Changes to s135 and s136 of the Mental Health Act: what are they?

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January 2017 saw the Policing and Crime Act introduce some important changes to sections 135 and 136 of the Mental Health Act 1983. These changes were initially planned to implemented in April/May, however this was postponed to allow for the General Election. A recent statement from the home office advises that the changes will not come into force any sooner than September 2017, and when published, will be promoted alongside further regulations and Health/Home Office guidance.

The changes are expected to cause some significant challenges in a number of areas, which have already been noted by the NHS Confederation, who have emphasised that various bodies will need to work together very closely in order to make a success of them.

So, what is the current legislation within sections 135 and 136, and what are the amendments to be made?

Section 135 (1)

s135 (1) allows a magistrate to issue a warrant that would allow a police officer, accompanied with an AMHP and doctor, to enter a premises and to remove a mentally disordered person to a Place of Safety, if necessary.

The amendment will allow an assessment to take place in a premises or home under particular circumstances.

The reason behind this amendment was to clarify the logistics of this power. Beforehand there was not much certainty around whether or not – once entry had been gained with a warrant – it was legal to carry out the Mental Health Act assessment in the location that the warrant was executed, instead of having to remove the service user to a Place of Safety.

This change will demonstrate clearly that with agreement of the person or householder, and if safe to do so, a Mental Health Act assessment could occur in the home, rather than needing to remove the service user to a Place of Safety – usually hospital-based.

Section 136

The amendment 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.” (Policing and Crime Act 2017 section 80 (4) (1))

IMPORTANT: both the requirement to be in a place that the general public can access, and for the constable to come across the person, have been removed.

Other changes to sections 135 and 136 include:

  • Police must consult with mental health professionals, if possible, before using s136. (Policing and Crime Act 2017 section 80(5))
  • Allowed use of s136 is now categorised in terms of situations where it can’t be used, meaning all other situations are allowed. (Section 80 (2 Policing and Crime Act 2017)
    • For example, s136 can’t be used if the service user is in a private dwelling or a private garden or building connected with that dwelling. Apart from this, s136 can be used in any situation.
  • Under s136, the police officer is allowed to use force to enter any place where s136 legislation may be enforced. (80(4) Policing and Crime Act 2017)
  • A police station may never be used as a Place of Safety for service users under 18.
  • A police station may only be used as a Place of Safety for adults in “exceptional” circumstances.
  • The amount of detention time has been lowered from 72 hours to 24 hours, with the possibility of a 12-hour extension under clearly defined circumstances. (s82(4) Policing and Crime Act 2017, which creates a new s136b)

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