Police Powers
| Author | Michael Butler |
| Pages | 57-64 |
Chapter 6
Police Powers
6.1 INTRODUCTION
Even though no crime may have been committed, the police will often be involved in the process which leads to the admission to hospital of a person with mental disorder. Commonly, their involvement will be to facilitate access to private premises for an assessment under the MHA 1983, or to remove a person with a suspected mental disorder from a public place to a place of safety, again, usually, for an assessment under the Act. The powers created by the Act to cover such situations are considered in this chapter. Also considered are other common law and statutory powers which may be relevant in such circumstances, and the powers available to both the police and mental health professionals to deal with patients who have absconded.
6.2 GAINING ACCESS TO PREMISES FOR ASSESSMENT
6.2.1 Need to gain access
There are requirements on AMHPs and RMPs to have personal contact with a patient before applying for his admission to hospital. For example, the AMHP’s interview with the patient before making an application (see para 5.2.3) should be conducted face to face, section 11(5) of the MHA 1983 provides that no application may be made unless the AMHP has ‘personally seen’ the patient, and section 12(2) requires that the RMPs supplying the medical recommendations must have ‘personally examined’ the patient.
These obligations carry with them no automatic right to access the premises of the individual concerned and the appropriate legal authority must, therefore, be obtained. Authority may, of course, come from the consent of the patient himself or, failing that, from another occupier of the premises who is entitled to grant access to visitors. Otherwise, the AMHP will need to look elsewhere.
58 A Practitioner’s Guide to Mental Health Law
6.2.2 Section 115 of the Mental Health Act 1983
Section 115 of the MHA 1983 provides one potential source of authority in that it allows an AMHP to ‘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’ (section 115(1)). This is not a particularly potent weapon in the AMHP’s armoury, however. It does not allow access against the wishes of the occupier of the premises (even though by denying access without reasonable cause the occupier is committing an offence under section 129), it does not authorise the AMHP to remove the patient from the premises, and the AMHP cannot use it to insist on a doctor being present to facilitate an MHA assessment.
6.2.3 Section 135(1) of the Mental Health Act 1983
A more productive alternative is likely to be an application to a magistrates’ court for a warrant under section 135(1) of the MHA 1983 allowing access to the premises without the consent of the patient.
Under section 135(1) of the MHA 1983, an AMHP may apply to magistrates for a warrant which, if granted, authorises:
(1) …
any constable to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.
Need for a police officer
The AMHP is applying for a warrant to allow a police officer to gain access to the premises, but section 135(4) of the MHA 1983 requires that the police constable executing the warrant ‘shall be accompanied by an approved mental health professional and by a registered medical practitioner’, and the 1983 Code advises (para 10.3) that the doctor who accompanies the constable should be approved for the purposes of section 12(2).
Criteria
To obtain the warrant, section 135(1) of the MHA 1983 requires the...
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