You’ll remember that the Home Office introduced a Bill to Parliament in February 2015 to make various reforms to policing itself and to laws affecting the police and I did a short BLOG post on the topic? Amongst other things, the Policing and Crime Bill 2015 will amend police powers under the Mental Health Act 1983 in various ways and the Home Office summarised them in a press release when the Bill was first introduced. Consistent with the 2014 joint Home Office / Department of Health review of the operation of ss135/6 of the Act, the press release told us the Bill proposes to widen the use of s136 by “extending police officers’ powers to act quickly to detain and remove people experiencing a mental health crisis from any place other than a private dwelling [my emphasis] (for which a warrant would still be required).”
Well, I eventually got around to reading the Bill itself in far more detail than I previously have and I’m not quite so sure that’s what it says! Please help me think this through …
THE FUTURE ONE, THREE, SIX
If you read the words proposed to substitute the current arrangements, s136 of the Mental Health Act 1983 in the future will seem somewhat different. This is all contained within clause 59 of the Bill, (on page 75 of the PDF when you open it) –
“Section 136(1) – if a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—
(a) remove the person to a place of safety within the meaning of section 135, or
(b) if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.”
So where does that say anything about dwellings, whether they be houses, flats or rooms? This new version just doesn’t mention anything about where this power may be exercised, implying it can be used anywhere. Location is not mentioned in the newly proposed s136(1A), if that’s what you ended up looking at because that sub-section will relate to powers of entry only; the question of where or whether a power can be used is separate to whether or not officers have a right to force entry to a premises in order to use that power –
“Section 136(1A) – the purpose of exercising the power conferred by subsection (1), the constable may, if need be by force, enter any place where he or she believes the mentally disordered person to be, other than—
(a) any house, flat or room where that person, or any other person,
is living, or
(b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.”
The new section 136(1B) relates to the proposed requirement that officers consult a mental health professional before using s136 (raising questions about the meaning of the words ‘immediate’ and ‘necessary’, but that’s a separate matter!); and clauses 60-62 relate to amendments other than to the detention power itself: those relate to things like what is a Place of Safety in law; who may detained in which PoS and the timescales for overall detention. Nowhere else in clauses 59-62 does it discuss dwellings: whether they be a house, flat or room.
WHAT DOES THIS MEAN?
This appears to mean, if a police officer is already lawfully in a house, flat or room or if they have another legal basis to enter it (like s17(1)(e) of PACE to save life and limb), they will be able to use s136 to detain someone. If you read this stuff and then believe I’m wrong about this, please say so in the comments below – but please tell me why I’m wrong. I can’t see anything in these clauses to suggest I am.
The use of section 136 could more than double after this Bill takes effect in its current form. Even more difficult still, that increase would occur just as the other amendments in the Bill mean police stations can be relied upon far less than they are at the moment. We currently see 20% of people detained under this power taken to custody so we’re already (or still?) struggling to make the use of custody ‘exceptional’ when we have 25,000 vulnerable people detained per year. If there were 50,000 or more detained, the NHS would need significantly more capacity in their Place of Safety of provision and they’d need to be looking at that now if it is to be ready for the Bill to potentially receive Royal Assent in 2017.
We can imagine other implications: forces will want to think about their own policies and their joint operating protocols because they could then, in theory, be proactively asked to attend a private home in order to utilise these powers. What I’ve seen happening with street triage initiatives makes me believe this is a very real risk. I wonder whether CrisisTeams, who’ve seen an uplift in their referrals whilst experiencing a cut in their resources, might think such an expanded power is a new way to shortcut the MHA assessment process, assuming officers could gain lawful entry without a warrant? We know they can view triage as an extension of their own service, to be tasked with crisis care work without reference to whether there is a policing purpose within the referral – why wouldn’t they do it, if they’re struggling for resources or unable ton cave AMHPs for assessments?!
I hope I’m not wrong or confused about what I’ve read – but we could do with finding out if I am and whether the apparent change between the press release and the Bill itself is a change of approach or a drafting error. Otherwise, we risk some very unexpected things in 2017 for which we haven’t planned and prepared at all.
Update 08/04 – I have contacted the Home Office about this: they have referred this observation back to their lawyers and those who draft legislation because it is their intention to ensure s136(1) is restricted to private places but not including a house, flat or room where that person lives.
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