Section 136 in Private Premises

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.


IMG_0053IMG_0052Awarded the President’s Medal by
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


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17 thoughts on “Section 136 in Private Premises

  1. It’s interesting that you make mention of houseboats and that there is no mention of any other dwelling place (boat, mobile home, caravan or other such dwelling) than bricks and mortar. Is the implication that this applies to any dwelling place there by omission?

    I ask having spent most of the past 2 years living in my campervan due to MH problems (resulting in benefit stoppages and severe financial hardship and distress), and exacerbated (sadly) by MH services and police involvement, resulting in my home being left unsecured following a forced entry (which I am still trying to find out why it happened and whether it was in breach of PACE as there was no warrant under the MH Act and strangely no mention of any Joint Operational Protocol between MH services and Police on my MH records).

    During the time I was living in my campervan, I had a police welfare visit to my house but I was actually inside my campervan parked on my own land outside my house. It was quite terrifying with the police officer banging constantly on my van to tell me to come out. The more he shouted and banged, the more frightened I got and the less likely it was that I would come out voluntarily. The crisis team refused to attend, telling him to ring the CMHT – I’d been trying to get support from CMHT for several years which was why my MH had deteriorated so badly. Eventually an ambulance turned up and the paramedic was fantastic at calming me down and building trust and just at the crucial moment, friends turned up and were prepared to take responsibility for my welfare so a forced admission to A&E (probably resulting in benzodiazepine medication, a lot of stress finding kennelling for my dog, and potentially damage to my campervan, plus huge cost to NHS – I live 50 miles away from my ‘local’ hospital) was avoided – an admission would have caused me both serious distress and considerable additional problems. There are a good few of us mentally ill people who have no carers, no support network, no family, no close friends who can regularly drop everything to support us, no help from NHS or any other agencies. We’ve become so used to being ignored, over trodden, unheard, that being faced with authority, sends us into panic. Because at the end of the day we aren’t criminals, we’re just ill. And for someone like me, who has never even had a speeding ticket, nor any other contact with police other than during periods of illness, the authority of the police is very scary.

    So like you, I’m curious as to the definition of a place of safety as what the police or MH services deem to be a safe place, may not be a safe place from the ill person’s point of view. If the intention is to cause minimum harm (including minimum psychological harm) whilst providing maximum safety, then surely the ill person must be allowed to have their view as to what is a safe place for them, bearing in mind their unique circumstances, taken into consideration – only the ill person knows what would cause minimum psychological harm and minimise distress.

    Obviously then we get into the realms of how do we decide whether the ill person is psychotic / delusional and whether any note should be taken of their wishes and who decides that, whose judgement call is it going to be. I really don’t envy you your job. I think you and I are actually singing from the same hymn sheet and share similar frustrations.

    Sorry for a long winded post – tbh I’m not quite sure what my point is exactly, except perhaps to agree with you (in a roundabout way) that the proposed form of wording does not clarify matters and that there could be considerable scope for “misinterpretation”. And I would hope that there would be, written into it somewhere, the importance of consultation with the ill person as to where they feel most safe.

  2. Mike, I think that the new wording/Act extends police powers and removes (a tad at least) the nonsense of ‘not in a dwelling’ and not having the power to move to a hospital someone detained in a police station.

    If I’ve read it correctly?

  3. Well I wasn’t expecting such a big shift however this will have significant consequences on policing. Some positive and some negative I suspect.

    It should solve the PACE issue in custody around what to do once PACE expires. We could now use the new S136. This is a good thing.

    Officers attending addresses to someone acutely unwell with no out of hours team available to assess. Problem solved if they were lawfully inside the property.

    My big fear would be like you highlighted. Crisis teams etc instead of struggling to arrange out of hours assessments and manage risk may shift to calling 999 to request a S136. The consequence could be a upward shift in demand on police. This goes potentially goes against what the concordat was trying to achieve in terms of decriminalising and least restrictive practice.

    Commissioners will also need to consider doubling HBPOS. In my area the demand is 60% private. Interesting times ahead.

  4. My reading into S59 provides a power of entry into the communal areas within houses of multiple occupancy and flats.

    My reasoning is as below,
    The act states:
    “For 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,”

    Meaning that any place where a mentally disordered person is can be entered by a constable, however the act goes on to say:

    “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,”

    So a private dwelling cannot be entered if that person or anyone else is living there, as stands at present.
    However the act continues saying;

    “other than one that is also used in connection with one or more other houses, flats or rooms.”

    Which I interpret to mean that a power of entry exists to gain access to someone in a communal room such as a kitchen bathroom, corridor or garden area unless that area is for the exclusive use of that person. If the room is shared with another person from a different flat or room then a power of entry exists.

    So as I see it if a person was suffering a crisis within a house of multiple occupancy, or block of flats a power of entry would exist to gain access to any of the communal corridors, hallways, kitchens, bathrooms, receptions rooms, gardens, courtyards and the like. However no power exists to gain access into that persons own room or area which has been designated to be exclusively for their use.

    What do you reckon.

    1. The counter argument is that it will a) further erode the rights of vulnerable people; b) increase the normalisation of policing in mental health, which some are very convinced is a very bad things; and c) create conditions in which the NHS may be tempted to rely upon the police to detain and safeguard patients at risk to an even greater degree than they are now – see street triage for similar examples.

  5. I’m an out of hours AMHP, and we don’t use our local police stations as places of safety. Despite this 30% of our assessments are in police stations. My hypothesis is that police get called by people to private dwellings because of incidents happening there, and are left with the only option of arresting the mentally disordered person, taking them to the station then asking for a MHA. The problem with arranging mental health act assessments out of hours on private premises is that we often need a s135warrant (which takes time) and therefore the police in order to safely complete assessments. It’s less police resources to arrest someone than wait for an assessment.

    I recognise the concerns about crisis teams relying on calling the police and agree more efforts should be made to engage people before looking to any statutory intervention, but don’t fool yourselves that this would stop people who are mentally ill being detained in police custody.

    This amendment might actually help save police time- as long as there are sufficient mental health resources to respond to crises!

    1. Faith,
      You say that the arranging of a 135 warrant takes time, so does booking someone into police custody. If you get your time slightly wrong you can spend hours in a holding cell along with a number of other people waiting to be booked in to custody.

      Often these people can be extremely violent and verbally abusive. It is not an environment I would like to take someone who is suffering a MH crisis. You can often find yourself in a room which resembles something line the wild west times by ten.

      You say that by people calling the police as opposed to the NHS can save the police time how do you get to that figure. If you start at zero as it should be if your CCG were to fund sufficient resources to deal with anyone in crisis then how does it save the police time. The police can turn up to serve a warrant which you have sworn out and gain entry as required so you can remove that person to a place of safety, which does not take an inordinate amount of police time. How it can be said that you are saving the police time by leaving everything to the police I find hard to comprehend.

  6. All true and very good points of course. If there was good mental health care then you could call mental health services and someone might come and see you….or you might get admitted to hospital before you attempt suicide and not be discharged before you can cope..

  7. Would’ve preferred you not to have mentioned it if I’m honest* and let it be passed as it’s is written*, because currently cops are just outright breaking the law to make it work which is unfair. What are police meant to do when an AMHP refuses to get a warrant? We’ve all the responsibility and none of the ‘power’.

    *though the angel on my other shoulder says otherwise.

    1. Escalate the thing to wherever you can get it, make a noise and then write down the AMHPs name just after shouting ‘Sessay’, put in as many informal supporting mechanisms as possible, tell a sergeant and walk away.

    2. There is a considerable body of patients who want the NHS and other agencies to step up and be responsible for things and a sizeable group of senior police officers and politicians who think that if police powers were extended, the under-resourced, over-stretched MH system would seek to pass even more demand to the police to short-cut the sectioning process and absorb the work of CrisisTeams. I can see their point!

      1. Totally agree that the issue is funding mental health services to intervene before a crisis, and I’m absolutely not arguing that people should be taken to police cells – in fact the opposite. I’m saying that CURRENTLY even in an area where police cells are never used as a place of safety under s136, ONE THIRD of out of hours mental health act assessments happen in police cells. There will always be some assessments in cells, but in my experience at least half of those assessments start when the police are called to private premises by friends, family or neighbours concerned about a loved one. What I’m saying is that there should be a speedy and efficient way of assessing those people and getting them to hospital if needed – and going to get a s135 isn’t speedy. It’s not that I object to doing it ( I have where needed) but know from experience that it’ll take at least a couple of hours where police still need to stay on site, or at least return to execute the warrant.

        Even in the best service, the police will always find themselves being asked to intervene in cases in people’s own homes where someone is clearly emotionally distressed to the extent that if they were in a public place, they’d use s136. I’m just advocating for a better way of expediting these situations and getting people help.

  8. Surely a big issue here is the serious lack of preventative MH service! If we support people PROPERLY BEFORE a crisis then maybe just maybe many crisis could be avoided! What’s the point in increasing police powers if there are still the same number of under resourced POS ??? As a loved one/carer I am very frightened by ANY police involvement,this is not a criminal issue its a health issue and should be treated as such.

  9. The fact is that this is just going to justify the action of the police enhance their ability to enter private premises. 136 and the triage system is already being abused. For those people who have a nurse and a police officer at their door telling them they need to come in and applying pressure on them to do so until they relent and allow access this is going to cause a problem. People will acquiesce and the argument when a complaint is raised is that they invited the police and health in to talk.

    This will be abused as the triage car has been up to now. Street triage is a very good idea and has made a great difference in our area but why is it that the success has to be tainted by people looking to abuse the system and good work that has been done.

    The street triage by its own definition is related to section 136 as the street is a public place. So why are people being approached in their home using this system. The other thing is a denial of this being done but on asking the question it is quite clear that it is a case of abusing the power.

    Both the Mental Health Trust and police denied having a policy relating to the street triage car and the police even said it was a CCG initiative so there was no policy. What????? no policy for people who are taken off the street and their liberty taken away?

    If there is that amount of abuse now with this simple concept of putting a nurse in a car to advise the police, imagine what abuse there would or will be when the powers under 136 are extended further.

    Maybe there should be another statutory advocacy role written into this and they can go with the nurse and police so there is an independent support for the person to ensure there is no abuse of the system.

    And for those of you who feel aggrieved and set upon what I am saying is a fact it might not be you but it is happening.

    If you want to make a private comment to me let me know and I will provide you with my email address.

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