A few weeks ago – and all of a sudden – a Member of Parliament laid down a ten minute rule motion in the House of Commons, aiming to amend section 136 of the Mental Health Act 1983. After accompanying Metropolitan police officers on a patrol one evening, Sir Paul BERESFORD MP witnessed the handling of a mental health crisis in private premises. A young woman was found stood on the window sill of the 14th floor of tower block in Wandsworth and an officer managed to talk her down from it. Whilst still in the premises and beyond the reach of section 136 of the Mental Health Act, the young woman refused all offers to voluntarily access assessment, presumably by going to A&E.
Concerns for the young woman’s welfare were so serious that the officers called upon local mental health services and to be fair, were joined at the address by a mental health professional. Whether this was a mental health nurse, an Approved Mental Health Professional or any other kind, is not clear, but we do know that they believed the young woman needed to be detained for a full mental health assessment as she again refused offers of help. Although the precise legal mechanisms by which Sir Paul witnessed the woman being removed from the premises remain vague, he reported that he was stunned to learn a similar incident in a public place would have led to immediate police action to safeguard the woman, but that in private premises it was beyond the legal authority of the police.
There is a now a page on the Parliament website to track the progress of the Mental Health Act (Amendment) Bill 2014, if you wish to obtain email updates about progress.
LEGAL FRAMEWORK IN PRIVATE PREMISES
- You can arrest people for any offences they are committing or attempting – she wasn’t.
- You can arrest to prevent or apprehend a breach of the peace – there wasn’t one.
- You can defend your intervention under the Mental Capacity Act, if it is in relation to a deprivation of liberty for life-threatening situation – once she was down from the ledge, it was no longer that serious.
If any one else is familiar with another legal method of allowing unilateral police intervention, I’d love to learn it!
So this rehashes a very well-worn debate – we’ve been here so very many times before. We’ve seen the Metropolitan Police sued successfully for handling a very similar incident and attempting to defend actions with reference to the Mental Capacity Act – the case of Sessay v SLAM and the Metropolitan Police Commissioner. We’ve seen South Wales Police sued for using breach of the peace in the premises and then changing over to the Mental Health Act 1983 once outside – the challenge of Seal v Chief Constable of South Wales failed on a legal technicality about section 139 MHA but Lady Justice HALE remarked in passing that what the officers did was probably unlawful.
We know from other, real examples that where criminal offences are committed amidst a mental health crisis, police officers will resort to those powers of arrest if they have no other choice, somewhat criminalising people in the process. The case of Webley v St George’s and the Metropolitan Police Commissioner all began after a very obvious crisis incident in private – because the very unwell and probably very frightened Mr WEBLEY threatened officers with violence before attempting to jump from a first floor window, he was arrested for the threats to keep him safe. I wonder whether one day a barrister will challenge arrests for offences which are in all reality, proxy powers of detention under the Mental Health Act. I also wonder what they would have done if a Mental Health Act power were available to them?
We should ask ourselves why this issue keeps coming up? – the Government is conducting a full review of the legislation in sections 135 and 136 of the Act. Why are they doing this? – because we keep seeing examples of officers who feel somehow forced into a decision to act, whether or not they realise they are acting unlawfully and not to act is to leave someone at obvious risk. Why would you risk the consequences of this when so many stated cases have said it is unlawful? – well the view is sometimes put that it’s preferable to risking the consequences of not acting. Either way, it’s about selecting the least worst option from a range of utterly rubbish, frustrating options that you could be justifying to inquiries and / or courts for years.
The most ridiculous thing about such an outrageous point, is that it absolutely is NOT restricted to police decision-making! It is a human instinct to want to safeguard people at risk and public sector employees are often in the jobs they are because they want to keep people safe, help them and protect them from harm.
MENTAL HEALTH PROFESSIONALS
So with the police looking as if they can’t stop themselves acting illegally, what should they do to get it right?! Well, in the Sessay judgment, it was remarked that the Mental Health Act 1983 affords a full suite of options to intervene, including urgently. The judge reminded us all that the police can call upon mental health services in order to ask for an Approved Mental Health Professional (AMHP) and a section 12 Doctor to attend the location and conduct an urgent assessment under s4 of the MHA.
I will admit, upon reading the judgment, I laughed at it – out loud. The idea that an AMHP would respond to a police request without first wanting a mental health nurse to screen the need for it, was fairly hilarious. Even if they would respond, by the time they’ve found a section 12 doctor and possibly having travelled via a Magistrates Court for any warrant they may require under s135(1) MHA, I’m not anticipating any support for at least four hours. There are simply insufficient AMHPs to ensure a 999-style response to calls for urgent assessments. Many would argue that this is not what AMHPs are for. Certainly most local authorities or mental health trusts don’t staff their AMHP rotas to deliver this kind of service and since section 114 of the Mental Health Act 1983 was amended to remove the need for local authorities to ensure sufficient AMHPs to meet expected demand, there is no statutory basis for police forces or anyone else to argue that AMHPs should be available in this way.
In a seventeen year career, fourteen of which has been operational frontline policing (and three on mental health!) I have been in the position witnessed by Sir Paul BERESFORD on dozens of occasions. I had hoped that since the Sessay judgment that things would change – given the legal imperative that this case nearly represents, remembering that it is not an Appeal Court ruling and bearing in mind how many protests AMHPs and Place of Safety nurses have made over the years about these kinds of actions. I couldn’t have been more surprised – instead, I found that CPNs and AMHPs are actually inclined thesmelves to suggest the very thing that we are told the police should be trying to avoid.
“Can’t you just get him outside and 136 him?!” Incidentally, if this is not phrased correctly, it could be construed as inciting the criminal false imprisonment of the person concerned! That aside, I’ve also seen written advice about this kind of predicament that advises misuse of the Mental Capacity Act. It turns out, that when you place mental health professionals in this position, you sometimes end up with similar instincts – to keep people safe, first and foremost.
So Sir Paul’s incident is not just about the police and we shouldn’t forget that it appeared to end with two police officers and one mental health professional as well as two paramedics (and an MP!) removing a person from their dwelling whilst they were objecting. Not one of these professionals or all of them taken together has authority to do this and so the action taken appears on the face of it to be unlawful! The lawful route to MHA assessment is for an AMHP and a s12 Doctor to do a s4 Mental Health Assessment at the house, or get a s135(1) warrant to remove the young lady to a place of safety. The only lawful thing the Metropolitan Police could have done in these kinds of jobs is to inform mental health services and walk away.
I wonder what families, Coroners and the IPCC would think if that was the action the officers had taken and then there was an untoward outcome? Do we imagine that the sound of police officers arguing technicalities as to why they could do little more would lead to everyone nodding and saying, “Fair enough”? No, neither do I.
SO WHAT DO I REALLY THINK?
I think this ten minute rule bill will fail. At the second reading on 07th November, it will be pointed out that the Government is undertaking a full, formal review of sections 135 and 136 of the Act and that this review will fully report in 2015. The Home Office is convening a particular discussion in early November about this very situation to determine what recommendations should be made to ministers.
I think that changing the law by extending police powers is a very poor, third-best option of how to solve what I must insist is a real problem. Option One: you have to wonder whether or not mental health professionals could be made sufficiently accessible and flexible to be able to respond? In my experience some mental health professionals agree that an increased focus on ’emergency psychiatry’ is required given the model of care we operate and maybe this is something that Crisis Care Concordats could address? Option Two: could legislation or statutory guidance towards mental health services be amended to ensure a response in support of the police or instead of them? Well, even before s114 was amended, removing a statutory need for sufficient AMHP provision, there were never sufficient AMHPs in all areas to know that one of them could drop everything else and come running. Even in some areas where they could, they may have problems with s12 doctors and / or s135(1) warrants. It’s only after using history to evidence why Options One and Two won’t or don’t happen, that you reach the point where the police could do things differently – Option Three. If they ever will, it will require a change of law that no-one really welcomes as the ideal solution.
Of course, there are many objections to changing the law and I do understand them – it would erode our civil liberties, some argue it may impede upon our fundamental human rights —
Be let’s be clear about one thing: the United Kingdom in the twenty-first century currently cannot ensure the basic safety of vulnerable people because it’s mental health services are either under-resourced and / or inefficiently deployed – or because its police service is under-empowered, depending on your point of view. To avoid doubt: if that young woman did not want to leave her address and wasn’t allowed to exercise her own decision to remain, then her removal was illegal – because no mental health professional can unilaterally make the decision to authorise it any more than a police officer can.
So it turns out that our civil liberties and human rights are at risk anyway! I truly hope someone can come up with a realistic and workable way to convince us all that options One or Two can translate into the real world. It’s only because no-one has convinced me so far that I’ve resorted to Option Three in my head but I do remain willing to be convinced. Someone just has to say something convincing!
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