It is sometimes remarked upon with a smile or a smirk, the number of s136 arrests which occur in close proximity to someone’s home address. The inference always is that the officers have been called to a private premises where no offence is being committed and found someone who they would detain s136 if only they were in a public place. Therefore arresting officers use their powers of human persuasion to encourage someone to ‘step outside for fresh air’ or to have a cigarette. I’m guessing there are few smirks at the practical reality of this: we know it happens and the CQC have commented upon it in their annual report on the use of the MHA.
Firstly, we should remember that this is an illegal arrest – in no way can you argue that you have ‘found’ someone ‘in a place to which the public have access’ if you have encouraged or enticed someone over their domestic threshold. However, we need to understand why this occurs as some cops would argue that it is the lesser of two evils. If not doing this leaves someone in a situation where they may take their own life and the police cannot secure timely NHS support, what would you do? You are being required to manage the conflict between their Article 5 ECHR rights and their Article 2 rights.
One of my regular tweets is to observe that the UK is almost alone in not allowing their police service to exercise some kind of emergency holding power in a private dwelling. Police officers have no relevant powers under the Mental Health Act for this kind of situation unless accompanying an AMHP in possession of a warrant under s135(1). Parliament decided in the 1950s and it remains law today, that the solution to non-life threatening mental disorder, non-imminent crisis in private is an AMHP and a DR making urgent assessment and application for admission under s4 MHA. If necessary they can secure a warrant and attend with the police. Again, I’m guessing there are few smirks at the practical reality of this – because I’ve never, ever known it happen. (I may have asked for it a few times and documented the response to assist with later justification of action I did end up taking.)
This leave officers in a difficult moral position – you are in a building with someone who may or may not have ‘capacity’ who may or may not be at risk from themselves, albeit not imminent risk where Breach of the Peace powers would become available. How do you ensure they remain safe and get necessary assessment or referral or detention?
In a strictly personal capacity, I’ve written to both this Government and the previous government highlighting this position and suggesting one of two solutions – I offer no view as to which I prefer but would say my local MP was excellent – my first time of writing to them about anything at all, incidentally! The last government did attempt to rectify this position, in the Mental Health Bill 2004, but it was lost amidst re-drafts of what then became the Mental Health Act 2007. The current government “has no plans to do so.”
- Alter s136 so it allows detention in a private dwelling and removal to a Place of Safety for up to 6hrs; perhaps a power of entry on an inspector’s authority?
- Introduce clearer legal obligations for the NHS and Local Social Services Authorities to deploy relevant professionals to the situation within a short-time frame; I’d suggest within 2hrs.
Each has pros and cons – so I’d be interested in your views. What I do know, is that with the law as it stands, there are gaps and sometimes policing can be about doing ‘the least worst thing‘ out of two unpalatable options in order to keep people safe.