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.
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