Contents
1 What is a section 86 warrant?
Section 86 empowers the secretary of state to authorise the removal to any country abroad of certain detained in-patients who do not have a right of abode in this country and who are receiving in-patient treatment for mental disorder. It does not apply to detained patients who have been granted leave of absence under section 17. Before they exercise their powers the secretary of state must have obtained the approval of the appropriate tribunal.
2 Who has the power to authorise the section 86 warrant?
A proposal for the removal of part II patients need to be made to:
Secretary of State for Health
Wellington House
133 to 135 Waterloo Road
London
SE1 8UG
A proposal for the removal of part III patients need to be made to:
Secretary of State for Justice
Mental Health Casework Section
8th Floor
Zone A
102 Petty France
London
SW1H 9AJ
3 What is the procedure that we have to follow?
Written evidence will be required for every stage of this process in order that it can be furnished to either the Department of Health or Ministry of Justice.
Undertake via the MDT an assessment of whether the patient needs to be transferred under the MHA or not and ensure that a full risk assessment is undertaken (document this).
If a decision is made to request a transfer under the MHA, ensure that approval is granted from the commissioners to them agreeing to fund the cost of the transfer (get this agreement in writing);
It is preferable that the patient agrees to the transfer however, if the patient lacks capacity to make this decision, ensure that an MCA1 Form is completed and an MCA2/3 form is completed to record the best interest decision meeting.
Ensure the patient has had a Managers Hearing or MHT to ensure the validity of the detention and ensure that the patient is legally represented with an experienced solicitor at this hearing.
Make contact with the Department of Health, social care and local government and care partnership directorate and speak to either the senior policy manager or MHA officer and have a verbal discussion about the facts of the case.
The senior policy manager at the Department of Health will then forward a form for completion which will include a list of instructions regarding additional information that they will require to be submitted with the formal request:
- contact will need to have been made with the hospital in the receiving country and written confirmation given that they will accept the patient on arrival
- contact will need to have been made with the consulate for the receiving country, to ensure that there are no problems at immigration, or at any of the controls when they arrive (a face to face meeting with them is advisable)
- agreement will need to be sourced for secure transport arrangements via a specialist company (for example, PSS secure transport)
Contact will need to have been made with the Airport from where they are leaving from and British immigration (this may be undertaken by whoever is providing the secure transporting of the patient)
- part of the agreement (above) needs to state that the transfer will be “door to door”, that the transport is either a ship or a flight and that there will be qualified mental health trained staff accompanying the patient.
Once all this is in place and forwarded to the Department of Health, they will request an extra-ordinary MHT Hearing, that has the power to recommend a section 86 warrant
The Department of Health will then issue a section 86 warrant to the trust
The trust will have 14 days in which to enact the warrant by:
- contacting the specialist secure transport service (for example, PSS secure transport) and advising them that the section 86 warrant has been issued and the date that this needs to be enacted by
- the company will then make the necessary arrangements for the transfer of the patient out of the country and will liaise with the airport and immigration
Following confirmation of a date of transfer being agreed with the company the trust will need to make contact with the hospital in the receiving country to advise of the date and time of arrival of the patient and who will be transferring them (for example, which specialist secure transport company).
Arrangements will need to be made with the hospital as to where the “hand over“ of the patient will occur (for example, where specifically within the airport building) and this will then need to be relayed to the company providing the transfer, to ensure a smooth handover process.
Further actions may need to be undertaken following the conversation with the specialist secure transport company however they will be on a specific case by case basis.
Document control
- Version: 3.
- Date ratified: 7 March 2023.
- Ratified by: MHL operational group.
- Name of originator: MHA manager.
- Name of responsible individual: Mental health legislation operational group and executive medical director.
- Date issued: 1 September 2021.
- Review date: May 2024.
- Target audience: Mental health and learning disability.
Page last reviewed: April 29, 2024
Next review due: April 29, 2025