What happens if someone you care about or are representing is detained in a hospital in the UK but wishes to return to their country of origin?
The first point of contact should always be the patient’s Consultant Psychiatrist otherwise known as their ‘Responsible Clinician’. If the patient has the capacity to understand the information involved in the decision to return home, is able to retain it, and able to weigh the information and communicate the decision then they should be supported in returning home.
The ultimate decision rests with the Responsible Clinician if the patient is detained under the Mental Health Act 1983. However, unless remaining in a UK hospital is crucial for the patient to receive treatment then repatriating the patient should not be ruled out. One of the five overarching principles which underpin the Mental Health Act is the empowerment and participation principle and if the decision of the Responsible Clinician is contradictory to the wish of the patient then the reason for the decision should be explained to him.
If a Responsible Clinician considers it is in the patient’s interests to return to their country of origin and the proper arrangements have been made then a First-tier Tribunal can authorise the repatriation under section 86 of the Mental Health Act 1983. The Secretary of State can give directions for the conveyance of the patient to their country of origin and authorize detention in any place or on board any ship or aircraft until his arrival at a specified port or place in that country.
The repatriation of patients is commonplace and Dr Khwaja of Central and North West London NHS Foundation Trust along with his colleagues Dr Laughton, Dr Ridder and Dr Jones at the Gordon Hospital reviewed a data set of CNWL inpatients repatriated between 2011 and 2014 (Source:http://www.cnwl.nhs.uk/wpcontent/uploads/P298_LAUGHTON_Estelle_original_1433784900.pdf).
During this period 406 patients were repatriated to their country of origin of which 97.8% were voluntary and made with help from the clinical care team. This review concluded that existing literature and guidance for mental health staff is limited and confusing and that there is need for guidance to improve staff and patient understanding of the process.
Dr Khwaja highlights that there is no unified international legal framework for repatriating patients that would permit patients to remain on "section" after they have arrived at the place specified by the Secretary of State. The only exception that Dr Khwaja is aware of is repatriating patients to France; by completing a form a patient can remain on section when they land in France and so can lawfully be restrained and prevented from absconding.
In relation to patients who are deprived of their liberty under the Mental Capacity Act 2005 and deemed to lack capacity to make the decision to be repatriated, the Court of Protection can make the decision to repatriate them if it considers it to be in the patient’s best interests. However, the health needs of the patient and the provision of care that they are currently receiving in the UK may be incompatible with their country of origin and therefore not in their best interests.
For further information on repatriating a patient who is detained under the Mental Health Act or the Deprivation of Liberty Safeguards please contact either our Mental Health Team or Court of Protection department.
Andrew Spooner, Trainee Solicitor
Posted on Tuesday, 11th October 2016