Correct Use of Section 136

You may have been following the progress of the Policing and Crime Bill 2016 through the parliamentary process – this is the Bill which will amend various bits of legislation on various issues in policing, but for our purposes, it is most notable that it will amend police powers under the Mental Health Act 1983.  The Government undertook a consultation in 2014 about what such amendments should look like and there have been various debates in the House of Commons as the Bill completed its journey through the lower house.  It will shortly commence it’s passage through the Lords and various topics are still up for debate.

Members of Parliament like Normal LAMB, Charles WALKER and Kevan JONES have introduced proposals to further amend the Act in ways the Government hadn’t originally planned – on topics like, the use of Taser by the police on inpatient mental health wards; training for police officers on mental health and seeking to define in the Act itself what the exceptional circumstances would be where An adult can still be detained in police cells.  This latter amendment was thought necessary by Norman LAMB because the government proposal was that the definition would be issued in Regulations published by the Home Secretary.


This post concerns one of the recent debates on the Bill: on 14th July, Sir Paul BERESFORD spoke about the difficulties of effective police responses in private premises to mental health emergencies.  The keen-eyed amongst you may remember Sir Paul’s name – he is the MP who introduced a ten-minute rule motion in 2014 suggesting that section 136 of the Mental Health Act be amended to allow officers to take protective action in private premises. This was set aside after the Home Office made it known that the issue was being considered in the 2014 review.

I can only assume that in the absence of that topic being overtly addressed and in light of their being no other obvious solution to the very real problem these situations represent, Sir Paul has raised the point again.  But it’s one of the Government responses to his point that particularly caught my attention, from the (then) policing minister Mike PENNING.  This is what I want to raise again, quite frankly because it infuriates me to distraction how undefined these various accusations and observations are.

As quoted in Hansard, Mike PENNING said –

Before we consider changing section 136, we need to ask whether it is being used correctly. We are concerned about the number of section 136 orders that are being used, and the data that I asked for show that forces in some parts of the country almost never use section 136, while others use it extensively.

So, what is ‘correct’ usage? – I don’t understand what that means.  I also don’t understand why the Home Office are concerned about the usage – let us not forget, the Deputy President of the Supreme Court Baroness HALE, argued in the fifth edition of her textbook on mental health law (2010) that the power was potentially very under-used. Of course, it’s true that forces use the power differently – before either force had introduced street triage schemes, Nottinghamshire and West Midlands Police were using the provision as often as each other. The problem being: West Midlands Police is almost three times the size of Nottinghamshire in terms of their officer numbers and the resident population. Humberside Police only use section 136 MHA about 400 times a year, whereas Sussex use the provision around 1,500 times. So what does ‘correct’ mean? … I know what I think, but I suspect Mike PENNING doesn’t agree with me!


And there is far more to it all than s136 numbers. As Baroness HALE pointed out, one reason for inferring the power is under-used is that there are many situations in which someone with a mental illness encounters the police and where the MHA power would not be the only one available. Very often it may be possible to arrest for a criminal offence or detain the person to prevent a Breach of the Peace.  As such, to understand police decision-making in arrest encounters, you need to understand how a police force’s use of the MHA fits in to their other detention and non-detention decisions. This is something that is not massively researched: how many people in a police area who are arrested for offences are subsequently assessed under the MHA because of serious concerns about their mental health?  – and of those, how many were arrested in public places where s136 would have been an available option; how many were in situations where it should have been obvious the person was potentially suffering from a mental disorder?!

But the other reason Mike PENNING’s answer is interesting, is because of an example he gives from his own experience –

When I was out on patrol with the Metropolitan police in Camden, we went to what the neighbours described as a “domestic situation”; in other words, someone had allegedly been assaulted. When we arrived at and eventually got into the flat, the one thing that the person who had been assaulted desperately did not want was for their loved one to be arrested and taken to a prison cell, because they were ill. They were ill in a similar way to someone who had broken their leg or who had a medical illness. They were ill and they needed to go to a suitable place of safety.

All too often over the years, that person would have been arrested and ended up in a police cell. If they were not subject to section 136, they would not necessarily have the safeguard of being seen by a medical or psychiatric specialist. That is one of the reasons why the amount of time that someone with a mental illness can be kept in a police cell is massively restricted by legislation.

Is this not precisely what Sir Paul BERESFORD is getting at?! – Mr PENNING witnessed police attendance in private premises at a reported assault which involved a family member seeking help for their loved one who was ill. Yet the Metropolitan Police could not detain the man under the Mental Health Act and quickly access specialist support. Instead they could either arrest him for the alleged offence or not detain him at all and risk a further escalation of the situation which had already resulted in one person being hurt. On which health service could they call for an alternative response, that is available in timely way, 24/7?


This is why I find this whole debate quite infuriating, if I’m honest – everyone seems to accept that there is a legitimate and quite wicked public policy problem ensuring effective responses to vulnerable people who are unwell in private premises. We know that street triage type initiatives can address just some, and by no means all, of those situations and that leaves the others. As Sir Paul makes clear from the fatal incident he refers to, the stakes are quite high. So you can either have a health and / or social care-led response to safeguarding people in distress; or you can enable the police to take protective action, like in most other countries, accepting that this brings a lot of unintended risks and consequences.

We know that it will lead to reliance by the health system upon the police as a resilience or contingency option, when crisis or community mental health teams are unable to cope with demand – we’ve seen that happen to some street triage schemes. We also know that it carries risks as far as patients are concerned – apart from the obvious point of making people feel criminalised by over-exposure to the police, there is also recent research about how suicide risks can be raised by contact with the criminal justice system, even after allowing for other factors.

I’m not a fan of the idea that we extend police powers and understand why Mike PENNING is nervous about it: but it’s pointless just having half a debate. If this is not the answer to the problem that we agree is very real and not getting better, it is incumbent upon those who are saying “No!” to actually solve the problem. If they don’t, it seems nothing other than totally predictable that some officers, acting in accordance with the law of England, will refer their concerns about the immediately vulnerability of patients to mental health services, invoke as much informal safeguarding as family, neighbours or the community can give and hope it is enough.

We know it won’t always be.


IMG_0053IMG_0052Winner of the President’sMedal from the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


One thought on “Correct Use of Section 136

  1. Hi Mike

    The problem with s136 is the sometimes inventive use of it when people who are otherwise inside a private premises are asked to step outside…and then detained under s136. Yes, I know the officers concerned are acting in the interests of the person where there may be significant concerns. However there is the issue of balancing the rights of the individual and us all acting lawfully.

    Yes. Having a MHA power that allows Police entrance to private premises to remove a person sounds tempting, but as you know there is one already, s135(1).

    The broader issue only lightly touched upon is that working well with people who experience severe mental illness is a time intensive, resource intensive problem. The reality is provider NHS Mental Health Teams need more resources to act in a more preventative way…as well as to work intelligently. There is an over reliance on medication as a means of offering social constraint. Often the thinking in teams is narrow and lacks an analysis of what works for the person…rather than what works for the team.

    Seeking new laws isn’t justified when some of our public services haven’t exhausted more dynamic and possibly less restrictive ways of working with people who experience severe mental illness.

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