Magistrates and s135 Mental Health Act

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.


6 thoughts on “Magistrates and s135 Mental Health Act

  1. I have to say I’ve never been turned down for a warrant on the basis merely of being able to secure access and I have on a number of occasions made the request even though the person isn’t living alone – indeed, as you mention, the application makes reference to instances where it may be necessary. It isn’t something that comes up a lot but I agree that if we put down the reasons for requesting the warrant clearly, they have been granted. I have also had occasion to explain the law in detail to the magistrate from the stand when asked why I was making an application so being prepared is crucial!

  2. I need to defend the bench. There are many times when JP’s feel the frustration that they could have done more or their hands are tied. We are told we do not need in depth knowledge to reach a decision as long as we have followed the correct process to get to the decision & have to give more reasons should we dare to deviate out of the guidelines. What you have blogged demonstrates one of these occasions. Many would like to be better informed but as with so many things time is too short or money not there for training.
    All too often with any warrant the Magistrate has little imput other than sign on the dotted line. There are some very “strong” legal advisors who flex their delegated powers frequently and for whom the law is black & white. Thus you have the power why do you need more.
    Sadly due to cuts court lists are over filled & signing of warrants is a rushed slot in prior to sitting. Sad to say but some Magistrates will fear delaying the buisness of the day or questioning the legal advisor.

    1. Please be clear, I’m not attacking the bench. I’m attacking the occasionsal omission on the part of AMHPs to prepare a sufficient briefing to the Magistrate that gives them the information they need to stand a chance of being right. Please don’t construe my remarks as being towards Magistrates: they are towards some AMHPs who have admitted to me, they sometimes disregard para 10.10 CoP MHA.

      This post is not about blame at all: it’s an effort to push the debate and educate, but at the end of the day – AMHPs not seeking warrants which could be sought; Magistrates not issuing them when they could be issued and police officers not having the knowledge or confidence to push back against both of these issues where having a warrant would significantly increase the ability of the police to safely manage MH assessments where danger and risk is involved. The police have no powers in a private premises during MHA assessment until a crime occurs, which means people have to get hurt or property damaged before action can be taken to ensure safety. Except of course, unless the AMHP sections the person but whether they will or not is not always known when you walk through the door and can take time.

      Finally, I’m confident that if a police officer stood before the bench basically saying, “Sorry, not enough training time and I didn’t know the law” … well, it wouldn’t cut much mustard would it? This blog post is about awareness and anything you can do to further it, would be much appreciated.

    2. 30 July 2013
      Dear Mentalhealthcop and West Midlands,
      I am interested in this post and wonder if there can be a different way of doing such work. I think particularly of tragedies where people have either killed or committed suicide where there may have been misunderstandings of mental health law and procedures.
      I note that the House of Lords Select Committee on the Mental Health Act 2005 is holding a post-legislative review which is ongoing. They are calling for evidence to arrive to them by the start of September 2013.
      If you have any thoughts on this, it would be most useful for us to have your views please.
      Thank you so much.
      Rosemary Cantwell

      1. I make a correction – It is the House of Lords Select Committee on the MENTAL CAPACITY ACT 2005.

        I do apologise unreservedly.

        Rosemary Cantwell

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