In several legal jurisdictions, the equivalent power to section 136 of the Mental Health Act 1983 involves the need for some kind of immediate threat or harm, perhaps involving disorder of some kind, albeit predicated on a person’s vulnerability due to mental illness. Our nearest neighbours in the Republic of Ireland demonstrate this point well enough, in s12 MHA 2001 (RoI) makes this clear —
“Where a member of the Garda Sı ́ocha ́na has reasonable grounds for believing that a person is suffering from a mental disorder and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons …”
UK legislation (in all four countries) is subtely different and it’s this particular distinction I want to focus on. Compare the following wording from s136 MHA in England and Wales (the Scottish MHA and Northern Irish Mental Health Order are similar) —
SECTION 136 GROUNDS
You must be satisfied of five things in order to consider use of s136 MHA —
- It appears to a constable a person is suffering from mental disorder
- Immediate need of care or control
- In that person’s interests or the protection of others
- It is necessary (to use the power)
- The encounter occurs somewhere other than a dwelling*.
* There is a wordy definition of where the power can be used: “dwelling” is just my short-hand.
The bold words above are mine and what I want to focus on here: the situation not covered in the RoI where it’s not “immediate and serious harm” but where it involves an “immediate for need of care … in that person’s interests”. This is a lower threshold for the use of a power, in a different kind of situation. We probably need an example:
Imagine someone with chronic depression, living in difficult circumstances. One evening, they are sitting on a bench in a public place, unkempt and obviously in distress and officers come across this person. After some discussion the officers confirm background details and undertake some intelligence checks, whilst learning that the man has been having some generalised suicidal ideas. There is no suggestion of or history of any disturbance or disorder, no threats to anyone else – just a chronically unwell man, not looking after himself properly in terms of eating and hygiene. Officers attempt to help him by offering referral to some relevant agencies and to help him to A&E where he might get warm, checked over medically and able to speak to someone who can ensure he has the right mental health and social supports. He declines it all: doesn’t believe it will help and he’s not willing to try – he wants to remain where he is for now and doesn’t know what he will do.
IMMEDIATE NEED OF CARE
Is this man in immediate need or care? – he’s suggesting suicide in general terms, he’s neglecting himself in various ways. Of itself, that’s enough to get the argument going. It doesn’t require disturbance or bizarre behaviours in the presence of some who may be alarmed to some degree, just that someone is in immediate need or care, even if it has no obvious impact on others.
Imagine another situation: police attention is drawn to someone who keeps turning up at the same location several days running. A teacher rings the police with concern, for example, that someone is near the school gates repeatedly, without obvious connection to a pupil. Police arrived and undertake some checks whilst speaking to the person and they form the view the person is mentally ill, with background checks confirming previous police contacts along those lines. Despite the concern about turning up at a school, there is no suggestion the person has approached pupil or parents, that they have entered the school grounds, but its inexplicable aspect had just raised curiosity and some concern. No disorder, threats or suggestion of the same but someone who has acted in a way that drew attention and led to concerns they needed assessment and support because they were presenting in a way which gave grounds to question whether they fully understood the implications of their behaviour and gave concern the behaviour may continue, given it was already a repeat pattern. Perhaps by NHS services who may know more than the police checks would reveal?
In the absence of that person agreeing to receive assessment or support voluntarily, you’re starting to move towards the grounds for use of s136 MHA being met. Notwithstanding the absence of any disorder or threats, it could be thought the person is in immediate need of care in their interests.
SOME ANCILLIARY POINTS
Unconnected to the above, I’ve recently had questions about powers for officers to re-detain someone who absconds part way through the s136 process and powers that may be relevant to entering premises if someone who had absconded is found at home, for example. What follows is relevant to warrants under s135(1) as it is to s136 itself and section 138 covers it all – potentially! I say ‘potentially’ only because there is a time limit on re-detention after someone absconds mid-process.
Where someone absconds, they can be retaken for up to 24hrs and this is calculated from either —
- The time they absconded whilst en route to the Place of Safety
- The time they arrived at the Place of Safety.
So, if someone is detained in a house after execution of a s135(1) warrant at 10am and transported to a Place of Safety where they arrive at 1030am, they can be retaken under s138 MHA at any time after they absence from the unit, until 1030am the following day. If someone is detained s136 MHA at 4pm and they abscond at 4:15pm before arrival at the Place of Safety, they can be re-detained at any time under s138 MHA until 4:15pm the following day.
If the person is encountered after that 24hr period has expired, then it’s back to square one. It may be that the new situation enables the police to consider fresh use of s136 MHA, but the legal grounds for doing so would have to be re-justified. If the person is located in a dwelling, an Approved Mental Health Professional (AMHP) may have to obtain a new warrant under s135(1). There is a fuller explanation with other examples in a previous post.
Finally, there is no power of entry connected to s138 MHA: if it is necessary to enter a dwelling to re detain someone, a warrant under s135(2) MHA will be required, unless officers have grounds to enter under their own power, s17 PACE (for situations which are, literally, life and limb).
Plenty to think about!
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2023
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 – www.legislation.gov.uk