If you’re a police officer, a member of the public or a mental health professional and you just want to cut through all then faff, see this operational summary for police officers I’ve produced. It’s just a dozen bullet points and although it’s written for officers, it will make sense to others. If you want to read sections 135/6/8 Mental Health Act 1983 in their new format, see three links at the bottom of this post.
At some stage in the next few months, Part IV of the Policing and Crime Act 2017 (PaCA) will be subject to a commencement order in Parliament which brings in amendments to Part X of the Mental Health Act 1983 (MHA) – this part of the MHA relates, amongst other things, to police powers under the Act. The MHA itself has been amended and updated many times over recent years: by the Care Act 2014, by the Mental Health Act 2007, by the Mental Capacity Act 2005 and many other frameworks, but Part X has remained more-or-less untouched, certainly in terms of the substantive role and responsibilities of the police. Indeed, sections 135/6 of the Mental Health Act 1983 were carried over almost entirely untouched from the Mental Health Act 1959. So the commencement order we will see at some stage soon represents the first time in almost sixty years that police powers and responsibilities have been changed – since the decade where Buddy Holly was singing live music and where him doing so represented a serious threat to those who much preferred hearing of pink toothbrushes and blue toothbrushes (I refuse to provide a link to that!).
More seriously, think about how mental health care has developed since the late ’50s – antipsychotics had only just been introduced to mental health care and had massive side effects, far greater even than those patients still live with today; we were yet to hear speeches from people like President Kennedy in the US or Enoch Powell MP in the UK which would start the political process of deinstitutionalising our approach to mental health care. We were yet to learn one indirect consequence of deinstitutionalisation: mass criminalisation of vulnerable people and incarceration in prison for many of us with serious health problems. Also consider how policing has changed: officers didn’t have radios or many of the other modern accoutrements of policing, like tasers or access to the Police National Computer and other information sources – they were formally marched out of police stations each shift by sergeants and sent on foot patrols. They did this in a setting where human rights and health & safety considerations were less at the forefront of our imagination. Indeed as they did this, attempted suicide was still a criminal offence and homosexual conduct was listed as a mental illness in major international medical textbooks.
I don’t police the same society as my wife’s grandfather – our jobs are notably different notwithstanding we operationally policed the same city, fifty years apart. So it’s well overdue that police powers under the Mental Health Act were updated!
THE PaCA SERIES
This introduction just sets the scene for a series of BLOG posts over the coming weeks, each one of them focussing on an individual change being made to Part X of the MHA 1983. If you just want to cut to the chase, I have summarised the changes for operational officers’ ease of reference in just a few hundred words – service users and other frontline staff might also find that post useful. However, if you want detail, you will remember the major aspects in the Policing and Crime Act 2017 affecting the MHA are –
- No children may be taken to police stations as a Place of Safety (PoS) under ss135/6 MHA – post now published!
- The police will now have a specific power of search for those detained under ss135/6 both at the point of detention and at arrival in a Place of Safety – post now published!
- PoS detention under ss135/6 may only last 24hrs, unless authorisation extends this to 36hrs in specific situations – post now published!
- Section 136 will be able to be instigated anywhere other than a home – bringing new opportunities and challenges – post now published!
- There will be a requirement, where practicable, for officers to consult with a DR, nurse or AMHP prior to using s136 – post now published!
- Once s136 has been used, there are more considerations around how to choose the appropriate Place of zsafety – post now published!
- Adults may only be taken to police stations in ‘exceptional circumstances’ (yet to be defined) – this will appear once the Government have published the statutory Regulations.
- Contradictions in the MHA Code of Practice – as soon as the PaCA kicks in, the Code is going to contradict and confuse so what happens next? – coming soon!
- The PaCA and police custody: the new s136 and diversion from justice.
- A Summary of Rights – for detainees or their families to challenge and question.
This should set out how the law is changing and highlight some practical considerations for what this may mean in operational practice for officers and mental health services. If you want to read it for yourself, see the UK Government legislation website or the links at the bottom of this post. The final bullet on the amendments, as above, will come last in the series only because the Government are yet to publish the statutory Regulations which will precisely define these ‘exceptional circumstances’. Whilst I’ve got a good clue what it’s going to say, we’ll have to wait and see how it’s finalised before we can weigh it up properly.
There are some major debates that needs stringing when we consider this legislation and must remember, this is not guidance or opinion: it is the law being changed and compliance with it is not optional. I’m doing the series, quite frankly, because there are many standard questions coming through about what the law will say and what it will mean in practice but also because I’m hearing opinion from mental health professionals and police officers alike that they believe their area is not prepared for the changes and will not be ready. So we need to support senior managers getting in the same room at the same time and start talking this through, based on what the line does actually say.
And to save those of you who are looking at the detail of this from flicking back and forth between the PaCA itself and the current, soon-to-be-old sections 135/6 MHA, I have produced the ‘new’ versions of each provision in some new posts –
- The ‘New’ Section 135 MHA
- The ‘New’ Section 136 MHA – including sections 136A, 136B and 136C.
- The ‘New’ Section 138 MHA
Winner of the Mind Digital Media Award.