Mind The Gap! – part 1

I’ve tweeted and blogged previously that there are some limited circumstances in which police officers may find themselves without powers to act in a healthcare situation to keep people safe, but without being able to ensure or motivate an NHS response either.

My comments about this have caused some to think I’m advocating an extension of police powers to allow for greater coercion, expansion of a police state, etc..  I want to say a little bit, so that I’m clear about what I’m getting at:

In a public place all over the UK, the police have powers under mental health legislation as well as powers of arrest for criminal offences, breach of the peace and so on, which would allow them a range of options to prevent harm where risk prevailed.  In a private dwelling this is not the case. Whilst the powers of arrest for crime and breach of the peace remain, there is no legal authority for the police to act alone or unilaterally, where faced with sub-criminal risks by a vulnerable person, often towards themselves.

This may include, for example, someone threatening to harm themselves at a later point in time, perhaps by overdose.  It would also include people playing around with legally possessed medication or knives etc., where they are not yet committing an offence.  Again, let’s remember: it’s not illegal to possess a knife in your own house or legally available medicines.  Illegal to threaten the police with that knife or attempt to assault them with it, but until such time as you do, it’s your house and your knife whether you’re chopping onions or wondering whether you might self-harm with it after the police have left.

Whilst remembering that the police once there would have positive duties to protect and balance human rights under Article 2 (life), Article 3 (inhumane and degrading treatment) and Article 5 (liberty), we should also remember the reality of what I call the ‘legal caveat’:

“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) or equivalent law, the police have NO powers to use force until: EITHER an AMHP – MHO in Scotland / ASW in Northern Ireland – has ‘sectioned’  the patient OR unless a criminal offence is attempted or a breach of the peace apprehended.”

After the ‘Sessey’ case we were reminded of Parliament’s required response to mental health crisis in private, which may require MHA assessment and it involved an AMHP and  DR undertaking assessment for consideration of admission under s4, or an AMHP securing a warrant under s135(1) for removal to a place of safety – s292 MH(S)A; a129(1) MHO(NI):

So one tweet I posted said this: “#UK is almost alone by not allowing its #police to force entry under #mentalhealth law to a private dwelling to deal with an #MH crisis.”  This statement is true – feel free to look up Mental Health Acts from the six states of Australia, several from Canada and from South Africa for a start.  Because I also posted other tweets on the difficulties faced by the police at around the same time, this one should not be read in isolation, as advocating an extension of police powers.

I also said this: “Either the law should enable the police to manage MH emergency in private dwellings safely; preferably, it should ensure that the NHS do so.”  I have also made it clear that I don’t mind which, ultimately.

Incidentally, a proposal to bring equity with other international jurisdictions on this issue was contained within s228 of the draft Mental Health Bill 2004, which was set aside before being enacted.  It was a proposal subject to enhanced scutiny of front line officers by mental health professionals and only for a very brief time, after which an Magistrate’s warrant would have been required for further detention.

I understand why this is controversial for some – your home is your castle, etc..

What I do think it is fine to say, is that there is a lack of legal ability – a gap – to ensuring that MH situations brought to police attention can ensure management which will consistently prevent disaster.  Notwithstanding the greater tragedy to a vulnerable individuals or their families, we can also imagine coverage of an incident which read, “Police do nothing known, suicidal mental health patient.”  It is utterly unconscionable.

So my position is this: I don’t mind what the solution is to a position whereby society expects a de facto response from its police service as mental health crisis responders but doesn’t equip them to handle the variety of demands faced.  But if it does so without entirely equipping them to manage it adequately whilst also not ensuring a response to this from its health service, then we have a problem.

There is a gap.  And that is all I’m saying, whilst highlighting just a couple of solutions.

What, if anything, should be done about this, is absolutely a matter for others.  I’m certainly not advocating for an expansion of police powers.  This will become even more important in coming years as health services continue to reduce their mental health capacity and I think we should prepare for an upturn in such calls to the police.

<<< Read a follow up which addresses some reaction to this post. >>>

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk