Section 3 Mental Health Act and leave of absence

25 August 2021

Not reviewed after the date of publication

Question:

If a subject is detained under section 3 of the Mental Health Act 1983 and is later granted leave of absence from hospital under section 17 of that Act but fails to return, have police a power to arrest and return the subject to hospital?

Answer:

Section 3 of the Mental Health Act 1983 (the Act) provides the procedure for admitting patients to hospital for treatment where it is necessary for the health or safety of the patient or for the protection of other persons that s/he should receive such treatment and it cannot be provided unless he is detained under this section. This section comes under Part II of the Act, which concerns compulsory admission to hospital and guardianship. It is therefore sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.

A person detained under section 3 may be granted a leave of absence by a clinician responsible to the patient under section 17 of the Act which will be subject to such conditions as are necessary. Subsection 17(2) provides that leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period. Subsection 17(4) allows the responsible clinician to revoke the leave of absence and recall the patient to the hospital, in the interests of the patient's health or safety or for the protection of other persons. This is different however from the power to recall a community patient under section 17E.

Section 18 of the Act provides for patients who are liable to be detained in a hospital but absent themselves without permission or fail to return under the provisions of section 17 above, to be returned. They may be taken into custody and returned to the hospital or place by any approved mental health professional, by any officer on the staff of the hospital, by any constable, or by any person authorized in writing by the managers of the hospital. A person liable to be detained under section 18 is considered ‘absent without leave’; therefore the powers of entry and arrest in relation to persons unlawfully at large under section 17(1)(d) of PACE 1984 could potentially be available to the police in pursuit of a person liable to be detained under section 18(1).  Note however, this would only be in extremely rare circumstances, as the case of R v D’Souza shows ‘pursuit’ by the police must be ‘immediate’. Application for a warrant under section 135 of the Mental Health Act 1983 is the most common route to follow.

Please note however that under subsection 18(4) of the Mental Health Act a patient shall not be taken into custody under this section after the later of -

(a) the end of the period of six months beginning with the first day of his absence without leave; and

(b) the end of the period for which he is liable to be detained or subject to guardianship or, in the case of a community patient, the community treatment order is in force.

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