Mental health law briefing 175 – Olympics: Removal of foreign patients
Our readers will be aware that there are specific powers under the Mental Health Act 1983 (MHA) to remove and return detained patients within the UK, the Isle of Man and the Channel Islands. However, section 86 of the MHA specifically concerns the powers afforded to hospitals to remove those who have no right of abode in the country and who are detained under that Act.
Section 86 of the Mental Health Act 1983 confirms that the Secretary of State can authorise an individual’s removal to a jurisdiction outside the UK, the Isle of Man or the Channel Islands if that person is:
- neither a British Citizen nor a Commonwealth citizen having the right of abode in the UK
- receiving in-patient treatment for their mental disorder in a hospital in England or Wales
- detained pursuant to an application for admission for treatment, a hospital order, a hospital direction or a transfer direction under the MHA
The provisions of section 86 confirm that the Secretary of State can only authorise such a removal if they consider that it is in the interests of the patient and proper arrangements have been made for the patient’s removal to another jurisdiction and that there is care and treatment available for the patient in that jurisdiction. It should be noted that any proposed removal must also be agreed by the First Tier Tribunal or the Upper Tribunal on appeal.
The Reference Guide to the MHA confirms at paragraph 29.6 that the proposals for the removal of a Part II patient e.g. patients detained under section 3, are to be made to the Department of Health, and if the patient is detained under Part III of the MHA e.g. section 37, the request should be made to the Ministry of Justice. The hospital seeking the removal will need to provide details of why the transfer is required and the arrangements that have been made in relation to the patient’s transfer and subsequent care and treatment in the new jurisdiction. If the Secretary of State subsequently approves the patient’s removal a warrant will be issued which will include appropriate directions concerning the patient’s conveyance out of the UK while remaining in legal custody. This will include the patient remaining in custody during the transfer to the other country whether by plane, ship or other means, however the warrant cannot authorise the patient’s detention once they have arrived in the receiving country.
Section 91 of the MHA confirms that in most cases when a patient is removed pursuant to the above provisions, the authority for their detention will cease to have effect when they are admitted to any receiving hospital in the country that they are transferred to. However, if the patient was, prior to their removal subject to a restricted hospital order i.e. section 37/41 then that order will remain in force so that if the patient ever returns to England or Wales, it will apply. However, it should be noted that if the restriction order was for a fixed period the restriction and hospital order will expire at the end of that period notwithstanding any subsequent return.
The Reference Guide to the MHA also indicates that in many cases it may be more appropriate for patients who have no legal right to remain in the UK, to be repatriated using other powers such as those under immigration law, rather than section 86.
Case law has found it is possible for people who are detained under the MHA but who are not entitled to remain in the UK to be repatriated using the provisions of the Immigration Act 1971 without the need to use section 86. However the Courts have found that where the Secretary of State uses powers under the Immigration Act for such persons, they need to “have regard to the patient’s mental illness and any barriers to securing proper care and treatment in the country of destination.”
While section 86 provides a specific legal mechanism for removing detained patients who have no right of abode, the Reference Guide specifically confirms that a warrant under section 86 is not necessary if the patient is willing to travel and it is safe for them to do so without the need to keep them in custody during the journey. The authorities in the receiving county would clearly need to be happy to receive the patient and appropriate transport and care arrangements would also need to be in place before voluntary repatriation without the need for a warrant could take place. In any event, before seeking a warrant from the Secretary of State for the removal of a detained foreign patient, attempts should first be made to explore whether the patient would agree to the transfer and whether it would be safe for them to travel without needing to be in custody.
Ultimately where concerns remain about the removal of such individuals, legal advice should be sought.
 See ss80-85 of the Mental Health Act 1983
 Reference Guide to The Mental Health Act 1983, para.29.3
 See Paragraph 29.10 of the Reference guide to the Mental Health Act 1983 and R (on the application of X v. Secretary of State for the Home Department  MHLR 67
 MJ (Angola) v Secretary of State for the Home Department  EWCA Civ 557, para.28.
 Reference Guide to The Mental Health Act 1983, para.29.2
 If the repatriation concerns a restricted Part III patient i.e. s37/41, in addition to these
Guardianship and the Court of Protection
A recent case has held that where an individual is subject to a Guardianship Order under the Mental Health Act, that Act takes priority over the powers of the Court of Protection under the Mental Capacity Act and the DOLS regime.
 C v Blackburn with Darwen BC  EWHC 3321
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.