Now we’re having to discuss the boundaries the police service is placing upon it’s operations for mental health related call-outs, we’re seeing some discussion (at least on social media) about powers for other agencies. I’ve seen it written down, for example, the ambulance service has a power of entry to private premises and I wonder, simply, where on earth that notion comes from, beyond paramedics being able to do what any citizen can do, either under common law or by reference to the Mental Capacity Act 2005.
This post is about our little-mentioned friends in red, who are obviously key emergency services colleagues but they receive little mention on this blog because their role in mental health emergencies is comparatively limited. That said, when their role does become necessary, it can be crucial and the stories sitting behind many fatal house fires is disproportionately mental health related, for example. But much as there is to know and learn from our colleagues in red, here we’re talking only about powers of entry to private premises because we see argument online about the Fire Service being called upon by paramedics to force entry to premises where the police can’t or won’t do this.
For example, in some areas, there is a tri-partite agreement between the three emergency services about forcing entry to premises in various circumstances and I’ve heard it said a lot the Fire and Rescue Service has a lower threshold in a wider range of circumstances than the police.
So I thought we could explore this a little, when thinking about mental health related demands.
POLICE POWERS OF ENTRY
A little background for those who aren’t aware —
The police can force entry to premises for a range of situations, most of them covered by section 17 of the Police and Criminal Evidence Act 1984. This allows entry to be forced, for example, in order arrest suspects, execute warrants issued by courts, etc., and crucially, to “save life and limb”, amongst other things. This has often been the basis of officers forcing entry, including on behalf of others like paramedics or mental health professionals, where there are serious concerns for someone.
The limits of the power have been tested in the courts, however. There are a couple of stated cases where people have challenged police reliance upon s17 PACE for mental health situations — D’Souza and Syed. In D’Souza, officers forced entry to recover an AWOL patient where they should have secured a warrant under s135(2) MHA and in Syed, they force entry to conduct a “welfare check” and the court found the high threshold of “life and limb” wasn’t really satisfied. There are limits on what this power affords opportunity to do.
So what happens if those thresholds for use are not met? Discussion in recent years has turned to the Fire and Rescue Services who have powers of entry in the Fire and Rescue Services Act 2004 (FRSA).
Attention always moves straight to section 44 FRSA.
SECTION 44 POWER OF ENTRY
It’s s44(1)(c) that is always the focus of attention so I’ve put it in bold, but that’s my emphasis for the point I want to make below —
44 Powers of fire-fighters etc in an emergency etc
(1) An employee of a fire and rescue authority who is authorised in writing by the authority for the purposes of this section may do anything he reasonably believes to be necessary—
(a) if he reasonably believes a fire to have broken out or to be about to break out, for the purpose of extinguishing or preventing the fire or protecting life or property;
(b) if he reasonably believes a road traffic accident to have occurred, for the purpose of rescuing people or protecting them from serious harm;
(c) if he reasonably believes an emergency of another kind to have occurred, for the purpose of discharging any function conferred on the fire and rescue authority in relation to the emergency;
(d) for the purpose of preventing or limiting damage to property resulting from action taken as mentioned in paragraph (a), (b) or (c).
(2) In particular, an employee of a fire and rescue authority who is authorised as mentioned in subsection (1) may under that subsection—
(a). enter premises or a place, by force if necessary, without the consent of the owner or occupier of the premises or place …
My sense of things is many are interpreting s44(1)(c) as if it allows more or less anything emergency related, because of the phrase “an emergency of another kind to have occurred” – and a mental health emergency is an emergency, right?! Well, there’s more to it than this because we need to understand how other functions are “conferred” upon the FRS and we need to know what “emergency” means in this particular Act of Parliament.
We need to read the rest of the Act, unfortunately — I know how to spend my Monday evenings when there’s nothing on my tellybox! Don’t worry, I’ve read it for you and whilst I hope I’m not missing anything, I will admit to having read the whole Act only once. It’s an especially helpful aid to insomnia.
STATUTORY RESPONSIBILITIES
Fire and Rescue Services have a minimum of three statutory responsibilities, all arising from the Act itself —
- Fire safety,
- Fire-fighting; and
- Road traffic collisions
- See sections 6-8 FRSA.
The Secretary of State (SoS) may confer under s9, further responsibilities on the FRS authority to prepare for and deal with “other emergencies” other than fires or road collisions – see section 9 FRSA for the authority to issue a statutory order on this and see section 58 FRSA for the definition of an emergency, “an event or situation that causes or is likely to cause — (a) one or more individuals to die, be seriously injured or become seriously ill, or (b) serious harm to the environment (including the life and health of plants and animals).”
These points on responsibility then need to be read in conjunction with the authority to anything he “reasonably believes to be necessary” under s44 FRSA, including forcing entry to premises. There various powers related to the functions of FRS in question.
- s44(1)(a) is the power to act in respect of fires.
- s44(1)(b) is the power for road traffic collisions.
- s44(1)(c) is the power for the other emergencies where the SoS has issued an Order.
And so, we now need to read the Fire and Rescue Services (Emergencies)(England) Order 2007 which outlines those other emergencies. This is the only statutory order I can find, which touches upon the SoS authority in section 9 FRSA and it contains orders on two issues —
- Chemical, biological and radiological and nuclear incidents (CBRN)
- Persons who are trapped, for example in collapsed buildings, vehicles, or mines.
SECTION 11 FRSA
Whilst this all reads somewhat negatively, for the purposes of wondering whether s44 FRSA applies to the kind of mental health situations where the ambulance service may require assistance to enter a premises, there is one glimmer of hope elsewhere in the Act – section 11 FRSA. It is a power to respond to ‘other eventualities’ and the whole section avoid use of the word “emergency”. That said, I have literally never heard this being discussed and can find nothing online about the use of this power, beyond a few policies stating the power exists by quoting it.
But for what it is worth, s11 states —
11 Power to respond to other eventualities
(1) A fire and rescue authority may take any action it considers appropriate—
(a) in response to an event or situation of a kind mentioned in subsection (2);
(b) for the purpose of enabling action to be taken in response to such an event or situation.
(2) The event or situation is one that causes or is likely to cause—
(a) one or more individuals to die, be injured or become ill;
(b) harm to the environment (including the life and health of plants and animals).
So! — can entry in support of the ambulance service be something could be justified under section 11 FRSA? Something that involves “response to a situation … that causes one or more individuals to die, be injured or become ill”? Would an ambulance service mental health situation like a “concern for welfare” be such a situation, where a Fire Service threshold to enter is lower than the power for the “life and limb” power by which the police must judge entry?
But you might reasonably wonder whether the Fire Service would agree to do this? – it’s not obvious to me that they would and it’s also fair to point out they charge for a number of the services they supply which are not in connection with incidents they are leading where their core responsibilities are engaged (see sections 6-8 FRSA).
People therefore need to think carefully upon whether the Fire Service has such a power at all because anything to help us interpret section 11 in the context that doesn’t related to fires, RTCs, CBRN incidents or people trapped is entirely absent. I would suggest, tripartite agreement across all three emergency services is key so some kind of protocol about it is advisable. For s44 FRSA you do need to ask whether it is a fire, an RTC, a CBRN incident or a person trapped – and if not, how does that FRSA provision cover this type of situation? And, in your situation, does it really involve an emergency as defined by section 58? You also need to wonder whether s11 FRSA is of any scope. Unlike s44, the “take any action” provision is not further explained in the way that s44(1) is explained by s44(2)(a-d).
The powers of Fire and Rescue Services seem much more limited to me than discussion about them would suggest but I’m happy to learn otherwise, especially if any fire fighters have read this and have view. If you open the menu of this website (top right), you can email me any thoughts.
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.
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