Abstract
Ever since patients started to be admitted into mental institutions, absconding from such institutions has been a fact of life. Also, clear statutory authority to retake absconders has existed since county asylums, the forerunners of today's mental hospitals, started to be built following the County Asylums Act 1808. At present section 37 of the Mental Health Act 1983 concerns patients detained under a hospital order without restrictions on their discharge, etc. Section 3 of the Act, on the other hand, governs patients who are non-offenders but who are compulsorily detained in hospital for treatment. In the past, where a detained patient absconded from hospital and stayed at large beyond the period during which he could be retaken, he was deemed automatically discharged (i.e. ‘discharged by operation of law’). Regarding sections 3 and 37 patients, such discharge was effectively abolished by the Mental Health (Patients in the Community) Act 1995. Not much attention has been given to this topic in the literature. This article adopts a solely legal perspective. It looks briefly at when the power to retake absconders from mental hospitals may be exercised and then examines the concept of discharge by operation of law and its abolition. It concludes that the abolition of discharge by operation of law in the case of patients detained under sections 3 and 37, Mental Health Act 1983 was, though long-overdue, sensible and must be applauded.
Keywords
Introduction
Absconding from mental institutions has been a fact of life ever since patients (known as ‘lunatics’ before the Mental Treatment Act 1930 was passed) started to be received or admitted into them. Also, clear statutory authority to retake absconders from mental hospitals has existed since the nineteenth century when county asylums, the forerunners of today's mental hospitals, started to be built following the County Asylums Act 1808.
Section 37 of the Mental Health Act 1983 (‘MHA 1983’) concerns patients detained under a hospital order without restrictions on their discharge, etc. The hospital order without restrictions (s37, MHA 1983) is an order by a Crown Court or Magistrate's Court if a person is convicted of offence punishable by imprisonment (murder excluded), or by a Magistrate's Court without recording a conviction if the court is satisfied that person did the act, as charged. Two doctors’ must have given evidence that he is suffering from mental disorder of a nature/degree requiring detention in hospital for medical treatment that is appropriate (s.37(2)(a)(i), MHA 1983). Appropriate treatment is treatment which is appropriate for the individual patent, considering the nature and degree of his mental disorder and all the circumstances of his case (ss.3(4) and 145(1AA), MHA 1983. The duration of the order is 6 months, renewable for 6 months and then annually.
Section 3, MHA 1983, on the other hand, governs patients who are non-offenders but who are compulsorily detained in hospital for treatment. The grounds for an application for a section 3 are: (a) the patient is suffering from mental disorder of a nature or degree that makes it appropriate for him to be given medical treatment in a hospital; (b) it is necessary for the patient's health or safety or for the protection of other persons that he should receive such treatment which can only be provided if he is detained under the section and (c) appropriate medical treatment is available for him.The application may be made by either the patient's nearest relative or an approved mental health professional (‘AMHP’); where the application is made by an AMHP, the nearest relative of the patient must consent to it. Two medical recommendations are required. The section lasts for 6 months renewable for another 6 months and, after that, annually. (Compulsory detention in hospital infringes, prima facie, the rights of a patient. However, it is justified under the law, e.g., Art. 5(1), European Convention on Human Rights (embodied in the Human Rights Act 1998 (Sched. 1).)
In the past, where a detained patient absconded from hospital and stayed at large beyond the period during which he could be retaken, he was deemed automatically discharged (i.e. ‘discharged by operation of law’). As will be shown below, discharge by operation of law regarding sections 3 and 37 patients was effectively abolished by the Mental Health (Patients in the Community) Act 1995 (‘MHPICA 1995’). The present writer chose this topic because not much attention has been given to it in the literature. This article adopts a solely legal perspective. Apart from this introduction and the conclusion, this article has the following other parts: (1) the power, and when, to retake absconders, (2) discharge by operation of law and (3) the abolition of discharge by operation of law.
When absconders may be retaken
At first the power to retake absconders was implied (s.23, County Asylums Act 1808) but later it became express (in the case of non-offenders under ss.55(8) and 85-88, Lunacy Act 1890 and, in the case of offenders or criminal lunatics, under s.11, Criminal Lunatics Act 1860).
Today s.18, MHA 1983 (as amended by the MHPICA 1995) contains the power to retake absconders not involved in criminal proceeding as well as absconders who are under a hospital order without restrictions (s.37, MHA 1983). To enable the reader to get a better understanding of discharge by operation of law, it is important to give, first, a summary of the periods within which absconders from mental hospitals may be lawfully retaken.
Section 37 patients (and other offender-patients)
A patient subject to a hospital order without restrictions (s.37, MHA 1983) (or a direction with the same effect) may be retaken within 28 days (MHPICA 1995, s2(3)(b)). But, a patient under a hospital order with restrictions or a direction having the same effect may be retaken at any time if he absconds or goes absent without leave (s.41(3)(d), MHA 1983; Sch. 1 (Part II, para. 4) to MHA 1983).
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 (ss.35(10), 36(8) and 38(7), MHA 1983). Therefore, in the case of those patients, too, there is no time limit on when they can be retaken.
Section 3 patients
A patient admitted for treatment under section 3 of the 1983 Act who absconds or goes absent without leave may be retaken within 6 months ‘beginning with’ the first day of his absence without leave or escape or within the current period of his detention, whichever is the longer (s.18(4), MHA 1983, as substituted by s.2(1), MHPICA 1995).
Other patients who are not offenders
patient detained under s.2, s.4 or s.5(2) or (4) of the 1983 Act must not be retaken if the period for which he is liable to be detained has expired; this period is 28 days for a patient detained under s.2, 72 hours for a patient detained under s.4 or section 5(2) and 6 hours for a patient detained under s.5(4).
patient detained under ss.135 and 136 must not be retaken (under s.138) after the expiration of 24 hours beginning with the time of his escape or after the expiration of the period for which he is liable to be detained (section 138(3), MHA 1983, as amended by the Crime and Policing Act 2017, s.82).
Discharge by operation of law
(a) Meaning
In the past, where a compulsorily detained patient absconded from hospital and stayed at large beyond the period during which he could be retaken, he was deemed automatically discharged (‘discharged by operation of law’) – he became no longer liable to be detained. In effect, that was an ‘unofficial type of exit’ from hospital. 1
Before 1995 patients detained under section 3, MHA 1983 and those subject to a hospital order without restrictions (s.37, MHA 1983) who absconded or went absent without leave but were not retaken within 28 days became, while still at large, no longer liable to be detained (‘discharged by operation of law’). 2 Discharge by operation of law does not apply to patients under a restriction order or direction because they can be retaken at any time.
It is necessary to emphasise that the rule (discharge by operation of law) is not a statutory rule but only a rule of practice. Before 1930 reception into an asylum was usually via certification. The practice of the asylums in those days was, therefore, to write off their books those patients who had absconded and stayed away for more than 14 days. That was because they could not again be received or admitted without a fresh order. 3 There were no informal admissions then. But, later, after the Mental Health Act 1959 (‘MHA 1959’) (which introduced the status of ‘informal patient’ and doubled the retaking period to 28 days generally) was passed, the absconder could return to hospital on his own (after 28 days) as an informal patient if the hospital would have him back. The MHA 1983 generally preserves this position. For example, s18(4), MHA 1983 only stated that a patient admitted for treatment must not be retaken (under that section) after the expiration of 28 days (now a minimum of 6 months, according to s.2(1), MHPICA 1995), beginning with the first day of his absence and, after that period, he ‘shall cease to be liable to be detained’. (The position of patients detained under s.37, MHA 1983 is governed by s.2(3)(b), MHPICA 1995. They can, in general, only be retaken within 28 days.)
(b) Arguments for Discharge by Operation of Law
Why, then, is there discharge by operation of law? 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 property, 4 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, 5 that it relieves hospitals of responsibility for some compulsory patients who may encourage other patients to break hospital rules 5 and that it prevents the patient who absconds or goes absent without leave from being a ‘perpetual fugitive’. 1
These seem to be convincing arguments indeed. However, they have some limitations, as will be seen below.
Abolition of discharge by operation of law RE s.3 and s.37 patients
Because of the strength of opposition to the application of discharge by operation of law to patients under both sections 3 and 37, MHA 1983, the law regarding such discharge, inter alia, was changed by the Mental Health (Patients in the Community) Act 1995. Section 40(4), MHA 1983 puts s.3 and s.37 in the same position; so, the provisions of s.21B, MHPICA 1995, which provide for the abolition, apply to patients detained under ss. 3 and 37, MHA 1983. Before dealing with the provisions of s.21B, MHPICA 1995, however, the arguments against discharge by operation of law and, in effect, supporting its abolition will be analysed briefly.
The rule has been said to be no longer necessary, 6 to be anomalous and to be indefensible in the case of offender-patients. 7 The reasons for these limitations are various.
Historically, discharge by operation of law played the important role of safeguarding a patient against unjustified and unnecessarily long detention in hospital. Thus, for example, under s85, Lunacy Act, 1890, a patient could not be retaken if he managed to escape and succeeded in remaining at large for a continuous period of 14 days. Being able to abscond and stay at large for over 2 weeks was assumed to be indicative of his being not incompetent and, therefore, of his not requiring detention in hospital. However, this safeguard now seems unnecessary because compulsorily detained patients now have the protection of the Mental Health Tribunal. 8
Also, as Walker and McCabe put it, the situation has changed; the locked doors of the Victorian asylums have been replaced by the ‘open door’. 1 In the days when considerable precautions as well as energetic steps were taken by asylums to recapture escapers, the assumption (of their competence) might have been justifiable to some extent. But, it is much less justifiable these days when mental hospitals operate an ‘open-door policy’ so that it calls for little competence for a patient to be able to abscond therefrom. 5 The hospitals also do not take the same steps they used to take in Victorian times to recapture absconders. Therefore, being at large for 28 days or more is ‘no longer the test of ingenuity which it was – or was assumed to be – in Victorian times’. 1 In addition, as the Butler Committee stated, a patient's ability to remain at large for the statutory period ‘might well be due to the kindness of friends rather than to his capacity for independent living’. 8 According to Walker, in a welfare state like this country, persons quite disordered can maintain themselves while at large, irrespective of the presence or absence of a little help from their relatives and friends. 5
Although discharge by operation of law has also been said to be a mechanism which relieves mental hospitals of the responsibility for some compulsory patients, that does not answer the question why some offender-patients (i.e. those under a hospital order without restrictions) should be allowed to gain their freedom by taking advantage of this rule or loophole (which has been described as ‘the back door’). 9
It is a puzzling question indeed, and to say that, since the effect of an admission for treatment (under s.3, MHA 1983) and that under a hospital order without restrictions (under s.37, MHA 1983) are generally the same, the rule should apply to patients detained under both sections is not a satisfactory answer. This is because, as already stated, unlike a patient under section 3, a patient under a hospital order without restrictions is essentially an offender (s.37(1) and (3), MHA 1983).
The argument that, without discharge by operation of law, the absconder or absentee without leave would remain ‘a perpetual fugitive’ and, so, at risk of being retaken at any time at all 6 is also flawed simply because the rule allows some offender-patients (patients under a hospital order without restrictions) to obtain their freedom unofficially. Indeed, as the Butler Committee stated, ‘it is indefensible that an offender who has been sent to hospital (in preference perhaps to being committed to prison) with a view to receiving medical treatment which has been said by two doctors to be necessary, should be able just to walk out and evade completely the court's order merely by remaining at large, in some cases for as short a time as 28 days’. 7 (So, the Committee recommended that, in the event of a patient subject to a mere hospital order (i.e. without restrictions) absconding, the decision to seek to have him returned while the order was operative should be left to the responsible medical officer.)
It is, therefore, not surprising that the disapplication of the rule to patients subject to a hospital order without restrictions was called for.
The fact that the MHPICA 1995 went further (in the amendment of s18, MHA 1983) to abolish discharge by operation of law regarding not only s.37 patients but also s.3 patients must be commended if one considers the ramifications of absconding. Those consequences are more far-reaching than people generally think. Absconding affects the patient himself, in particular (e.g. it interrupts his treatment, thereby worsening his mental state); because mental patients are generally vulnerable, an absconder may be the victim, rather than the perpetrator, of a crime while outside the hospital. It also affects members of the public (some absconders commit offences against members of the public, including their family) and imposes a demand on police time and resources as the police play an important role in retaking and returning absconders. 10 (But, it must be stated here that today the police forces are so overstretched that their role in retaking absconders may no longer be a leading one as in the past, except perhaps where a really dangerous mental health patient has escaped.)
The actual provisions abolishing discharge by operation of law
It was the MHPICA 1995, s.21B, which amended s.21, MHA 1983, that effectively abolished discharge by operation of law as regards patients detained under ss. 3 and 37, MHA 1983. According to the said s.21B, if a patient, who has absconded from hospital, returns to the hospital or is retaken after being at large for more than 28 days, his detention can be renewed in accordance with the following procedure.
First, the responsible clinician must review the patient's case in consultation with an AMHP and at least one other professional involved with the patient's treatment. The responsible clinician must then decide whether the criteria for renewal of the detention exist (s.21(B)(1), (2) and (3)). If the responsible clinician fails to report, within a week of the patient's return, that the renewal criteria exist, then the patient can no longer be detained (even if he would have been liable to be detained had the report been made by the responsible clinician) – s.21(B)(4). (On this point one could say that, because responsible clinicians are experienced professionals, they would fail to issue a report only if the patient in question no longer requires detention because of his mental condition.)
Next, if the responsible clinician reports within a week of the patient's return, then the detention of the patient is renewed from the time it would otherwise have expired (s.21(B)(5)). If the period during which the patient is liable to be detained has not expired when he returns or is returned, but the report is issued within the past 2 months, it will operate like a usual renewal report (s.21(B)(7)). (Of course, where the patient's detention is renewed under this procedure, he has the right to apply to a tribunal (s.66(1)(fa), MHA 1983).)
Comment
At this juncture, three observations may be made as follows:
The abolition by s. 21B, MHPICA 1995 of discharge by operation regarding ss. 3 and 37, MHA 1983 was not expressly stated. It was rather implied by the actual provisions of s.21B (summarised above). Section 40(4), MHA 1983 puts s.3 and s.37 patients in the same position. Also, the duration of s.37 is the same as that of 3, MHA 1983. Therefore, the abolition of discharge by operation of law to patients detained under those two sections really makes sense (and ought to be applauded), especially, when one considers the far-reaching consequences of absconding from hospital. Before and after 1995, there has been, in relation to discharge by operation of law, no problem with ss. 2, 4, 135 and 136, MHA 1983 because they concern short-term detention and assessment rather than treatment. However, before 1995 the problem was with ss. 3 and 37, MHA 1983 because those two sections involve treatment (for up to 6 months initially), the interruption of which can lead to real deterioration of the mental state of a patient. Therefore, the abolition of discharge by operation of law concerning patients detained under ss. 3 and 37, MHA 1983 was a step in the right direction.
Conclusion
There has always been a right (or rather power) to retake patients who abscond from mental hospitals ever since those hospitals started to be built. That power was at first implied but later became express. In the past when a patient absconded and stayed at large for at least 14 days, he was written off the books of the hospital as he could no longer be retaken and returned – he was discharged by operation of law.
Discharge by operation of law has been described as a rule of practice rather than a statutory rule. As shown above, it was, at first, justified, but is no longer so. Before 1995 it applied to both sections 3 (who are non-offenders) and 37 patients (who are offenders or patients concerned in criminal proceedings). But, as some offender-patients (detained under s.37, MHA 1983) were taking advantage of the rule to gain their freedom unofficially, there was a call for them to be prevented from doing so. That call was duly addressed by the MHPICA 1995.
S.21B, MHPICA 1995 amended s.18, MHA 1983 and, in so doing, abolished the practice of discharge by operation of law as regards s.3 and s.37, MHA 1983. That abolition, it is concluded, was long overdue and sensible, and must be applauded. (We can, therefore, say, regarding ss. 3 and 37, MHA 1983: ‘Here lies discharge by operation of law: rest in peace’. This brings back memories of the article by Prof. Hahlo on codification versus the common law years ago.) 11
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
