Let’s imagine you’re very worried about a relative and you go to their home after you have been unable to reach them by phone after several hours of trying and many calls. For the point I want to make in this post, it doesn’t matter whether they may be an elderly relative who is known to be living with illness, a younger relative with mental health problems or even a someone about whom there are no healthcare concerns.
Upon arrival, you try the door and there is no reply. Still concerned, you start trying to access available windows to look inside and you see something concerning. The person is lying on the floor of the property, unresponsive. It doesn’t matter whether they are at the foot of the stairs, potentially having fallen or tripped, or whether they prostrate in the living room. No amount of banging the window and shouting their name is achieving anything, there is no response.
You ring 999, not immediately sure amidst the stress of this whether you need police or ambulance. In reality, you may feel you need both because we need to get in to the premises (typically, police business) and the core concern here is illness or injury (typically, ambulance business). So you say all of this and answer the basic questions. The police or ambulance call handler reassures you that they will contact the corresponding 999 service so both are requested but they caution you that their service is experiencing very high demand and they’ll try their best to get there as soon as possible.
No amount of asking them what that means or how long it will take prompts the operator to give you a timescale, they simply repeat it will be as soon as possible. You start the anxious wait. The first minute feels like ten, the second and third minutes feel like an hour – you keep banging the window and calling their name, to no avail.
Exam question: do you have a right to force entry to this property to get in there and try to help your relative?
RIGHTS AND DEFENCES
This question came up on Twitter this recently after a situation which was not described at all, but which led to a sergeant telling an Approved Mental Health Professional that everyone has a right to force entry if they fear for life and limb. This claim was heavily questioned, including by other AMHPs and dismissed as legal nonsense and it’s this issue I want to explore.
Forget the legalities for a moment:
If that’s your close relative in this situation, are you picking up the heavy plant pot in the front garden and putting the window in? I can admit, I’ve had to contemplate this situation in my own personal life because of various situations I had to wonder and worry about with my own mother in the year or so before she died. In the above situation, if I were concerned about the response time of police or the unwillingness of the ambulance service to force entry if they showed up, I’d be putting the window in – without hesitation.
Let me explain why!
- Firstly, I couldn’t give a hoot about the legalities of this if I think my relative is at serious risk when I know they’re ill.
- Their welfare and wellbeing is my main consideration because windows can be repaired or replaced, in the end and I have the means to sort it and so did she.
- Secondly, it’s highly unlikely my mother would have sued me for doing what I thought I had to, in a situation like this but I also do accept these first two reactions are easy to give when it’s your own close relative.
- If you were a professional person undertaking a welfare visit, you will be processing this very differently, I fully accept that – but it doesn’t actually change the legal reality of it.
- If challenged about my “right” to force entry, I’d be saying things about common law, the Mental Capacity Act 2005 and especially about section 5 of the Criminal Damage Act 1971.
The word “right” in the exam question here is something you can quibble over if you wish. It’s more the case there are various “defences” available to doing what you felt you must – defence is available under the Criminal Damage Act 1971 and / or under the Mental Capacity Act 2005.
SECTION 5
The Criminal Damage Act 1971 creates a variety of offences connected to the commission of damage. It is an offence to damage other people’s property, to damage any property if you are doing so to hurt people or being reckless about whether people will be hurt, to threaten to damage someone’s property and it’s an offence to carry items in order to commit damage.
However, section 5 provides a defence to various things. It states –
(1) This section applies to any offence under section 1(1) above and any offence under section 2 or 3 above other than one involving a threat by the person charged to destroy or damage property in a way which he knows is likely to endanger the life of another or involving an intent by the person charged to use or cause or permit the use of something in his custody or under his control so to destroy or damage property.
(2) A person charged with an offence to which this section applies, shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—
(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances; or …
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
RESPONSIBILITIES
None of this means non-police agencies must or should be forcing entry to premises! That’s not the point being made here. The exam question is about whether they could if they believed they needed to and felt capable of it in what circumstances they find themselves.
I’ve known several situations where the ambulance service has done this including one example in a fly-on-the-wall documentary some years back. Paramedics on social media ended up openly questioning the right of their colleagues to do this, in law and pointed out they wouldn’t have done so. The particular paramedics on the programme were responding to exactly the situation I’ve outlined above: someone flat on their face in a kitchen of their home and the crew used a garden rock to smash the kitchen window and gain access prior to police arriving.
Let’s imagine a unlikely situation: after entry, it emerged this was merely a drunk person sleeping on their own kitchen floor and once sober they wanted to sue the ambulance service or seek prosecution for criminal damage.
What’s would be the legal explanation for the paramedics actions? – common law and / or the MCA and / or s5 CDA ’71. Anyone has a “right” (if you want to call it that for ease) to cause damage if they think the person would have consented to it, had they known the circumstances and everyone acting in accordance with the principles of the Mental Capacity Act will have a defence for acts done, under s5 MCA.
It’s far from obvious the sergeant on Twitter was wrong even if we want to argue about use of the word “rights” or whether pointing this out implies that it is something which should be done instead of waiting for the police to arrive.
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
Mental Health Cop 