The simplest way I can explain how the police should approach determining whether they will attend a Mental Health Act assessment in a private premises by an AMHP, the whole debate about s135(1) Mental Health Act and what they should consider before they get to a location, is to explain how I’d react to a request:
CAN YOU HAVE THE POLICE?
- You can have police officers to support your MHA assessment on private premises IF you can demonstrate raised prediction of ‘RAVE Risks‘ from anyone at the premises – this means Resistance, Aggression, Violence or Escape – OR the existence already of a s135(1) warrant.
- NO RAVE / NO WARRANT = no obligation for the police to attend: we’ll decide whether to give you a hand on a case by case basis, dependent upon other demands on the service at that time.
- The information which supports a likelihood of a ‘RAVE’ must be objective and evidenced.
WARRANT OR NO WARRANT?
- Once you’ve established a RAVE; I’m going to ask you to get a warrant if the RAVE comes from the patient to be assessed because I will argue the grounds for getting one will always be met in light of your identified risks.
- If you choose not to get a warrant, that’s up to you but I’ll then explain I have NO POWERS inside that premises to mitigate those raised risks until there is an attempted criminal offence, an anticipated breach of the peace; OR you formalise an application for admission under the MHA.
- I will ensure you realise that legal responsibility for the planning and execution of the assessment sits with you, until such time as the police can legally intervene, because of crime / BoP;
- This means there is no power to stop the patient locking themselves in a bathroom, boiling kettles, leaving the premises, accessing balconies or picking things which may be used as weapons; UNLESS it constitutes an (attempted) offence OR (anticipated) breach of the peace; OR until they’re ‘sectioned’.
- I will still ask you to get this warrant, even if you demonstrate that you can already ensure lawful access to the premises – ie from a spouse or parent – nothing in s135(1) requires a demonstration that access has already been attempted or that it is apprehended that access will be refused.
- If you tell me that a Magistrate will not grant a warrant if they know access can be gained, I will draw your attention to para 10.10 CoP MHA and ask that you ensure a proper briefing to the Magistrates to ensure they realise that they can grant this warrant, even though access is enabled. This is almost unique in English / Welsh warrants and you should remind them of this.
- You can appeal a Magistrates decision, if you wish to, via the High Court. (LSSAs can arrange to train Magistrates via local Court User Groups.)
PROCEEDING WITH A WARRANT
- If a warrant is granted, I will determine the police resources to attend, the equipment they will take, if any, in additional to their normal uniform / equipment. This is because if I am executing a warrant, I am responsible for safety issues once inside.
- I will brief my officers that once the warrant is executed, they may use reasonable force to control the movement around the premises of the patient or any third-parties (DPP v Meaden, 2003; Connor v Chief Constable Merseyside, 2006) and that they may exercise a decision if risks cannot be controlled, to remove the patient to a Place of Safety.
PROCEEDING WITHOUT A WARRANT
- If you establish a ‘RAVE‘ from a third party – ie, spouse, parent, housemate – and the grounds for getting a warrant are not met, I will still ensure officers attend to manage the risks and will brief them on s129 Mental Health Act and the offence of obstructing an AMHP in the course of their duty.
- I will remind them, that they can use force under s3 Criminal Law Act 1967 to prevent a third-party from interfering with your assessment, as along as you’ve gained lawful access from another source.
- Ultimately, if anyone persists in attempting to obstruct you, they can be arrested for that offence.
- However, the planning and risk assessment for those ‘RAVE’ risks where there is no warrant is YOURS, alone.
- Once ‘sectioned’, the police will not convey the patient alone and any request for police to support conveyance by ambulance or other agreed method will be contingent upon a clinically qualified person, either paramedic, nurse or doctor travelling with the patient.
- Authorities to detain and convey will be in writing.
This will ensure appropriate use of police officers, risk management by you or us, depending on who is leading; it will also ensure the defendability of police actions in all circumstances.
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Since this blog began, the law of England and Wales, including the Codes of Practice to the Mental Health Act 1983 have been updated, several times. Always check the date of publication, displayed below; and cross-reference to current legislation and guidance when using this material as a reference guide.