GUIDELINES ON THE USE OF THE MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986

Article 129 Mental Health (Northern Ireland) Order 1986 Guide and Protocol re Complaints and Warrants

Article 129 of the Mental Health (Northern Ireland) Order 1986 makes provision for four different categories of complaints and warrants in relation to persons suffering from or thought to be suffering from a mental disorder within the meaning of the Order.

The criteria and recommended protocol in relation to these is set out below:

Article 129 (1) is concerned with persons, not currently subject to the Order but who, an officer of an authorised Trust believes to be, suffering from a mental disorder and who:

  • has been, or is being, ill-treated, neglected or kept otherwise than under proper control; or
  • being unable to care for himself, is living alone.

Protocol

Article 129 (1) requires an officer (in most cases this will be an approved social worker (ASW) of an authorised Health and Social Services Trust (HSCT) or a PSNI constable to swear a written complaint on oath, outlining the circumstances of the case, to a Magistrate/Magistrate/lay magistrate1. LINK TO Article 129 (1) Complaint

The written complaint should include the name of the person if this is available (Article 129 (6) directs that it is not necessary to name the person concerned in this particular warrant), the address of the premises where the person is believed to be and a brief outline of the basis to the suspicion that the person meets the criteria.

The officer of the Trust should ensure that a copy of the complaint is left with the Magistrate/lay magistrate and another is retained for agency records.

The Magistrate/Magistrate/lay magistrate may in turn issue a warrant authorising a PSNI constable, accompanied by a medical practitioner, to enter the premises using force if necessary and, if necessary, remove the person to a place of safety with a view of making an application for assessment under Part II of the Order or to make other arrangements for the person's care or treatment. LINK TO Article 129 (1) Warrant

The officer of the Trust should ensure that the warrant is correctly completed, leave two copies with the Magistrate/lay magistrate, retain another for agency records and deliver the original to the PSNI in the area where the person, subject to Article 129 (1) is located.

The officer should, if necessary, offer advice to the PSNI regarding arrangements for the service of the warrant including the requirement for a medical practitioner to be present.

Following entry the medical practitioner can assess whether or not the person requires to be removed to a place of safety or if other arrangements need to be made for the person's care or treatment.

Article 129 (1) does not require an Approved Social Worker (ASW) or other officer of the Trust to be present when the warrant is served. However, if an ASW is involved and the person is willing to allow the ASW or other worker to enter the premises, a joint assessment with the medical practitioner of the person's needs can take place on the premises identified in the Warrant. If an ASW is present and if considered necessary, the patient can, on completion of Forms 2 and 3, be transported for admission to hospital.

If the person is unwilling to allow the ASW to enter the premises and if the medical practitioner considers that a medical recommendation (Form 3) should be completed for the person's admission to hospital for assessment, the person can be removed toa place of safety where an ASW will undertake an assessment in relation to making an application (Form 2) under Part II or to allow for other arrangements to be made for his care and treatment.

In this Article "place of safety" means any hospital2, of which the managing Trust is willing temporarily to receive persons who may be taken there under this order, any police station3, or any other suitable place the occupier is willing temporarily willing to receive such persons.

The patient may be detained in the place of safety for a period not exceeding 48 hours. The Guide states that patients should be kept in places of safety for as short a time as possible while other arrangements are made for their care are made. A police station should only be used as a place of safety in exceptional circumstances and for the minimum length of time necessary.

If the warrant is served, it shall be the responsibility of the endorsing police officer to deliver the Warrant to Court Services. If not served the ASW and PSNI should consider whether or not it should be retained in the event that it may be used within 28 days. The Warrant cannot be used after 28 days on which the warrant was signed. Unexecuted warrants should be delivered to Court Services by the ASW.

Article 129 (2) is concerned with patients who are absent without leave from the hospital where they are liable to be detained or from the place where they are required to be. This includes:

  • A patient subject to detention who leaves the hospital without leave granted under Article 15; or
  • A patient who fails to return to hospital within the time period granted under Article 15; or
  • A patient who leaves, without permission, any place where he was required to reside under the conditions of leave; or
  • A patient subject to guardianship who leaves, without permission of his guardian, any place where he was required to reside by the guardian.

1 The Officer of the Health and Social Care Trust should choose a Magistrate/Magistrate/lay magistrate from a list provided by the Northern Ireland Courts Service for that area.

In the case of (a) to (c) Article 29 allows for these patients to be taken into custody and returned to the hospital or place where the patient was required to reside by any officer on the staff of the hospital, any PSNI constable or approved social worker or any person authorised in writing by the responsible authority.

Article 29 also allows for patients subject to guardianship (d), to be taken into custody and returned to the place where they were required by the guardian to reside by any constable or ASW or by any person authorised in writing by the guardian or by the responsible authority.

However if any of the above persons authorised under Article 29 are unable to gain entry to the premises where the patient is thought to be, Article 129 (2) allows for a Magistrate/lay magistrate to issue a warrant allowing a constable accompanied by a medical practitioner to enter the premises, if need be by force and to remove the patient to the hospital or place where he was required to reside.

The criteria for Article 129 (2) are:

  • That there is reasonable cause to believe that a patient who, under this Order, is liable to be taken to any place, or to be retaken into custody or to be retaken, is found on any premises; and
  • That admission to the premises has been refused or that a refusal of such admission is anticipated.

2 The Guide contains a list of hospitals that could be used as a place of safety. However this list is now out of date and police should continue to bring persons detained under Articles 129 and 130 to the local A&E department until further guidance in relation to which hospitals can now be used to fulfil this function is provided by Health and Social Care Trusts.

3 The most appropriate and available place of safety should be carefully considered by the police officer/s involved and should take account of any risks to the person and to others.

Protocol Article 129 (2) requires an officer of an authorised Health and Social Services Trust (HSCT) or a PSNI constable to swear a written complaint on oath, outlining the circumstances of the case, to a Magistrate/lay magistrate (see footnote page 1). LINK TO Article 129 (2) Complaint

This will include the name and address of the premises where the patient is believed to be and the basis of the belief that the person is liable to be removed from the premises under this article, i.e. the criteria above is satisfied.

The officer of the Trust should ensure that a copy of the complaint is left with the Magistrate/lay magistrate and another retained for agency records.

The Magistrate/lay magistrate may in turn issue a warrant authorising a PSNI constable, accompanied by a medical practitioner, to enter the premises using force if necessary and to remove the patient to the place where he is required to be under the Order. LINK TO Warrant 129 (2)

The Officer of the Trust should ensure that the warrant is correctly completed, leave two copies with the Magistrate/lay magistrate, retain another for agency records and deliver the original to the PSNI in the area where the person, subject to Article 129 (2) is located.

The officer should, if necessary, offer advice to the PSNI regarding arrangements for the warrant to be served including the requirement for a medical practitioner to be present. Article 129 (2) does not require that an ASW or officer of the Trust to be present when the warrant is served.

If the warrant is executed (i.e. served), it shall be the responsibility of the endorsing police officer to deliver the Warrant to Court Services officer. If not served the Trust or the PSNI should agree to retain the Warrant in the event that it may be used within 28 days.

The warrant cannot be used after 28 days on which the warrant was signed. N.B. Article 29 directs that a person subject to detention or to guardianship under Part II of the Order shall not be taken into custody after the expiration of the period of 28days beginning with the first day of his absence without leave.

Article 129 (3) is concerned with patients liable to be detained under the Mental Health Act 1983 or Mental Health (Care and Treatment) (Scotland) Act 2003 but does not apply to any person subject to guardianship under these legislative Acts. The Criteria for Article 129 (3) is:

  • That there is reasonable cause to believe that a person who may be taken into custody by virtue of the Mental Health Act 1983, amended by the Mental Health Act 2007 or Mental Health (Care and Treatment) (Scotland) Act 2003 is to be found on any premises; and
  • That admission to the premises has been refused or that a refusal of such admission is apprehended.

Protocol

Article 129 (3) requires an ASW authorised to act in the Trust area in which the patient is currently to be found or a PSNI constable to swear a written complaint on oath, outlining the circumstances of the case, to a Magistrate/lay magistrate (see footnote page 1). This will include the name and address of the premises where the patient is believed to be and the basis of the belief that the person is liable to be removed from the premises under this article, i.e. the criteria above is satisfied. LINK TO Article 129 (3) Complaint

The officer should ensure that a copy of the complaint is left with the Magistrate/lay magistrate and another is retained for agency records.

The Magistrate/lay magistrate may in turn issue a warrant authorising a PSNI constable, accompanied by a medical practitioner, to enter the premises using force if necessary and to remove the patient to the hospital where he / she is required to be under the Mental Health Act 1983, amended by the Mental Health Act 2007, or Mental Health (Care and Treatment) (Scotland) Act 2003. LINK TO Warrant 129 (3)

The officer of the Trust should ensure that the warrant is correctly completed, leave two copies with the Magistrate/lay magistrate, retain another for agency records and deliver the original to the PSNI in the area where the person, subject to Article 129 (3) is located.

The officer should, if necessary, offer advice to the PSNI regarding arrangements for the warrant to be served including the requirement for a medical practitioner to be present. Article 129 (3) does not require that an ASW or officer of the Trust to be present when the warrant is being served.

If the Warrant is executed (served), it shall be the responsibility of the endorsing police officer to deliver the Warrant to Court Services. If not served the Trust or the PSNI should agree to retain the Warrant in the event that it may be used within 28 days. Unexecuted warrants will be delivered to Court Services by the ASW.

The Warrant cannot be used after 28 days on which the warrant was signed.

Article 129 (4) is concerned with those patients for whom an application for admission has been completed but it has not been possible for the applicant to convey or acquire the necessary assistance to convey the patient to hospital.

The Criteria for Article 129 (4) are:

  • The application has been duly completed in accordance with Part II;
  • There is reasonable cause to believe that the patient is to be found on any premises;
  • That it is not reasonably practicable for the patient to be taken and conveyed to the hospital specified in the application by the applicant or a person authorised by him; and
  • That the responsible authority has been requested to do so but has failed to do so.

Protocol Article 129 (4) requires that the applicant, i.e. nearest relative or authorised approved social worker swear a written complaint on oath, outlining the circumstances of the case, to a Magistrate/lay magistrate (see footnote page 1). This will include the name of the patient and address of the premises where the patient is to be found. LINK TO Article 129 (4) Complaint

If the applicant is the nearest relative who has requested assistance from an ASW, the ASW should guide and support the nearest relative in exercising their powers under this Article.

The Magistrate/lay magistrate may in turn issue a warrant authorising a PSNI constable, accompanied by a medical practitioner, to enter the premises, if need be by force and to convey the patient to the hospital specified in the application. LINK TO Warrant 129 (4)

If the applicant is the ASW they should ensure that the warrant is correctly completed, leave two copies with the Magistrate/lay magistrate, retain another for agency records and deliver the original to the PSNI in the area where the person, subject to Article 129 (4) is located.

The officer should, if necessary, offer advice to the PSNI regarding arrangements for the warrant to be executed including the requirement for a medical practitioner to be present. Article 129 (4) does not require that the applicant (an ASW or nearest relative) or an officer of the Trust be present when the warrant is served.

However the Code of Practice requires the ASW to assist the nearest relative, on request, in conveying the patient to hospital and if the ASW is the applicant he/she has a professional responsibility for ensuring that all necessary arrangements are made for the patient's conveyance and admission to hospital.4

Article 8 of the Order requires that the patient is taken and conveyed to the hospital specified in the application at any time within the period of two days beginning with the date on which the medical recommendation was signed or a longer period (not exceeding 14 days) as stated in Form 4 (Medical Certificate to Extend Time Period For Conveying Patient to Hospital). Therefore the exercise of the Warrant in relation to Article 129 (4) is limited to the above time periods.

When a 129 warrant is executed, it shall be the responsibility of the endorsing police officer to deliver the Warrant to Court Services. Unexecuted warrants will be delivered to Court Services by the ASW.

4 Article 8 of the Order requires that the patient is taken and conveyed to the hospital specified in the application at any time within the period of two days beginning with the date on which the medical recommendation was signed or a longer period (not exceeding 14 days) as stated in Form 4 (Medical Certificate to Extend Time Period For Conveying Patient to Hospital). Therefore the exercise of the Warrant in relation to Article 129 (4) is limited to the above time periods.