UPDATE 13/01 >> I had something pointed out to me that a) taught me something new – always a good thing; and b) which rendered my original article slightly inaccurate – this has now been amended for clarity.
Our controllers asked last month if some officers could do a “quick little job”. It amused me how much head scratching this subsequently caused between the controllers and the sergeants when I got involved in making sure it was done correctly and carefully:
Before our team commenced duty that day, an AMHP and two DRs had attended an address to ‘section’ a patient. He quickly ran off from them and was reported missing to the police amidst some confusion in communication about whether he had actually been ‘sectioned’ at the point where he absconded. A short while later, but after office hours had finished and before we had actually managed to take a full missing person’s report, the CrisisTeam indicated that the patient was believed to have returned home. Were we able to go and get him? Why they couldn’t go and get him, given that they have the same legal powers as us, I’m not quite sure.
It sounded like a straight-forward enough conveyance request – go to this address, remove this man to hospital. Simple enough and we nearly did, too – until I heard discussion about the job in the sergeants’ office.
STOP – no!
We don’t casually nip to address to “blast him up the hospital.” Two officers in Kent did that in 2010 and they will be standing trial in April this year. We’ve seen other such instances where the police have been FAR too casual about such matters and people have died. We have a legal duty to risk assess this, even if that does happen quite dynamically.
Anyway, just tell me again: is he “sectioned” or do they just “want to section him?” We need to be certain – the first means there could be some legal powers to play with, the second means we’ve got no powers whatsoever. Has the previous AMHP actually made a written application to the managers of a hospital for this person’s admission? – and can we have sight of those papers to prove it?! Without sight of the papers, we are not prepared to regard him as sectioned. << That’s known as experience.
Yes – he’s been sectioned, we’ve seen the papers.
Right – he’s in his house and last time you went there he ran off. Do we anticipate he’ll actually open the door given we know he is now resistant to admission or will he actually run off again even with the police there? We can handle the running off bit (assuming we don’t send one of our larger units who is better at kicking doors off than running after people, but we’ve got a couple of runners on the team too). If this guy just sits in the house with the door shut waving at us, we’ll just have to wave back and go back to the station for more coffee and doughnuts.
And – if we get there and he does open the door, are we sure of our powers given that he is not AWOL? He has absonded from legal custody and is liable to detention – he may be retaken by the police under s138 MHA. And we’re not doing it at all unless an ambulance is conveying him with us supporting that process to keep him legally detained. We don’t want dead patients in police vehicles do we, like Dorset had in 2009?
Incidentally, in the Kent and Dorset cases, amongst the first questions to be asked was, “Why wasn’t an ambulance called earlier?” << Chapter 11 of the Code of Practice to the MHA – is law!
THE LEGAL LESSON
- The man never made it as far as hospital so when he ran off having been made subject to an application under the MHA, he was not AWOL because he was never an inpatient.
- Legally, the main person with a detaining authority over him in at this point is the AMHP from whose legal custody he escaped.
- The AMHP, a police officer or anyone from the hospital in which he is liable to be detained may detain him and convey him to the hospital in which he should be.
- So the power of detention for the police is not under s18 for him being AWOL, he is not; but it is under s138 MHA.
- If the man had made it back to his own house and lawful access may be gained, then s138 may still be used but there is no right to detain him at all or force entry to secure his detention – except with a warrant under s135(2).
- I have often described s135(2) warrants as relating to AWOL patients and they do – this example serves to remind us that they also relate to patients “liable under this Act to be taken or retaken”. This covers AWOL patients and this man’s situation of having absconded.
- Both the police and an AMHP can apply for a s135(2) warrant but guidance is that the police should be accompanied by a mental health professional. As such, it would be my view that the AMHP is better placed to obtain the warrant, not least because we know some Magistrates misunderstand the ability to grant warrants to applicant police officers under this sub-section.
- If in this scenario were repeated and the man had not yet been ‘sectioned’, had access been refused they would have needed a s135(1) warrant – which only the AMHP can obtain.
This job had all the potential to go awry and at risk of invoking melodrama, is precisely the kind of potential casualness which can get officers into trouble and get people killed, however unintentionally – we police according to laws for a reason.
The pedantry I am outlining above ensures that ambulances are called; that officers ensure that what they are told by other professionals is checked where this is relevant to establishing the potential lawfulness of their own subsequent actions; that respect is afforded for the decisions of the courts and the rights of patients. Notwithstanding that he is unwell and “liable under this Act to be taken”, the man has a right not to have his house illegally invaded by the police, as in the D’Souza v DPP case (1993).
We all need to know more mental health law so that we don’t put our arm in the mangle! This is the lesson of many mental health related police tragedies in recent years. And as I was told by an inspector when I was two days into my police career: “Knowledge brings confidence; and confidence brings authority.”
The Mental Health Cop blog won
- the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”
- a World of Mentalists 2012 #TWIMAward for the best in mental health blogs.
It was described as “a unique mix of professional resource, help for people using services and polemic.”