professional or an A m Hey HP to apply on both within their jurisdiction for a warrant to enable a police constable to enter any premises specified in the warrants and use force where necessary. And either remove a person who they have reasonable cause to suspect is suffering from a mental disorder to a place of safety with a view to making an application in respect of that person under Part two off the MH A or other arrangements for their treatment or care or alternatively, following changes made by the Policing and Crime Act 2017 or the PC A. Keep that person at the premises specified in the warrants if it's already a place of safety. The grounds for obtaining the warrens are that's the person has or is being ill treated, neglected or kept otherwise, and under proper control in any place within the justices jurisdiction or is unable to care for themselves or is living alone in any such place on a Section 135 subsection One warrant provides entry and a lawful act to do something which would otherwise be a trespass on the warrant is executed once a constable has achieved entry to the premises, either by invitation or by force on the constable should be accompanied by on approved mental health professional and by registered medical practitioner and Section 13 Fund of Subsection two provides for similar warrants to be applied for by a police constable or other authorised person on issued to enable the retaking off a patient who's already detained under the Mental Health Act or subject to recall under a community treatment order on the grounds, there is reasonable cause to believe that the patient is to be found on the premises within the jurisdiction off. The justice on that admission to the premises has Bean refused or that refusal of such admission is apprehended on under Section 135 subsection to the constable may be accompanied by a registered medical practitioner and any person authorized by legislation to take or retake a patient. So that may include, for example, the A M HP, or unauthorized member off the staff at Sea Hospital. So again, it enables entry to any premises specified in the warrens and to use force where necessary. Onda under section 135 that person can be removed from one place. Safety to another. Guidance, which is currently available to police officers, stresses that a warns under Section 135 gives the power of entry to the police but does not require them to force entry to the premises. Convey the service user. It's a hospital if the service user is cooperating on. Instead, they're advised to use their judgment on discretion, depending on the circumstances. Bearing in mind that, of course, that they are responsible for not only the execution off the warrants but for ensuring that any identified risks to themselves, the patient or anybody else involved is minimized. And, of course, the numbers off police presence on how closely it's all controlled will vary according to the level off that assessed risk on there is another power which can be used by the police. On that is Section 136 off the MH A on Section 136 can be used by a constable. If the constable finds a person who appears to him to be suffering from a mental disorder and to be in immediate need of care or control in a public place, then the constable may, if they think it necessary to do so in the interests off that person or for the protection off others remove the person to a place off. Safety on this may be particularly useful if, for example, a constable finds someone who he believes is mentally disordered, but he may not actually be even aware that they are on a well. Patients and changes made by the PC a extend the power now beyond just a removal to include keeping someone at a place of safety in the now section 136 as amended, states that if a person appears to a constable to be suffering from mental disorder on to be in immediate need of care, or control than that Constable may, if they think it necessary to do so in the interests of that person. Off the protection off other persons remove the person to a place of safety within the meaning of Section 135 Or if the person is already at a place of safety within the meaning of that section, then keep the person at that place or remove them to another place of safety. Onda. We know that the power is exercised. If the person who appears to be suffering from mental disorder is in a public place, well, that is now being broadened by the PC A. So it's effectively anywhere other than a home which is solely used by the person on public place could even include and he shared access or communal areas such as gardens. Section 13 a toothy NHK provides the police with the power to detain or recover. Someone who's absented themselves from lawful custody on could be used in the following circumstances. To recover someone who's absconded from a Section 135 or section 136 on return them to a place of safety. However, this power is limited in that it last 72 hours after a person went missing or after arrival at the place of safety, whichever is sooner or, alternatively, it confused to detain someone who is liable to be detained on who has absconded. And there may be additional powers available to the police where we have patients who are a well on. Those patients are involved in criminal proceedings. So during, for example, the course of criminal proceedings on the section 35 of the MH A, the accused a person could be remanded to hospital for assessment. Onda under section 35 subsection 10. An accused person could be arrested without warrant by the police if they abscond from the hospital to which they've bean remanded, all whilst being conveyed to or from that hospital Onda soon as practicable. After the arrest, the defendant or accused should be brought before the court. Andi, that should be the court that remanded them. At that point, the court contaminate the remand on decide to deal with the patient in a different way. So can the patient be searched well, where any person has been arrested at a place other than the police station on the police officer has reasonable grounds for believing that the arrested person may present a danger to themselves or others than they can search the arrested person for anything which that person could use to a system in escaping lawful custody or which might be evidence relating to AH, crime of the purposes off discovering any relevant items. The police officer can't ask the person in those circumstances to remove any of their clothing in public other than the outer coat, jacket or gloves. But they are able to search a person's mouth, however, where you have a potentially mentally disordered patient. ONDA warrants being issued under Section 135 or a person is to be kept a removed under Section 136 as amended by the PC A than the PC A. Now also ABS in Section 136 c to enable protective searches to be carried out and section 136 see as added means that the Constable concert etched the person. If they have reasonable grounds for believing that person may present a danger to themselves or others, Andi is concealing on his or her person on item that could be used to cause physical injury to themselves or to others on the power could be exercised under section 135 subsection one at any time during the period, beginning with the time when a constable enters the premises specified in the warrant on ending when the person ceases to be detained under that section or under Section 135 subsection two a. Well patients at any time whilst the person is being removed under the authority off the warrant or under section 136 at any time whilst the person is being detained. The search doesn't authorize a constable to require a person to remove any of his or her clothing other than the outer coat, jacket or gloves. It again does authorize this search of a person's mouth on Does allow for anything which is found to be seized on. Retained if the police officer has reasonable grounds for believing that the person searched might use it to course physical injury to themselves or others. One issue that has in the past being very controversial is the transporting off a wall. Patients on the previously have bean situations where there has been almost a passing between the police on the hospital off the responsibility on, of course, with it not being entirely appropriate that a patient who is mentally disordered should be returned using police transport. So we now have a situation where the mental health code off practice or the code makes it really plain that when a patient is being returned to the hospital, the hospital itself, or where appropriately registered provider is responsible for the necessary transport arrangements, making it very plain that police transport is most unlikely to be suitable in thes circumstances. And that brings us to the end of this session on Thank you for joining me, Steph Barber.
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