S128 applies to those under Part II.
what about those under forensic section e.g. 35,36,38, etc .
(S37 and S37/41 come under Part II for AWOL/absconding).
this is just an academic question. thank you
Escaping from lawful custody is a criminal offence - indictable only (ie, serious) therefore conspiracy to escape lawful custody is equally serious and assisting an offender to escape lawful custody also serious.
Would depend on the circumstances but take your pick from those two because someone detained under criminal provisions (ie, forensic sections) would be “unlawfully at large” having escaped lawful custody.
Section 128 applies to Part III detentions as much as those under Part II. (The words “within the meaning of Part II of this Act” in subsection (1) qualify “hospital”, not “liable to be detained”.)
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Gave me first reply whilst sitting in the car in the school car park! … now I’ve re-read s128 for the first time in years, I would argue its scope is far wider than Part II AWOLS. In addition to Richard’s point, subsections (2) and (3) of s128 widen it considerably:
People “in legal custody by virtue of s137” … “otherwise at large and liable to be retaken under this Act”. That would cover a lot, including assisting people to escape from s135/136 detention, or conveyance to hospital whilst under s6 as well as those subject to ss35/36/38, etc…
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thank you for your replies.This is only the second year I have taught Mental Health Law to final yr LLB students- so gaps in my knowledge. (I have found the MentalHealthCop blog along with this website very helpful).
I am just about to mark the students last assignment and realise it is slightly more ambiguous around anyone helping forensic patients to escape. It is partly based on the case of Rebecca Martin who was charged under S128 and received 18 month prison sentence for helping 3 in-patients escape including her boyfriend who was under S37/41.
Part of the qu:
Three in-patients went Absent Without Official Leave (AWOL) /absconded from the hospital in a daring escape involving the assistance of a member of staff who had struck up a clandestine romantic relationship one of them All three patients are still missing after 30 days and their families all wonder what the position is in relation to them being returned to hospital
The three patients are: Anton who was placed in a psychiatric hospital by the court under section 37/41 of Mental Health Act 1983 for an assault on his landlord after “voices” in his head told him to do so. Betty, who is a patient under section 3, Mental Health Act 1983 (and her detention under that section has been renewed three times). Ed who is a patient under section 36, Mental Health Act 1983.
Discuss the issues of mental health law regarding the retaking of Anton, Betty and Ed, whether Anna has committed any offence for helping the in-patients to escape……
Brenda
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thank you too