mental health (care and treatment) (scotland) act 2003 code of practice volume 2 ?civil compulsory powers (parts 5, 6, 7 and 20)

chapter 8 absconding (part 20)

Introduction

This chapter deals with the provisions laid out in Part 20 of the Act which relate to patients who abscond while subject to certain compulsory powers under the Act. (Under the Mental Health (Scotland) Act 1984, absconding was often referred to as "absence without leave". Under the Act, absconding is also sometimes referred to as "a period of unauthorised absence".) The specific compulsory powers referred to in this chapter are set out in the table after paragraph 2. Broadly speaking, however, these powers are emergency and short-term detention certificates and compulsory treatment orders. For information on the provisions of the Act which relate to absconding mentally disordered offenders, please see Chapter 6 part 1 of Volume 3, of the Code of Practice.

This chapter describes, firstly, which patients can be made subject to the Act's absconding provisions before describing, and secondly, the procedures to be followed once a patient has absconded. The chapter then moves on to a discussion of the effect of a period of unauthorised absence on the expiry date of certain detention certificates and orders. Finally, the issue of patients who abscond from other jurisdictions is considered.

Overview of absconding provisions

01 The provisions of section 303 of the Act or paragraphs 10 to 14 of this chapter set out the procedures to be followed when certain patients abscond. The categories of patients who may be made subject to these provisions are set out in sections 301 and 302 of the Act and in the table after paragraph 2 of this chapter. The remainder of the chapter focuses on the statutory procedures which must be followed under the Act subsequent to a patient absconding.

Which categories of patients can be said to have absconded

02 These categories are set out in sections 301 and 302 of the Act. Section 301 sets out the various categories of patients who are subject to a CTO while section 302 describes the other categories of patients. The table overleaf describes the circumstances in which a patient can be said to have absconded when subject to certain compulsory powers. In any case where the patient has absconded, the patient is liable to be taken into custody and dealt with in accordance with the provisions of section 303.

Compulsory measure to which a patient is subject	When can a patient be said to have absconded while subject to that compulsory measure and when can the provisions of section 303 be invoked?
Emergency detention certificate	If the patient absconds from any place where he/she is being kept pending removal to hospital under the certificate. If the patient absconds from the hospital in which he/she is detained under that certificate.
Emergency detention certificate in respect of which a suspension certificate has been granted under section 41(1)	If a condition has been added to that suspension certificate that the patient be kept in the charge of an authorised person or that the patient reside at a specified place either continuously, for or at specified times.If the patient absconds from the charge of that authorised person or fails to comply with that residence condition, then he/she has absconded; or If a condition has been added to the suspension certificate requiring the patient on being recalled or on the expiry of the period specified in the certificate to return to the hospital in which the patient was detained or to go to another place and the patient fails to comply with that condition then he/she has absconded.
Short-term detention certificate	If the patient absconds from any place where he/she is being kept pending removal to hospital under the certificate. If the patient absconds from the hospital in which he/she is detained under that certificate.
Short-term detention certificate in respect of which a suspension certificate has been granted under section 53(1)	If a condition has been added to that suspension certificate that the patient be kept in the charge of an authorised person or that the patient reside at a specified place either continuously, for or at specified times.If the patient absconds from the charge of that authorised person or fails to comply with that condition, they wil be considered to have absconded. If a condition has been added to the suspension certificate requiring the patient on being recalled or on the expiry of the period specified in the certificate to return to the hospital in which the patient was detained or to go to another place and the patient fails to comply with that condition then he/she has absconded.
Extension certificate	If the patient absconds from any place where he/she is being kept pending removal to hospital under the certificate. If the patient absconds from the hospital in which he/she is detained under that certificate.
Section 68 ( i.e. the 5 working days' period of detention subsequent to a CTO application being made)	If the patient absconds from any place where he/she is being kept pending removal to hospital under the provision. If the patient absconds from the hospital in which he/she is detained under that provision.
Compulsory treatment order or interim compulsory treatment order authorising treatment in hospital	If the patient absconds from that hospital. If the patient absconds from any place where he/she is being kept pending removal to hospital.
Compulsory treatment order authorising treatment in hospital	If the patient absconds while being removed to hospital or while being transferred to another hospital in Scotland under section 124 of the Act.
Compulsory treatment order or an interim compulsory treatment order which authorises treatment in hospital but in respect of which a suspension certificate has been granted under section 127(1) or (3)	If a condition has been added to that suspension certificate that the patient be kept in the charge of an authorised person or that he/she resides at a specified place either continuously, for or at specified times.If the patient absconds from the charge of that authorised person or fails to comply with that residence condition, then he/she has absconded. If a condition has been added to this suspension certificate that the patient must return to the hospital specified in the CTO or must go to some other specified place upon being recalled or upon the expiry of a specified period or upon or after the occurrence of a specified event.If that patient fails to comply with such a condition, then the patient has absconded.
Compulsory treatment order or interim compulsory treatment order which specifies a "residence requirement" by way of section 66(1)(e)	If the patient fails to comply with that residence requirement.
Compulsory treatment order which specifies the requirement to obtain the MHO's approval to any proposed change of address by way of section 66(1)(g)	If the patient fails to comply with that requirement.
Detention under section 113(5) of the Act ( i.e. the period of 72 hour detention which immediately follows non-compliance with a community-based CTO or interim CTO)	If the patient absconds from any place where he/she is being kept pending removal to hospital under that provision. If the patient absconds from the hospital in which he/she is detained under that provision.
A certificate issued under sections 114(2) or 115(2) of the Act ( i.e. a certificate which authorises the patient's detention in hospital if the patient has not complied with certain of the compulsory measures specified in a community-based CTO or community-based interim CTO)	If the patient absconds from any place where he/she is being kept pending removal to hospital under that certificate. If the patient absconds from the hospital in which he/she is detained under that certificate.
Section 299 of the Act ( i.e. where a patient is detained in hospital as a result of a nurse's holding power)	If the patient absconds from any place where he/she is being kept pending removal to hospital under this power. If the patient absconds from the hospital in which he/she is detained under this power.

What should happen once a patient has absconded?

03 Where a patient has absconded, sections 301 and 302 of the Act state that the patient is liable to be taken into custody and dealt with in accordance with the provisions of section 303. The provisions of that section are described in paragraphs 10 to 14 below.

04 It would be expected that the decision as to whether the patient is liable to be taken into custody is recorded within the patient's medical notes with respect to issues such as who took the decision; who was consulted before the decision was taken; and on what evidence the decision was taken. Indeed, it would be best practice for the patient's multi-disciplinary team to be the forum in which such a decision would be taken.

05 This transparency around the decision-making process will be particularly important where the patient was subject to community-based measures when he/she was deemed to have been liable to be taken into custody. In such cases, the patient should be afforded as full an opportunity as possible to explain why, in terms of section 301(3) for example, he/she has not complied with the requirement to reside at a specified place before the decision is taken that he/she is liable to be taken into custody. It will also be important in such circumstances to have regard to the principles and other matters set out in sections 1 to 3 of the Act, particularly the principle stated at section 1(4) with respect to discharging functions under the Act in a manner "that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances."

What is the difference between the absconding provisions in Part 20 and the provisions on breaching a community-based CTO in Part 7 Chapter 5?

06 It may appear that there is some overlap between the provisions of the Act which relate to a patient's non-compliance with a community-based CTO or interim CTO (as set out in Part 7 Chapter 5 of the Act or Chapter 6 of this Volume of the Code of Practice) and the provisions of the Act relating to patients who abscond while subject to a community-based CTO or interim CTO. For example, where a patient fails to comply with a "residency requirement" specified in an order (that is, the requirement at section 66(1)(e)), it would be possible to invoke either the provisions of Part 7 Chapter 5 or the absconding provisions of Part 20 with respect to the patient's non-compliance.

07 In deciding which set of provisions is most appropriate to invoke with respect to this non-compliance, it is important to bear in mind the powers which the provisions confer and the range of parties on whom they are conferred. For example, if the provisions of Part 7 Chapter 5 were to be invoked with respect to a patient who does not comply with a residency requirement, the patient's RMO would have the power to take the patient into custody by way of section 113(4) and to detain him/her for up to 72 hours with a view to carrying out a medical examination. It is likely that this power would be exercised where the detention of the patient in hospital on a longer-term basis by way of sections 114(2) or 115(2) was being considered. If, under the same circumstances, the provisions of Part 20 were to be invoked, then a range of parties (including the patient's MHO, a police constable, and any other person authorised by the RMO) could take the patient into custody and return him/her to the address from which he/she has absconded.

08 Given the differences between the powers conferred by the provisions of Part 7 Chapter 5 and Part 20, the following factors may well need to be taken into account when deciding which set of provisions should be invoked. Firstly, which party is making the decision? This is because only the patient's RMO is empowered to take the patient into custody or to authorise another person to take the patient into custody under the provisions of Part 7 Chapter 5 whereas a wider range of parties are empowered to take the person into custody under Part 20. Secondly, the powers under Part 20 are time-limited in as much as the patient may not be taken into custody if he/she has absconded ( i.e. breached the residency requirement in this example) for a period of greater than 3 months. The provisions of Part 7 Chapter 5 are not time-limited. Thirdly, taking a patient into custody under the powers granted by Part 7 Chapter 5 allows the further detention of the patient in hospital for up to 72 hours and is likely to be done with a view to applying additional detention powers under sections 114(2) or 115(2) of the Act and with a view to considering whether the patient's CTO needs to be varied to specify detention in hospital rather than community-based compulsory measures. The purpose of taking a patient into custody under the powers granted by Part 20 is principally to return the patient to the place from which they absconded rather than to pursue further actions. Although much will depend on the individual circumstances of the patient, it may be more appropriate to invoke the powers under Part 20 where the person exercising that power believes that the patient's non-compliance with the residency requirement is only a "temporary blip" and that the measures authorised in the patient's CTO do not need to be varied.

09 In deciding which set of powers to invoke, it is vital that the relevant parties have regard for the principle set out at section 1(4) of the Act: that is, the principle that the patient should be treated in a manner which invokes the minimum restriction on his/her freedom that is necessary in the circumstances. Furthermore, as much consultation as is practicable under the circumstances should take place between the relevant members of the patient's multi-disciplinary team and the patient's carers and/or relevant relatives before any decision is made as to which set of powers to invoke.

Which actions can be taken subsequent to a patient absconding?

10 Section 303 of the Act sets out the procedures to be followed once a patient has absconded. In terms of subsection (1) of that section, the following actions may be taken:

• the absconding patient can be taken into custody;

• the absconding patient can be returned or taken to the hospital in which he/she was detained or was to be detained. If this is not appropriate or practicable, the patient may alternatively be taken to any other place which is considered appropriate by the patient's RMO;

• the absconding patient may be returned to or taken to any other place which he/she absconded from or where he/she failed to reside. If this is not appropriate or practicable, the patient may alternatively be taken to any other place which is considered appropriate by the patient's RMO.

11 The persons who are allowed to carry out the actions described in section 303(1) of the Act or paragraph 10 above are set out in section 303(3). They are:

• a mental health officer;

• a police constable;

• a member of staff of any hospital;

• a member of staff of the establishment where the patient is required to reside as a result of a residence requirement being specified in a CTO; and

• any other person who has been authorised to carry out any of the above actions by the patient's RMO.

12 With respect to the final bullet-point in the previous paragraph, it would always be expected that this power would only be authorised by an appropriately trained and qualified individual.

13 In a situation where a patient is subject to a suspension certificate granted under sections 41(1), 53(1) or 127(1) of the Act, and where a condition has been attached to that suspension certificate to the effect that the patient is to be kept in the charge of an authorised person, then that authorised person can carry out certain actions separately from those described in paragraph 11 above. Those actions are:

• to take the patient into custody; and

• to resume the charge of the patient. If this is not appropriate or practicable, he/she may take the patient to any place considered appropriate by the patient's RMO.

14 Subsection (6) of section 303 allows the use of reasonable force where the actions described at subsections (1) and (2) of that section or paragraphs 10 and 13 above are being carried out. Reasonable force should only be used as a last resort where all other appropriate approaches not involving force have been exhausted. It will be important for practitioners to have regard to the principle set out at section 1(4) of the Act with respect to discharging functions under the Act in a manner which "involves the minimum restriction on the freedom of the patient that is necessary in the circumstances".

Inclusion of absconding provisions with Psychiatric Emergency Plans

15 It would be best practice for local agencies to include within their Psychiatric Emergency Plan (" PEP") contingency plans on the use of reasonable force with respect to absconding patients. The issues relating to absconding to be agreed upon in a PEP could include:

• the parties best placed within any specific locality to exercise reasonable force;

• the use of physical restraint, including handcuffs, batons or even firearms, depending on the level of threat offered by the patient (it would be expected that agreement would be reached on such matters taking into account guidelines published by relevant organisations such as the Mental Welfare Commission, the General Medical Council or the Royal College of Nursing, among others);

• the extent of the involvement of the police in any case of absconding; and

• suitable places where a patient may be taken into custody, where it is not immediately possible or appropriate to return the patient to hospital.

16 The timescales within which any of the actions described at section 303(1) and (2) and paragraphs 10 and 13 above can be carried out are laid out in subsection (4) of that section. These timescales are:

• if the patient is subject to a CTO, those actions can be carried out within 3 months of the day on which the patient absconded or within
  3 months of the patient becoming liable to be taken into custody; and

• if the patient is subject to any other order, certificate or provision, those actions can be carried out at any point before the expiry of that order, certificate or provision.

How does a period of unauthorised absence affect the expiry date of a certificate, order or provision to which a patient is subject?

17 The patient's unauthorised absence does not affect the expiry date of any certificate, order or provision of the Act to which the patient was subject when the unauthorised absence began. However, there are some exceptions to this rule which are set out in sections 304(3) and 305 to 308 of the Act and in paragraphs 18 to 22 below.

18 Section 304(3) of the Act provides that if a patient's unauthorised absence lasts for more than 3 months, then the CTO to which he/she was subject ceases to have effect.

19 Section 305 of the Act provides for a scenario in which the period of unauthorised absence of a patient who is subject to a CTO lasts for more than 28 consecutive days but finishes at least 14 days before the expiry date of the CTO. In such circumstances, the CTO ceases to have effect 14 days after the patient's period of unauthorised absence ends. During this 14 day period after the period of unauthorised absence has ended, the patient's RMO must carry out a mandatory review of the CTO in terms of section 305(2) of the Act. Such a review must be carried out in accordance with the provisions of section 77(3) of the Act.

20 Section 306 of the Act provides for a scenario in which the period of unauthorised absence of a patient subject to a CTO finishes either on the day on which the CTO was due to expire or within 14 days prior to the day on which the CTO was due to expire. In such circumstances, the CTO continues for 14 days from the point at which the patient's period of unauthorised absence ended. During this 14 day period after the end of the period of unauthorised absence, the patient's RMO must carry out a mandatory review of the CTO in terms of section 306(2) of the Act. Such a review must be carried out in accordance with the provisions of section 77(3) of the Act.

21 Section 307 of the Act provides for a scenario in which the period of unauthorised absence of a patient subject to a CTO lasts for less than 3 months but finishes after the day on which the CTO was due to expire. In such circumstances, the CTO shall be treated as having continuing effect even after its expiry date and shall continue to have effect for a period of 14 days from the point where the patient's unauthorised absence ended. During this 14 day period after the end of the period of unauthorised absence, the patient's RMO must carry out a mandatory review of the CTO in terms of section 306(2) of the Act. Such a review must be carried out in accordance with the provisions of section 77(3) of the Act. (For further information on such a review see Chapter 7 of Volume 1 of the Code of Practice.)

22 Section 308 of the Act provides for a scenario in which the period of unauthorised absence of a patient subject to a short-term detention certificate or a certificate granted under section 114(2) or 115(2) ends within 13 days of the date on which the certificate was due to expire. In such circumstances, the certificate continues to authorise the measures specified in it for a period of 14 days beginning with the day on which the patient's period of unauthorised absence ended.