It is the deliberate will of Parliament that police powers under section 136 of the Mental Health Act cannot be used inside a dwelling. We know this for a fact. This provision was originally introduced by the 1959 MHA and there have been various suggestions or attempts to amend the provision. In 2015, Sir Paul Beresford (a Bedfordshire MP) did a ‘ride-along’ with the Metropolitan Police and he found himself on the 14th floor of a tower block in Wandsworth at a mental health crisis incident. Long story made short, officers ended up arresting a young woman to prevent a breach of the peace and when Sir Paul enquired about mental health, he was stunned to learn from the officers that s136 MHA could not be used. (At the time, the power was limited to “a place to which the public has access”).
Sir Paul went to the House of Commons shortly after his night out and introduced a ten-minute rule motion to remove that phrase from the definition, only to find a minister explained this was being looked at by as part of a wider Home Office review of police powers and would be considered. He withdrew his motion. Subsequently, the review made no recommendation to alter this part of the provision but there was consideration of it. I know this because I was involved in that meeting. It considered a number of incidents – including Sir Paul’s – and invited a room of mixed professionals, service users and civil servants to consider what they expected from public agencies in circumstances where s136 could not be used.
It’s worth noting here: I can only find one other country that does this – New Zealand’s Mental Health Act (section 109) restricts police to public places, but all the others I’ve looked in Australia, Canada, the US, Indian, South Africa, Namibia(!) do not.
ENDGAME
Obviously, before consideration is given at a mental health incident to legal powers to restrict or coerce someone, better options should be considered, tried or discounted for good reason. So before we discuss legal powers, officers need to have thought about the alternatives:
Can health or social care agencies provide the required, more appropriate response to what is a primarily healthcare matter? – why have the police involved at all if it’s avoidable. If it’s not avoidable, then how can we minimise the police role to something which is consistent with their purpose – prevention of crime, protection of life, bring offenders, to justice or maintain the King’s Peace, etc.? Assuming that attempts at diversion, less restrictive responses have been considered, tried or discounted, where does that leave the officers if they are on premises with someone who is at obvious risk of suicide or self-injury?
As the Quick Guide on this topic points out, there are only four options to consider if it must get legal to safeguard someone, to be considered in this order —
- Mental Capacity Act – have officers walked in to a ‘right here, right now’ urgent medical nightmare where someone lacks capacity to understand they need life-sustaining treatment to prevent a serious deterioration? If so, the MCA may well be a solution for those over 16yrs of age (with the Children Act 1989 providing a similar intervention opportunity for those below).
- Criminal Arrest powers – has there been an allegation of an offence in the background of the incident? One ‘necessity’ justification for officers to arrest, is protection of the individual so although not ideal, if officers are there along, this becomes a legal option which can be considered.
- Common Law powers – is there a breach of the peace? THat could be an option, but bear in mind the implications of the ‘Hicks’ case, because there should be an intention to place anyone arrested for a Breach of the Peace before a MAgistrate, if the breach is ongoing when the court first becomes available.
- Mental Health Act – quite obviously, if the officers are in private premises, they cannot rely on police powers. But police are not the only professionals with powers OR obligations, when it comes to potential intervention under the MHA. So you need to know who to ring if you find yourself frustrated by an inability to rely on s136 MHA where you would otherwise have done so.
ESCALATION
Section 13 of the MHA is interesting and I would argue frontline police and paramedics need to know about it. The post just linked outlines much more about it if you want detail, but it states —
“13(1) — If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.”
So, one option available to you, is to contact the local authority AMHP service and make the point along these lines:
“I’ve been called to a mental health incident in a private premises and I’ve found a person in crisis. Having considered all of the available options, I would be considering use of s136 MHA if I were in a location where it could be used. I’ve considered other less restrictive options, informal and formal safeguarding as well as other legal powers and none of that is [possible or appropriate to the risk]. I therefore believe the local authority have a duty to consider whether an application may be required, in accordance with their duty under s13 MHA.”
The local authority therefore need to make a decision on the record about whether they agree – and they need to be responsible for that decision, because in law they are responsible for it.
REFERRAL PATHWAYS
It has been known for some local authorities or AMHPs to say they will only accept a referral from an out-of-hours GP or a mental health crisis team of some kind. Fair enough to some extent and those things should have been considered before ringing through. But we all know some patients’ GP’s detail cannot be easily established (not least because some people don’t have GPs!) and that mental health crisis teams often lack capacity to respond to patients, effectively running telephone helplines.
In one recent discussion about this, it was pointed out crisis teams were offering to assess people by telephone and were keen to stress officers needed to accept the judgement of those professionals once those telephone assessments were complete. There is a very real difficulty with this – and it’s a difficult we should know about if we’ve actually been learning the lessons from Preventing Future Death reports after inquests. The main problem with it, as many mentla health nurses have told me, is that the first rule of good mental health assessment is physical or at least visual examination.
Greg Hutchings tragically died by suicide in 2015 and during the inquest that resulted, specific consideration was had about telephone ‘assessment’ that was done when police officers at the scene of a crisis incident contacted the ‘street triage’ car and the nurse talked with Mr Hutchings. The officers then left the location after suggestion no immediate intervention was required and they felt reassured because a nurse had assessed him, or so they thought. At the inquest, it was asked how that could amount to an assessment, given it was by telephone – the nurse then insisted it was not an assessment and couldn’t have been, precisely for the reason that you can’t reliably assess someone in that way. The coroner issued a PFD notice to ensure that point was addressed.
And here we are eight years later and some crisis teams are not only still suggesting telephone assessment, but insisting that as part of partnership working police officers need to accept they be somehow bound by it. Genuinely alarming, in my view.
PARLIAMENT
So we’re back where we started —
Parliament has specifically decided that police powers in private premises are not required. Other laws related to the obligations of local authorities to ensure assessment where applications may need to be made and we need to be alive to the potential for attempts to trigger that duty to be deflected by suggestion the police cannot ‘refer’ to the AMHP service. You’ll notice section 13, above, makes no mention of the route or mechanism by which a local authority may “have reason to think”. Especially where the police may have tried and failed to engage other professionals like GPs or crisis teams, nothing in law prevents them informing the local authority of their unresolvable concerns that suggest to them an assessment may be required because the officers would be using s136 if they were in a position to lawfully do so.
And then it’s a matter for the local authority: have it all documented through body worn video and point out all those attempts to safeguard are attempts made on the record, subject to scrutiny and accountability in the event of any untoward event that results and that in some situations, the absence of police powers and support by other agencies to officers in a legal vacuum mean it may simply not be possible to safeguard someone without breaking the law.
Finally, it should be borne in mind some inquests have had to examine these difficult, sensitive and complex issues:
During inquest in to the deaths of Michael Thompson (London, 2016) and David Stacey (Leicestershire, 2017) there were hearings about potential liability for a fatal adverse outcome where other agencies suggested the police had contributed to outcomes. In those two cases, the coroner’s outcome put those suggestions to bed and reminded us that the AMHP and NHS services have legal duties to consider the need for MHA assessments and to carry them out in a timely way. In particular, after the inquest in to Mr Thompson’s death, his daughters brought civil litigation in the county court against the AMHP service for an article 2 violation and after again attempting a defence which focussed on pointing towards police inaction, the court ruled in the family’s favour.
NB: for the avoidance of all doubt —
This post is *not* an argument for greater police powers – it is an argument for other agencies to ensure they can perform the functions currently required by law and which police experience tends to suggest, they struggle to do. The reasons behind that struggle are many and varied and I don’t judge them: I merely point them out because of the fact it leaves the public at risk and places frontline police officers in an invidious position they cannot resolve and this post is an attempt to outline how to protect yourself from suggestions of inaction or even neglect, which we know have been features of inquests in the past.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2023
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 – www.legislation.gov.uk
Mental Health Cop 