Recent debate has surfaced about police powers in private premises to deal with mental health incidents. Readers of the blog already know that the police, on their own, have no such powers under the Mental Health Act 1983. The impact of this is that where officers attend a private house, unless there has been a criminal offence attempted; or unless they “apprehend a breach of the peace”, they cannot resolve the incident by detaining someone. In the very rare circumstance that the incident involved someone who lacked mental capacity and was at imminently life-threatening risk, then the Mental Capacity Act could be relied upon to defend an officers actions for urgent intervention – but the application of the MCA will be possible far less frequently than some officers imagine.
This debate came up again for me in two situations recently: an operational incident that I attended and in comments made in response to Sunday Express article based upon Nathan Constable’s blogs on mental health. Nathan had been asked to list three things which may make a difference to the ability of the police to act effectively and properly and his third option was “Changes to legislation to provide officers in England and Wales to deal with mental health crises in private places”. And so inevitably, the conversation started on Twitter.
EXTENSIONS OF POLICE POWERS
I fully understand reservations about the police being seen to ask for extensions to powers. Even if you do agree that the current arrangements represents a dangerous loophole – and not everyone does – it is obvious that police powers are not the only way to resolve that issue. It is Parliament’s current view, reminded to us by the judge the Sessey case, that where urgent MHA assessment is needed in a private dwelling, an AMHP and a DR be engaged to complete it and a warrant under s135(1) be sought in order to force entry and / or remove to a place of safety, if needed. The Local Authority are obliged to have sufficient AMHPs available – although I don’t know of any area where we would agree that this is so.
And so any debate – necessarily political, if it involves questions of police powers – must not be seen as contributing to further criminalisation and stigmatisation of vulnerable people. Where this has been discussed before, several objections arise, and they did again:
- More police powers would inappropriately extend the ability of the police to control and victimize.
- More vulnerable people would be “locked up”.
- The police are not the only solution to problems – this is better done by others.
In last year’s piece “Mind the Gap“, I wrote about this. I hope I made in clear that I didn’t mind what the solution was to what I see as a very real problem: the inability of the state as a whole to keep people safe in these very limited circumstances. I argued it would be more appropriate to have better resourced and responsive MH crisis services, but unless we build capacity to have them at incidents within about an hour of being called, we are still going to have this debate. Nathan also had as his first solution to the broader police / mental health problems as “Better out of hours capability for mental health assessments: more beds and resources for Emergency Duty Teams.” So if his first idea could be made to work, his third may not be necessary?
Let me explain a recent incident that shows the problem:
EVERY KIND OF PROBLEM
Last month, we started a late duty at 4pm and by 5pm I was driving with at speed to a report of a mental health patient who had locked himself in his bedroom with a knife. Upon arrival, we were briefed by MH professionals who had been there a few hours, having attended to assess him for potential admission under the Act. It quickly emerged that the man was one of our current “missing persons”, having fled to London three days previously, in fear that he may soon be ‘sectioned’. The incident which triggered his flight to had involved some generalised threats being made, but no criminal offences were being alleged by the family members who had been trying to support him.
The AMHP and Doctors present had no warrant under s135(1) and they had not yet ‘sectioned’ him so there were no legal powers available to us under the Mental Health Act. He had not committed a criminal offence, either three days ago or today: he was simply a man upstairs, behind locked doors with a knife, a mental health history presenting a certain level of risk to others. To keep the story brief despite it taking seven hours to resolve, we asked the AMHP to secure a warrant, which was initially resisted. When we started talking with the man’s family about how we would try for as long as we felt was reasonable to persuade him out, we also made it known that if it came to the use of force, it would involve officers in protective equipment with shields and tasers. (As I stood and weighed the risk information, that was the only responsible way to send officers into that situation even though he was still upstairs, quietly.) But the man’s family started trying to dictate police tactics: happy with officers having tasers, but not happy with “riot gear”. Conversations started between the police, the AMHP, the DRs and the family about the dangers involved of sending non-protected officers into that situation and there was clearly no agreement about it. “Can’t you just pop the doors and send up those two with tasers?” It was my assessment that this would have been very dangerous indeed.
So I got myself to a position where I said this to the AMHP – to motivate a development, “If there is no willingness on the part of the householder to allow what I consider to be the appropriate officers with appropriate equipment into her house, I am not prepared to risk other officers’ safety by doing the wrong thing. In the absence of a s135(1) warrant allowing me to take the right decisions, we will withdraw from here until you’ve got a warrant because I am unable to act.”
DAMNED IF YOU DO / DAMNED IF YOU DON’T
Now this carried various risks, notwithstanding that I was furiously checking myself for any power to act immediately that didn’t have to take account of the conditions being imposed by the house-holder. If the police withdraw completely, the man is then at liberty to leave the premises and go where he wants, maybe back to London; and although it would then be possible to detain s136, we’d have to be sure we first spot him leaving. Should he then come to or cause harm, I would be that policeman on the news who “did nothing” where “police blunders led to [insert your preferred catastrophe here.]” But at the same time, UK law offered me no option except to be wildly cavalier with the lives of the police officers present. So which risk would I rather have; what is the least worst option?
Various representations later and a warrant having eventually been obtained – after the failure of more patient negotiation, just prior to midnight, we forced entry and detained him. Suffice to say, that the situation unfolded in a way that vindicated everything I had considered from 5pm onwards and this will now be my MHAA story of choice when it comes to debating s135(1) warrants and whether or not extensions to police powers are needed.
My main point here: if this had occured in Ireland, the door would have been forced around 6pm – maybe 7pm at the very latest – without my having to sit on that risk of whether he would try to run off from the premises that I had to keep contained with a third of my entire resources, supplemented by force resources, for a couple of hours whilst a warrant was obtained. Of course, if the structures that hold the police accountable, including the media, reported on these matters in fair, balanced way in light of the legal realities involved rather than the “something ought to have been done!” reality that we’ve seen before, that would help too.
SO WHAT IS TO BE DONE
I still don’t mind whether any legislative amendment focusses on police or MH services. I don’t mind having to secure the authority of an AMHP to act in private places: I just want to be able to do the right thing. Walking away from a man posing risks to others, whilst he was in possession of a knife and extremely unwell mentally, is counter to everything I joined the police for. At yet that is the express will of Parliament in those kinds of situations. In case it needs reminding: it is not an offence to possess a knife in your own home, until you threaten someone with it and that man had specifically threatened no-one with it.
As for the argument that it will lead to more people being vulnerable being “locked up?” Well, in some variations on this kind of scenario, you get criminal offences involved, mostly minor. Had this man at any stage threatened to kill any of the police officers of family members involved in this scenario, they were briefed to force entry and arrest him for the indictable offence. He then would have been taken to a police station under arrest and the MHAA would have happened there. Many of these kinds of situations are already resolved by the police choosing the offence available rather than worrying about the warrant that isn’t available and getting on with things. An extension of police powers would leave the choice open – threats spoken whilst extremely unwell could easily enough be set aside whilst detention is made under mental health law, if that were allowed. So any proposal to extend police powers doesn’t criminalise: it actually seeks to reduce stigmatisation by ensuring that the police don’t have to arrest for an offence for a want of other options – they can prioritise mental illness and access to faster support.
It would also put to bed the concerning actions of officers in cases like Sessey and Seal: officers acting illegally under the MCA or MHA, because they believe – probably in good faith – that someone is at risk. But acting in bad faith, they used this legislation illegally and this is also not the answer.
Policing, let us remember, occurs where “something is happening that ought not to be happening about which somebody ought to do something now.” (Bittner). Let’s have this debate without automatically assuming that the police are ‘up to something’. I’d like to ensure that where I’m looked at to ensure the safety and care of vulnerable people, that I am able to do it; and if we prefer to set up Crisis Services in such a way as they attend incidents of this kind within about 60 minutes, then that is preferable on many levels. However, that also comes at a cost and it is not what some mental health professionals think those teams are for – despite the word “crisis” in the title, I’ve known them eschew the notion of “running about like a 999 service.” So the problem remains.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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, 2013
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