MHA 1983 s138
Changes made by Mental Health Act 2007
- Approved Mental Health Professional replaces Approved Social Worker 3/11/08
- Supervised Community Treatment replaces Supervised Discharge 3/11/08
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 31. Legal custody, absconding and retaking [Note that the chapter number relates to the old Reference Guide] — chapter 31
Retaking of patients escaping from custody
138.—(1) If any person who is in legal custody by virtue of section 137 above escapes, he may, subject to the provisions of this section, be retaken—
- (a) in any case, by the person who had his custody immediately before the escape, or by any constable or [approved mental health professional];
- (b) if at the time of the escape he was liable to be detained in a hospital within the meaning of Part II of this Act, or subject to guardianship under this Act, [or a community patient who was recalled to hospital under section 17E above,] by any other person who could take him into custody under section 18 above if he had absented himself without leave.
(2) A person to whom paragraph (b) of subsection (1) above applies shall not be retaken under this section after the expiration of the period within which he could be retaken under section 18 above if he had absented himself without leave on the day of the escape unless he is subject to a restriction order under Part III of this Act or an order or direction having the same effect as such an order; and subsection (4) of the said section 18 shall apply with the necessary modifications accordingly.
(3) A person who escapes while being taken to or detained in a place of safety under section 135 or 136 above shall not be retaken under this section—
- [(a) in a case where the person escapes while being removed to a place of safety in the execution of a warrant under section 135(1) or under section 136(1), after the end of the period of 24 hours beginning with the escape;
- (b) in a case where the person escapes after the beginning of the period that is the permitted period of detention in relation to the person under section 135(3ZA) or 136(2A), after the end of that period (taking into account any authorisation under section 136B(1) that was given before the person escaped).]
(4) This section, so far as it relates to the escape of a person liable to be detained in a hospital within the meaning of Part II of this Act, shall apply in relation to a person who escapes—
- (a) while being taken to or from such a hospital in pursuance of regulations under section 19 above, or of any order, direction or authorisation under Part III or VI of this Act (other than under section 35, 36, 38, 53, 83 or 85) [...]; or
- (b) while being taken to or detained in a place of safety in pursuance of an order under Part III of this Act (other than under section 35, 36 or 38 above) pending his admission to such a hospital,
as if he were liable to be detained in that hospital and, if he had not previously been received in that hospital, as if he had been so received.
(5) In computing for the purposes of the power to give directions under section 37(4) above and for the purposes of sections 37(5) and 40(1) above the period of 28 days mentioned in those sections, no account shall be taken of any time during which the patient is at large and liable to be retaken by virtue of this section.
(6) Section 21 above shall, with any necessary modifications, apply in relation to a patient who is at large and liable to be retaken by virtue of this section as it applies in relation to a patient who is absent without leave and references in that section to section 18 above shall be construed accordingly.
Last updated: 9/2/18
- Mental Health Act 2007 s21 & sch 2; Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 (England), Mental Health Act 2007 (Commencement No. 8 and Transitional Provisions) Order 2008 (Wales), wef 3/11/08
- Mental Health Act 2007 s32 & sch 3; Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 wef 3/11/08
- Policing and Crime Act 2017 ss80-82. In force 11/12/17: Policing and Crime Act 2017 (Commencement No 4 and Saving Provisions) Regulations 2017.
- Health and Social Care Act 2012 s42; Health and Social Care Act 2012 (Commencement No.1 and Transitory Provision) Order 2012/1319 (1/7/12) (removal of reference to s123). Note s42(5): 'This section does not affect (a) the authority for the detention of a person who is liable to be detained under the Mental Health Act 1983 before the commencement of this section, (b) that Act in relation to any application, order or direction for admission or removal to a hospital made under that Act before that commencement, or (c) the authority for the retaking of a person who, before that commencement, escapes while being taken to or from a hospital as mentioned in section 138(4)(a) of that Act.'