Obviously, we think principally of the Mental Health Act in terms of it providing a legal framework for healthcare. We don’t immediately think about people committing offences contrary to the Mental Health Act. There are only a few, all listed towards the end of the Act but they have come in useful for me on more than a few occasions, when trying to bring policing situations to a safe or swift conclusion.
As I have just had cause to direct that some threats of potential investigation and arrest be made for possible offences under the Mental Health Act, it suddenly occurred to me that I have not really covered these things in a single blog post.
OFFENCES UNDER THE MENTAL HEALTH ACT
There are four specific offences under the Mental Health Act and I’ve hyperlinked each of them below, so you can read the full wording of each, if you wish. Some relate to offences which could be committed by professionals, for the protection of patients and the ethical administration of the Mental Health Act
- Section 126 – the offences of forgery: this means forging documents which are used to administer the Act itself. So things like ‘section’ papers – applications or medical recommendations – where signatures are forged. It is an offence to knowingly possess them as well as to forge them yourself. Anyone who deliberately writes false information on them with the intention of deceiving others, is guilty, also.
- Section 127 – the offence of wilful neglect of patients: this means deliberate neglect of patient’s welfare and dignity. This offence was used to prosecute staff in the Winterbourne View scandal and it covers the full spectrum of neglect.
- Section 128 – the offence of assisting someone to go AWOL or of harbouring them whilst AWOL: this would cover helping someone to leave hospital when they are detained under the MHA and it would include allowing them to stay with you or supplying with assistance of various kinds, if you know they are AWOL under the Act. Doing something to prevent the person be re-detained and returned to hospital, is also an offence.
- Section 129 – the offence of obstruction: this covers the active obstruction of those authorised to act by the Mental Health Act for hte purpose of functions under the Act. So it will mainly cover AMHPs and DRs do various inspections, interviews or assessments in relation to the decisions they must take. It is not only an offence to obstruct them in their work, but also to fail to withdraw from a situation when properly instructed.
By virtue of these things being offences, police officers and others have a legal right to use force to prevent them occurring and the police may arrest people who commit such offences, subject to the normal statutory arrest test. Police officers would also have a right to seize documents which they reasonably believe to be forged, as evidence of an offence. In the context of section 129, the police could forcibly prevent anyone from obstructing an AMHP who is engaged in statutory functions of inspecting a premises, interviewing or assessing someone under the Act, whether under s136 of for potential admission under Part II of the Act.
I recently asked that family members of a missing mental health patient be warned about harbouring and assisting. Although not quite at the stage where evidence existed to justify arrest, the police had formed a view during a missing patient enquiry that the man’s family were less than cooperative and may be supplying him with money to stay in hotels and evade re-detention. To encourage them not to do so, warnings were given to his sister, brother and father. It is quite possible that someone could be prosecuted for these offences and in court could receive a fairly substantial fine or a period of imprisonment up to a maximum of two years.
I suggest frontline 999 response officers or neighbourhood policing officers who find themselves supporting MHA assessments and searching for AWOL patients need to know in general terms about sections 127, 128 and 129. Not least, we need to take seriously reports of neglect about detained patients made by patients themselves or by their families; we also need to know when families / carers may be venturing into assisting / harbouring AWOL patients and when we can use s129 to justify the removal or arrest of obstructive people during s136 or MHA assessments.
Although a different Act of Parliament, it is also worth knowing about the offence under s44 of the Mental Capacity Act 2005 – the offence of wilful neglect of someone who lacks capacity. Again, this was used to prosecute some professionals in the Winterbourne View investigation, in Bristol.
All of this adds to a police officer’s ability to safely control those mental health events into which we are drawn, or potentially bring them to swifter, safer conclusions.
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