If you are a mental health or social care professional, the police need you to know some ‘stuff’ when it comes to their involvement in mental health incidents and Mental Health Act procedures.
I’ve written this to help oil the wheels of understanding because I keep being told in response to this blog and Twitter that explaining reasons for police actions / inactions, is key to understanding alternative perspectives. By no means am I suggesting that this stuff is simply not understood: it represents a list of things that more than one mental health or social care professionals has got confused or been wrong about, in my operational experience. I hope you find that it is helpful, which is its intention.
This is crucial! >>> NB: writing this post does not imply that the police have nothing to learn and / or are perfect: very far from it! I hope the police read this post as well, but the whole point of this entire blog is that we all have things to learn, including me.
So in that spirit here are just some thoughts:
- The police, like every other agency have finite resources.
- Despite the fact that police theorist Egon Bittner asserted that “there is nothing which could not become the proper business of the police”, it does not automatically follow that everything is the proper business of the police.
- Just because you do not have a legal authority to do something, does not mean that the police must have this authority.
- Just because you do not have resources on hand to do something, it does not follow that it is always going to be legally or logistically possible, even if it is desireable, that the police are called in to do it.
- Decisions by your organisation not to train or deploy staff to undertake statutory functions, does not always automatically create an obligation for the police.
- Asking the police to convey someone who is in legal custody under the MHA may very well be an implicit request to handcuff the person – ask about force policy in your area because many forces require ‘compliant handcuffing’ of those being transferred between locations.
- Assessments on Private Premises:
- Where you want to do an MHA assessment on private premises, and you identify “RAVE risks” which require the police, the officers may well ask you to get a warrant.
- Yes – you can and sometimes should apply for a warrant even though you already know that you’ll get in.
- The potential that a magistrate may misunderstand the law, or that their legal clerk may do so, does not mean we should assume they will and not try to do the right thing.
- There is no legal power to search someone you have sectioned in a private premises.
- There is no legal power to search someone who has been detained under s135(1) warrant for removal to a place of safety.
- An AMHP may delegate their authority to detain and convey under s6 MHA to another person, but may not compel that person to accept the delegated authority.
- Removal to a Place of Safety:
- Once someone is in police custody, it is ultimately a decision for the police to decide where a person should be removed to because they bear the legal consequences of the decision.
- A&E can be considered a potential place of safety if the officers are clear or in some doubt as to whether the person arrested needs medical assessment, prior to psychiatric assessment.
- Nothing in law prevents the police asking a psychiatric place of safety to handle a detention, even if that location has given generalised indications that they will not – it can be crucial to the officers’ demonstration that they’ve discharged their duty of care.
- How much alcohol is too much; how much resistant behaviour? If some is OK but more is too much; you should be prepared to help define that boundary because we think it’s a false dichotomy anyway and we’re simply not trained to call it properly in light of possible clinical risks.
- Nothing in law prevents the solution to a s136 quandry being improvised outside the terms drafted in a local protocol. The question is whether what was done was lawful and whether the officer feels able to defend their action in the context it was taken.
- It would be lawful to ask a PoS in a neighbouring area if they would be prepared to handle a case, if the normal location is occupied, unwilling to accept – especially where the person is ordinarily a resident of or a patient in that neighbouring borough.
- If would be lawful to take someone to a private dwelling, as long as the occupier is wiling to accept the person being detained there; ie, the parent of a child detained.
- The police are obligated to remain in a NHS place of safety after removing that patient there, only where this is consistent with their primary function to prevent crime, protect life and mitigate “RAVE risks” which are beyond the ability of the NHS.
- AWOL patients:
- If you report an AWOL patient, you are obliged by law to furnish the attending officers with legal information about the power of re-detention, if any.
- If you know the location of a person at the point of reporting them AWOL, it is your responsibility (or that of the NHS) to coordinate the repatriation.
- If someone turns up at a location asking to be taken back to the NHS facility from which they are AWOL: transportation presumptions should be directed towards your relevant organisation, usually the ambulance service. If the police are required, it will be in support of this organisation, not in lieu of them.
- If you are reporting an informal patient going missing, please have instructions ready for what you actually want the police to do if they find the person – if they find the patient in a dwelling, they have no powers to do anything at all, unless the individual is committing an offence or a breach of the peace.
- Guidance and support will be required, possibly quickly so there needs to be a pathway.
- Offences by Psychiatric Patients:
- The officers are going to want to know background information, relevant to their legal decision-making.
- Amongst other things this will include legal status under the MHA: previous relevant behaviour on the ward (if any); opinion of the RC as to prosecution; whether or not the patient has been AWOL during detention or afforded any s17 leave.
- Enforced medication of patients / transfers between MH facilities:
- It has been questioned as to whether the police have any legal authority at all to restrain patients for medication.
- This is a responsibility for the NHS and incidents of insufficient staffing or training should be addressed with NHS managers.
- It is a matter for NHS managers to ensure commissioned arrangements to transfer patients between NHS facilities for clinical purposes.
- Only where urgent transfers are required, for example, to A&E for urgent care, should the police be used and even then, it would be to support the ambulance service, not replace them.
The above would represent my reactions to requests for support from the police or to reactions from the NHS that the police had done the wrong thing. I can assure you it’s provided so that we all understand each other a little better.
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
4 thoughts on “What We Need the NHS To Know”
This is excellent and just the sort of information the nurse in charge of a psychiatric ward needs. Especially during the night when support from up the management line can be very patchy
Thanks for that feedback – great to think of it in those terms. Much appreciated!
Re There is no legal power to search someone you have sectioned in a private premises.
There is no legal power to search someone who has been detained under s135(1) warrant for removal to a place of safety.
I would have thought police have a duty to ensure safety and could use their powers under PACE to do this if information indicates there is a risk of serious risk, e.g. info from the MH team or relatives, or the situation on the ground indicates this?
So where does the power to do it come from? If the person in their own house has a knife in their pocket, they are not committing an offence, nor do the stop / search provisions apply because you are in a private dwelling. As s135(1) is not an ‘arrest’ for the purposes of law, s32 PACE does not apply. It’s fine to think that something which might be done is a good idea or even that it is necessary to do it – but where legally does the power of search actually derive from?
I’m open to ideas and happy to learn, accepting that some have argued that there must be a “common law power”.
Of course, this doesn’t mean that the risks can’t be mitigated in other ways, for example, reflecting upon what level of restraint might be subsequently required (ie, handcuffs?) whilst moving a patient and of course, if they had been sectioned, there will be an authority for the receiving hospital to search them on arrival; if they were being removed to a police station, they can be searched THERE under the provisions of PACE which apply to detainees at police stations. But apart from the vague, non quantifiable answer of “common law” – where would a specific power of search come from under current law?
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