Where do the legal powers come from in the Mental Health Act 1983? – by this question I mean: what section of the Act do you point to when cross-examined in a court to explain from exactly where you derive the authority to use reasonable force to give effect to the Act’s intentions? There are various coercive things that are necessary where the Act is involved and once decisions have been taken to do them, to what authority would you point to authorise that use of force? Police officers quite like answers to questions like this, not least because we find clear understandable answers to those questions in the substantive criminal law that we rely upon so much when making arrests or doing stop & searches. Most officers of relatively little service will tell you confidently that they draw upon three main areas –
- Section 3 of the Criminal Law Act 1967 – which actually allows anyone to use reasonable force to prevent crime or to lawfully apprehend offenders.
- Section 117 of the Police and Criminal Evidence Act 1984 – which allows police officers to use reasonable force to undertake the various coercive practices that are referenced throughout the Act (arrest / searching of persons or premises / taking fingerprints or other non-intimate forensic samples.)
- Common Law – covering the often relied upon fourteenth century power of a Breach of the Peace, but officers can also draw upon the Common Law of necessity in various situations, including some urgent medical situations.
What about coercion under the Mental Health Act? Police officers have legal powers of their own: like s136 MHA and there are a range of other powers in the Act which may be exercised by a range of people, including police officers. Most, but not all of these are covered by Section 117 of PACE in ters of authorising the use of reasonable force – section 26 and Schedule 2 of PACE lists various legal powers under the Mental Health and other Acts which are to be regarded as preserved powers of arrest. This includes s18(1), 35(10), 36(8), 38(7) 136(1) and s138(1)- you’ll notice it does not include s135(1) and s135(2) MHA warrants! So s117 applies to those preserved powers and officers should refer back to PACE to justify their actions – the authority to use force when executing the warrants is derived from the warrants themselves.
THE OTHER STUFF
But there are even more circumstances in which police officers may be asked to use force, where the Mental Health Act is applied –
The detention and conveyance or patients to hospital after they have been ‘sectioned’ elsewhere; the transfer of patients between hospitals where the police are assisting AMHPs or NHS staff; the removal to a seclusion room of a patient who is detained in hospital under the MHA and where staff are asking for police support (which occurs for a range of reasons). We also know that requests are received by the police to restraint patients in order to assist in the administration of medication without consent and that on many an occasions officers have agreed (or felt pressured) into going so.
In just some situations, traditional police powers would apply to some of these things. If officers attended a mental health unit, as I have done on countless occasions, and found a situation where staff going about their lawful business have been assaulted and are at risk of further assault, s3 of the Criminal Law Act can still be used to justify a use of force to prevent that crime. It may very well be a proportionate response to the risks involved, including by assisting to seclude someone. However, there are many where situations where this is not the case.
Imagine a MHA assessment in someone’s home: a patient has been ‘sectioned’ and the AMHP now wishes to transfer the patient to hospital: the AMHP has a power under s6 MHA to ‘detain and convey’ the person – the authority to use force is clearly implied in the wording of that section. Imagine being called to a ward to restrain someone to administer medication: this is far less clear-cut and you have to start stretching things to a point where it is too tenuous for words, to convince. But this brings me to the clue that is in the title of the post!
SECTION 137 MHA
The section states –
137(1) – Any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.
137(2) – A constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.
137(3) – In this section “convey” includes any other expression denoting removal from one place to another.
Quite a mouthful isn’t it?! – could benefit from being translated into clear English at some stage. It essentially means, that if you are authorised to detain or convey a person under the MHA – or you are required to do so – you have all the powers in law of a police constable and those you detain and convey are in lawful custody. You should remember that it is an offence at Common Law to escape from lawful custody; and to resist or to obstruct a police constable in the execution of their duty is also against the law. It therefore would be an offence to resist or obstruct a person who is detaining and conveying under the Mental Health Act, arising from this section.
Still gets us on to the question of where that authority to use of force comes from, does it?! The Code of Practice to the Act makes various references to the use of reasonable force, least restrictive practice and so on – see chapters 14, 16, 17 and 28 in particular. The courts have variously upheld the principle that use of reasonable force is implied and perfectly lawful – how else do you detain and convey someone who may be unwilling whilst in distress after all other avenues have been exhausted? But this is the point that makes some officers nervous –
Nothing in the Code of Practice may make lawful something that is unlawful under the Act – and vice versa.
They needn’t be. Like the Mental Capacity Act 2005, the Mental Health Act 1983 has implied authority to use reasonable force: there is no specific section that equates to section 117 of PACE. Section 137 is one of those sections that gets quite near to stating something explicit and the point to note here is that it is restricted to detention and conveyance. So you may remember that officers are sometimes called to mental health units at the request of staff to undertake other coercive practices. I recall many years ago being informed by our control room at around 6pm that a unit was asking if officers could attend at 8pm because a patient was refusing medication and they anticipated he would need restraint.
Now I’ve known more spontaneous situations where staff have on their own attempted to administer medication under Part IV of the Act and have encountered exceptional difficulty which led to a 999 call for urgent help. There are few points to make about that but I can at least understand how such a call could come about. But pre-booking the police to administer medication?! – that’s not happening, let’s be honest! Apart from anything else, more than one police force has received legal advice about such situations and it has always made clear there is no legal duty whatsoever on the police to restrain patients for the purposes of administering medication and there are easily-raised questions about whether officers would actually have any power to do so. Nothing in section 137 or in Part IV of the Act relates to such practice by people other than medical or nursing staff.
So it is beyond doubt, from the authorities implied in this section, reinforced in the Code of Practice and in the decisions of the courts that police officers would be permitted to use reasonable force in the least restrictive way, to ensure the Mental Health Act is given effect where thought necessary. Of course they should try as hard as possible to avoid doing so – but if it were always avoidable, no-one would have called the police.
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