Law and Science
The Mental Health Acts 1983 and 2007 and the offender-patient who absconds from hospital
Medicine, Science and the Law 0(0) 1–6 ! The Author(s) 2017 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0025802417723807 journals.sagepub.com/home/msl
Benjamin Andoh
Abstract Absconding from mental hospitals is a topic worth investigating because absconding usually has a variety of adverse consequences, not only for the absconders but also for the public and so forth. From a medical perspective, there have been several studies of absconding by mental patients and the harm they cause to themselves and others while they are at large. However, there is a paucity of such studies from a purely legal perspective. This study aims to contribute to the literature from a legal perspective by focusing on the offender-patient who absconds from hospital. It is argued, inter alia, that given the various ramifications of absconding from hospital, it is unsatisfactory that some offender-patients (specifically those on a hospital order without restrictions; s37 of the Mental Health Act 1983) could only be retaken within 28 days when they abscond from hospital, whereas non-offender patients in hospital under s3 of the same Act could be retaken within six months at least. Recommendations for reform of the law are duly tendered. Keywords Mental Health Acts, hospital orders, offender-patient who absconds from hospital, when to retake absconder
Introduction Absconding from mental hospitals is a topic worth investigating because of its consequences. First, absconding interrupts the treatment of the absconder so that their mental state is likely to get worse. Second, it may affect negatively the family of the absconder as well as members of the public. Some absconders subject their family members to acts of violence. Those family members may also worry about the absconder. Members of the public, especially those living near the absconder’s hospital, may live in fear where the absconder is a known offender. Some absconders also commit offences while at large. Third, the absconder’s hospital is affected in that it may have to bear the cost of its staff returning the absconder to the hospital, and other patients in the absconder’s ward may emulate the absconder’s behaviour. In addition, absconding imposes a demand on the time and resources (e.g. in terms of manpower) of the police because they usually go to retake absconders and return them to hospital. From a medical perspective, there have been several studies of absconding by mental patients and the harm they cause to themselves and others whilst at large.1–5 However, there is a paucity of such studies from a purely legal perspective. This study aims to contribute to the literature by focusing on the offender-patient
who absconds from hospital. Mental patients in hospital today are either voluntary (i.e. informal) patients or involuntary patients. Involuntary patients are either non-offenders or offenders (‘offender-patents’, i.e. patients involved in criminal proceedings). The remainder of this paper is structured as follows. First, the definition of an absconder is explored. Then a description of the evolution of the law on retaking offenderpatients who abscond is given. This is followed by an exposition and critique of the present law before the paper concludes.
Operational definition of absconder In this paper, ‘absconder’ means a compulsorily detained mental patient who escapes from hospital or leaves the hospital without medical approval or authorisation. However, the expression ‘absent without leave’ in s18(6) of the Mental Health Act 1983
Law School, Southampton Solent University, UK Corresponding author: Benjamin Andoh, LLM, PhD (Lon), Barrister (of Gray’s Inn), Southampton Solent University, East Park Terrace, Southampton, SO14 0RG, UK. Email: [email protected]
2 (MHA 1983) refers to the compulsorily patient who has escaped from hospital, as well as such a patient who fails to return from a medically approved leave of absence. Therefore, while all absconders are ‘absent without leave’, as statutorily defined, not all patients ‘absent without leave’ are absconders.
Evolution of the authority to retake absconders There are two crucial aspects of the evolution of the law on retaking patients involved in criminal proceedings (‘offender-patients’) who abscond from hospital: the power to retake them and when they may be retaken. The law relating to the retaking of offenderpatients who abscond from hospital is similar to that relating to non-offenders. Ever since county asylums were first built under the County Asylums Act 1808 for the admission of non-offender patients as well as offender-patients, patients have been escaping from those facilities. The authority to retake those absconders has also existed since then. That authority was at first implied but later became express. In the case of non-offenders, it was implied because s23 of the County Asylums Act 1808 charged the asylums with the duty to keep lunatics safely and not let them be at large without a discharge order, and it made it an offence for any asylum staff to let a lunatic be at large without a discharge order. Further support for this may be found in s79 of the Lunatic Asylums Amendment Act 1853, which provided that if a patient was permitted to be absent on trial for a certain period but failed to return at the end of that period and his detention was not deemed by a medical certificate as unnecessary, he could be retaken within 14 days (after the end of the period of absence on trial) as if he had escaped from the asylum. Provision for the express authority to retake absconders who were non-offenders was made by ss55(8) and 85–88 of the Lunacy Act 1890. Section 55(8) concerned the retaking of lunatics who had failed to return from authorised leave. Just like s79 of the Lunatic Asylums Amendment Act 1853, it provided that if a lunatic who was on leave with permission failed to return at the end of the permitted period, he could be retaken within 14 days, as in the case of an escape by him. According to s85 of the Lunacy Act 1890, a lunatic who escaped from an institution for lunatics could be retaken within 14 days by the manager or any officer of the institution or any person authorised by them. (Section 86 authorised the retaking – by a Justice’s warrant – of a lunatic who had escaped from England into Scotland or Ireland; s87 authorised the retaking – by a Sheriff’s warrant – of a lunatic who had escaped from Scotland into England or Ireland; and s88 authorised the retaking – by a Justice’s warrant – of a lunatic who had escaped from Ireland into England or Scotland.) That express
Medicine, Science and the Law 0(0) authority to retake an escapee under the Lunacy Act 1890 was preserved, though with some variations, by the Mental Health Acts of 1959 (ss40, 45, 135(2) and 140) and 1983 (ss18, 21, 135(2) and 138) and by the Mental Health (Patients in the Community) Act 1995, s2(1). In the case of offender-patients (‘criminal lunatics’ as they were known before the Mental Treatment Act 1930), the authority to retake absconders was also implied under s23 of the County Asylums Act 1808, which allowed the confinement of criminal lunatics in county asylums. That state of affairs did not, however, last very long, because in 1860, s11 of the Criminal Lunatic Asylums Act (of that year) expressly provided for the authority to recapture escaped criminal lunatics. (It is important to note here that under s2 of the Criminal Lunatic Asylums Act 1860, the Secretary of State had power to direct a criminal lunatic to be confined in a county asylum. Broadmoor was built in 1861, under the Criminal Lunatic Asylums Act 1860.) Section 11 of the Act (of 1860) was preserved by s11(1) of the Criminal Lunatics Act 1884. The express authority was retained by the Mental Health Act 1959, the provisions of which covered the admission into mental hospitals of non-offender patients, as well as patients involved in criminal proceedings or under sentence. (The Criminal Lunatic Asylums Act 1860 and the Criminal Lunatics Act 1884 were both repealed by the Mental Health Act 1959.) Today, for offender-patients, that authority is contained in the MHA 1983, as amended by the Mental Health Act 2007, and in the Mental Health (Patients in the Community) Act 1995, as will be considered below.
The present law Before looking at those specific provisions of the Acts of 1983 and 1995, some important preliminary matters need to be considered, because they will enhance our understanding of the provisions concerned. The first is whether the authority to retake absconders is better described as a ‘power’ rather than a ‘right’, and the second concerns the various types of offenderpatients that there are. Jurists have over the years noted the multiple meaning of the term ‘right’. Austin at least distinguished legal right from ‘moral right’ and ‘divine right’. Salmond made a distinction between ‘right’ and ‘power’ (as did the German jurists Windscheid and Bierling) as well as between ‘liberties’ and ‘rights strictu sensu’.6–9 Hohfeld too pointed out that the word ‘right’ generally referred to four things: ‘right’ (‘claim’), ‘privilege’, ‘power’ and ‘immunity’. According to him, ‘right’ was often used so indiscriminately that it led to confusion and ambiguity. It was therefore more desirable to be precise when using it.10 His critics have well noted the limitations of his
Andoh conceptions.8,11,12 However, his analysis has actually been described as of ‘undoubted value’ and as still ‘a starting-point for much contemporary rights analysis’ which ‘has been found useful by moral. . . as well as jurists’ (Lloyd and Freeman, 1985: 443–445).13 In addition, Pound also noted the various meanings of the term. In his 4th volume on jurisprudence, he says inter alia, ‘There is no more ambiguous word in legal and juristic literature than the word right’ (Pound, 1959: 56 et seq.).14 Therefore, in the expression ‘the right to retake an absconder’, the word ‘right’ is ambiguous. What it means precisely in that context, in the authors’ opinion, is power and not privilege, claim or immunity. This is because right/claim, privilege, power and immunity all have clearly different meanings, if one is to be precise: . ‘right’/‘claim’ signifies the affirmative claim of one person against another; . ‘privilege’ is the freedom of one person from the right or claim of another (in other words, it denotes the absence of duty); . ‘power’ signifies a person’s ability by his acts to produce changes in the legal relations of another person, for example an owner’s power to transfer ownership of property from himself to another person; and . ‘immunity’ describes the legal position whereby a given legal relation vested in one person cannot be altered by the acts of another person; it denotes, in other words, exemption from legal power. Thus, the police, hospitals and approved social workers have power (not a duty) under s18 of the MHA 1983 to effect a change in the position of an absconder subject to compulsory detention in hospital (i.e. to end his de facto freedom from such detention) by taking him into custody and returning him to hospital. This view is supported by, for example, para. 76 of the DHSS Memorandum on Parts I to VI, VIII and X of the MHA 1983 (DHSS 1983), which states: ‘Section 18 provides powers for retaking patients who are absent without leave from hospital. . .’. Additional support for this is that where Parliament wishes to grant/confer a power to any person or body to do something, the statutory provision in question uses the permissive term ‘may’ (e.g. s138(1) of the MHA 1983 provides that ‘if a person who is in legal custody by virtue of section 137. . . escapes, he may. . . be retaken. . .’; another example is s18(1) of the MHA 1983). However, where a duty is imposed, the statutory provision uses the mandatory ‘shall’ (thus, s40(3)(b) of the MHA 1983 provides that if an interim hospital order is made in respect of an offender, ‘the managers of the hospital shall admit him. . . and thereafter detain him in accordance with the provisions of section 38. . .’). The second preliminary point to note is that there are different categories of mentally disordered
3 offenders (offender-patients). They may be admitted to mental hospitals via four main routes: (1) a hospital order, (2) transfer from prison, (3) remand to hospital for a report (s35 of the MHA 1983) or for treatment (s36 of the MHA 1983) or (4) subjection to an interim hospital order (s38 of the MHA 1983). The hospital order without restrictions (s37 of the MHA 1983) may be made by the Crown court or by a Magistrate’s court if a person is convicted of an offence, other than murder, that is punishable by imprisonment, or by a Magistrate’s court without recording of a conviction if that court is satisfied that the person did the act charged. It requires evidence to be given by two doctors that the offender is suffering from a mental disorder of a nature or degree that makes detention in hospital for medical treatment appropriate (s37(2)(a)(i) of the MHA 1983). In addition, appropriate medical treatment must be available for the offender (ss3(4), 145(1AA), of the MHA 1983). A hospital order may be made with restrictions on discharge and granting of leave of absence if (1) that is necessary to protect the public from ‘serious harm’ (having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large (s.41(1)), and (2) at least one of the doctors recommending the hospital order gives oral evidence before the court. Transfer from prison (ss47 and 49 of the MHA 1983) is ordered by the Home Secretary if satisfied by evidence from two doctors that the offender is suffering from mental disorder of a nature/degree making detention in hospital for treatment appropriate. Such a transfer, if made without restrictions, is the equivalent of a hospital order without restrictions or a hospital direction without restrictions under s46 of the Crime (Sentences) Act 1997. If made with restrictions (s49 of the MHA 1983), then it is like the hospital order with restrictions or a hospital direction with restrictions (a ‘limitation order’) under s46 of the Crime (Sentences) Act 1997. The duration of detention under s37 of the MHA 1983 is the same as that under s3 (i.e. six months), renewable for another six months and then annually. Detention under s41 is indefinite (discharge of the patient, etc., requiring the consent of the Home Secretary). Patients transferred from prison under s47 are in effect detainable in the same way as patients admitted under s37 or under s41, depending on whether any restrictions on them exist. The period of detention of patients admitted under ss35 and 36 is up to 28 days, renewable for another such period at a time but not exceeding 12 weeks in all (ss35(7) and 36(6) of the MHA 1983). On the other hand, patients admitted under s38 may be detained for a period of 12 weeks, renewable for further periods of up to 28 days at a time but not for more than 12 months in all (s49(1) of the Crime (Sentences) Act 1997, amending s38(5) of the MHA 1983).
4 The periods within which offender-patients in each category may be retaken if they abscond from hospital vary. Two statutes, the MHA 1983 and the Mental Health (Patients in the Community) Act 1995 (MHPICA 1995), provide for those periods, which may be stated as follows: i.
a patient subject to a hospital order without restrictions (s37 of the MHA 1983) or a hospital direction with the same effect (s46 of the Crime (Sentences) Act 1997) may be retaken within 28 days (s2(3)(b) of the MHPICA 1995); this time limit also applies to all the types of mental disorder; ii. a patient under a hospital order with restrictions (s41 of the MHA 1983) or a hospital direction having the same effect (s46 of the Crime (Sentences) Act 1997) may be retaken at any time at all if he absconds or goes absent without leave (s41(3)(d); Sch. 1 (Part II, para. 4) to the MHA 1983); iii. if a patient who has been remanded by the Court to hospital for a report or treatment or who is subject to an interim hospital order absconds from that hospital or while being conveyed to or from that hospital, he may be arrested by a constable and, as soon as practicable after his arrest, must be brought before the Court that remanded him or made the order (ss35(10), 36(8) and 38(7) of the MHA 1983). Therefore, patients on a hospital order without restrictions are the only offender-patients who, if they abscond from hospital, may be retaken within 28 days, according to s2(3)(b) of the 1995 Act. After the expiration of the 28 days, they can no longer be retaken – in other words, they become discharged by operation of law; they cannot be compelled to return, although if they return voluntarily, the hospital may admit or receive them, providing there is a bed available. It must be noted that discharge by operation of law is not a statutory rule or a rule of law, but rather a rule of practice. The arguments for it are mainly that it was historically a device against wrongful and long detention in hospital of a patient at the instance of relatives whose only desire was securing control of his property15; that it afforded a patient an opportunity to demonstrate that if he could manage to escape and survive outside for so long, then he was not so mad as to be in hospital; that it relieves hospitals of responsibility for at least some compulsory patients who may be troublesome16; and that it prevents the patient who absconds or goes absent without leave from being a ‘perpetual fugitive’.17 On the other hand, the rule has been said to be no longer necessary,17 to be anomalous and to be indefensible in the case of offender-patients.18
Medicine, Science and the Law 0(0)
Critique According to the law as it is, offender-patients in hospital under a restriction order (a hospital order with restrictions or a transfer order with restrictions), those on remand to hospital for a report or for treatment and those in hospital under an interim hospital order may be retaken at any time if they abscond – there is no statutorily imposed time limit on when they may be retaken. On the other hand, offender-patients on a mere hospital order (i.e. a hospital order without restrictions) may be retaken within 28 days. This position (regarding patients on a mere hospital order; s37 of the MHA 1983), it is submitted, is clearly unsatisfactory for two main reasons, both of which are related to the discharge by operation of law being applied to such patients. The first reason is that it runs counter to normal practice, and the second is that it is worrying and objectionable, given that absconding from hospital has harmful effects on the absconder, the public and so on.19 Among other things, it interrupts the treatment in hospital of the absconder, thereby resulting in a deterioration of their mental state – they are therefore very likely to do themselves harm, as happened in Lambert v West Sussex H.A. (The Times, 8 February 2000) and D v South Tyneside Health Care NHS Trust ([2004] PIQR P12); commit suicide (as in Savage v South Essex Partnership NHS Foundation Trust) ([2009] 1 AC 681); or commit offences against members of the public. For example, in Carradine’s case (The Times, 4th June 1997), an absconder stabbed a baby girl in a random attack in front of her mother in a shopping precinct. Furthermore, in Harkin’s case (The Independent, 10th September 2008), a male absconder, while still at large, raped a 14-year-old girl at knife point. Allowing s37 patients who abscond from hospital to get their freedom through the back door after staying at large for 28 days is actually strange because, for example, if a patient, liable to be detained in hospital for six months, absconds on the first day of his detention, he ought normally to be retaken within six months rather than only 28 days. It is true that offender-patients under a hospital order are in hospital for treatment instead of punishment. The hospital order is a diversionary measure, ‘an alternative to the sentencing of mentally disordered offenders to prison’,20 and so is not meant to be punitive.21 However, we must not forget that ‘it shares with imprisonment the consequence of depriving an individual of his or her liberty’.22 Yet, it seems unwise to allow them to interrupt their treatment, thereby making their mental condition worse, by absconding and becoming no more liable to be retaken after staying at large for just 28 days. That such patients are likely to reoffend cannot be denied.1,23 The second reason is also related to the concept and practice of discharge by operation of law. Under the present law, non-offender patients in hospital for
Andoh treatment pursuant to s3 of the MHA 1983 may be retaken, if they abscond from hospital, within six months or the period of time they are liable to be detained in hospital, whichever is the longer (according to s2(1) of the MHPICA 1995). Therefore, the minimum period within which they may be retaken is six months. Beyond that period, they become discharged by operation of law. The application of discharge by operation of law to these s3 patients (after at least six months of staying at large following their absconding) is objectionable and bad enough in the light of the deleterious consequences of absconding. That rule of practice is even more objectionable in the case of s37 patients who abscond from hospital because they are likely to reoffend.1 Indeed, way back in 1975, the Butler Committee15 suggested that in lieu of applying discharge by operation of law to s37 patients, the decision whether to retake such patients (in whose case the court did not impose restrictions on the hospital order, as they did not consider them necessary) should be left for the responsible clinician because ‘ordinarily it is the doctor who is best able to judge the prospective risk if the patient remains at large’ and ‘it is the doctor, too, who knows what further treatment can be provided’. This indirectly supports the author’s point that discharge by operation of law ought not to be applied to offender-patients under s37 of the MHA 1983. The decision of whether to discharge such patients should be left to their responsible clinician. It is important to note here that whereas formal discharge of a patient under s37 of the MHA 1983 by a responsible clinician engages s117 of the MHA 1983 (i.e. the duty to provide aftercare; see, e.g., Andoh19), discharge by operation of law does not. Also, the 28-day period for retaking s37 patients is too short, considering the ramifications of absconding from hospital,24 and ought to be increased to the same level as applies to s3 patients. This is because, after all, the two sections (ss3 and 37 of the MHA 1983) are similar in their duration and in the fact that patients under them are in hospital compulsorily and specifically for treatment.25
Conclusion From the foregoing, it can be seen that absconding from mental hospitals is worth studying, at least because of its negative ramifications. It affects the absconders themselves in terms of interrupting their treatment, thereby resulting in a deterioration of their mental condition. It affects the public, including the absconders’ families, by way of causing panic, reoffending and so on. Their hospital is also affected, and it causes a strain on police time and resources. Therefore, any measure that seeks to reduce these consequences in some way ought to be welcome. Broadly, as has been stated, there are two categories of involuntarily detained patients in hospital: those who have not committed any offence, and
5 those who are offenders (patients involved in criminal proceedings). The latter category (offenders) is comprised of patients (1) on a hospital order or transfer/similar order without restrictions, (2) on a hospital order or transfer/similar order with restrictions with restrictions, (3) on remand for a report, (4) on remand for treatment and (5) on an interim hospital order. It has also been pointed out that the right to retake patients who abscond from hospital was at first implied but became express later under statutory provisions. Moreover, the word ‘right’ in the expression ‘right to retake an absconder’ has been deemed ambiguous, so that the precise and better word to use is ‘power’. A perusal of the periods for retaking offenderpatients who abscond from hospital shows that those under a hospital order without restrictions (s37 of the MHA 1983) are the only type of offender-patients who may be retaken within a specific (limited) period of time, namely 28 days. That period existed under the MHA 1959 and was preserved by the MHA 1983. The crux of the matter is that if a s37 patient absconds from hospital and is not retaken within 28 days, they cannot be retaken subsequently, and so they become discharged by operation of law. The 28-day period is not enough and ought to be increased for reasons stated above. It beats the imagination (given that absconding from hospital can seriously affect the absconder, the public, including their family members, the police, etc., and that some offender-patients actually commit offences after absconding) that offender-patients on a hospital order without restrictions should be allowed to obtain their freedom from the hospital order, which is an order of a court of competent jurisdiction, through the back door by absconding and staying at large for 28 continuous days. The fact that the MHA 2007, the eventual product of the reviews of the MHA 1983 and MHPICA 1995, did not address this particular unsatisfactory issue relating to the retaking of s37 patients who abscond from hospital (despite the Butler Committee’s proposal back in 1975 on the matter15) may be described as a ‘missed opportunity’. Accordingly, it is recommended that (1) s2(1) of the MHPICA 1995 be amended to raise the period for retaking offenderpatients on a hospital order without restrictions, who abscond from hospital, from 28 days to six months or the period of time during which the patient is liable to be detained in hospital, whichever is the longer, and (2) discharge by operation of law should no longer be applicable to such s37 patients, where the decision of whether to discharge should be left to their responsible clinician. Declaration of conflicting interests The author declares that there is no conflict of interest.
6 Funding This project received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.
References 1. Brook R, Dolan M and Coorey P. Absconding of patients detained in an English Special Hospital. J Forensic Psychiatry 1999; 10: 46–58. 2. Dickens GL and Campbell J. Absconding of patients from an independent UK psychiatric hospital: a 3-year retrospective analysis of events and characteristics of absconders. Psychiatr Ment Health Nurs 2001; 8: 543–550. 3. Dolan M and Snowdon P. Escapes from a medium secure unit. J Forensic Psychiatry 1994; 5: 275–286. 4. Huws R and Shubsachs A. A study of absconding by special hospital patients – 1976–1988. J Forensic Psychiatry 1993; 4: 45–58. 5. Falkowski J, Watts V, Falkowski W, et al. Patients leaving hospital without the knowledge of permission of staff – absconding. Br J Psychiatry 1990; 156: 488–490. 6. Campbell R (ed.). Austin on jurisprudence. Vol. 1, 5th ed., revised. London: John Murray, 1885, pp.343–346. 7. Salmond JW. Jurisprudence. London: Stevens and Haynes, 1910, p.193. 8. Kocourek A. Jural relations. 2nd ed., ch.3. Indianapolis, IN: The Bobbs-Merrill Company Publishers, 1928. 9. Stone J. Legal system and lawyers’ reasonings. London: Stevens and Sons Ltd, 1964, pp.138–139. 10. Cook W.W. (ed.). Fundamental legal conceptions as applied in judicial reasoning, by Wesley Newcomb Hohfeld. New Haven, CT: Yale University Press, 1966. 11. Halpin AKW. Hohfeld’s conceptions: from eight to two. Camb Law J 1985; 44: 435–457. 12. Radin M. A restatement of Hohfeld. Harvard Law Rev 1938; 51: 1141–1164. 13. Freeman MDA. Lloyd’s Introduction to Jurisprudence. 5th ed., Stevens and Sons, 1985, pp.443–445. 14. Pound R. Jurisprudence. vol. 4. St Paul: Minnesota West Publishing Co., 1959, pp.39–187. 15. Report of the Committee on Mentally Abnormal Offenders (Chairman, Lord Butler). 1975, Cmnd. 6244, para. 14.15. 16. Walker N. Sentencing theory, law and practice. London: Butterworths, 1985, p.340. 17. Walker N and McCabe S. Crime and insanity in England. vol. II, Edinburgh: University Press, 1973, p.166.
Medicine, Science and the Law 0(0) 18. Report of the Committee on Mentally Abnormal Offenders (Chairman, Lord Butler). 1975, para. 14.13. 19. Andoh B. Consequences of absconding from mental hospitals. Mountbatten J Legal Stud 1998; 2: 70–92. 20. Kaul A and Whittaker M. The absconder and the hospital order. Psychiatr Bull 1990; 14: 154–156. 21. Department of Health and Social Security. Review of the Mental Health Act 1983, Cmnd. 7320. London: HMSO, 1978. 22. Potas I. Just desserts for the mad. Canberra, Australia: Australian Institute of Criminology, 1982. 23. Report of the Committee on Mentally Abnormal Offenders (Chairman, Lord Butler). 1975, p.190, note 3. 24. Andoh B. Consequences of absconding from mental hospitals. Mountbatten J Legal Stud 1998; 2: 70–92. 25. Andoh B. Sections 3 and 37 of the Mental Health Act 1983 – a comparison. Med Legal J 2016; 1: 36–38.
Cases Carradine’s case (The Times, 4 June 1997) D v South Tyneside Health Care NHS Trust ([2004] PIQR P12) Harkin’s case (The Independent, 10 September 2008) Lambert v West Sussex HA (The Times, 8 February 2000) Savage v South Essex Partnership NHS Foundation Trust) ([2009] 1 AC 681)
Statutes County Asylums Act 1808 Lunatic Asylums Amendment Act 1853 Criminal Lunatic Asylums Act 1860 Criminal Lunatics Act 1884 Lunacy Act 1890 Mental Treatment Act 1930 Mental Health Act 1959 Mental Health Act 1983 Mental Health (Patients in the Community) Act 1995 Crime (Sentences) Act 1997 Mental Health Act 2007
The Mental Health Acts 1983 and 2007 and the offender-patient who absconds from hospital
Medicine, Science and the Law 0(0) 1–6 ! The Author(s) 2017 Reprints and permissions: sagepub.co.uk/journalsPermissions.nav DOI: 10.1177/0025802417723807 journals.sagepub.com/home/msl
Benjamin Andoh
Abstract Absconding from mental hospitals is a topic worth investigating because absconding usually has a variety of adverse consequences, not only for the absconders but also for the public and so forth. From a medical perspective, there have been several studies of absconding by mental patients and the harm they cause to themselves and others while they are at large. However, there is a paucity of such studies from a purely legal perspective. This study aims to contribute to the literature from a legal perspective by focusing on the offender-patient who absconds from hospital. It is argued, inter alia, that given the various ramifications of absconding from hospital, it is unsatisfactory that some offender-patients (specifically those on a hospital order without restrictions; s37 of the Mental Health Act 1983) could only be retaken within 28 days when they abscond from hospital, whereas non-offender patients in hospital under s3 of the same Act could be retaken within six months at least. Recommendations for reform of the law are duly tendered. Keywords Mental Health Acts, hospital orders, offender-patient who absconds from hospital, when to retake absconder
Introduction Absconding from mental hospitals is a topic worth investigating because of its consequences. First, absconding interrupts the treatment of the absconder so that their mental state is likely to get worse. Second, it may affect negatively the family of the absconder as well as members of the public. Some absconders subject their family members to acts of violence. Those family members may also worry about the absconder. Members of the public, especially those living near the absconder’s hospital, may live in fear where the absconder is a known offender. Some absconders also commit offences while at large. Third, the absconder’s hospital is affected in that it may have to bear the cost of its staff returning the absconder to the hospital, and other patients in the absconder’s ward may emulate the absconder’s behaviour. In addition, absconding imposes a demand on the time and resources (e.g. in terms of manpower) of the police because they usually go to retake absconders and return them to hospital. From a medical perspective, there have been several studies of absconding by mental patients and the harm they cause to themselves and others whilst at large.1–5 However, there is a paucity of such studies from a purely legal perspective. This study aims to contribute to the literature by focusing on the offender-patient
who absconds from hospital. Mental patients in hospital today are either voluntary (i.e. informal) patients or involuntary patients. Involuntary patients are either non-offenders or offenders (‘offender-patents’, i.e. patients involved in criminal proceedings). The remainder of this paper is structured as follows. First, the definition of an absconder is explored. Then a description of the evolution of the law on retaking offenderpatients who abscond is given. This is followed by an exposition and critique of the present law before the paper concludes.
Operational definition of absconder In this paper, ‘absconder’ means a compulsorily detained mental patient who escapes from hospital or leaves the hospital without medical approval or authorisation. However, the expression ‘absent without leave’ in s18(6) of the Mental Health Act 1983
Law School, Southampton Solent University, UK Corresponding author: Benjamin Andoh, LLM, PhD (Lon), Barrister (of Gray’s Inn), Southampton Solent University, East Park Terrace, Southampton, SO14 0RG, UK. Email: [email protected]
2 (MHA 1983) refers to the compulsorily patient who has escaped from hospital, as well as such a patient who fails to return from a medically approved leave of absence. Therefore, while all absconders are ‘absent without leave’, as statutorily defined, not all patients ‘absent without leave’ are absconders.
Evolution of the authority to retake absconders There are two crucial aspects of the evolution of the law on retaking patients involved in criminal proceedings (‘offender-patients’) who abscond from hospital: the power to retake them and when they may be retaken. The law relating to the retaking of offenderpatients who abscond from hospital is similar to that relating to non-offenders. Ever since county asylums were first built under the County Asylums Act 1808 for the admission of non-offender patients as well as offender-patients, patients have been escaping from those facilities. The authority to retake those absconders has also existed since then. That authority was at first implied but later became express. In the case of non-offenders, it was implied because s23 of the County Asylums Act 1808 charged the asylums with the duty to keep lunatics safely and not let them be at large without a discharge order, and it made it an offence for any asylum staff to let a lunatic be at large without a discharge order. Further support for this may be found in s79 of the Lunatic Asylums Amendment Act 1853, which provided that if a patient was permitted to be absent on trial for a certain period but failed to return at the end of that period and his detention was not deemed by a medical certificate as unnecessary, he could be retaken within 14 days (after the end of the period of absence on trial) as if he had escaped from the asylum. Provision for the express authority to retake absconders who were non-offenders was made by ss55(8) and 85–88 of the Lunacy Act 1890. Section 55(8) concerned the retaking of lunatics who had failed to return from authorised leave. Just like s79 of the Lunatic Asylums Amendment Act 1853, it provided that if a lunatic who was on leave with permission failed to return at the end of the permitted period, he could be retaken within 14 days, as in the case of an escape by him. According to s85 of the Lunacy Act 1890, a lunatic who escaped from an institution for lunatics could be retaken within 14 days by the manager or any officer of the institution or any person authorised by them. (Section 86 authorised the retaking – by a Justice’s warrant – of a lunatic who had escaped from England into Scotland or Ireland; s87 authorised the retaking – by a Sheriff’s warrant – of a lunatic who had escaped from Scotland into England or Ireland; and s88 authorised the retaking – by a Justice’s warrant – of a lunatic who had escaped from Ireland into England or Scotland.) That express
Medicine, Science and the Law 0(0) authority to retake an escapee under the Lunacy Act 1890 was preserved, though with some variations, by the Mental Health Acts of 1959 (ss40, 45, 135(2) and 140) and 1983 (ss18, 21, 135(2) and 138) and by the Mental Health (Patients in the Community) Act 1995, s2(1). In the case of offender-patients (‘criminal lunatics’ as they were known before the Mental Treatment Act 1930), the authority to retake absconders was also implied under s23 of the County Asylums Act 1808, which allowed the confinement of criminal lunatics in county asylums. That state of affairs did not, however, last very long, because in 1860, s11 of the Criminal Lunatic Asylums Act (of that year) expressly provided for the authority to recapture escaped criminal lunatics. (It is important to note here that under s2 of the Criminal Lunatic Asylums Act 1860, the Secretary of State had power to direct a criminal lunatic to be confined in a county asylum. Broadmoor was built in 1861, under the Criminal Lunatic Asylums Act 1860.) Section 11 of the Act (of 1860) was preserved by s11(1) of the Criminal Lunatics Act 1884. The express authority was retained by the Mental Health Act 1959, the provisions of which covered the admission into mental hospitals of non-offender patients, as well as patients involved in criminal proceedings or under sentence. (The Criminal Lunatic Asylums Act 1860 and the Criminal Lunatics Act 1884 were both repealed by the Mental Health Act 1959.) Today, for offender-patients, that authority is contained in the MHA 1983, as amended by the Mental Health Act 2007, and in the Mental Health (Patients in the Community) Act 1995, as will be considered below.
The present law Before looking at those specific provisions of the Acts of 1983 and 1995, some important preliminary matters need to be considered, because they will enhance our understanding of the provisions concerned. The first is whether the authority to retake absconders is better described as a ‘power’ rather than a ‘right’, and the second concerns the various types of offenderpatients that there are. Jurists have over the years noted the multiple meaning of the term ‘right’. Austin at least distinguished legal right from ‘moral right’ and ‘divine right’. Salmond made a distinction between ‘right’ and ‘power’ (as did the German jurists Windscheid and Bierling) as well as between ‘liberties’ and ‘rights strictu sensu’.6–9 Hohfeld too pointed out that the word ‘right’ generally referred to four things: ‘right’ (‘claim’), ‘privilege’, ‘power’ and ‘immunity’. According to him, ‘right’ was often used so indiscriminately that it led to confusion and ambiguity. It was therefore more desirable to be precise when using it.10 His critics have well noted the limitations of his
Andoh conceptions.8,11,12 However, his analysis has actually been described as of ‘undoubted value’ and as still ‘a starting-point for much contemporary rights analysis’ which ‘has been found useful by moral. . . as well as jurists’ (Lloyd and Freeman, 1985: 443–445).13 In addition, Pound also noted the various meanings of the term. In his 4th volume on jurisprudence, he says inter alia, ‘There is no more ambiguous word in legal and juristic literature than the word right’ (Pound, 1959: 56 et seq.).14 Therefore, in the expression ‘the right to retake an absconder’, the word ‘right’ is ambiguous. What it means precisely in that context, in the authors’ opinion, is power and not privilege, claim or immunity. This is because right/claim, privilege, power and immunity all have clearly different meanings, if one is to be precise: . ‘right’/‘claim’ signifies the affirmative claim of one person against another; . ‘privilege’ is the freedom of one person from the right or claim of another (in other words, it denotes the absence of duty); . ‘power’ signifies a person’s ability by his acts to produce changes in the legal relations of another person, for example an owner’s power to transfer ownership of property from himself to another person; and . ‘immunity’ describes the legal position whereby a given legal relation vested in one person cannot be altered by the acts of another person; it denotes, in other words, exemption from legal power. Thus, the police, hospitals and approved social workers have power (not a duty) under s18 of the MHA 1983 to effect a change in the position of an absconder subject to compulsory detention in hospital (i.e. to end his de facto freedom from such detention) by taking him into custody and returning him to hospital. This view is supported by, for example, para. 76 of the DHSS Memorandum on Parts I to VI, VIII and X of the MHA 1983 (DHSS 1983), which states: ‘Section 18 provides powers for retaking patients who are absent without leave from hospital. . .’. Additional support for this is that where Parliament wishes to grant/confer a power to any person or body to do something, the statutory provision in question uses the permissive term ‘may’ (e.g. s138(1) of the MHA 1983 provides that ‘if a person who is in legal custody by virtue of section 137. . . escapes, he may. . . be retaken. . .’; another example is s18(1) of the MHA 1983). However, where a duty is imposed, the statutory provision uses the mandatory ‘shall’ (thus, s40(3)(b) of the MHA 1983 provides that if an interim hospital order is made in respect of an offender, ‘the managers of the hospital shall admit him. . . and thereafter detain him in accordance with the provisions of section 38. . .’). The second preliminary point to note is that there are different categories of mentally disordered
3 offenders (offender-patients). They may be admitted to mental hospitals via four main routes: (1) a hospital order, (2) transfer from prison, (3) remand to hospital for a report (s35 of the MHA 1983) or for treatment (s36 of the MHA 1983) or (4) subjection to an interim hospital order (s38 of the MHA 1983). The hospital order without restrictions (s37 of the MHA 1983) may be made by the Crown court or by a Magistrate’s court if a person is convicted of an offence, other than murder, that is punishable by imprisonment, or by a Magistrate’s court without recording of a conviction if that court is satisfied that the person did the act charged. It requires evidence to be given by two doctors that the offender is suffering from a mental disorder of a nature or degree that makes detention in hospital for medical treatment appropriate (s37(2)(a)(i) of the MHA 1983). In addition, appropriate medical treatment must be available for the offender (ss3(4), 145(1AA), of the MHA 1983). A hospital order may be made with restrictions on discharge and granting of leave of absence if (1) that is necessary to protect the public from ‘serious harm’ (having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large (s.41(1)), and (2) at least one of the doctors recommending the hospital order gives oral evidence before the court. Transfer from prison (ss47 and 49 of the MHA 1983) is ordered by the Home Secretary if satisfied by evidence from two doctors that the offender is suffering from mental disorder of a nature/degree making detention in hospital for treatment appropriate. Such a transfer, if made without restrictions, is the equivalent of a hospital order without restrictions or a hospital direction without restrictions under s46 of the Crime (Sentences) Act 1997. If made with restrictions (s49 of the MHA 1983), then it is like the hospital order with restrictions or a hospital direction with restrictions (a ‘limitation order’) under s46 of the Crime (Sentences) Act 1997. The duration of detention under s37 of the MHA 1983 is the same as that under s3 (i.e. six months), renewable for another six months and then annually. Detention under s41 is indefinite (discharge of the patient, etc., requiring the consent of the Home Secretary). Patients transferred from prison under s47 are in effect detainable in the same way as patients admitted under s37 or under s41, depending on whether any restrictions on them exist. The period of detention of patients admitted under ss35 and 36 is up to 28 days, renewable for another such period at a time but not exceeding 12 weeks in all (ss35(7) and 36(6) of the MHA 1983). On the other hand, patients admitted under s38 may be detained for a period of 12 weeks, renewable for further periods of up to 28 days at a time but not for more than 12 months in all (s49(1) of the Crime (Sentences) Act 1997, amending s38(5) of the MHA 1983).
4 The periods within which offender-patients in each category may be retaken if they abscond from hospital vary. Two statutes, the MHA 1983 and the Mental Health (Patients in the Community) Act 1995 (MHPICA 1995), provide for those periods, which may be stated as follows: i.
a patient subject to a hospital order without restrictions (s37 of the MHA 1983) or a hospital direction with the same effect (s46 of the Crime (Sentences) Act 1997) may be retaken within 28 days (s2(3)(b) of the MHPICA 1995); this time limit also applies to all the types of mental disorder; ii. a patient under a hospital order with restrictions (s41 of the MHA 1983) or a hospital direction having the same effect (s46 of the Crime (Sentences) Act 1997) may be retaken at any time at all if he absconds or goes absent without leave (s41(3)(d); Sch. 1 (Part II, para. 4) to the MHA 1983); iii. if a patient who has been remanded by the Court to hospital for a report or treatment or who is subject to an interim hospital order absconds from that hospital or while being conveyed to or from that hospital, he may be arrested by a constable and, as soon as practicable after his arrest, must be brought before the Court that remanded him or made the order (ss35(10), 36(8) and 38(7) of the MHA 1983). Therefore, patients on a hospital order without restrictions are the only offender-patients who, if they abscond from hospital, may be retaken within 28 days, according to s2(3)(b) of the 1995 Act. After the expiration of the 28 days, they can no longer be retaken – in other words, they become discharged by operation of law; they cannot be compelled to return, although if they return voluntarily, the hospital may admit or receive them, providing there is a bed available. It must be noted that discharge by operation of law is not a statutory rule or a rule of law, but rather a rule of practice. The arguments for it are mainly that it was historically a device against wrongful and long detention in hospital of a patient at the instance of relatives whose only desire was securing control of his property15; that it afforded a patient an opportunity to demonstrate that if he could manage to escape and survive outside for so long, then he was not so mad as to be in hospital; that it relieves hospitals of responsibility for at least some compulsory patients who may be troublesome16; and that it prevents the patient who absconds or goes absent without leave from being a ‘perpetual fugitive’.17 On the other hand, the rule has been said to be no longer necessary,17 to be anomalous and to be indefensible in the case of offender-patients.18
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Critique According to the law as it is, offender-patients in hospital under a restriction order (a hospital order with restrictions or a transfer order with restrictions), those on remand to hospital for a report or for treatment and those in hospital under an interim hospital order may be retaken at any time if they abscond – there is no statutorily imposed time limit on when they may be retaken. On the other hand, offender-patients on a mere hospital order (i.e. a hospital order without restrictions) may be retaken within 28 days. This position (regarding patients on a mere hospital order; s37 of the MHA 1983), it is submitted, is clearly unsatisfactory for two main reasons, both of which are related to the discharge by operation of law being applied to such patients. The first reason is that it runs counter to normal practice, and the second is that it is worrying and objectionable, given that absconding from hospital has harmful effects on the absconder, the public and so on.19 Among other things, it interrupts the treatment in hospital of the absconder, thereby resulting in a deterioration of their mental state – they are therefore very likely to do themselves harm, as happened in Lambert v West Sussex H.A. (The Times, 8 February 2000) and D v South Tyneside Health Care NHS Trust ([2004] PIQR P12); commit suicide (as in Savage v South Essex Partnership NHS Foundation Trust) ([2009] 1 AC 681); or commit offences against members of the public. For example, in Carradine’s case (The Times, 4th June 1997), an absconder stabbed a baby girl in a random attack in front of her mother in a shopping precinct. Furthermore, in Harkin’s case (The Independent, 10th September 2008), a male absconder, while still at large, raped a 14-year-old girl at knife point. Allowing s37 patients who abscond from hospital to get their freedom through the back door after staying at large for 28 days is actually strange because, for example, if a patient, liable to be detained in hospital for six months, absconds on the first day of his detention, he ought normally to be retaken within six months rather than only 28 days. It is true that offender-patients under a hospital order are in hospital for treatment instead of punishment. The hospital order is a diversionary measure, ‘an alternative to the sentencing of mentally disordered offenders to prison’,20 and so is not meant to be punitive.21 However, we must not forget that ‘it shares with imprisonment the consequence of depriving an individual of his or her liberty’.22 Yet, it seems unwise to allow them to interrupt their treatment, thereby making their mental condition worse, by absconding and becoming no more liable to be retaken after staying at large for just 28 days. That such patients are likely to reoffend cannot be denied.1,23 The second reason is also related to the concept and practice of discharge by operation of law. Under the present law, non-offender patients in hospital for
Andoh treatment pursuant to s3 of the MHA 1983 may be retaken, if they abscond from hospital, within six months or the period of time they are liable to be detained in hospital, whichever is the longer (according to s2(1) of the MHPICA 1995). Therefore, the minimum period within which they may be retaken is six months. Beyond that period, they become discharged by operation of law. The application of discharge by operation of law to these s3 patients (after at least six months of staying at large following their absconding) is objectionable and bad enough in the light of the deleterious consequences of absconding. That rule of practice is even more objectionable in the case of s37 patients who abscond from hospital because they are likely to reoffend.1 Indeed, way back in 1975, the Butler Committee15 suggested that in lieu of applying discharge by operation of law to s37 patients, the decision whether to retake such patients (in whose case the court did not impose restrictions on the hospital order, as they did not consider them necessary) should be left for the responsible clinician because ‘ordinarily it is the doctor who is best able to judge the prospective risk if the patient remains at large’ and ‘it is the doctor, too, who knows what further treatment can be provided’. This indirectly supports the author’s point that discharge by operation of law ought not to be applied to offender-patients under s37 of the MHA 1983. The decision of whether to discharge such patients should be left to their responsible clinician. It is important to note here that whereas formal discharge of a patient under s37 of the MHA 1983 by a responsible clinician engages s117 of the MHA 1983 (i.e. the duty to provide aftercare; see, e.g., Andoh19), discharge by operation of law does not. Also, the 28-day period for retaking s37 patients is too short, considering the ramifications of absconding from hospital,24 and ought to be increased to the same level as applies to s3 patients. This is because, after all, the two sections (ss3 and 37 of the MHA 1983) are similar in their duration and in the fact that patients under them are in hospital compulsorily and specifically for treatment.25
Conclusion From the foregoing, it can be seen that absconding from mental hospitals is worth studying, at least because of its negative ramifications. It affects the absconders themselves in terms of interrupting their treatment, thereby resulting in a deterioration of their mental condition. It affects the public, including the absconders’ families, by way of causing panic, reoffending and so on. Their hospital is also affected, and it causes a strain on police time and resources. Therefore, any measure that seeks to reduce these consequences in some way ought to be welcome. Broadly, as has been stated, there are two categories of involuntarily detained patients in hospital: those who have not committed any offence, and
5 those who are offenders (patients involved in criminal proceedings). The latter category (offenders) is comprised of patients (1) on a hospital order or transfer/similar order without restrictions, (2) on a hospital order or transfer/similar order with restrictions with restrictions, (3) on remand for a report, (4) on remand for treatment and (5) on an interim hospital order. It has also been pointed out that the right to retake patients who abscond from hospital was at first implied but became express later under statutory provisions. Moreover, the word ‘right’ in the expression ‘right to retake an absconder’ has been deemed ambiguous, so that the precise and better word to use is ‘power’. A perusal of the periods for retaking offenderpatients who abscond from hospital shows that those under a hospital order without restrictions (s37 of the MHA 1983) are the only type of offender-patients who may be retaken within a specific (limited) period of time, namely 28 days. That period existed under the MHA 1959 and was preserved by the MHA 1983. The crux of the matter is that if a s37 patient absconds from hospital and is not retaken within 28 days, they cannot be retaken subsequently, and so they become discharged by operation of law. The 28-day period is not enough and ought to be increased for reasons stated above. It beats the imagination (given that absconding from hospital can seriously affect the absconder, the public, including their family members, the police, etc., and that some offender-patients actually commit offences after absconding) that offender-patients on a hospital order without restrictions should be allowed to obtain their freedom from the hospital order, which is an order of a court of competent jurisdiction, through the back door by absconding and staying at large for 28 continuous days. The fact that the MHA 2007, the eventual product of the reviews of the MHA 1983 and MHPICA 1995, did not address this particular unsatisfactory issue relating to the retaking of s37 patients who abscond from hospital (despite the Butler Committee’s proposal back in 1975 on the matter15) may be described as a ‘missed opportunity’. Accordingly, it is recommended that (1) s2(1) of the MHPICA 1995 be amended to raise the period for retaking offenderpatients on a hospital order without restrictions, who abscond from hospital, from 28 days to six months or the period of time during which the patient is liable to be detained in hospital, whichever is the longer, and (2) discharge by operation of law should no longer be applicable to such s37 patients, where the decision of whether to discharge should be left to their responsible clinician. Declaration of conflicting interests The author declares that there is no conflict of interest.
6 Funding This project received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.
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Medicine, Science and the Law 0(0) 18. Report of the Committee on Mentally Abnormal Offenders (Chairman, Lord Butler). 1975, para. 14.13. 19. Andoh B. Consequences of absconding from mental hospitals. Mountbatten J Legal Stud 1998; 2: 70–92. 20. Kaul A and Whittaker M. The absconder and the hospital order. Psychiatr Bull 1990; 14: 154–156. 21. Department of Health and Social Security. Review of the Mental Health Act 1983, Cmnd. 7320. London: HMSO, 1978. 22. Potas I. Just desserts for the mad. Canberra, Australia: Australian Institute of Criminology, 1982. 23. Report of the Committee on Mentally Abnormal Offenders (Chairman, Lord Butler). 1975, p.190, note 3. 24. Andoh B. Consequences of absconding from mental hospitals. Mountbatten J Legal Stud 1998; 2: 70–92. 25. Andoh B. Sections 3 and 37 of the Mental Health Act 1983 – a comparison. Med Legal J 2016; 1: 36–38.
Cases Carradine’s case (The Times, 4 June 1997) D v South Tyneside Health Care NHS Trust ([2004] PIQR P12) Harkin’s case (The Independent, 10 September 2008) Lambert v West Sussex HA (The Times, 8 February 2000) Savage v South Essex Partnership NHS Foundation Trust) ([2009] 1 AC 681)
Statutes County Asylums Act 1808 Lunatic Asylums Amendment Act 1853 Criminal Lunatic Asylums Act 1860 Criminal Lunatics Act 1884 Lunacy Act 1890 Mental Treatment Act 1930 Mental Health Act 1959 Mental Health Act 1983 Mental Health (Patients in the Community) Act 1995 Crime (Sentences) Act 1997 Mental Health Act 2007
