Debating Police Powers

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:

  1. More police powers would inappropriately extend the ability of the police to control and victimize.
  2. More vulnerable people would be “locked up”.
  3. 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.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


 

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11 thoughts on “Debating Police Powers

  1. A fully resourced Crisis team should be available in all areas but sadly isn’t quite often because of local politics as well as cost our crisis team covers 2 LAs but only has AMHPs from 1 of them our EDT covers 5 LAs but often will only have 1 AMHP in it. During the day i think i could be at every assessment within an hour but getting 1 doctor let alone 2 is what often causes delays. Think a lot of Trusts and LAs are scared to death that that they would have staff sitting around waiting for a shout and would claim it was an inefficient use of resources. Until the powers that be decide to do something about this its unlikely to change

    1. The problem is, though: not all CrisisTeams will take direct referrals from police officers (or ambulance); and as you say, they don’t all have the capacity to meet predictable levels of demand.

      And I just have to make this next point – it is my biggest personal bug-bear as a member of public sector staff: the idea that having staff “sitting around” waiting for calls when you are in the business of managing unpredictable events, having staff capacity to meet demand is efficient EVEN IF IT MEANS that people are “sitting about”. This is because the COST in time / money, to organisations who don’t do this, far outweighs the cost of paying people to “sit about.” This counter-intuitive truth is at the heart of why our public services are stuffed up and the NHS get this wrong again and again and again, in my humble view.

  2. Speaking as an AMHP I think you were pefectly reasonalbe in asking for a warrant- esp. given the danger it seems reasonable that you would need the legal legitimacy to enter, but also to take away from the scene to a place of safety.

    I would query the need for increased police powers on two grounds. 1. is this a ‘sticking plaster’ for better casework / interevention that should have been done earlier- simply, should person X have been treated better or detained earlier on? 2. warrants don’t take particulalry long to obtain and it does not seem unreasonable that a court should be involved when breaking into someone’s home, esp. if they have not done anything ‘wrong’.

    1. I think you’ve hit the nail on the head with your first point; and not just in this case: I far more frequently seeing cases this year rather than in previous years where it would be valid to ask the question about earlier intervention.

      I understand the view about warrants being easy enough to get, but thinking practically of the times I have attended incidents and thought “What we need here is a CrisisTeam assessment of whether a MHAA is needed, followed by an AMHP, a DR and a warrant (if required) – the likelihood of that within a timscale that includes use of the word “today” is just not realistic. I also continue to meet AMHPs who don’t understand s135(1) enough to get the points I make about police powers.

      The story in the post involves most normal policing for a whole local authority area grinding to a halt for eight hours, because. We allow the police to make their own decisions to break into houses for issues with far less seriousness than this, in my view. I can kick off your door to arrest your kids for stealing sweets, but not to manage a situation like the one described? I admit this seems odd to me. Of course it would be perfectly possible to put an extra layer into that authority – whether it was an AMHPs authority of a police inspector’s authority. Police inspector’s already make such similar authorisations for other matters, so it would fit the role perfectly.

      1. The idea that a Crisis Team inherently has he skills and legal knowledge to make an assessment of whether a MHAA is needed is unfortunately currently way off the mark. As an ideal maybe but have you met some of these people? While you get the excellent they stand out because they are the exception. The model is simply to call or visit someone , hand them medication and tick the box saying ‘still alive’. As a ‘patient’ you just say what will send them away – that is learnt VERY early on with sometimes catastrohic outcomes. The suicide rate on wards has decreased while at the same time the corresponding number of suicides while under the care of Crisis Teams has inreased. The most ineffective AMHP is still a better assessor than a Crisis Team worker and you are right = it will delay as there is little co-ordination within MH services let alone with emergency services!

  3. Staff ‘sitting around’ ?

    Not sure that this is needed. Your police officers do not sit around doing nothing waiting for emergency calls. They attend to the lower category calls on a steady basis until a call for immediate police assistance comes in – then they drop the routine and respond immediately to the crisis.

    Surely the NHS could do the same?

    I think this is more about attitude than resources. Mental health services are still operating as if they are not an ’emergency service.’ If the great majority of mentally ill people are cared for in the community – including some who are very challenging – then services have to adapt to reflect the full range of demand.

    1. Oh, but police officers effectively do sit around waiting for calls – they fill the time with time filling activity, legitimate enough in its own right, but done purely because it can be picked up and put down at will, the primary responsibility being to be reading to match demand! But I take the point you’re making, above – because you hit the nail on the head when you talk about generating capacity to match demand, at little notice.

  4. From an ambulance perspective, given the load that mental health cases place on all the responding services, I have often found it perverse that there are no dedicated resources to deal with the problems it causes. I have thought for some time that there is sufficient demand to have dedicated mental health ambulances which could carry an AMHP and an ambulance technician cross trained as a DCO. The banding is very similar (RMN Band 5/6, the same as a paramedic), and a specialist team could intervene much more effectively. You would still need extra support on occasion from an additional MH professional, or from the police (such as in your case here), but a large amount of cases could be dealt with in the field.

  5. A change in the law would be a bent and lazy bobbies charter.

    Changes are not needed.

    We do not need to make it easier for armed officers to enter people’s bedrooms (who have commited no crime) and assault them.

    Police officers and others may find it inconvenient that a person who has committed no crime has the right to ignore them in their own home, especially if that person is vulnerable.

    If every copper was a fine, upstanding and honest person we may be able to discuss this in a different light. However they are not and the public should not be expected to give up any more rights.

    1. Fine, but if a friend or family member has a breakdown and decides, in a moment of depression, to try end their life don’t complain when it takes 6 hours to get a warrant to gain entry, get they assessed, admitted and treated. During which time they have died of an overdose, bled out or whatever means they’ve settled on. IF you actually read what has been posted you’ll see that police DON’T WANT more powers they want the MH trust to pull their finger out. However that’s not going to happen over night but legislation can..

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