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Police Powers Under Mental Health Law
The police have certain powers under the Mental Health Act and it may well be useful for care home and domiciliary care providers to be aware of these. Sometimes people think that the police have more powers than they do, so it is worth knowing about those limitations as well. Police officers often get very frustrated because they get called on to deal with mental health emergencies when mainstream services aren’t around. Their duty of care means they can’t just leave a situation to someone else, even though mental health expertise may lie elsewhere.
Interestingly, the government have just begun a review of these powers. If you want to know more you can find the consultation document at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/301724/ReviewOperationS135S136.pdf
In a public place
So what can the police do? Perhaps the key police power under mental health law is the ability to remove someone to a place of safety they find in a public place who appears to be suffering from a mental disorder and in need of care or control. This is Section 136 of the Mental Health Act and has the powers of an arrest. Some key points about this, the person has to be found in a public place, or a place to which the public have access, like a park or a pub, not a private place like their front garden. Another key point is that the police officer doesn’t need medical evidence to remove the person, as long as the person appears to the police officer to be suffering from a mental disorder. One final point on the law here is that a police officer has other options. Perhaps the person is also drunk, or has caused some damage. In that case they could be arrested on suspicion of an offence. If the person had mental health needs hopefully those would be addressed at the police station, perhaps by the police custody officer requesting an assessment from local mental health professionals. Right, back to section 136 and the power of removal. Normally this would mean removal to a hospital or a police station, but it could be anywhere willing to accept the person. That could include a care home. The purpose of the section is to get the person assessed by a doctor and an approved mental health professional, and see as a result of that assessment whether they need treatment in hospital, or could perhaps be returned home with some support. One of the issues about places of safety is that police stations are often regarded as unsuitable places for someone with a mental health problem, and a number of recent reports have said this. For example, have a look at HM Inspectorate of Constabulary’s report at http://www.hmic.gov.uk/media/a-criminal-use-of-police-cells-20130620.pdf. However hospital staff say they struggle to manage people brought straight to a hospital ward if the person is also drunk or aggressive.
In a private place
What happens if someone is found in a private place suffering from a mental disorder, have the police got any powers then? Well no, not really, and this can cause a lot of difficulties for the police. They may well be called to someone’s private address with reports from friends or neighbours that the person is acutely mentally distressed. If the person doesn’t let the police in, or doesn’t want to go anywhere to be assessed then the police’s powers to act are very limited. They can call on mental health services to visit the person but that might take some time. The only power to get in the person’s accommodation and remove them to a place of safety would come from a warrant from a Justice of the Peace that would have to be obtained by an Approved Mental Health Professional. Interestingly in the Republic of Ireland the Mental Health Act 2001 there gives the police the power to enter a private premises by force without obtaining a warrant. In Scotland the Mental Health (Care and Treatment) (Scotland) Act 2003 gives the police very similar powers to their counterparts in England and Wales.
The power of return
I’ve so far talked about situations where someone is experiencing mental distress and maybe in need of care and support whether they are in a public place or the privacy of their own home. For people who are already subject to an order under the Mental Health Act, such as Guardianship, or a treatment order, powers are much clearer. If authorised to do so by a hospital or care home, the police could return someone to care. However if the person had gone home and were refusing entry then a warrant would still need to be obtained, in the same way that the police would need a warrant to enter anyone’s home by force.
Using mental capacity law
So far I’ve been talking about police powers under the Mental Health Act 1983 in England and Wales and the Mental Health (Care and Treatment) (Scotland) Act 2003. What about our old friends the Mental Capacity Act 2005 and the Adults with Incapacity (Scotland) Act 2000? As we know these allow us to make decisions in the best interests of someone who lacks the mental capacity to decide for themselves what’s best. So could that include someone who was mentally disordered and in need of immediate care and treatment? Well recent case law has very much steered the police away from using the Mental Capacity Act to deal with people in such circumstances. The guidance the police follow now is that where someone is need of immediate care and treatment for a mental disorder, then that is what the Mental Health Act is for. If someone was presenting with a physical injury and lacked the capacity to decide whether they needed treatment, then that would be different. Say for example if someone had fallen in the street, received a head injury and was very dazed and confused, but refusing any help, then it would be appropriate for the police to use the Mental Capacity Act to arrange for the person to be taken to hospital for assessment of the head injury.
Very rightly, powers under mental health law are not unlimited – and mental health professionals and police alike, are governed by those limitations.