Police officers have no legal powers of detention or coercion in private premises, unless a criminal offence is attempted or a breach of the peace anticipated. The Government review of ss135/6 of the Mental Health Act 1983 which was published in December made it clear that there are no plans to reform this aspect of the law – it’s exactly as your government want it with no unilateral role for the police to manage mental health emergencies in private premises. So making the police into a de facto contingency plan to contain a situation and ensure safety in the short term, is likely to fail, unless the circumstances involve a criminal offence or a breach of the peace. It could be argued that it’s therefore fairly short-sighted to rely upon this as contingency, especially where the police have no idea they’ve been set up to fail in advance of a call coming in.
Even our frequent reliance upon the fourteenth century common law Breach of the Peace power is now constrained by twenty-first century human rights law. We learned last year that you cannot invoke powers to apprehend a Breach of the Peace unless you intend to bring the person before a Magistrate. Although this Court of Appeal ruling is now pending a further appeal to the Supreme Court, it is the law of England and Wales as of March 2015 until any higher court ruling says otherwise.
So imagine a situation in which a young man, legally still a child, is in need of inpatient admission but there is no immediately available bed – we’ve heard many stories in the last few months that start exactly like this, haven’t we?! Imagine that such a bed will be available tomorrow morning so an agreement has been brokered with the young man’s family that he will be supported overnight by his parents and that if there are any particular problems, the police should be called.
To do what, precisely?! … let’s come back to that.
So the AMHP walks away having arranged the admission, the bridging plan to get through the night with ongoing parental support and their police-led contingency plan despite the police being quite unaware of the plan in place that now involves them. The police are therefore quite unaware of what else may have been done via any other part of the health and social care system, like the NHS, EDT or any Crisis Team. The officers would not be aware of the precise circumstances, the background details, any identified risk issues that may be relevant to them keeping everyone safe and they are certainly unaware of what, if any, legal framework may now exist that might plug a gap in their own ability to act, given the ordinary powers of the police.
What do we want these officers to do, exactly?! … we’ll leave the issue of what they think they’re expected to do.
If they knew, for example, that an application to hospital had been made, they may be able to establish that the patient could be detained and conveyed under s6 to the relevant hospital, in extremis. Of course, it may not be ideal that they turn up early at the hospital, but it’s not ideal that they are being called at all. Maybe the officers could remain briefly at the hospital to assist in improvising some arrangement or other that helps keep the lad safe until he could be admitted? But without knowledge of this, they are dealing with a young man in a house, who is non-specifically agitated and distressed and without any relevant legal powers. So they are being placed in an invidious position: unable to act, but no entirely responsible for a safe and humane outcome because parents will probably expect this, having been assured that calling police officers is the right thing to do.
So what we want them to do, specifically … is to have them put their arm in a legal mangle and be responsible for a situation they didn’t make, which Parliament wants them nowhere near and which is liable to see supposed police failures front any centre of any untoward outcome.
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