Whenever I have a conversation with AMHPs about s135(1) warrants, as I did this week, and mention that it is often misunderstood you may lawfully seek and obtain a warrant under the s135(1) Mental Health Act even though you know at the point of application that you can already secure legal access to the premises, you often get a response about Magistrates. I am not going to rehearse the ins and outs of s135(1) as I have done so previously but suffice to say, having a warrant although you already know you can gain entry, is sometimes still necessary to ensure safety.
This post would also apply to warrants under a129(1) MHO (NI) and to removal orders and urgent removal orders under ss293 / 294 MHA(S). None of these provisions require a demonstration to the Justice of the Peace, that access will be, has been or is likely to be denied. For the remainder of this post, I will use the term Justice of the Peace or JP, to mean Magistrate, Sheriff or Justice of the Peace.
It will sometimes be said, “Well, if I go to the JP and they ask whether we can get into the premises and we say ‘yes’, they’ll dismiss the application.” When you then ask what other information they gave to the JP to make them understand why it can still be lawfully issued even though the access is secured and why having a warrant could well be a very good idea, you might well hear, “What do you mean?”
For example, did you explain that the warrant affords two powers and you’re applying because you need the second one, not the first; that s135(1) makes no requirement at all – unlike s135(2) – for entry to be impossible or obstructed without a warrant? Did you advise the JP or their clerk that these warrants are almost unique in being able to be granted when access is already available?
Have you ever offered, for example, to provide training to your local JP?
I have also previously posted the story of my officers being turned down by a JP who declined to issue a warrant for a high risk AWOL patient, because he mistakenly believed that he could not issues such a warrant upon application from the police. So legal understanding by clerks is key.
JPs in a lot of areas have regular training events and meetings. In my area, three neighbouring boroughs have a quarterly meeting and the first half of each event is court business and the second half is themed on something that JPs wish to know more about. This has previously included traffic policing; domestic violence but I attended one on mental health and there was a good multi-agency turn out: a psychiatrist, a senior AMHP manager; learning disabilities nurse; a senior forensic mental health nurse from a secure unit, Crown Prosecution Service and police.
It was an extremely interesting hour during which I watched several lay magistrates debating s135(1). Whilst some did know what it was about; most did not but were extremely keen to know more. Some even expressed regret that they had previously turned down some applications. They undertook to share guidance around it.
So a reaction to inconsistent application of law is not to shrug shoulders and carry on with your head down: it’s for us to help each other understand how we can support each other. This does not just apply to JPs, but also to AMHPs, police officers and nurses, as well as psychiatrists.
This stuff is about people, care and recovery and awareness training is important. But as social delivery is constructed within a legal paradigm, let’s help each other learn the law.