I previously gave my own thoughts about how to approach an assessment on private premises or s135(1) job. I’m going to do it again, to deliberately set out a different way to approach the planning of it and in order to provoke thought / debate.
Approved Mental Health Professional’s (AMHP) should bear in mind that the below reflects guidance to the police service from ACPO and is endorsed by the Department of Health: it may well become more wide-spread in future. It is a basis by which to mitigate risks being highlighted that necessitate police attendance. I know that some have supposed it is just the erection of artificial barriers to securing police support: I want to dispell that myth here. It is about safety, including yours: whether you are an AMHP, a police officer or a patient.
If it is anticipated that there will be risks of “resistence, aggression, violence or escape” (RAVE risks) then the grounds for obtaining a warrant under s135(1) will usually be met. As a warrant would significantly assist in the mitigation of those risks, the police may ask for one to be obtained. Of course, the final decision as to whether to do so rests with the AMHP, but a police supervisor should be thinking from a risk assessment point of view: “What can I bring to this operation which will mitigate risk?” A warrant may well do that.
Where a warrant is obtained, it ensures that the police officer who executes it has two powers otherwise unavailable to them:
- Power to enter the premises, by force, if need be; AND / OR
- Power to remove the individual to a Place of Safety, if thought fit.
Case law has upheld that police officers’ would have the right to use reasonable force in order to safely execute a warrant on a private premises in order to prevent its execution from being interfered with. (It is also a criminal offence to obstruct a police officer and a separate offence to obstruct an AMHP.) For example, it may be necessary to briefly control the movements of parties in the premises, either the patient’s movements or to prevent third-party interference.
The criteria to be satisfied to secure a warrant are that the individual to be assessed “is or has been neglected, is or has been ill-treated, is or has been kept otherwise than under proper control, OR is living alone and are unable to care for themselves.” So, four potential grounds against which to obtain a warrant, only one of which need to proved to the Magistrate.
Finally(!) – where a warrant is being applied for despite no attempt to enter having yet been made, OR where it is known that access to the premises can be lawfully secured, the reasons for still applying must be documented (CoP MHA, para 10.10). <<< This means, you can seek a warrant even though you know you can get in, but you’ll have to outline the necessity of it to the Magistrates as most of the warrants they grant cannot be authorised when access is freely available. s135(1) is different. s135(2) is not!
To lawfully grant a warrant there is NO requirement to demonstrate:
- that access to the premises has already been attempted;
- that refused access to the premises is apprehended;
- that there is a specific indicator of resistance, aggression, violence, or escape (RAVE); only those points in subsection (1) need be satisfied.
- that the power to remove the individual to a Place of Safety WILL be used; that it might be needed where the criteria for granting are met, is sufficient to allow an application.
The police are allowed to have a view about whether a warrant should be sought or not, as they are being asked to mitigate (sometimes considerable) risks and must do so lawfully. The planning discussion should include full disclosure of risk information under the Data Protection Act 1998, because warrant or no warrant – it is a joint statutory responsibility where everyone has the same objective and responsibilities to each other. They all need to fully understand the risk information and work together as one team.
Without a warrant there is no police power to intervene by force within that premises until someone’s conduct amounts to an attempted or actual criminal offence, an anticipated or actual breach of the peace; OR until an MHA application is made. So even bearing in mind offences of obstruction – to the police or to the AMHP – there is no power to prevent the individual from:
- Completely denying access to the premises (unless another person may lawfully grant it);
- Moving to a room which can be locked (bathroom / cupboard / loft);
- Picking up knives, cutlery or other (improvised) weapons;
- Boiling kettles or picking up hot-drinks;
- Accessing areas where there are windows / balconies;
- Leaving the premises – if they do leave, s136 criteria may or may not be met.
I am not advocating a “NO WARRANT = NO POLICE” approach. If the RAVE risks come, for example from a third-party at the address, it may not be possible to get a warrant, but it will still be necessary to have the police.
Think it through and do let me know what you think.