A short post, to address a question that has come to me a number of times over the years and when it recently re-emerged I ended up double-checking this was covered on the BLOG, but found I hadn’t done a specific post on it. Such references as there were seemed a little buried within other posts could be hard be hard to find, as such, the question for us to clear up here is whether a patient who is ‘absent without leave’ (AWOL) from detention in hospital under the Mental Health Act 1983 (MHA) is considered ‘unlawfully at large’ for the purposes of the police forcing entry to private premises.
A couple of points of background before I explain why the answer is “Yes – they are unlawfully at large” —
A police officer is permitted in law to force entry to a premises in a number of legal circumstances, for example, in order to arrest someone for an indictable (ie, serious) offence. If you’re a suspect for grievous bodily harm and we think you’re in your house, officers can force entry under s17 of the Police and Criminal Evidence Act 1984 (PACE) if necessary in order to arrest you for that offence and investigate – but s17 PACE covers a number of other situations as well, including entry to (more-or-less literally) “save life and limb” and entry to redetain someone who is ‘unlawfully at large’, but this is subject to the caveat the officers must be in immediate pursuit of that person.
Most usually, you are unlawfully at large if you have escaped from someone form of criminal justice custody – indeed, the down repealed Criminal Justice Act 1948 originally contained a definition of ‘unlawfully at large’ which made it very questionable whehter or not AWOL under the MHA would be covered. That definition was repealed in 1952 and of course, much has changed about mental health care since the Fifties. Perhaps unlawfully at large is most usually a situation where someone has run off from a court during trial, escaped from prison or fled from police officers who had arrested them – what if the detention was under the MHA, in hospital?
Well, this very question was once examined in the stated case of DPP v D’Souza (1992). If you check the link just provided and scroll to the comments of Lord Lowry, you’ll find him providing the leading judgment in this ruling and he confirms the answer is “Yes”, for reasons you can read in the judgment itself, if you’re interested in the detail and the reasoning. Until a higher court takes a different view, this is the law and AWOL = unlawfully at large.
It follows from this: if a police officer is asked to locate and return an AWOL patient who has either left a hospital without permission or failed to return from authorised leave, they can force entry to any premises where they think that patient is in order to detain them if and only if the officer is in immediate pursuit of that patient. The D’Souza ruling holds this should not be anything that is pre-planned but may include entry within “seconds or a few minutes “ of the person entering. Of course, police officers have a power to re-detain someone who is AWOL (under s18 MHA) but there is no power of entry to allow for that action. Section 17 being limited to immediate pursuit, entry on a pre-planned basis would require a warrant under s135(2) MHA.
Yes – someone who is AWOL is unlawfully at large.
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 OBE, 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