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The Royal College of Psychiatrists Improving the lives of people with mental illness

Changes to sections 135 and 136 of the Mental Health Act are coming!

 

An extremely brief summary

 

Dr Julie Chalmers, outgoing Specialist Advisor for Mental Health Law

 


In January 2017 the Policing and Crime Act introduced some significant changes to sections 135 and 136 of the Mental Health Act 1983. The date of the commencement order bringing these changes into force has yet to be announced but is likely to be at the end of May 2017 or soon after. Regulations, which will further describe the operation of these provisions will also be published, as will joint guidance from the Department of Health / Home Office.

 

These changes may give rise to considerable challenges in some, if not all areas. The NHS Confederation has already flagged up these changes with the exhortation that local multi-agency partners will need to work closely together to implement these changes successfully.[1]

 

In order to assist frontline NHS staff the Royal College of Psychiatrists has produced a new document 'FAQ on the use of Sections 135 and 136 of the Mental Health Act 1983 (England and Wales)' which will be published in time for the section 135/136 changes and related regulations coming into force.

 

 

Section 135 (1)

 

s135(1) provides for a magistrate to issue a warrant allowing a police officer to enter premises to remove a mentally disordered person to a place of safety.

 

The amended legislation allows an assessment to take place in the premises/ home under certain circumstances.

 

This amendment came about to clarify the operation of this power; prior to this there had been lack of clarity about whether or not, having gained entry with a warrant, it was legal to undertake the mental health assessment in the place where the warrant was executed rather than always having to remove them to a place of safety. This change to the law now makes it clear that, with agreement of the person or householder, and if safe to do so, an assessment could take place in the home rather than removing the person to a hospital-based place of safety.

 

The table below summarises the consent that is required to do so, depending on the scenario.

 

 

Scenario

 

Consent required

If the person believed to be suffering from a mental disorder is the sole occupier of the place.

 

That person agrees to the use of the place as a place of safety.

If the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier.

 

Both that person and one of the other occupiers agree to the use of the place as a place of safety.

If the person believed to be suffering from a mental disorder is not an occupier of the place.

Both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety.

 

 

Section 136

The amended legislation states:

“If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons remove that person to a place of safety….. or, if already in a place of safety to keep them there or to take them to another place of safety.”[2]

Note that both the need to be in a place to which the public has access and the need for the constable to find (i.e. happen upon) the person have been removed.

 

 

Other key changes to sections 135 and 136

 

1. Police must consult mental health professionals, if practicable, before using s136.[3]

2. Permitted use of s136 is now defined in terms of settings where it cannot be used - all other settings are permitted.[4]

Section 136 cannot be used if the mentally disordered person is in a private dwelling or the private garden or buildings associated with that place. Other than this exception, s136 can be used in any other setting.

3. The constable may use force under the powers of s136 to enter any place where the power may be exercised.[5]

4. Police stations can NEVER be used as a place of safety for under 18’s.

5. Police stations can only be used as a place of safety in specific “exceptional” circumstances for adults.  These circumstances have been described in related regulations.

6. There is a reduction in period of detention from 72hrs to 24hrs with the possibility of a 12hr extension under clearly defined circumstances.[6]

 

April 2017


[1] http://www.nhsconfed.org/news/2017/01/policing-and-crime-bill-receives-royal-assent
[2] Policing and Crime Act  2017 section 80 (4) (1)

[3] Policing and Crime Act 2017 section 80(5).Before deciding to remove a person to, or to keep a person at, a place of safety… the constable must, if it is practicable to do so, consult— (a) a registered medical practitioner, (b) a registered nurse, (c)an approved mental health professional, or  (d) a person of a description specified in regulations made by the Secretary of State.

[4] Section 80 (2 Policing and Crime Act 2017 states: “The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—(a)any house, flat or room where that person, or any other person, is living, or (b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms

[5] (80(4) Policing and Crime Act 2017

[6] s82(4) Policing and Crime Act 2017, which creates a new s136b

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