A little lack of knowledge can be a dangerous thing –
A couple of years ago, I learned of a perculiar incident in a police force area that would have made a great blog to emphasise a point, but it was so specific, I withheld from doing it, in case it self-identified those involved. I have since learned of two other cases under review where a similarly distinct legal point was at heart of what occurred. I’ve also heard this from AMHPs recently and I’m at a loss as to where it comes from: hence this post.
It concerns the police execution of warrants issued under s135(1) of the Mental Health Act 1983 and whether we must, by law, work out in advance where the person may be removed to. So the exam question is this:
Is it lawful to execute a s135(1) warrant and take the decision to remove someone to a Place of Safety even if nowhere has been pre-identified to act as a PoS under the Act and / or where no bed has been pre-identified for the patient’s admission?
And the answer is: YES, it is lawful.
LAW v POLICY
The cases I’m alluding to but not describing in detail involved situations where an AMHP or a local policy has ended up creating the impression that a lack of PoS space or admission bed is a legal barrier to the execution of a warrant and removal from the premises. This needs to be knocked on the head because it’s wrong and police officers need to know what one of the sergeants in these incidents did, when dealing with an AMHP who insisted that an admissions bed must be available.
Ultimately, the police cannot apply for s135(1) warrants or execute them without an AMHP and DR present, so AMHPs are absolutely key to the decisions about the application and execution of warrants. Nothing can happen without their consent and cooperation. So imagine a scenario: everything is jacked up for the execution of the warrant, the AMHP does a last minute check that the ‘bed’ is still available and learns that it’s not. They state the execution of the warrant will have to be delayed but they’ve already been emphasising the risk to the patient or others if they are not assessed in circumstances where they are highly likely to be admitted to hospital under the Act.
In one of the cases prior to the MHA changes in December 2017, the sergeant in charge said something along these lines, “A warrant under the Act doesn’t need a bed and given the risks you’ve highlighted leading to us all being here, why don’t we just execute the warrant anyway and remove him to a Custody if nowhere else, so he’s safe, supervised and secured? You can then resolve your bed problem in the time available …” This occurred before the 2017 amendments to the use of custody but the underlying point remains valid. It’s a good job he wrote that down along with the AMHPs decision not to execute the warrant – it meant no accountability for the untowards event that occurred before a bed was found and the patient detained.
A SUMMARY OF 135 STUFF
For your reflection and general smoking –
- It well may be considered good practice to pre-identify a bed in case the whole 135 process leads to the need for an MHA admission; and
- It may be in the Code of Practice that where possible a Place of Safety is pre-identified in case the execution of the warrant leads to a need for removal from the premises to a place of safety, for whatever reason.
- But ultimately, good practice and statutory guidance is not the law.
- Section 135(1) simply states that officers “can force entry if thought fit … and … remove to a place of safety, if need be.”
- Where there is a need to do so, nothing prevents the execution of a 135(1) warrant and removal to a Place of Safety just as if the officers had encountered that person and detained them using 136.
- They would call an ambulance, they would consider whether anything means the patient needs removing to A&E and they would either take them there or remove them to the local health-based place of safety under s135(1).
- The police station is there if the statutory regulations criteria are met and nothing prevents improvisation if things are proving difficult.
- Of course, your local Place of Safety protocol should outline what the options and contingencies are, arguably including how situations are handled and escalated where these operational problems occur.
Of course, what no-one wants is someone detained under a warrant and have nowhere obvious to go – there are already far too many cases like that under section 136. But I do know this: if someone is held in such a predicament, they’re not out getting themselves seriously hurt or worse.
And finally, whilst we’re here discussing s135, a quick reminder of some other stuff we do get wrong or do badly –
- AMHPs do report police officers stating that they are refusing to execute warrants until a ‘bed’ is pre-identified. Just bear in mind how you’ll explain the decision not to act now if before you can act, someone has been seriously hurt or worse, despite the AMHPs best efforts – this isn’t just about AMHPs, it’s about all of us and the policies we agree to work to!
- Also bear in mind there have been Coroner’s outcomes which criticise police forces for failing to give the execution of s135 warrants due priority – remember, our AMHP colleagues, when they’re busy AMHPing are trying to organise one or two doctors, possibly navigating a distressed family, possibly having queued in Magistrates Courts for a warrant, plus the police and their requests for written risk assessments – they are ring-mastering a circus and in charge of no-one.
- How do you know you’ll need an inpatient bed until you’ve completed the assessment that flows from the execution of the warrant?!
- And finally remember this: it is NOT the AMHPs responsibility to find a bed anyway! … it’s the doctors, once an application for admission is required.
- Blaming AMHPs for no beds or no Place of Safety is like blaming the police for the same things – legally ignorant and utterly pointless!
A little knowledge can be a dangerous thing – but so can a little lack of it. Get knowledge: then go do stuff.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk