Searching post MHA assessment

Law and practice Mental Health Act
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A former officer who now works in NHS security posed me a question which I haven’t had to think about before because it’s not a “police” question -

What power exists to search someone, thought to be in possession of something untoward, if an AMHP has made an application and the conveyance staff want to undertake a search. The police are not involved in this situation at all and because the MHAA application has been made when the patient is at home, the police cannot be asked to undertake a search in the address (but in principle, could be called to exercise “stop and search” powers once the patient it outside the premises - if they agree to turn up.)

Obviously, NHS MH trusts have policies about searching, but they apply to inpatients and don’t seem to cover those who are liable to be detained after an MHAA but prior to arrival in hospital.

All help gratefully received!

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Without being succinct to any policy in particular, the Mental Heath Act (1983) Code of Practice (2015) gives some guidance from p. 8.29- 8.46. Thus, in summary:
The legal powers for staff to search patients have not been expressly laid down in statute is my understanding. However, it is purposed that staff acting in good faith and with reasonable care are entitled to conduct searches to maintain appropriate security and prevent harm to individuals and themselves or to third parties.
If the risk is assessed as significant and immediate, then a discussion with the police and, or a search can be carried out against their consent depending on who is present e.g. secure ambulance staff if appropriate.
Use of MCA (2005) if the patient is not consenting then as above. But a search must be undertaken still.
Where issue of culture arises, then staff should be of the same gender and work in pairs. Where head covering is an issue, they may also be searched in private. These need to be considered prior to the MHAA.
At all times records must be kept encase of litigation.

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Interesting question. Not sure if I have answered it. Some thoughts.

If I was the AMHP, and I believed that P could be carrying, and thus poses a risk to others, whether that be the ‘assessors’, or those tasked with conveying P to the hospital then I would be asking for the assistance of the Police from the very beginning. Police intelligence, previous convictions, MAPPA Category 2, documented risk in HCR-20, etc, means there is an onus on the AMHP to consider the safety of all those involved. in the assessment and conveyance.

Ambulance Service, as well as Sec 12 Doctor etc would all be notified of the risk. Their employers have a duty to make sure that their employees are protected from harm. All of this would be considered in the planning phase. If I was not satisfied that there were sufficient measures in place, I would not proceed with the assessment and I know my Manager would be on board with this. This is the perfect scenario. Time to discuss, plan and document.

Of course, there could be occasions when this information emerges at any point in the assessment or conveyance. For example, Ambulance crew see something that looks like a concealed weapon. If P is asked if this is the case, and P denies, but suspicion remains, then I do not think that the obligation to convey would out weigh the safety of the crew and potentially P. Then no convey. Notify Police, and they can consider PACE. I recall Police using PACE, as long as they have reasonable grounds that they are acting to save life and limb, they are covered. This I believe applies to someone’s home and outside of the home

I don’t think that the MHA at the point of conveyance would provide the legal authority to search P. I believe searches of inpatients are done under ‘common law’, though its possible there is a difference between P who is a 131 patient, or a transferred prisoner. I guess you could make a case that security of staff and fellow patients is covered by the MHA, though it is not explicit, more implied. Inpatient staff have the physical and procedural security that would allow searches to be done in a safe way.

Yes you could make a case that you could search under common law at the point of conveying, but consent would need to be obtained. I think as soon as P says no, and would resist such a search, you are then having to consider restraints. Undertaking a search and using restraints to do this, is not going to be covered by any operational policy. You are going to be left vulnerable to all kinds of problems, not only from your employer, but possibly the Courts and your registering body.

Now I am going to contradict the above, and include an emergency scenario. You believe that the P is going to harm self or others, been told they have a knife on person, appearing to reach for it, no time to call Police, cannot extract yourself from the situation, trapped in a corner, restrain P and remove item. You could then rely upon necessity/common law.

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No powers are afforded to the AMHP, nor to delegate such powers by the AMHP, to search someone in the captioned scenario.

The powers of AMHPs and conveyance staff under the MHA differ significantly from those of police officers under PACE. While police officers have clear powers to search individuals under specific circumstances, such as reasonable suspicion of possessing prohibited items, AMHPs and conveyance staff lack explicit search powers. This discrepancy creates a potential risk, as individuals being conveyed may possess weapons or other items that could endanger themselves or others. This highlights a critical gap in the legal framework, potentially jeopardising the safety of all parties involved in the conveyance process.

Let’s not play with words such as ‘something untoward’. The captioned scenario is where an individual, experiencing a mental health crisis, is being conveyed to a hospital. There is reason to believe they may have a concealed weapon, posing a risk to themselves and the conveyance staff. The ‘reason’ could be formed from verbal or non-verbal cues, or even the case history. The AMHP is not a mind reader.

Clearly the AMHP is duty bound to call the police for assistance in the above scenario and should do so without hesitation or delay.

Trust policies usually sound nice but they are not the law - and could not possibly give authorisation to the AMHP in the scenario (not that anyone said so). The Code of Practice should be ignored as should ‘ethical guidance’. Why? Because neither is the law and cannot provide legal powers. No one should rely on the *MHACOP as if it is law. This is strictly about legal powers.
[*Notably the CQC invented he ‘least restrictive principle’ - around 2007 - carried forward as if it is law - when it does not exist in law; specifically no such words exist in law or are meant by the law.]

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If I can be frank, Russell, I found the tenor of that response a little disappointing. Not only have you felt entitled to make an assumption about a deliberate choice of words, you also appear to have disregarded the point made about the police having no powers at all in the captioned scenario.

“Something untoward” did not and does not necessarily mean someone has a concealed weapon - it could equally amount to something else which is unlawful to possess (like controlled drugs) OR to something which is entirely lawful to possess ordinarily, but which might become something we should be concerned about for a detained patient being admitted. This could include drugs which are lawful to possess (OD risk) OR something which might be used to ligature or self-injure which isn’t a weapon, if the opportunity arose to try (belt, laces).

So the question bears discussion as it is a real one which caused consternation to those involved: if your police have no powers beyond what the AMHP has to offer the situation (because I repeat, the police cannot search people under s1 PACE for weapons in their own private premises and it is not an offence to possess many weapons in your own house; and if they cannot search post-arrest because no-one has been arrested), then you’re still left with the concern and the risk.

Perhaps the answer has to be more intrusive restraint and closer supervision during transfer to ensure they do not access the item(s) until such time as the patient arrives in hospital and is searched - that’s what I’m attempting to ascertain. Perhaps that and common law powers to prevent an imminent risk of serious harm if something is attempted to manifest the risk?

So I’m afraid it’s far from clear the AMHP is duty bound to call the police because they may end up learning the police are no more positioned to do what you seem to think is obviously necessary and in this “RCRP” world you may find as others have, they decline to turn up anyway (because of their interpretation of the immediate risk to life or immediate risk of serious harm criteria) and you’re then still left with the question.

Hence the attempt to have a genuine discussion about this.

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Hi Michael

It’s an interesting one. In the absence of a specific way to carry out this search, as an AMHP I wonder if the focus shifts towards the powers we do have in the overall process;

The s.137 MHA powers to convey are important.

  • “Any person required to be conveyed to any place shall, while being so conveyed, detained or kept, be deemed to be in legal custody.”
  • “A constable or any other person required or authorized to take any person into custody, or to convey or detain any person shall, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts.”

In the absence of the threshold for Police attendance being met, I’m imaging that the transportation will be via Ambulance (private mostly these days). I note the previous comments about Police needing to be there but I don’t completely agree. I have a somewhat unpopular expectation that appropriately trained professionals and vehicles (not police) should be able to complete the role of conveyance as the legal cover is explicit in s.137 MHA.

If the person is unwilling to consent to a search or to hand over potential harmful materials/items before transportation there may be a need to control their movements more closely around and within the vehicle during transport. This could lawfully include physical restraint in proportionate circumstances. (I’m only encouraging this in the most risky of situations). This could involve more staff, closer proximity and prevention of certain movements within the vehicle. The CoP has some relevant information but if there is genuine risk then actions can override this as there will be cogent reasons.

This would call for appropriate levels of staffing and support in the vehicle before the person can be admitted to hospital and the situation would hopefully then be fully resolved when they become an inpatient.

Just some thoughts
Gareth