Can You Use Section 136 in A&E?

Recently, I had emails via the very excellent Inspector Jan PENNY in Thames Valley Police, drawing me into a debate in her area about the use of section 136 in an Accident & Emergency department. The definition of s136 makes it plain that you can only exercise the power in “a place to which the public have access” and TVP officers were consumed with the detail of what this meant.

The post I wrote last year on Section 136 Arrests Within A&E addressed the question of whether A&E is “a place to which the public have access” and I definitively stated that it was, without detailed explanation about the kind of arguments that break out. In light of Thames Valley’s difficulties, I want to put that detail out there, with a nugget of information I only discovered tonight.


In many A&E departments these days, they have entirely public waiting areas into which absolutely anyone could walk should they wish to do so but many have introduced controlled access to the treatment areas. You often have to be let through a door which has a security swipe system controlled by nursing, medical and security staff. You absolutely cannot walk into those areas just because you want to; it is completely conditional upon staff permission to do so on their terms, at times determined by them.

Recently, police blogger Inspector Gadget wrote about this access system representing a problem even for police access, such is the level of control exercised over them. To what extent is the area of A&E beyond these doors “a place to which the public have access.” Well, it turns out there’s an easy answer to this, after some have spent hours torturing themselves with legal definitions that were never relevant to begin with.


Legal debate about this often turns quickly to the legal definition of a public place. The problem is that there are different definitions depending upon which Act of Parliament you are reading. The Road Traffic Act is different to the Public Order Act, etc., and in any event, s136 MHA does not refer to “a public place”, it refers to “a place to which the public has access.” We must assume that these are different things, otherwise Parliament would have used the same phrase to ensure the same meaning.

The Thames Valley officers had removed a person from the access-controlled treatment area under s136 and the detention of that person in the cell block was refused by the custody officer as potentially illegal. This decision rested upon an interpretation of “a place to which the public have access” that focussed upon an interpretation which implies totally free, entirely unrestricted access, or access granted because of the satisfaction of an entry criteria which, in theory, anyone could meet, such as payment.

Actually, section 9 of the Public Order Act 1936 would imply that A&E treatment areas are fair game for s136: a “public place includes any highway and any other premises or place to which, at the material time, the public have or are permitted to have access, whether on payment or otherwise.” (The bold is my emphasis.)


Whichever side of the fence you sat on until now, the answer is actually specifically clear. I have tonight been re-reading the Sessey judgement and found something I had failed to spot when reading it previously: paragraph 39 of the judgement is referring to the difficulties faced in achieving an urgent admission under the MHA with regard to people who may be inclined to leave the hospital. It states:

“If a patient evidences an intention to leave the hospital before the s.4 application is completed, hospital staff may contact the police who have the power to detain the patient under s.136. We do not accept that there should be any problem with the use of s.136 in these circumstances.

The Accident & Emergency Department of a hospital is a place to which the public have access and accordingly it is a public place for the purposes of s.136.”

So there it is – it is beyond doubt, following a High Court ruling. Of course, now that you know you could detain someone under s136, you’ll need to decide whether you should detain them … and what you then actually do with the person is quite another debate again because nothing in this post or that court ruling will help you with the wisdom that “A&E is not a place of safety.”

Well, actually, it can be … and it often is … and it all depends. See another of my posts for that debate but remember that ANYWHERE can be a “Place of Safety” – including my Mum’s house – dependent upon the circumstances and the rationale behind the choice. So to the argument put forward on Twitter that a local arrangement between the police and mental health services; A&E and the local authority that A&E is not a Place of Safety, I say that a rose by any other name, is still a rose.

The Mental Health Cop blog

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– won a World of Mentalists #TWIMAward for the best in mental health blogs

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– was referenced in the UK Parliamentary debate on Policing & Mental Health
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4 thoughts on “Can You Use Section 136 in A&E?

  1. Well, this is the “Very excellent Inspector Jan Penny”!! Honestly!! Far be it for me to argue with you or a Judge and all but…. The paragraph 39 is not specific enough for me! There are certainly areas within Emergency Departments that have general access to the public. I have no problem with this at all. However, there are also areas that are clearly off limits without invitation and to suggest that these are public places for the purposes of S136 implies open access to any areas that seem to be ok for the public to get to. What about the front garden arguement? Actually the public do have access otherwise how do we post letters? Personally until the law is changed and “place to which the public has access” is clearly defined or there are more stated cases I think we should be cautious. In cases of emergency in the ED where S4 may be applied then quite honestly there are plenty of Drs and the nearest relative can apply in cases where an AMHP is not available. If the person lacks capacity we can act in their best interest to restrict their movement and prevent them from leaving until the application has been made. These situations will continue until there is a common sense injection into the leglislation which removes the need for it to be a public place. Give us a fighting chance of providing a service to the vulnerable instead of tying our hands behind our backs.

    Merry Christmas one and all!

    1. Ha, ha – but you are excellent Jan and you keep people chipping away at stuff that we might get bored of and fail to nail:

      A few points: I actually looked up the s9 Public Order Act 1936 definition of a public place and it explicity covers areas into which the public are invited by invitation. The front garden argument, I feel is different: there is an implied right of access in law for people to enter that private space to deliver milk, newspapers and letters or to knock your door. Access to your front lawn just to stand there because you’d like to is quite different, despite being very possible.

      I must admit that I was always more or less comfortable about detention beyond the swipe doors, but without being able to clearly articulate why – the reason I wrote another post on it, was precisely because this nugget of information, along with finally being bothered to look up the s9 POA definition, totally nailed any lingering doubt that I had … not that there was much.

      I’m liking the NR application for admission idea, by the way! – I might play around with that one with some AMHPs and see what happens, as the AMHP still has at least some role to support the NR in making the application and I can’t see the DR running off the find a bed, even though it is their duty to do so.

      1. I just read the blog discussion about s.136 in A&E etc. I know that use of s.4 was raised in Sessay, and now people think it is another possible solution, but what everyone forgets is that you’d still need an AMHP to attend because I can’t imagine any NR having a handy s.4 application form in their possession (or the A&E doctor, indeed they probably wouldn’t even have s. 2 med rec form let alone a s.4 form), and what’s more, even if the NR did have a s.4 form handy (which would be suspicious) the NR couldn’t complete an application until a bed had been found, because they can’t address it to the hospital managers until they know which hospital the person is being admitted to.
        Years ago when there used to be vacant beds this wouldn’t have been a problem, but now that they are having to be fought for (sometimes almost literally) then having a NR and a s.4 NR application form is frankly just about as useful as a chocolate fireguard – besides, who decided/ascertains who is the ‘legal’ NR, it’s not necessarily the relative that happens to be there with the ‘patient’!

      2. I think as long as there are areas where resources are scare and this is having a knock on for other agencies, there will be attempts to find solutions to burdens we inflict upon each other.

        I think it’s very easy to argue that’s several LA areas have insufficient AMHPs available to deliver the practical
        reality that the Sessey judge envisages – a failure to build systems which absorb the nature and variety of actual demands and which enable processes to run ‘cleanly’.

        Of course the problem with a lack of s4 forms and with complications in establishing Nearest Relatives could be overcome in various ways. Could practical complications arising from a lack of transparency about rights of relatives and duties of professionals not in themselves be interpreted as suspicious for other reasons?

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