Section 135(1) Mental Health Act 1983 – part 2

I previously gave my own thoughts about how to approach an assessment on private premises or s135(1) job.  I’m going to do it again, to deliberately set out a different way to approach the planning of it and in order to provoke thought / debate.

Approved Mental Health Professional’s (AMHP) should bear in mind that the below reflects guidance to the police service from ACPO and is endorsed by the Department of Health: it may well become more wide-spread in future.  It is a basis by which to mitigate risks being highlighted that necessitate police attendance.  I know that some have supposed it is just the erection of artificial barriers to securing police support: I want to dispell that myth here.  It is about safety, including yours:  whether you are an AMHP, a police officer or a patient.

If it is anticipated that there will be risks of “resistence, aggression, violence or escape” (RAVE risks) then the grounds for obtaining a warrant under s135(1) will usually be met.  As a warrant would significantly assist in the mitigation of those risks, the police may ask for one to be obtained.  Of course, the final decision as to whether to do so rests with the AMHP, but a police supervisor should be thinking from a risk assessment point of view: “What can I bring to this operation which will mitigate risk?”  A warrant may well do that.

Where a warrant is obtained, it ensures that the police officer who executes it has two powers otherwise unavailable to them:

  1. Power to enter the premises, by force, if need be; AND / OR
  2. Power to remove the individual to a Place of Safety, if thought fit.

Case law has upheld that police officers’ would have the right to use reasonable force in order to safely execute a warrant on a private premises in order to prevent its execution from being interfered with.  (It is also a criminal offence to obstruct a police officer and a separate offence to obstruct an AMHP.)  For example, it may be necessary to briefly control the movements of parties in the premises, either the patient’s movements or to prevent third-party interference.

The criteria to be satisfied to secure a warrant are that the individual to be assessed “is or has been neglected, is or has been ill-treated, is or has been kept otherwise than under proper control, OR is living alone and are unable to care for themselves.”  So, four potential grounds against which to obtain a warrant, only one of which need to proved to the Magistrate.

Finally(!) – where a warrant is being applied for despite no attempt to enter having yet been made, OR where it is known that access to the premises can be lawfully secured, the reasons for still applying must be documented (CoP MHA, para 10.10).  <<<  This means, you can seek a warrant even though you know you can get in, but you’ll have to outline the necessity of it to the Magistrates as most of the warrants they grant cannot be authorised when access is freely available.  s135(1) is differents135(2) is not!

To lawfully grant a warrant there is NO requirement to demonstrate:

  • that access to the premises has already been attempted;
  • that refused access to the premises is apprehended;
  • that there is a specific indicator of resistance, aggression, violence, or escape (RAVE); only those points in subsection (1) need be satisfied.
  • that the power to remove the individual to a Place of Safety WILL be used; that it might be needed where the criteria for granting are met, is sufficient to allow an application.

The police are allowed to have a view about whether a warrant should be sought or not, as they are being asked to mitigate (sometimes considerable) risks and must do so lawfully.  The planning discussion should include full disclosure of risk information under the Data Protection Act 1998, because warrant or no warrant – it is a joint statutory responsibility where everyone has the same objective and responsibilities to each other.  They all need to fully understand the risk information and work together as one team.

Without a warrant there is no police power to intervene by force within that premises until someone’s conduct amounts to an attempted or actual criminal offence, an anticipated or actual breach of the peace; OR until an MHA application is made.  So even bearing in mind offences of obstruction – to the police or to the AMHP – there is no power to prevent the individual from:

  • Completely denying access to the premises (unless another person may lawfully grant it);
  • Moving to a room which can be locked (bathroom / cupboard / loft);
  • Picking up knives, cutlery or other (improvised) weapons;
  • Boiling kettles or picking up hot-drinks;
  • Accessing areas where there are windows / balconies;
  • Leaving the premises – if they do leave, s136 criteria may or may not be met.

I am not advocating a “NO WARRANT = NO POLICE” approach.  If the RAVE risks come, for example from a third-party at the address, it may not be possible to get a warrant, but it will still be necessary to have the police.

Think it through and do let me know what you think.

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16 thoughts on “Section 135(1) Mental Health Act 1983 – part 2

  1. from a lay view point, obtaining a warrant (where possible) first seems wholly sensible particularly if it authorises the attending police officers(s) to restrain the subject before he/she damages anyone or themselves.

  2. agree with your post but in practice in our patch this would be a huge change and i could see it been resisted will bring it up at next AMHP forum and see what response i get. I had thought this would come in after the welfare check case where a man was cleared on appeal of assault on police officers

    1. AMHPs are very welcome to take the view that what is implied within this post is not practical and not get them. I’ve heard AMHPs become quite defensive about this – actually sometimes become quite angry about the implications. But I also remember doing an input on this to a room full of AMHPs in another force area and was met with a stunned silence before one of their number said, “It’s right.” No argument at all. It’s just the practical implications of getting more warrants or being overtly named as the risk taker, which I accept is a pain and a burden.

      But it must be right that if the grounds for getting one appear to be met, the police are allowed to ask. If the AMHP wants to say no, they have that right but they have to accept it comes with consequences in terms of the abilities of the police to coerce.

      For the record, I believe like so many other countries, the police should have a power without warrant, to enter a building by force and detain someone under the Mental Health Act for let’s say 6hrs – almost like a nurses 5(4) holding power in hospital. Perhaps the thing would need to be authorised by a higher ranking officer – inspector would be typical for such an authority. This would then get around what I acknowledge is an unwieldy bureacracy. But it is the law as it stands.

  3. Advice please on MCA 2005 where a person lacks capacity. In a private dwelling. What if the person knows what they are doing ie overdose that may kill them and choose to refuse treatment. When questioned to obtain necessary evidence of lack of capacity they can fully understand their actions and decisions, knowing they may die, knowing there are other options like crisis team and MH support but still refuse treatment as this is the decision they choose. I was advised by crisis team that MCA 2005 can be used by Ambulance crew &/or police. I have no problem detaining but I questioned the capacity bit as I didn’t believe the criteria was met, they believed I had sufficient to detain for place of safety. Doctor also quoted this act on second call to GP because they weren’t coming out to section.

    If someone has the capacity to understand and still chooses to die is the MCA 2005 appropriate.

  4. Our local practice is generally ‘no warrant = no police’ – the only time I’ve ever done otherwise was when I had to 999 the police during an assessment..but that was a fairly palpable and immediate risk (and we had made the application at that point anyway). I think there are clearly different approaches (and guidance) locally.

    1. Interested in whether this position comes about from your local force adopting this position, or whether you and or your LSSA agree that this is the right approach. Getting feedback from some AMHPs that however right it may be, it can’t work in practice; and some that it’s not the right approach anyway.

    1. Have known it happen with an hour so when it’s urgently required out of hours. I know that some AMHPs feel they can sit at court for hours and hours, waiting during normal court times. I appreciate fully, that this is a potentially lengthy addition – but all I do is refute that this is an artificial obstruction to disincentivise the AMHP from requesting the police and point out it is about safety and the mitigation of risk.

      1. Hope you don’t think there were critical undertones to the question – there were none intended, I just find your blog really interesting and like to understand the issues as fully as I can (…I am a student nurse, MH services patient and work in offender health so it’s relevant on many levels for me) 🙂

      2. I didn’t think that at all, no problem. Glad you’re enjoying the blog – trying to raise some issues from the police side, whilst also putting out some materials that may help police officers make sound legal decisions. It amazes me how much debate there can still be over legal frameworks which have been on the statute book for over 25yrs – in some cases over 50yrs.

      3. I work as an AMHP and am inclined to agree with your perspective that, as a general rule, a s.135(1) warrant should be obtained when police attendance is required. In my area we do tend to get warrants in these cases and normally it does not cause an unacceptable delay, the magistrate will normally see us within the hour once we have gathered all the relevant information. I would be interested to raise this with my LSSA employer and see what the view from above is, given the cost implications ( I agree that the safety of everyone concerned is the first priority and cost should not come into it- but I’m just being realistic as I fear the managers may see it differently and we have to justify every bean!)

        I would be interested to know if you see any difference in the required approach for people who live in supported accommodation where staff will allow access and you require the police due to known risks of violence when the person is unwell?

  5. MHC re comment 0133 15/12/11.
    I have read the Sessay case especially the bit about the intitial detention being unlawful. I notice in the Sessay case the woman was detained under 135 MCA without a warrant and at hospital was dealt with under 136 detention and therefore that detention was unlawful.

    For me the interpretation of capacity is very important and who is qualified to make this judgement.

    In my case the fact that the patient appeared to be in control of decision making and fully understood the consequences is important. However my interpretation is that because of their current mental health issues was the patient really in control of that decision or was it the current state of mind causing, IMHO the lack of capacity. I would be happy to justify my actions as I believed the patient wanted to die but I also believed they were not fully capable of making that decison (section 2(1) ) and perhaps that decision was made because of a temporary lack of capacity which could be addressed with the proper medical intervention.Obviously I wanted to prevent their death. Therefore if I make that choice of detaining under MCA I believe that is the correct interpretation. However what qualifies me to make that decision, I am not medically trained so would the law protect me.

    1. Section 5 of the MCA affords protection from liability for someone acting in the best interests of a person who they have judged to lack capacity to make the required decision at that time. In an emergency situation such as those Police and Ambulance are confronted with it will without a doubt be in the person’s best interest to prevent further harm or death because even if you have gone through the two stage test of capacity and are worried that they seem to have capacity you cannot know that they have weighed up all the pros and cons of possible treatment or care available to them – in which case this is such a serious decision you would be justified in taking the least restrictive action to save or preserve thier life. Ultimately you may be challenged, however, I know which judge I would rather be justifying my actions to, it won’t be the coroner! You are more likely to be challenged for neglecting to act.
      6.35 MCA Code of Practice:
      Sometimes people who lack capacity to consent will require emergency medical treatment to save their life or prevent them from serious harm. In these situations, what steps are ‘reasonable’ will differ
      to those in non-urgent cases. In emergencies, it will almost always be in the person’s best interests to give urgent treatment without delay. One exception to this is when the healthcare staff giving treatment are satisfied that an advance decision to refuse treatment exists.

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