Section 135(1) Mental Health Act 1983 – part 1

The simplest way I can explain how the police should approach determining whether they will attend a Mental Health Act assessment in a private premises by an AMHP, the whole debate about s135(1) Mental Health Act and what they should consider before they get to a location, is to explain how I’d react to a request:

CAN YOU HAVE THE POLICE?

  • You can have police officers to support your MHA assessment on private premises IF you can demonstrate raised prediction of ‘RAVE Risks‘ from anyone at the premises – this means Resistance, Aggression, Violence or Escape – OR the existence already of a s135(1) warrant.
  • NO RAVE / NO WARRANT = no obligation for the police to attend: we’ll decide whether to give you a hand on a case by case basis, dependent upon other demands on the service at that time.
  • The information which supports a likelihood of a ‘RAVE’ must be objective and evidenced.

WARRANT OR NO WARRANT?

  • Once you’ve established a RAVE; I’m going to ask you to get a warrant if the RAVE comes from the patient to be assessed because I will argue the grounds for getting one will always be met in light of your identified risks.
  • If you choose not to get a warrant, that’s up to you but I’ll then explain I have NO POWERS inside that premises to mitigate those raised risks until there is an attempted criminal offence, an anticipated breach of the peace; OR you formalise an application for admission under the MHA.
  • I will ensure you realise that legal responsibility for the planning and execution of the assessment sits with you, until such time as the police can legally intervene, because of crime / BoP;
  • This means there is no power to stop the patient locking themselves in a bathroom, boiling kettles, leaving the premises, accessing balconies or picking things which may be used as weapons; UNLESS it constitutes an (attempted) offence OR (anticipated) breach of the peace; OR until they’re ‘sectioned’.
  • I will still ask you to get this warrant, even if you demonstrate that you can already ensure lawful access to the premises – ie from a spouse or parent – nothing in s135(1) requires a demonstration that access has already been attempted or that it is apprehended that access will be refused.
  • If you tell me that a Magistrate will not grant a warrant if they know access can be gained, I will draw your attention to para 10.10 CoP MHA and ask that you ensure a proper briefing to the Magistrates to ensure they realise that they can grant this warrant, even though access is enabled.  This is almost unique in English / Welsh warrants and you should remind them of this.
  • You can appeal a Magistrates decision, if you wish to, via the High Court. (LSSAs can arrange to train Magistrates via local Court User Groups.)

PROCEEDING WITH A WARRANT

  • If a warrant is granted, I will determine the police resources to attend, the equipment they will take, if any, in additional to their normal uniform / equipment.  This is because if I am executing a warrant, I am responsible for safety issues once inside.
  • I will brief my officers that once the warrant is executed, they may use reasonable force to control the movement around the premises of the patient or any third-parties (DPP v Meaden, 2003; Connor v Chief Constable Merseyside, 2006) and that they may exercise a decision if risks cannot be controlled, to remove the patient to a Place of Safety.

PROCEEDING WITHOUT A WARRANT

  • If you establish a ‘RAVE‘ from a third party – ie, spouse, parent, housemate – and the grounds for getting a warrant are not met, I will still ensure officers attend to manage the risks and will brief them on s129 Mental Health Act and the offence of obstructing an AMHP in the course of their duty.
  • I will remind them, that they can use force under s3 Criminal Law Act 1967 to prevent a third-party from interfering with your assessment, as along as you’ve gained lawful access from another source.
  • Ultimately, if anyone persists in attempting to obstruct you, they can be arrested for that offence.
  • However, the planning and risk assessment for those ‘RAVE’ risks where there is no warrant is YOURS, alone.

AFTERWARDS

  • Once ‘sectioned’, the police will not convey the patient alone and any request for police to support conveyance by ambulance or other agreed method will be contingent upon a clinically qualified person, either paramedic, nurse or doctor travelling with the patient.
  • Authorities to detain and convey will be in writing.

This will ensure appropriate use of police officers, risk management by you or us, depending on who is leading; it will also ensure the defendability of police actions in all circumstances.

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3 thoughts on “Section 135(1) Mental Health Act 1983 – part 1

  1. Hello,
    Im currently a temporary sergeant in Gwent police ans are part of a small team of sergeants working together with social services and the anuirin health board and Caerphilly council to try and resolve the issues around 135(1) warrants and police powers.
    we are meeting again on 16/07/13 to readdress issues opne in particular the fact that social services apply for warrants to the letter of the wording. and weas police are constatntly saying no warrant no attendance, are you with me so far.
    the overidng factor for a 135 warrant is that they can only apply for one if the occupant lives alone and entry for the assessment may be blocked or restricted, or if they do not live alone that entry will be blocked or restricted or their is evidence that the patient has been misstreated or neglected.

    social service will say that if they are doing an assessment on a patient and the access is fully allowed and their is no proof of neglect or any refusals to do the assessment then a warrant under 135 is not required, but they would still like police to attend to assist and if need use their powers under mental incapacity act 5/6 or section 3 criminal law act 1967…
    in your report you refer to RAVE factors, is this somthing that both the police and social services could use in order to gain a warrant , or is this somthing that social services and mha would use once a warrant has been obtained to gain use of police. or is RAVE a subjective view, and one for the magistrates to address on application for a warrant.

    1. Sounds like your partners are making all the obvious mistakes. On their behalf I would caution against a “no warrant = no police” approach, because I can think of a scenario where I would think it reasonable for the AMHP to want police support and where the grounds for a warrant may not necessarily be met.

      The big mistakes some partners fall into are –

      1. Thinking you can only get a warrant where “access is refused or refused access is apprehended”. These are words from s135(2) which pertains to warrants for recovering AWOL patients and does not apply to s135(1), relating to assessments for admission or to removal to a place of safety for assessment.
      2. There is no place for discussion about sections 5/6 Mental Capacity Act in the organising of MHA assessments in private premises – wrong law.
      3. If they are predicting a need for s3 Criminal Law Act, it means they are anticipating crime and disorder and I will argue that any crime and disorder which is predicted will either consititute a patient who is “kept otherwise than under proper control”.

      There are four grounds for getting a warrant: neglect, ill=-treatment, kept otherwise than under proper control or living alone and unable to care for oneself. If any ONE of those are satisifed than a ground for a warrant exists. And don’t forget: neglect can include self-neflect (not taking meds) and ill-treatment can include self-ill-treatment like self harm, attempted suicide, etc.. If your AMHP is saying “We need you because of s3 CLA” then they are saying there’s a RAVE risk. The only question so far as a warrant is concerned, is whether that risk comes from the patient to be assessed or from someone else. If it is from a third-party, that is the situation where you may legitimately be requested but where the grounds for a warrant may not be met. For example, a young man living with his parents and mum rings MH services because she knows her son is getting unwell and has seen his deterioration before, but where Dad is going to be awkward and obstruct the assessment because he doesn’t like the effect of sectioning and medication on his son. If Mum has called early enough – prophalactyically – there may not be any of those grounds met. However, if Dad has a history of obstruction, then he may commit offences under s129 MHA and the police may be required to deal with that.

      Reading a query point above – I’m also curious about this idea that it would be necessary to have the police present if no RAVE risks were anticipated: RAVE risks is my own concept, to try and conceptualise those mental health incidents which necessarily require police support from those that don’t. For those MH assessments where there are NO RAVE risks and where the AMHP has not got a warrant … I’m struggling to wonder why the police are there. << I mean that genuinely: what purpose do we serve if they are handling compliant or midly resistant – perhaps verbally resistant – patients where AMHPs have legal powers to detain / convey under s6 Mental Health after an assessment which leads to admission? It's nothing that can't be done be eminently more suitable people.

      Hope that helps – let me know if you need anything else.

      M./

  2. I think it’s all very well you lay down the law here, but think about it, how many officers around the country are going to be well versed in the appropriate way to deal with MH related offences, and even if they were, how would that change the way that MH professionals deal with their patients? That’s the most important thing to take into account.

    I think it’s quite disgusting that people are effectively stripped of their liberties afforded to them as a human being during the course of being unwell. With a 135 it is lawful to forcibly remove a person from their own home (thus removing their right to privacy) if they have been non – compliant with medication, or happen to not agree with the pharmacological paradigm (so brutally enforced by psychiatrists).

    Psychotic states do not necessarily equate to violence and lack of control. I think MH professionals use illnesses a person may have as an excuse to render them a possible danger far too often. Any person who cannot be effectively squashed and controlled is quickly accounted for by violently sectioning them. I know this because I have spent over a year in 5 different institutions (including 3 secure units) been sectioned on a 5 (2), a 2, and a 3 twice, much of this detention was justified because I refused to comply with medication that was making me physically very unwell (my requests to change medication were ignored), and also for retaliating (not unreasonably) when I was provoked and assaulted by a staff member.

    I can tell you that the vast majority of sectioned patients are treated as or have been treated as second class citizens/criminals/violent psychopaths because of the trauma they experience, and furthermore subjected to unfair and frankly very heavy handed treatment when it was not necessary. In fact they would have (and I would also) have benefited from a much more therapeutic method of care that is simply unavailable (or inconceivable) to the majority of MH workers.

    People would not end up in terribly unwell states of mind if they had been given adequate and appropriate care by people who are not part of a huge institution that is only interested in over medicating and locking people up, and is not hugely overstretched, stigmatized, and under-resourced.

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