I was recently asked about the new threshold outlined for Right Care, Right Person in the National Partnership Agreement. You can check the links just given for full detail but RCRP has defined a threshold for police involvement in mental health related incidents which is all about crime (committed or ongoing) or immediate risk to life or immediate risk of serious injury. I’ve mentioned already that I find it curious the threshold doesn’t specify something about the need for police-only powers under the Mental Health Act (MHA), but acknowledged the NPA does go on to state that nothing prevents local judgements about police involvement in other incidents and the example given was of s135(1) warrants. In reality, though, it’s not a case of having the option: only the police can execute those warrants so if the Magistrate has issued it, there is something of an obligation to help the Approved Mental Health Professional (AMHP) who swore it out because they can’t do it on their own!
So, what about situations where there is a risk of crime or an anticipated breach of the peace? What does the law say about situations where either of those is likely? Let’s think of a couple of examples, first of all —
- An AMHP is proposing to visit a private dwelling where adult a patient lives with their elderly parents in order to conduct a MHA assessment.
- The patient is not thought to pose any significant risk of violence and the patient’s mother is willing to grant access to the premises because she’s the one who raised concerns that her son was deteriorating.
- The patient not posing a risk of violence and access being lawfully possible, there is no need for a s135(1) warrant and the grounds would not be met, but there is a nervousness about the patient’s father.
- On previous visits, he has become obstructive, loud and agitated. He’s never assaulted the AMHP or NHS staff, but he’s made assessment very difficult to the point where the police were previously called. It’s known on this occasion, he didn’t want his wife to ring for help because he doesn’t like his son behind ‘sectioned’ and thinks hospital and medication does him more harm than good.
- The AMHP is asking for police attendance at this location and against the threshold, a call handler has said, on advice, that the NPA / RCRP threshold is not met because there is no crime committed or ongoing, and neither of the immediate risks seems likely.
- The AMHP replies, they believe the father will be obstructive towards the assessment, having made it almost impossible on the last occasion to undertake a proper assessment without the police being called.
- They point out it is a criminal offence to obstruct an AMHP in the course of their duty (section 129 MHA), so the police are needed to prevent the crime.
So must the police attend? – please note the question: must the police attend – not could they, but must they?!
DUTY TO PREVENT CRIME
Well, the police do have a statutory, non-actionable duty to prevent crime. This means you can’t sue the police for failing to prevent your house being burgled if you get home from work and find you’ve been broken in to, but if the police were told a crime was about to happen, there is a duty to prevent crime and maintain the King’s Peace. Does this mean that where a crime is anticipated, the police must turn up to prevent it? – well, it’s not quite as straight-forward as that.
In the real world, there priorities to determined and limitations on what resources can achieve, but the police attend locations to prevent crimes and breaches of the peace almost every day. They accompany domestic abuse victims or offenders to the homes they shared to collect possessions, they attend public places where protests are likely or ongoing in order to make sure violence with counter-protestors is prevented or minimised; they attend significant public events (like Royal or sporting events) to ensure disruption to them is prevented or minimised, etc..
They also attend locations with other agencies —
The police attend homes with children’s services when social workers are removing children after a court order; they attend with environmental health for noise or pollution enforcement; they attend with Border Force for immigration enforcement, etc. All because the professionals in those other agencies are often walking in to predictable conflict with people who may be likely to resist, obstruct or even assault them to prevent them achieving their legal objective and the police accept the role to prevent those crimes and maintain the King’s Peace, including by making arrests of those who would breach it, if it comes to that.
So where does this leave us with the mental health example in the bullet points, above? – it could be argued there’s little difference. Because it’s a criminal offence to obstruct an AMHP or where it is thought there could be a Breach of the Peace, the police would have a potential role to ensure the safety of professionals involved as they achieve their legal roles to assess or ‘section’ patients, where necessary. Just as they would for children’s services, environmental health or Border Force, etc.. Obviously, this is subject to the practical qualification of resources and priorities at a particular point in time.
BREACH OF THE PEACE
I’m going to end with a small diversion explaining what a Breach of the Peace actually is, because it’s widely misunderstood. The courts defined it in the 1982 in the case of R v Howell where the Court of Appeal said —
“Behaviour that caused a constable to believe that a Breach of the Peace had or would occur had to be related to violence and such a breach occurred whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance.”
So this is more than argument, noise, or disruption — it “had to be related to violence” done or threatened to a person or to a person’s property in their presence. Fear of such things caused by public order offences, including a disturbance can also amount to it. Now, shouty members of the public may have every intention of remaining shouty and not taking that towards any kind of violence. But if the way in which that person’s shouty conduct puts someone else in fear of being harmed through an assault or other disturbance, then it becomes a Breach of the Peace because the person is placed in fear. It’s not about the perpetrator’s intentions, but about the effect of their behaviour on others.
And you’ll notice this threshold is not the same thing as the Article 3 “immediate risk of serious injury” thing – any violence done or threatened is a Breach of the Peace, including threats to property if done in the owner’s presence. It is in that precise context that requests for police support to prevent a Breach of the Peace must be judged if AMHPs or community mental health nurses are asking for police support.
Determination of what precisely is and is not a legal duty may be a little more complicated than the published threshold would have us believe, even if only in practice. You’ll have to form your own view about what that may look like as these conversations are going to be had between professionals with, it seems, minimal training to understand the complexities of which this post is only one.
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 