What follows is the full, amended text of section 136 Mental Health Act 1983, as it will be following a commencement order for the Policing and Crime Act 2017 which will bring it in to effect. It also includes the new sections 136A, 136B and 136C. See related posts for the ‘new’ section 135 and section 138 MHA.
NB! – this is NOT the current law as of 03rd March 2017 – this is the law as it will become, following a commencement order yet to be laid before Parliament. The full Mental Health Act 1983, as it stands today and which will be kept updated once the commencement order takes effect, can be found on the UK Government legislation website.
Section 136 – removal of mentally disordered persons without warrant.
(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.
(1A) The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, 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.
(1B) For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.
(1C) Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult—
(a) a registered medical practitioner,
(b) a registered nurse,
(c) an approved mental health professional, or
(d) a person of a description specified in regulations made by the Secretary of State.
(2) A person removed to or kept at a place of safety under this section may be detained there for a period not exceeding the permitted period of detention for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care.
(2A) In subsection (2), “the permitted period of detention” means—
(a) the period of 24 hours beginning with—
(i) in a case where the person is removed to a place of safety, the time when the person arrives at that place;
(ii) in a case where the person is kept at a place of safety, the time when the constable decides to keep the person at that place; or
(b) where an authorisation is given in relation to the person under section 136B, that period of 24 hours and such further period as is specified in the authorisation.
(3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the permitted period of detention mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
(4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the permitted period of detention mentioned in that subsection.
(5) This section is subject to section 136A which makes provision about the removal and taking of persons to a police station, and the keeping of persons at a police station, under this section.
Section 136A – use of police stations as places of safety.
(1) A child may not, in the exercise of a power to which this section applies, be removed to, kept at or taken to a place of safety that is a police station.
(2) The Secretary of State may by regulations—
(a) provide that an adult may be removed to, kept at or taken to a place of safety that is a police station, in the exercise of a power to which this section applies, only in circumstances specified in the regulations;
(b) make provision about how adults removed to, kept at or taken to a police station, in the exercise of a power to which this section applies, are to be treated while at the police station, including provision for review of their detention.
(3) Regulations under this section—
(a) may make different provision for different cases;
(b) may make provision that applies subject to specified exceptions;
(c) may include incidental, supplementary or consequential provision or transitional, transitory or saving provision.
(4) The powers to which this section applies are—
(a) the power to remove a person to a place of safety under a warrant issued under section 135(1);
(b) the power to take a person to a place of safety under section 135(3A);
(c) the power to remove a person to, or to keep a person at, a place of safety under section 136(1);
(d) the power to take a person to a place of safety under section 136(3).
(5) In this section—
(a) “child” means a person aged under 18;
(b) “adult” means a person aged 18 or over.
Section 136B – extension of detention
(1) The registered medical practitioner who is responsible for the examination of a person detained under section 135 or 136 may, at any time before the expiry of the period of 24 hours mentioned in section 135(3ZA) or (as the case may be) 136(2A), authorise the detention of the person for a further period not exceeding 12 hours (beginning immediately at the end of the period of 24 hours).
(2) An authorisation under subsection (1) may be given only if the registered medical practitioner considers that the extension is necessary because the condition of the person detained is such that it would not be practicable for the assessment of the person for the purpose of section 135 or (as the case may be) section 136 to be carried out before the end of the period of 24 hours (or, if the assessment began within that period, for it to be completed before the end).
(3) If the person is detained at a police station, and the assessment would be carried out or completed at the station, the registered medical practitioner may give an authorisation under subsection (1) only if an officer of the rank of superintendent or above approves it.
Section 136C – protective searches
(1) Where a warrant is issued under section 135(1) or (2), a constable may search the person to whom the warrant relates if the constable has reasonable grounds for believing that the person—
(a) may present a danger to himself or herself or to others, and
(b) is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.
(2) The power to search conferred by subsection (1) may be exercised—
(a) in a case where a warrant is issued under section 135(1), at any time during the period beginning with the time when a constable enters the premises specified in the warrant and ending when the person ceases to be detained under section 135;
(b) in a case where a warrant is issued under section 135(2), at any time while the person is being removed under the authority of the warrant.
(3) Where a person is detained under section 136(2) or (4), a constable may search the person, at any time while the person is so detained, if the constable has reasonable grounds for believing that the person—
(a) may present a danger to himself or herself or to others, and
(b)is concealing on his or her person an item that could be used to cause physical injury to himself or herself or to others.
(4) The power to search conferred by subsection (1) or (3) is only a power to search to the extent that is reasonably required for the purpose of discovering the item that the constable believes the person to be concealing.
(5) The power to search conferred by subsection (1) or (3)—
(a) does not authorise a constable to require a person to remove any of his or her clothing other than an outer coat, jacket or gloves, but
(b) does authorise a search of a person’s mouth.
(6) A constable searching a person in the exercise of the power to search conferred by subsection (1) or (3) may seize and retain anything found, if he or she has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or herself or to others.
(7) The power to search a person conferred by subsection (1) or (3) does not affect any other power to search the person.
The full Mental Health Act 1983, which will be updated once the commencement order takes effect, can be found here.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
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All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2017
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk
Mental Health Cop 
Always worry about powers to search and use of hospital based places of safety, where a search as described above is not likely to discover eg razor blades, tablets etc.
In that sense it’s no different to now! – at least it’s now explicit that searches can occur. Some trusts dispute this fact at the moment!
I read it on this post or one of your others on the changes to the Mental Health Act ’83, but does this mean you a police constable can’t ask a person to take off their hat or watch for them to conduct a search. I guess excluding the potential to harm oneself or another.
Could also prisons or immigration centres still be used?
May I take this opportunity in thanking the 136 team in keeping me safe 2012 – naked but for coat – Nottingham. A Service User since 1968. My addition WORKAHOLIC. God/Dog Bless You. You can not be Sirius.
I’ve looked at the legislation which is very worrying for those with autism. I’ve recently witnessed a case of a vulnerable young adult with autism be a victim of disability hate crime causing him to react out of blind panic/fear. Such a reaction, under this new legislation runs serious risk of being deemed ‘abnormally aggressive’ behaviour. Quite what the difference between aggressive and abnormally aggressive behaviour needs defining more clearly as frankly this is open to interpretation. Worryingly this Act is open to abuse by unscrupulous officers with a grudge. More worryingly is Police placing those individuals with autism onto PNC labelling this condition under ‘mental disorder’. Yes I’ve read legislation those with Learning Disabilities can’t be removed but how are you going to prove quickly to an officer they’ve got a learning disability if they are having a crisis – again the worry here is what is the difference between aggressive and abnormally aggressive? My daughter was witnessed to a young man kicked unconscious in unprovoked attack. Lots of witnesses around but victim didn’t want to pursue police action so none taken. However….if this Act had been in place 2 months ago and if going by the new legislation this perpetrator would/should be detained under ‘abnormally aggressive’ behaviour, however it needs the police officer’s personal judgement to decide whether that person is ‘mentally disordered’. Meaning what one officer deems mentally disordered, another may not and stands the potential to have very negative outcomes for those autism, which is NOT a mental disorder, but a developmental disorder, but how is a police officer going to ‘assess’ this? This is shockingly bad, worrying legislation for those with autism in my humble view. Time will tell.
None of what you’ve highlighted is actually affected by the changes brought in. The law remains the same on all the substantive points you’ve made in your comment, if that helps? Not sure whether it does!
Incidentally, autism IS a mental disorder for legal purposes. Fully appreciate the medical and other debates about its nature and causation, etc., but legally speaking, it is in scope, as is epilepsy, for example. That may be wrong, but that’s how the law is framed.
Typical Police. Criminalising the mentally ill.
Firstly, that’s what the police do – criminalise people on occasion. And the evidence is that the police criminalise the mentally ill LESS than they criminalise the non-mentally ill. Evidence for this available all over this blog, to be fair!
it seems that the Plod use this as an excuse. I mean who is going to listen to someone mentally ill complain they’ve been beaten up by a copper of out of control officers. How many deaths in custody in the UK? Hundreds. Home many prosecutions? NONE.
Hi MH COP,
Do the new provisions make it a requirement that the officer should insist on taking information from the mental health team to make a decision eg about risk, past events etc, and need for being taken in under a 136. Under 136 1c it says that an officer must consult health Practitioners. This is as far as I’m concerned just phoning them.
What would be the situation if as a PC, we did consult the mental health team by phoning them but the mental health team left the decision with me with no information shared, as has happened. In effect I’d have to take the Ill person in under a section 136 even if im not worried after chatting to them for a while, as if I let them go and they hurt themselves it would come back to me – disciplinary etc. I can hardly challenge the mh team on supplying information about the patient and risk, if they don’t and leave decision solely with me.
So my concern is could I be arbitrarily detaining (false arrest) the mentally ill person if I don’t get information and then detain to safeguard myself, but really the ill person should not have been section 136d. I have technically consulted the team by phoning them, they have left the decision with me, I’ve had to detain which is a power I have, so I don’t think I’ve broken 136. But I could be negligent for detention that is arbitrary if there is no need for it as I don’t have full facts. The fact the onus is more often on us is bad but this is the system we operate in. It should be medical people making the decision as well as us. Often they don’t help.
Thanks and regards for any pointers.
There is a requirement to consult where practicable and what information the MH team are willing or able to share will vary. Whatever they do or say, the legal decision around detention remains yours, not theirs. If you act in good faith, according to your view of the situation and any information you are given, then you are on safe ground. If it later transpires they didn’t share information OR if you decide to detain against their advice, the legal fact is this was YOUR decision, not theirs. They may only express a view and / or share information they think may help.