I went looking to find my post on section 115 of the Mental Health Act 1983 (MHA), having been asked a question about it – idea was to save myself some time by just emailing the post and seeing if that took care of the question.
Turns out I hadn’t written one! – so here it is. It’s been a while since that happened but that’s partly where the blog came from – writing posts when questions are posed so in the future, I don’t have to keep re-writing the same answer to (almost always) the same question. So keep the questions coming, if you have them.
You can email questions, complaints or observations via this website.
In the context of discussing welfare checks and what role the police can or should play along with what powers other professionals might have, someone pointed out Approved Mental Health Professionals (AMHPs) have a right of entry and inspection and asked whether that is not the solution to the situation where the police may not be appropriate or where they’ve declined to accept responsibility for a non-immediate risk situation. So when it comes to “partners” doing welfare checks instead: why don’t AMHPs appear to use these powers?
Section 115 MHA isn’t what many non-AMHPs think it is — it’s not a big, complex provision so let’s just write it all out and read it together —
(1) An approved mental health professional may at all reasonable times enter and inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care.
(2) The power under subsection (1) above shall be exercisable only after the professional has produced, if asked to do so, some duly authenticated document showing that he is an approved mental health professional.
And that’s it — mentally disordered patient / not under proper care.
You therefore need to note what this does not say – and the main thing is it does not confer upon the AMHP any power to force entry in order to do this. Therefore we need to discuss how much ‘teeth’ this provision actually has but there is a difference to be understood between AMHP’s literally forcing entry to premises and AMHPs pointing out to someone at an open door that they have a right of entry (albeit without force) and inspection. When you then remember, in addition to this, that it is a criminal offence to obstruct an AMHP in the course of their duty (under s129 MHA), you start to see the building blocks of legal authorities which could allow, in some situations, AMHPs to do welfare checks where concerns may exist.
NOW LET’S GET REAL
All of that having been said – let’s get real towards those who suggest this provision means AMHPs should be doing mental health related welfare checks where the police may no longer do so —
- The first obvious check is this — we don’t have enough AMHPs in England and Wales as it is, without expecting them to do welfare checks for which they may not be ideally suited anyway.
- There are serious recruitment and retention problems and if you don’t know much about what AMHPs actually do and why it’s probably the most difficult job of all, across this interface, you can read more about AMHPs and AMHPing.
- Some local authority areas are currently struggling to ensure overnight AMHP coverage in their area for urgent Mental Health Act or s136 assessments, without worrying about s115 visits in less urgent circumstances that might not need to be 115 visits at all and don’t inherently require AMHPs and their legal powers.
- The second point is this — if someone had not been engaging with attempts by a GP or community mental health service, what likelihood they’ll engage with an AMHP when they knock the door instead?
- It’s worth wondering.
- It’s not actually necessary that AMHPs be the people who do a non-urgent check and not everyone is a “mentally disordered patient” – depending on the situation you’re considering, it could be just as valid to expect someone from a community mental health team to do an initial welfare check; or even a paramedic if the ambulance service have been engaged already.
- The third point is — AMHPs using legal powers to enter (amidst implied or stated intentions to secure a warrant under s135(1) MHA to assess someone or any potential that police officers may be asked to consider whether offences of obstruction are committed) should be reserved to those situations where those powers are required.
- The principle of least restriction is outlined in the Mental Health Act and its associated Code of Practice and is a part of good quality mental health care.
- The power is more likely to be used as a pre-cursor to considering other MHA interventions amidst concerns of neglect, for example. It may assist in determining whether a warrant is required under s135(1) MHA or the convening of a Mental Health Act assessment for admission.
- Section 115 visits may influence, for example, how an AMHP assesses their duty under s13 MHA to determine whether a MHA assessment is required and / or whether a warrant is required.
But the big one is this —
It’s the deliberate will of the UK Parliament that no-one has a power of forcible entry to check on someone’s welfare without other additional factors in play. Those factors might be crimes, situations where someone needs to be arrested, immediate or serious risks to life and limb or where warrants have been obtained under the Mental Health Act 1983 or other kinds of court order, for example under the Mental Capacity Act 2005 or the Children’s Act 1989.
You’ll notice most, if not all, of those factors would require the police.
But it is not the intention that all possible circumstances causing a concern for someone’s welfare lead to entry to their premises to check on them. Parliament could have made such a law a number of times and have consistently declined to do so.
THE CARE ACT 2014
If you have a situation where there is a generalised concern about you, perhaps a non-specific anxiety, perhaps based on something a little out-of-character but nothing which gives rise to immediate or serious concerns – do we want the police to be able to force off your door and search your house for you? Well, when the Care Act 2014 was still a Bill passing its way through Parliament, there was a discussion about whether the legislation should include such a power even just for those who have known care needs. The Act includes specific legislation about local authorities having a statutory responsibility to promote wellbeing, assessing and meetings people’s care needs, including powers and responsibility to ensure the same where care needs are known. It was in that context a discussion took place and I recall being emailed by several people to ask what I thought.
Of course, it’s not for me or the police to say what the law should be – that’s for Parliament, so all I did was set out a couple of observations about consequences of what we have to understand might happen both with and without a power, so those who were thinking about how to draft the law, could see the implications of their choice, if they hadn’t already —
- If you do have a power to force entry for a welfare check, it means the threshold for enforced state intervention in your home is quite low and that from time to time, it will look like overkill to someone who was not really at risk and who knew they weren’t, but nevertheless found police officers and perhaps social workers or paramedics in their house, checking they were OK because from the outside it was reasonable to agree there was at least a modest concern.
- If you don’t have such a power in circumstances where it isn’t obvious there is an immediate or serious risk to life, you will have situations where people who are in difficulty and require help perhaps don’t have it, because the decisions by professionals can’t take account of what services don’t yet know and they may make a judgement that existing thresholds for entry aren’t met.
So you have to decide what you’d rather tolerate: the appearance on occasion of over-cautious or over-zealous state intervention impinging upon privacy, or the appearance of under-whelming indifference by state agencies supposed to protect people but who cannot enter private homes in any / all circumstances.
Important caveat:
WELFARE CHECKS
As things stand, there is no statutory responsibility on any particular agency to do welfare checks – unless or until certain duties of care are triggered and they will vary by agency. Community mental health teams would be expected to take certain actions not expected of the police, for example where known patients have failed to show up for appointments and who are potentially disengaging from services, before it would trigger a police responsibility to enter a property by force because of much more serious concerns, for example.
We might think the same of General Practitioners, who have also been known to ring the police for welfare checks. I recall a situation some years back where a General Practitioner had requested the police do so, only for the control room to decline – supposedly on the basis the surgery had made no effort to contact the patient directly. It had simply been a case of “she hasn’t shown up for her apportionment? – ask the police to do a welfare check”. It lead to the police declining and the GP wrote to a Chief Constable and his local MP, outraged. That said, it wasn’t a situation for which the police are legally responsible, so what’s the expectation here? – the Chief Constable should expend resource on something for which they have no responsibility, at the detriment of things they do, like outstanding 999 calls or crime investigations? … but the police put lots of resources every day in to things for which they have no legal responsibility so why be more wary of doing so because it’s a mental health related call?
I realise not all patients have a phone or email, not all have a known next-of-kin or contactable relatives – but many do. Certainly my GP has my mobile number, my wife and son’s mobile number as well as email addresses for both me and my wife. If I fail to show up, they can ring either me or my wife and leave a voicemail or text message for one or both of us – they could do this for my son as well, who now has a different GP at university. Surely we’d hope that would be done before someone reaches for a #Team999 batphone, requesting either police or paramedics to check on someone’s welfare?
SO WHOSE JOB IS IT?
Of course, the circumstance can arise where those things are not possible or where they have been tried and failed.
So whose job is it now to complete any check thought necessary? – well, whatever the answer to that question, if a duty of care exists for an organisation wanting to see a check done, then that duty begins with them, even if others become involved. The thing to be very careful of, though, is spotting the tipping point where someone becomes a missing person: that’s something you need to keep a very close eye on as we have seen when police forces decline requests for welfare checks only for the Independent Office for Police Conduct to point out it was really a missing person report, even if the caller hadn’t used those words.
But section 115 visits by AMHPs? – almost certainly not the answer you’re looking for, if you’re asking who should be doing welfare checks in situations where the police may decline to do so. They are specific to particular situations that won’t always be met, we don’t have enough AMHPs and there’s little an AMHP will achieve by trying that can’t be achieved by other parts of the NHS who are far more likely to bear the duty of care arising from the concern.
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, 2024
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
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