Saturday, November 27

Police assistance to psychiatry


  • Kai spurkland
    Kai spurkland

    Police Attorney, Oslo Police District, Investigator, Police Academy

No one benefits from the fact that various parts of the public sector are shirking responsibility for a demanding and sometimes dangerous group of patients, writes Kai Spurkland.

The police do not have the general right to use force when society may need it.

Chronicle
This is a chronicle. Opinions in the text are the responsibility of the writer.

Recently, two tragic events have highlighted the debate on police assistance to the health service.

Representatives of the health service have criticized the police for not providing the necessary assistance, while the police have indicated that they spend large resources on such assistance.

It is important to address the debate. No one benefits from various parts of the public sector transferring responsibility to a demanding and sometimes dangerous group of patients. Neither the police nor the health service can abdicate their responsibility.

When should coercion be used?

Statements such as “Health personnel should not be policemen” are not helpful. It could also be said that “the police should not be agents.” It is important to have a factual debate about when society should use coercion against the mentally ill, what type of coercion should be used, and who is best suited to perform this coercion.

A key element is the judicial room for maneuver to exercise coercion. Any form of coercion or exercise of power requires legal authority. This derives directly from the Constitution (§ 113) and international human rights, and is an important guarantee against abuse of public authority.

The use of physical force against the mentally ill requires that legal authority be clear in terms of when coercion can be used, what type of coercion can be used, and who decides and executes the coercion.

Maktmonopol?

It is often said that the police have a monopoly on power. This is a partial truth.

The police have a monopoly on the use of force in law enforcement and investigations, and they have a monopoly on certain forms of use of force (such as firearms).

However, many other public bodies have the legal right to use force themselves. This applies, among others, to Customs, the Prison and Probation Service, the Child Welfare Service and psychiatry. It follows from the Mental Health Care Act that the health service can, in more detailed terms, decide on an examination or treatment against someone’s will. If the patient objects to this, health itself can use force to enforce this. Sections 3 to 5 of this law establish, for example: “Mandatory observation or mandatory mental health care may be granted for a 24-hour stay in an institution that has been approved for these purposes. The patient can be immobilized against his will and recovered by escape, if necessary by force. “

No general access to the use of force

In police legislation, there are a number of legal provisions that allow the police to use force. For example, there are provisions in the Criminal Procedure Act on search and arrest, and provisions in the Police Act give the police in certain situations the right to arrest, expel and bring people.

However, the police do not have the general right to use force when society may need it. This applies even if there is a legal obligation to do, tolerate or omit something.

Must have legal authority

The existence of a duty does not mean that the police can automatically use force to enforce the obligation. There must be a legal basis for the use of coercion. Such legal provisions exist to a large extent, but not for all obligations.

If a person does not respect a restraining order, the police can remove the person by force. If the rules on quarantine in case of risk of infection are not followed, the police cannot force the person to return home and close the door. There is no legal basis for such use of force.

The existence of a duty does not mean that the police can automatically use force to enforce the obligation.

The police also have regulations that allow coercion against the mentally ill. In accordance with article 7 of the Police Act, the police have the general right to intervene to avoid danger, and the special right to intervene against the sick in article 12 of the Police Act. These provisions have in common that, in a somewhat simplified way, they establish access to the use of force only when there is serious danger. Therefore, the police can use force against a person (mentally ill or not) who threatens the people around them, but they cannot use force against a harmless, but uncooperative patient, who will not be treated or examined.

The police have the right and the duty to provide the necessary assistance to the health service. It is derived from both the Police Act and the Mental Health Care Act. The police are trained and equipped to handle dangerous situations. When the situation becomes critical enough, the best solution is to hold the police accountable for the use of force.

But aid that involves the use of force must therefore be firmly rooted in the law. In serious cases, the police will have such authority in their own regulations. If health personnel go to pick up a patient and the patient becomes violent, the police can use force to protect health personnel so that they can do their job.

You can “borrow” from the health service

If the situation is not acute, the police will normally not have a legal basis in their own regulations for the use of force. If a harmless but uncooperative patient does not want to open the door to healthcare professionals, the police cannot force the door open according to the police law itself.

If the health service has the right to use coercion in its legislation, the health personnel can use force themselves. If the health service considers the use of force unjustifiable, you can ask the police for help. In these cases, the police may use the coercive provisions of the health service: the police “borrow” the intervention authority of the health service. The police must remain within the framework established by the legal basis of the health service.

A void outside the institution?

The problem arises when the legal authority does not provide a sufficient basis to apply the coercion that the health service considers necessary. The health service has repeatedly stated that they are not allowed to use coercion outside the institution. If this understanding of the legal basis itself is correct, there is a loophole when harmless but uncooperative patients are outside the institution.

If the situation is not extremely dangerous, the police cannot use force according to their own regulations. And if health does not believe it has the authority to apply coercion by itself, there is no point in “lending” the authority to the police. The fact that the health service requests assistance from the police does not create any new legal basis for the use of force.

A constructive debate on the use of coercion against the mentally ill requires knowledge of the legal scope of action. Only when you are clear about who can use power and when can you discuss who should use this power.

If the legal basis for coercion is too poor, consideration should be given to changing the law. It is not a good alternative for the police to use force without a sufficient legal basis simply because the need to do so is perceived.


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