Section 136 and Private Premises

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.”

  1. 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?
  2. 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.


7 thoughts on “Section 136 and Private Premises

  1. The Mental Capacity Act works well for a lot of the incidents I go to as overdoses and cut wrists need imidiate treatment. However officers (and NHS staff) are getting confused between the two quite a bit. Interestingly the NPIA suggests that just the threat of suicide is enough to use this act.

    I’ve taken people into hospital from their home relying on MCA only to have a nurse refuse treatment and demand I use Section 136. They don’t like it when you say “no”.

  2. i would be very wary of using the MCA in these situations. There are no simple answers given how the law is framed and yes quite a few smirks on my face reading this. As with most things its often a question of resources during office hours we can and do attend emergency assessments within 2 hours quite often within half an hour, but in rural areas and out of hours no one wants to pay for people who may be sat doing nothing. So unless the law changes we will have to rely on good local policy’s

    1. Why should I be wary? That’s what it’s there for. As an aside, I would only be using it of accused of assault as its a defence not a power (at least the only bit of the MCA relevant to police)

  3. Its very very frustrating ESP when the patient is drunk an they require medical assessment first loads of hrs, some mhp suggest tranquillisers until alcohol worn off but get feeling they wanna do it so that by time patient ready to b dealt with mhp will be in process of handing jobs over. Then there r medical doc who refuse to traq an great circle of passing the inevitable buck starts. An then there are the patients who u spend hrs with an gut feeling is something is not right an bingo!! Released to an appointment Whooo about a week later t discuss things. So forgive me if I sound hum drum but I know how a job will pan out even b4 I step foot near a Hosp Dept. An then there r Hosp staff who have concerns for a parent who walks out, they don’t make any attempt to stop not even to stall them. Then whose responablity does it become, social services? Mental Heath team errmmmmm NO! The police again an again!!!! genuine folk generally manage to top themselves b4 getting the medical treatment they deserve. then we become the bearers of bad news! Having had t deal with the death of a patient!

  4. This has happened to me, and I was surprised by how many other people it has also happened to, when somebody posted on a mental health forum I use about their experience and got a big reaction. The ethics of it really worry me, however, the police officers involved spared me a much greater fate and for me it really was the ‘lesser of the two evils.’ I’m very grateful for their course of action to this day.

    1. What was the general concensus of the forum. Do police usually get it right? Even though technically we’re doing wrong.

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