Warrants under s135(2) MHA

Warrants under this subsection of the Mental Health Act, relate to the recovery of AWOL patients.  There is a power of detention for AWOL patients under s18 of the Act and this is a power of arrest for the purposes of PACE (allowing reasonable force to be used).  This power is exercisable not just by police officers, but also by AMHPs and anyone authorised by the relevant hospital to do so.  However, it gives no authority for anyone to force entry into a premises, should that be necessary.  The warrant enables the police to do so, in order that a patient may be retaken and returned.

The case of D’Souza v DPP (1992) highlighted the need to the police to have a warrant under s135(2) MHA if they are to enter a premises without permission or by force.  In the particular case, the patient concerned had made his presence in the dwelling known to the attending officers, but he but opposed the officers’ entry.  They claimed to rely upon s17 PACE to enter: this allows entry to ‘protect life and limb’ which the Court of Appeal ruled requires demonstration of a high standard.   There must be a genuine belief by the officers that life was both literally and imminently at risk.  As this was not the case here, entry was ruled unlawful.

I have previously placed heavy emphasis upon correct understanding of s135(1) and the criteria for obtaining warrants.  There are a few pitfalls in understanding this one, too; but they contrast with s135(1).

In no particular order:

  • This warrant can ONLY be obtained if entry to the premises has been refused or refused entry is apprehended.
  • Whilst it is still good practice for the police to be accompanied by a mental health professional, it is not strictly necessary and the police may apply alone for this warrant and execute it.  There is an example below of why this may be important.
  • Officers must simply satisfy a Magistrate of the presence of mentally disordered person who is AWOL under the Act.


Some years ago, officers on my area were undertaking missing persons enquiries into a s3 High Risk missing patient.  He had been absent from hospital for over a fortnight and medical opinion was that without medication, he would become psychotic and he had previously attempted suicide and been a violent threat to others.  He also routinely used drugs which made problems worse.

Over the fortnight, all police activity had been done and re-done:  addresses searched, bank accounts tracked, friends / family and professionals interviewed at length, CCTV enquiries at locations it was believed he may have visited.  His mobile phone would have been ‘pinged’ for information and whereabouts if we had known whether or not he had one.  The investigation had received close scrutiny from an assiduous superintendent who made sure the pressure on the inquiry remained high.

During a particular night shift when my team were on, we were given information that this man was now at a premises where we had previously visited more than once and fully searched.  It is fair to describe the occupant of the premises as obstructive and abusive, disdainful of the police attending there at all.  She had made complaints about our attendance, arguing that because we had been told by her he was not there and never visited, we should desist from ever coming there again and she would allow no further searches.

The information was good, however – corroborated by other intelligence once we did some more checks.  I decided to send officers to get a Magistrate out of bed and apply for this warrant on the grounds that reused access to the premises was apprehended and I despatched officers in a plain police vehicle to keep an eye on the address and plan our containment of it.  Whilst in dressing gown and slippers in his hallway, the out-of-hours Magistrate took advice from an on-call legal clerk who (wrongly) advised him that the police were not able to apply for this warrant at all – it required an AMHP.  In fact, he quite roundly reprimanded the officers for their error and sent them upon their way.

The officers informed me more or less immediately once outside the Magistrate’s house that this had occurred and I asked them to knock the door again before he got back into bed and brief him Magistrate that I wouldn’t attend within 10 minutes to make a representation that this was an error on the part of the clerk and a serious barrier to this patient’s welfare and public safety.  I wasn’t actually sure if this was the appropriate method of seeking to correct a decision but I took my Mental Health Act with me.  I will simply describe the conversation as very awkward, as there was a reluctance to question the advice of a clerk.  Quite an experienced once, it emerged.

However, pointing out that the warrant could quite lawfully be granted and that no mental health professional was available to attend with us, it was incumbent upon me to highlight that the recovery of a violent, psychotic patient would be delayed and that I would not have come to make a fool of myself in person unless I was sure.  It was also fair to say, the decision and representations would have had to be documented and legal advice sought from force solicitors around the refusal to grant the warrant.

It took 45 minutes of the magistrate (not a stipendiary, legally qualified Magistrate) reading, asking questions and re-reading, as well as talking to the clerk to reach agreement that it could be granted; and it was.

30 minutes later:  one patient detained, removed to the hospital facility from which he was missing who did not have an available bed and wanted him detained in the cells.  <<< That, however, is another blog!

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