The police service often get called to incidents in private premises where people are threatening suicide or self-harm. These incidents are very difficult to address because on the one hand, cooervice powers are severely restricted; but on the other to do nothing at all and subsequently find that a person who may be mentally ill and / or lack capacity has seriously injured or killed themselves would be devastating, not least for the person and their family.
Don’t forget to consider a properly trained hostage / crisis negotiator for these kind of situations.
Such incidents in public places are comparatively straight-forward: as long as an officer believes the person to be suffering from mental disorder, s136 of the Mental Health Act is in play. But where s136 cannot be used, let us remember police powers in private dwellings:
“During police attendance following a spontaneous incident or during a formal Mental Health Act assessment in a private dwelling conducted without a warrant under s135(1), the police have NO powers to use force until: EITHER an AMHP has ‘sectioned’ the patient OR unless a criminal offence is attempted or a breach of the peace apprehended.”
Let us also remember, that when officers’ start realising this and their thoughts drift towards concepts of ‘mental capacity’ there are certain limitations on the police use of the Mental Capacity Act – unless someone is actively attempting to cause themselves death or serious injury, the MCA is probably of no application.
- Call an ambulance – there is a very real sense in which this is a healthcare situation: a mental health crisis in progress. Nothing in law prevents police officers asking healthcare professionals to attend or for advice.
- Call the 24/7 MH Crisis Team – whether or not they can attend, they may well be able to provide useful information or advice.
Parliament decided in 1983, that the way to coercively manage such a situation, if that becomes necessary and appropriate, is for an AMHP and a DR to undertake an MHA assessment for potential admission under s4 MHA. This was reinforced by the ‘Sessey’ case. If need be – for example, because the police were obliged to leave the premises for want of a legal reason to remain – this should then be done after obtaining and executing a warrant under s135(1) MHA with police support.
Whether or not such course of action is appropriate / necessary, is a healthcare decision – so call them to ask their advice about whether it may be needed. It also means, should there be no response, you have an audit trail of attempts to do the right thing and it puts into context any subsequent action taken or not taken.
Note for MH Crisis Teams and other NHS staff >>> if such a phone call comes in, please don’t tell or encourage the officers to trick the patient outside for s136 to be used: that would be to incite false imprisonment which is triable in the Crown Court and as you’re asking the officer to act illegally, you should expect them to say ‘No’. They may phrase it differently and should be unmoved by representations that it may be ethical. It is illegal.
Principles about the operation of the Mental Health and Mental Capacity acts suggest concepts like ‘the least restrictive’ principle and the importance of patient autonomy and dignity. Here’s a controversial thing that many police officers find counter-intuitive: people often self-harm to relieve their own mental distress and have the legal competence (or ‘capacity’) to take the decision to do so. <<< The first time I thought about this, it sounded instinctively wrong.
If dealing with this, I would encourage thinking in the following order:
- Call an ambulance – if nothing else, they have training to make assessments around Mental Capacity to a greater degree than the police (although I know paramedics who say it is not enough training). The ambulance service may or may not be able to make links with other NHS services, like out of hours GP or Crisis Teams. That is a matter for the NHS which they may not resolve until unrelenting feedback for the need to be able to do so.
- Call the 24/7 MH CrisisTeam – to secure what information you can, seek advice and ask for a response to the incident if the patient is known to them. Especially if the person is known to them, often worth reminding tha the police have no powers, etc., as per the above.
If any officer reading this thinks, “There’s no point doing that, they won’t respond!” I would say this:
You may be right or wrong about that. Either way, it becomes clear evidence that you have attempted to act in the least restrictive way, if subsequently other action becomes necessary. It shows you have recognised this is a healthcare situation and called healthcare professionals to advise, guide or deal. This is important for any subsequent review of the handling of the incident. Of course, they may actually respond! It has been known.
And if you get to the end of this, and find yourself standing in someone’s dwelling just you and them, unable to secure NHS support, you must remember this: you have a duty towards them in terms of Article 2 ECHR (right to life) and Article 5 (right to liberty) and you’re now standing right in the middle of the conflict between these two rights – if you genuinely believe that their life is at risk if you leave; if you genuinely believe that because of mental illness, drugs and / or alcohol that they lack capacity; you may consider that legal framework as the best you have available. If you do not believe these things, it may be that you have to leave – however, involve supervisors in this decision as it is a serious one.
If you thought they might act on the threats when you leave, would it be defendable to remain in their dwelling with them (even if as a trespasser) ensuring they do not take an overdose or self-harm? Possibly: this may be an anitcipated breach of the peace if you thought it imminent and the violence or threats were offered towards you. Where it was all directed by the individual at themselves, it is not clear from caselaw that this would amount to a breach of the peace.
Get your sergeants and inspectors involved – to start taking ownership and to start going up the NHS management structure to push for a reponse wherever you believe you – but preferably the ambulance service! – have assessed someone as lacking capacity and that to continue to seek a more comprehensive NHS response was in their best interests.
Would it be more or less defendable than leaving?