Here is a list of legal powers in the Mental Health Act 1983 (MHA) enjoyed solely by the police and which are required in a number of situations where there may be no violence or crime and where there may be no immediate risk to life —
- Section 136 MHA – a power which can be used to safeguard someone at immediate risk (albeit not necessarily of death or serious injury).
- Section 135(1) MHA – a power to force entry to premises and safeguard or assess someone who might not be opening the door to mental health services.
- Section 135(2) MHA – a power to force entry to premises to re-detain someone who is AWOL or absconded under the Act.
- Section 35(7), 36(8), 38(10) MHA – various powers of re-detention for Part III MHA patients.
There are various other powers in the MHA which are not the sole preserve of the police but which could easily arise in situations where the police are most likely to be the only professionals present —
- Section 6 MHA – conveyance of patients after MHA assessment outside hospital.
- Section 18 MHA – redetention of AWOL patients.
- Section 138 MHA – redetention of MHA patients who have absconded.
DO SOMETHING!
I’ve quote a number of times on this blog a couple of remarks attritbuable to Egon Bittner, a US ethno-criminologist who undertook studies on arrest decision making and decision making around those of us who area affected by our mental health, during the 1960s and 1970s. It was seminal criminology that advanced our understanding of what the police actually spend their time doing and how they go about doing it. The two remarks were the one that claimed “nothing cannot become the legitimate business of the police”. And in particular, I love the observation that “policing is what happens when something’s happening that ought not to be happening about which somebody ought to do something now” – I’ve always felt this sums up my job rather neatly and the expectation or obligation to do this, isn’t just that derived from legal responsibilities, important though they are.
Put bluntly, many people ring the police and describe an unfolding story before asking officers to “Do something!” – nothing more specific than “do something”.
So it’s against this background of us knowing the police spend much of their time doing things unconnected to crime and that even where crime is involved, officers spend more time not enforcing laws than enforcing them. as well as knowing that there is a general expectation on the police to “do something” when stuff is happening which people feel should not be happening. You don’t have to look far to find examples of officers restraining animals and various other weird tasks that fall under the banner of “do something!” It’s in this context that I wonder about all the powers listed at the top, where situations are developing or deteriorating and we start to hit the point where we might wonder if thresholds are met for use of s136 MHA, for example. When an Approved Mental Health Professional (AMHP) wants to attend a location and execute a warrant under the MHA (even though nothing amounts to a crime, breach of the peace or immediate risk to life) it is the job of the police to do it, because only the police can execute such a warrant.
That said, I’ve written before about police forces trying to decline to execute warrants where AMHPs have obtained them. Quite a weird position to adopt because an AMHP would not go to the time and trouble of swearing out a warrant unless they needed it and by law, only a constable can execute it. I know this question has been raised in the last fortnight about how forces looking to pull back from mental health demand will treat requests to attend a non-life-threatening incident and use s136 MHA or to execute a warrant.
STRIKING A BALANCE
It’s an ongoing challenge, isn’t it? – to strike the right balance between over-policing and under-caring. On the one hand, I’ve argued on this post for years that over-policing can be literally fatal and even where it’s not, it’s stigmatising and criminalising for many who would simply prefer the police to remain at distance from their healthcare. And I get it – I don’t particularly want the police involved in my healthcare, either but there is a role to be played on occasion. Officers have saved lives doing CRP or persuading people away from heights or securing them in detention to avert an adverse outcome. And the balance to be struck is a relative one, not objective. you can have less policing if you ensure more healthcare or more timely healthcare; but if you don’t you’ll end up with more policing. We also need to be careful that we understand the legal framework because some media commentary this week has argued, for example, that “only the police have a legal right to use force” after someone is sectioned and this is simply not true, in law however accurate it may be about current practice and preparedness in healthcare.
Senior officers have a very difficult task here: how do you motivate more healthcare and more timely healthcare at a time when the National Health Service is struggling, for example, to recruit and retain mental health nurses? We know thousands were lost to the NHS in recent years and this contributes directly to the capacity and capability of crisis and community mental health care teams. Somewhere amongst all of that, you’ll have situations where nurses will be wondering whether the police should attend an incident and utilise powers under s136 MHA because they think a patient in a relevant location is “in immediate need of care or control”, etc.. Only this week, my team received a request to detain someone under s136 MHA by a mental health nurse and officers declined – mostly because the person was in a dwelling where the power can’t be used, but in terms of how the person was presenting at the time of the request, I suspect the power wouldn’t have been used if an encounter had occurred in public. But the nurse was in a difficult position to do anything other than ring the police and hope a gap could be plugged.
There is no doubt in my mind: the police are covertly commissioned by the NHS to provide certain service functions and the extent and type of those functions has evolved over time. It’s perfectly fair enough for officers to point this out (and that’s largely what this blog has done for a dozen years!) in the hope that some of those situations can be addressed. It’s not even mostly about resources, for me: it’s about ensuring people can access timely and relevant healthcare on their own terms, when they need it – and I’ve also written about that on this site. But when striking that balance it needs to be borne in mind that in addition to legal obligations around core responsibilities like prevention and detection of crime and protection of life, the police also have a duty to maintain the King’s Peace. Within that, where some of us are affected by our mental health and hitting thresholds for intervention under the MHA, only the police have certain powers – to discharge them where required is also an ethical obligation to be managed.
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, 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 