“Is this a house, a flat or a room where this person or another person lives?” … THAT’s what you have to ask yourself when trying to determine whether section 136 of the Mental Health Act 1983 can be used in a particular location. As this 2017 amendments to the Act were being drafted, along with guidance from Government about its application in practice, the alteration from “any place to which the public has access” to the new restriction which focusses, more or less, on ‘private dwellings’ caused debate on the matter of non-traditional homes. And there are a couple of aspects to it worth consideration.
What does “lives” mean? I live in my home in Bromsgrove – it’s a traditional house. But a former colleague in West Midlands Police decided he was going to retire to a canal boat and he sold his home. A friend from university lives on a houseboat in south-west London. These things are their homes in the way that my house is my home – our possession are here, we eat our meals in these places and sleep there most nights. Their boats mean to them what my house means to me. But my inlaws are taking my son on a short-canal boat holiday in early July and they will be on that thing for about five nights … do they ‘live’ there? Well, not in any permanent sense – but does the permanency aspect matter? Section 136(1A) doesn’t specify one way or the other. If I rent a cottage in Cornwall for seven days instead of camping, can you rely on s136 in that house, flat or room just because you know my permanent dwelling is in Worcestershire?!
We actually normally camp when we go to Cornwall and we did so earlier in the year: I would immediately agree that I wasn’t ‘living’ there but not was I living there the time we went down with a 2mth old baby and rented a cottage for once. There was once a long tent-related debate in the West Midlands about a homeless man who was living in a tent on a small piece on unused land belonging to a private school. In the way that I live in my house, he lived in a tent. Does that mean section 136 can be relied upon if I become unwell whilst camping in Cornwall but not in respect of him because this is his main and most permanent abode, albeit not a ‘traditional’ home in terms of houses, flats or other accommodation. << And all of this leaps straight to the word ‘lives’ in the new definition, without remembering we also need to be satisfied of whether the tent is a ‘house’ (no)’, a flat (no) or a room … well, I’d say not, but I’ve heard it argued that way by some.
PUBLIC ORDER LAW
In other areas of law we see definitions of legal terms which may have proved helpful to all of this. The Public Order Act 1986 contains a number of criminal offences which may be committed but with some of that type of behaviour, the law has decided that something which may be an offence of threatening, abusive or disorderly behaviour is not an offence if it is committed in a ‘dwelling’ and not discernible beyond that dwelling. Helpfully, section 8 POA defines ‘dwelling’ and it means –
“Any structure or part of a structure occupies as a person’s home or as other living accommodation (whether the occupation is separate or shared with others) but does not include any part not so occupied, and for this purpose ‘structure’ includes a tent, caravan, vehicle or other temporary or moveable structure”.
Comprehensive, isn’t it?! … but that’s the Public Order Act and we’re talking about the Mental Health Act. The MHA is not referring to ‘dwellings’ – when I’ve used this term on this post and in training, I’m using it informally, as an euphemism to avoid saying “any house, flat or room where that person or another person lives” every single time! But the MHA is not prohibiting the use of s136 in dwellings, legally speaking – otherwise Parliament would have used that term and defined it, or stated that it has the same meaning as in section 8 of the Public Order Act 1986.
But there is plenty of other legislation that is ambiguous and contradictory: prior to the 2017 amendments we had that phrase “place to which the public has access” and that wasn’t defined and obviously distinct from ‘public place’. Even if you wanted to borrow the ‘public place’ definition from elsewhere, which one do you choose?! … the Highways Act 1980, the Public Order Act 1986 and in other examples: they were not the same thing. It is a feature of legislation that not all things are precisely nailed down for us: and this is often deliberate to allow flexibility to navigate situations that may not be conceivable or which emerge because society changes over time. All you can do is look at the words, act in good faith and form a judgement.
So are hotel rooms in or out of this farce?! … that’s a real debate in the real world, from time to time. Originally, the Government’s draft guidance circulated for consultation on the 2017 amendments mentioned hotels but the final draft saw the reference removed – not quite sure why! Hotels had been a debate in MH law previously after the case of Rosso. But that case was often misunderstood in its effect on our decisions as police officers and it centred on whether the police could or could not force entry to a hotel room which was NOT being used by the defendant for his sole occupancy after being booked and paid for. In short, the man was staying in a particular room and the television was faulty: the hotel manager let him use another, unoccupied room solely for the purpose of watching TV and the expectation was that when he was not using it, he returned to his own room or the other hotel facilities.
So whatever the legal status of the hotel room he’d booked and paid for, none of that applied to the ‘TV’ hotel room because it was an accepted fact in the case that he did not have the right to sole occupancy whilst in it. So when the police forced entry to the hotel to detain him under the MHA, they were acting lawfully because he had no right to deny the police access when they had the hotel manager’s authority. Had they wanted to force entry to the room he’d paid for, they would have needed a s135 warrant. But the law has changed since then and the question of whether it is a public or private place is no longer relevant. Is a bog-standard budget hotel room a house (no), a flat (no) or a room (yes)? Is it a room where that person or another person lives – well, perhaps it is.
I’ve just spent most of 5yrs working in a job where I travelled a lot and can easily tell you at length about my favourite Travelodges and Premier Inns across the UK! (Room 409, Canterbury Premier Inn, if you’re asking). And although I’ve sometimes stayed in these places for two or three nights in a row, I wasn’t living there in any permanent sense (sometimes felt like it given the regularity of such stays!). However, many victims of the Grenfell fire in London were initially put up in hotels as temporary accommodation and some remain in such accommodation to this day. Are they ‘living’ there? – well, in a very real sense they are. Does the difference matter to the application of s136.
ORDINARY ENGLISH WORDS
Two things to bear in mind against the context of the law being written, despite appearances, in ordinary English words so they have an ordinary English meaning – and all situations are judged on their merits, in their specific context. I’m not saying that this observations resolves any of the problems which arises from them using similar, but distinct terms in legislation, inferring subtly different things: I’m just saying that when you’re standing in or near someone’s tent or called to a hotel or a canal barge on the Norfolk Broads, all you can do is examine the situation in front of you in the time available and in light of the information available and make a judgement call in good faith about keeping someone safe.
And, as ever: talking to that person to see how you can help and what they want would be best start, before you confuse yourself to tears about tents, boats and campervans. The former MH coordinator for Thames Valley Police threw a hilarious curve ball in to discussions about all this as the legislation was being fashioned. She owns a camper van and pops to the supermarket in it very occasionally, just to turn over the engine and give it a small run when it’s out of season and the van would be otherwise unused. Whilst they’re using it for its main purpose, they could be said to be living in it, but not when she’s popping out for a cut loaf and pint of milk. The ‘thing’ which is causing the legal dilemma is not the only thing: it’s seems to be the purpose to which that thing is being put which also counts.
Whether or not you can resolve the debates outlined above, s135(1) still allows access to any ‘premises’ where the other, relevant criteria are satisfied – just to be helpful, ‘premises’ is not the same as ‘dwelling’ (otherwise they’d have used the same term) and it’s not defined in the MHA, either! But where you believe the location in question is a premises and where there is legitimate doubt about the applicability of s136 (either on grounds of location, the ‘lives’ criteria or the immediacy of action) then a warrant under s135 could be obtained. Last I heard, this is how the relevant local authority intended to resolve the issue in my force area a few years ago about the homeless guy in a tent – attempt to secure a warrant after arguing that s136 could not be used in that case.
Finally: don’t over think this stuff! Ultimately, the law is unclear, guidance is not definitive and there is no case law – yet. Until then, just do your conscious best to act in good faith within what is clear and certain – keep people safe where you feel you must amidst the ambiguity because it’s better to be sued for helping that disciplined or prosecuted for neglecting someone. All you can ever do is ask:
Is this “a house, a flat or a room where this person or another person lives”?