Searching Patients

When can you be searched by the police or mental health services, to establish whether you are carrying things that are either illegal or could be used to cause harm to you or anyone else?

Not as straight-forward an answer as you might think, I’m afraid! … I’m going to split this into several categories –

1.  Search after being detained under the Mental Health Act by the police.
2.  Search after being arrested or removed to a police station.
3.  Search after being ‘sectioned’ or whilst detained on a ward.

Article 8 of the Human Rights Act applies to these issues, as they relate to privacy and personal integrity.

DETAINED BY THE POLICE MHA

The police can detain people or patients under various MHA provisions.  These include –

  • Section 18 – when patients are AWOL from hospital
  • Sections 35, 36 or 38 – where patients involved in criminal proceedings abscond from remand or from an interim hospital order.
  • Section 135(1) – when people are detained under the terms of a warrant for assessment of the need for admission
  • Section 136 – when people are detained by the police to be taken to a place of safety for assessment
  • Section 138 – when people are detained or redetained after absconding from various provisions of the MHA – this includes people who abscond after being “sectioned” but prior to admission in hospital, as well as patients who abscond from a place of safety.

The only important distinction to determining whether the police then have a right to search you, is whether you were detained under s135(1) or under the other provisions I have listed.  If you were detained under the other provisions: they are all “preserved powers of arrest” by virtue of s26 and schedule 2 of the Police and Criminal Evidence Act 1984 and the police can then search you under s32 of PACE if the criteria are met –

“A constable may search an arrested person … if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others … for anything which he might use to assist him to escape from lawful custody; or which might be evidence relating to an offence.”

This points bears a moment of clarification:  by saying “arrested” the legislation is not saying “arrested for an offence.”  This is a tricky debate for the detention of patients who are unwell, because the word ‘arrest’ carries inherent connotations of criminality.  Strictly and legally, arrests occur for many reasons and do not just apply to criminals or suspects.  In a difficult case investigated by one of my officers last year, the victim of the crime was arrested on the order of the court hearing the case.  Doesn’t mean she is or was a criminal – but she was arrested.

So why not s135(1)? – put simply, because it is not a “preserved power of arrest” it does not come under the purview of s26 PACE.  The warrant from the court does not allow a power of search of the patient either and this is a point that often gets debated when policies are being put together.  Place of Safety service have quite often been known to say “Police will search the patient” for all detentions after s135(1) and s136 and there is simply no blanket power of search.  Each search following s136 must be justified against there being “reasonable grounds to believe” that the item will be found.  Where the person had been detained under s135(1) there is no explicit power given to search, so whether you can would hang on whether an officer felt there was a common law justification, in terms of the general duty to keep someone safe whilst in the control of the state.

As a warrant under s135(2) (for the re-detention of AWOL / absconded patients) is a power of entry to a location and any subsequent detention is then done under one of the provisions listed above, patients detained in their own homes after AWOL / absconding and forced entry, could be searched if s32 criteria were met.  And for the same reasons.

POLICE STATIONS AND CRIMINAL OFFENCES

The police can search you after arresting you for an offence, subject to criteria.  This remains true even if you are known to be mentally ill.  Again, s32 PACE is the main authority immediately after arrest and the search may not just be about items that could be used to escape, but also to anything that is evidence of the offence for which you have been arrested.  And if you have been arrested for an “indictable offence” (more serious matters, triable in the Crown Court) then a police inspector can authorise that your home be searched under s18 PACE if it is reasonably suspected that evidence for that or other similar offences may be found there.

After arrest, a search will probably take place at the police station – whether or not you were searched on arrest – as custody sergeants can authorise a more thorough search to ensure people in police custody for many hours are safe there, under s54 PACE.  This is still a general search and does not involve the removal of clothing beyond layers of outdoor clothing:

  • If there are concerns that someone may have concealed articles upon their intimate person that would not be found in a general search, the custody sergeant can authorise a strip-search if certain very stringent criteria are met.
  • If there is suspicion that a person may have secreted items within their body a police inspector can authorise what is known as “an intimate search” if it is reasonably believed that the items cannot be found without such a search.  Intimate searches are conducted by medical professionals and are usually done at hospitals.

All strip-searches are conducted and intimate searches supervised by two officers of the same gender as the person detained.  There will usually be no-one else present, except any available appropriate adult for someone who is either a child or who is thought to be suffering a mental disorder and obviously the medical professional for intimate searches.  Whether any authorised strip or intimate search could be delayed for the arrival of an appropriate adult would depend on the circumstances and the risks involved are weighed as carefully as possible.

PATIENTS ALREADY DETAINED UNDER THE MHA

Two situations here: firstly, patients who have just been detained MHA, for example in their own home; and secondly, inpatients on wards in mental health units.

Own home – where patients have been assessed and made subject of an application for admission under either s2, 3 or 4 they move into a condition of legally custody – that of the AMHP.  An AMHP has a power to “detain and convey” someone to hospital under s6 MHA once they have made an application for someone’s admission.  None of these things is an arrest, so s32 PACE is of no application.  If someone had been detained in their own home, then the police cannot use powers to “stop and search” because they are only exercisable in public places.  I can’t imagine a MHA assessment ever taking place in the street, so it would be highly unlikely that after being “sectioned”, you could be searched under the provision of s1 PACE (stolen / prohibited articles) although particular search provisions like s23 Misuse of Drugs Act / s47 Firearms Act etc., are not restricted to public places.

On wards – this can be a tricky one.  I have known several situations in which staff have sought police support on wards for patients who are believed to have secreted things like razor blades and where the staff honestly believe it would be dangerous for them to search the person.  Firstly, the police would have no explicit power to search the person without arresting them on suspicion of an offence and then using s32 PACE.  Locked psychiatric wards are not generally considered to be public places and hospitals are required by para 16.10 to the Code of Practice to the Mental Health Act to have policies on searching patients.  Subsequent paragraphs go on to detail considerations that should be applied to how that policy is put together.  Whether the police could undertake a search which is deemed necessary by hospital policy but sufficiently risky to require officers to undertake it rather than staff is highly controversial and there is no clear answer. Searches under the Misuse of Drugs Act or Firearms Act could occur under relevant legislation.

Where hospitals have sufficient staff trained in control and restraint, it would be far preferable to see them take the lead.  Let us not forgot, this particular point is the subject of review following the death of Olaseni LEWIS after officers attended a ward and restrained him.  But this leaves the thorny subject of powers to search for blades – it would have to be justiable under established hospital policies and then the debate begins about what is for the police and what is for nursing staff.

Police officers should be aware – para 16.21 states a patient’s Responsible Clinician should have been involved in any decision to search a patient without their consent and ask officers are only likely to be called to patients who refuse to allow a search, they should ensure they ask if it’s authorised by them before doing anything and involve their sergeant or their inspector before doing anything than can be delayed for discussion.

GENERAL POINTS ON SEARCHING

As with all searches, they should be done in a way which minimises any impact upon dignity and privacy.  Any force used to conduct searches without consent should be the least required in the circumstances.  Where possible, searches should be conducted by a person of the same gender and usually with more than one officer or mental health professional present.

Laws and guidelines for police and mental health services all demand records be kept of searches done, with justifications and outcomes so they are capable of review and challenge, if need be.


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

Winner of the Mind Digital Media Award.


 

Advertisements

6 thoughts on “Searching Patients

  1. Another good post, as always. I don’t think it’s quite true to say that searches under section 23 of the Misuse of Drugs Act or section 47 of the Firearms Act can only take place in public places.

    There is a useful table at Annex A of PACE Code A that summarises where each search power can be used, and for section 23 it says ‘anywhere’ (the terrorism powers in this table are out of date: the Home Office recently consulted on a revised Code A that corrects this). Similarly there appears to be nothing in section 23 of the Act that restricts the power to public places.

    Anyone wanting to stop and search someone in the person’s own home (which I can’t see happening very often) would, of course, have to make sure they were legally on the premises in order not to fall foul of section 19 of PACE.

    1. Thanks for the nudge – I think I knew that when I did exams ten years ago(!) but admit to “momentary lapse in concentration” and am grateful to be corrected. Have amended the above, in light of you saving me from looking stupid! 🙂

    1. This came up recently in an IPCC investigation. It’s a challenging issue because forces may feel that they would be in difficulty if a detainee made a complaint and the incident was not covered by CCTV, but at the same time be open to criticism if a strip search is recorded on CCTV. Giving custody officers the ability to temporarily switch off a camera would also put them at risk of allegations that they turned off the CCTV to cover up police misconduct.

      It is inevitable that on occasion people are going to be caught on CCTV without their clothes while in custody, not least because it’s pretty common for detainees to take their own clothes off while they are in a cell (or even at the charge desk). Sometimes it will be necessary to strip search a detainee in a cell if they are violent, or if they have been found in a cell with contraband and cannot be moved due to other things going on in custody.

      Some may feel that the IPCC should be a bit more consistent on strip searches, since they both push for them to be used more to ensure detainee safety but also seem to be very suspicious of strip searches on grounds of detainee dignity.

  2. Thank you so much for this. I’m going to print it out for ward staff and any police they then choose to call. Although if they read it probably wouldn’t get as far as the police! The MH COP states all sorts of things around forced searches but nearly all policies seen neglect to point out to staff that they may be liable if there are no good grounds. Staff regularly search the person and property without following guidance usually because they know the pt has very little chance of exercising rights in that situation and at that time.

    As someone who has been detained under s136 prior to hospitalisation I know that I would much prefer the police to search as on the whole they know the extent of their powers in this situation. The problem I have as a usually very compliant and completely non violent patient is that ward staff use searches as a punishment tool to remove personal belongings that pose no risk whatsoever, My response (because of lack of trust and lack of grounds and maybe some delusion) is to sit buddha like on my belongings apparently stating that I ‘respectfully decline’ a search! Then ask that the police be called to search me instead of staff. Except no threat, no breach of peace, no anger or violence issues and no self harm history so they back off at this point. And have a meeting.

    I think there is a role for all local MH liaison officers to actually go in to hospitals and explain the powers they have and can use. I want a safe space if I am unwell so if someone really is potentially armed or using class A’s I dont have a problem with law enforcement.

  3. thanks for the useful information and the interesting responses. I have waited a day in case of more responses before adding this again slightly tangential post. In her email newsletter last week my MP sent a link to the Home Office consultation on Stop and Search open online until late September. One of the reasons for it is to consider the fairness of Stop and Search under Section 1 of Criminal Evidence Act 1984 (PACE) ,Section 23 of Misuse of Drugs Act 1971 and Section 60 of the Justice and Public Order Act 1994. I’m sure its really hard to develop a system of stop and search that’s fair to all .There are situations where Stop and Search obviously needs to be applied ,and the consultation says officers need to have to have reasonable grounds. This might impact unfairly on people with mental health issues either because they might be feeling insecure or because they might have for example the shakes from not taking medication to counteract the effects of anti-psychotic medication and officers might pick up on these things as a reason to Stop and Search. We have read recently that a high proportion of black people are stopped and searched. Figures for the proportion of mentally ill probably do not exist. We also were told last week that 7% of drivers are high while driving and 12% drive while on medication where driving is banned. Just a guess but i guess that many more people are stopped and searched while walking than driving. Of course a proportion of MH people would be found to have committed an offence , but equally a proportion random stop and search would reveal offences.In the early sixties in London I seem to recall anyone could be stopped under a 19th century law that said you could be stopped and searched if within a mile of where a crime was being committed.Of course a crime was always being committed within a mile ! I wasn’t that concerned but now if it was suggested that random stop and search should be introduced because it would be fairer, which it probably would, I would be worried about the civil rights implications. So this is just a post of thoughts not solutions.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s