This blog is part of the series which will cover, in detail, the amendments to the Mental Health Act 1983 within the Policing and Crime Act 2017.
For background to the series, see the introductory post which outlines why I’m doing this and what other specific issues will be covered concerning laws that will come in to effect in the next few months. Current Home Office estimations of timescales suggest late November / early December – but this is subject to a number of factors and may change.
The time for debate about whether or not the police should have powers under the Mental Health Act (MHA) in someone’s home are over: the Bill became an Act and the law is now framed, beyond discussion. Whilst the extent of s136 MHA has been widened, the summary of it is “you can use section 136 anywhere except a home where someone lives”. This post covers the detail of what that means and will get in to that whole debate about gardens and garages, etc.. But you can forever ditch that tortuous phrase “place to which the public has access” and any notion about where the constable ‘finds’ the person to which s136 relates. The power may now be applied in all places except homes, but ‘home’ is not the word used by the legislation, so it takes a touch of explanation but I think, overall, it makes it much easier to understand. You can have your view about whether you agree with what they’ve done here, but I suspect we’ll agree it’s easier to consider its application.
YOUR HOME IS YOUR CASTLE
Section 136 MHA itself now reads as if it applies everywhere and this is the definition officers will need to consider –
“(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.”
However, officers then need to consider a newly inserted sub-section, s136(1A) –
“(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.”
So section 136 can not be used where those of us with mental health problems are encountered in their own home OR within someone else’s home, assuming they are there with permission and not trespassing. Nor can detention occur in someone’s own garden unless it is a communal space shared with other people who live in other dwellings, for example in a block of flats. Garages, outhouses and yards are treated the same as gardens for this purpose.
I’ve already had queries on social media about people who live in what I might term ‘non-traditional’ housing: tents, canal barges, caravans, etc. – does the new s136 apply to those? The legislation doesn’t specify anything more than I have cited, above, so therefore it is a matter for professionals to interpret that wording in light of circumstances. Those who raised the question tried to draw comparison between the purpose of the canal barge or caravan for that individual with the purpose I have for my house. I live in a house, a friend of mine from university lives on a (very lovely) canal boat on the Thames. Am I afforded legal protection from the application of s136 whilst she is not? – and if I am, why is she unfairly discriminated against for her lifestyle choice? All that I can do is encourage you to ask the legal questions: is this a house? – no. Is it a flat? – no. Is it a room? – in the sense that any space surrounded by wood, metal or canvass, whether it is on wheels, floating on water or pitched in the woods, is a ‘room’, yes, but the normal English understanding of that word suggests that such places are not rooms. If anyone has legal opinion or cases to the contrary, I’d be interested to hear them!
Finally, hotel rooms! – clearly they are a ‘room’ so can s136 apply in such a place? … do people ‘live’ there?! When you pay for a hotel room, you gain a right of occupancy over that room, subject to general terms and conditions in the hotel. We know from caselaw, warrants are required to enter hotel rooms and that hotel managers cannot over-ride that right of occupancy during the paid duration of someone’s stay. Therefore, no – you cannot use the new s136 in a hotel room, because the person is regarded as ‘living’ there, even if just staying for one night and day.
NON-DOMESTIC PRIVATE PREMISES
The extension of s136 therefore mainly relates to those private premises not open to the public which are not ‘houses, flats or rooms’. It has been an anomaly for years that British Transport Police cannot use s136 on railway lines because the tracks are not public places. Of course in practice, they do ‘use’ section 136 but technically this occurs after they have used other legal powers to remove the person from the tracks and this is quite lawful – there is caselaw about police officers being entitled to consider someone ‘found’ when they have, in reality, placed them there after removing a trespasser. However, the new version of s136 just gets around all of that faff and makes it much clearer to apply and understand.
There are a range of other places which have historically generated debate about that old phrase ‘Place to which the public has access’ – and this discussion is now consigned to history. Wherever you previously sat on the use of s136 in an Emergency Department, cinema or police custody: we can all now easily agree that none of these places are ‘houses, flats or rooms where that person is living’. Easy easy, isn’t it?! Of course, whether you instigate section 136 in those locations remains a matter of judgement and proportionality, but it is certainly possible to do so … and because the word ‘finds’ has been removed from s136(1), it doesn’t actually matter where the person was originally encountered as long as the mechanism by which they have arrived in the subsequent place is a lawful one. Someone lawfully arrested in their own home who is then released from police custody, for example, may be subject to s136 MHA as long as the arrest was, in itself, done for legitimate policing purposes and not a manufactured ‘stepping-stone’ to create conditions in which to justify the use of s136. Custody sergeants in particular might want to bear that in mind, when deciding how to handle the detention of those arrested for minor crimes who are then deemed to require assessment under the MHA. << This one is, in my view, one of the biggest unintended consequences of how the law has been re-framed.
So all ambiguity about Emergency Departments is now removed – I don’t think there was any confusion to begin with but I do know officers and ED staff have had some frank discussions about this point over the years. The police may (not must!) use s136 in ED, where it is justified on its own terms – and therefore nothing prevents ED staff from asking the police to consider the necessity, bearing in mind they do not have powers of their own in that environment under the Mental Health Act. Yet again, you may have a view about whether this is right or wrong, but that is the law as it stands.
So what is the solution where officers are, inevitably called to private homes for a mental health crisis call? … they inevitably will be! The first choice should be to try to resolve the matter in a unrestrictive way, ie., referral to a relevant service. The service may require the person to consent to attend somewhere (like ED) or it may be able to come to the person (like a CrisisTeam or triage team). If that fails or is not appropriate, then the legal options are to consider the powers available. In no order of importance, they are –
- Powers of criminal arrest – if there is an offence or attempted offence – but this has to be because there is a genuine intention to investigate the allegation with reference to use of these powers!
- Common law powers – Breach of the Peace or the doctrine of necessity: but they are not as applicable as many of us think! Breach of the Peace is legally defined, the doctrine of necessity applies where the MCA does not, roughly.
- The Mental Capacity Act 2005 – where there is an urgent, serious medical issue and someone lacks capacity. You cannot just remove someone to hospital because in some general sense, the lack capacity.
- The Mental Health Act 1983 – consider referral to an AMHP (via whatever local process you have) to son insider a MHA assessment under s4 MHA or a s135(1) warrant. << The basis for suggesting this is the Sessay case (2010) – it’s what the judge reminded us should have happened instead of officers misapplying the MCA.
So what this newly framed legislation does not do, is remove the need for senior managers to work out how 999 services and mental health services can work together in real-time to keep people safe. This needs to include AMHPs and the ability convene urgent MHA assessments, where necessary!
EVER-RISING USE OF SECTION 136
So if you haven’t worked it out already: the use of section 136 MHA is about to start rising even faster than it already was! Remember: the last time figures were published, use of s136 had risen to over 28,000 detentions per year and this is up 10,000 in 10yrs, notwithstanding initiatives like street triage to try to reduce use of the power. If police officers can soon rely upon the power in wider circumstances, it is unlikely that they will use the power less than they previously have. That’s more s136 and MHA assessments for AMHPs to undertake; therefore more need for s12 Doctors as a part of that and more capacity required in NHS facilities to ensure those assessments can almost always occur in non-police settings. (The post in this series about restricting the use of custody as a PoS will appear later because the Government have not yet published the statutory Regulations which will define it.)
So as areas try to think about the implications of the PaCA amendments on their areas, they need to understand how the power is used by their local police, what factors may be brought to bear to affect that such as training or street triage, etc.. (It should be noted: street triage doesn’t always reduce use of s136!) Whatever understanding they reach, they then need to ensure there is sufficient capacity and contingency in local facilities to be able to manage the number of detentions being made by the local police – this may include areas needing to consider their ability to handle multiple detentions at the same time, where previously they may have operated a facility which could handle only one detainee at a time.
Lots to think about, on this one!
The next post in the series will focus on the new ‘pre-136 consultation’.
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