An excellent query today from an experienced force mental health lead who does legal detail – was I aware of any considerations about the use of s135(1) or s136 of the Mental Health Act 1983 (MHA) where someone lives in a tent? … and by “lives”, I mean has habitually slept in it as a primary abode for some years.
A previous blog of mine called Boats and Tents and Campervans looked at non-traditional dwellings and use of s136 MHA after that power was changed in 2017 to prevent its use in any “house, flat or room”. So the post is about the applicability of s136 to a tent based situation, but it’s a distinct question to think about the applicability of s135(1). When s136 was changed, there were many questions and hypothetical situations involving non-traditional dwellings, hotels and other locations and the obvious issue of fairness that the police may be able to detain someone living in one space, whilst being unable to do so in another. Of course, fairness is not a defined legal concept, strictly speaking and it’s inherently subjective to some degree. This most recent query about tents seems subtlety different, though: we know in the enquired circumstance that a person is permanently domiciled under canvas, not merely camping in Cornwall on weekend break or similar.
And does that actually matter?!
The previous blog post emphasised that when looking at situations legally, all you can do is consider the specifics in good faith and take a view based on the actual words used in the law. Is a tent a “house” (no), a “flat” (no) or a “room” (no – albeit I have heard it argued!) so in one sense s136 MHA may be in play. But what if we know the tent is the primary place of residence and for example that it is pitched lawfully on private land, does this change things? My post stated in passing you might need to think about whether it was a “premises” because s135(1) MHA relates to entry to premises to search for or remove someone to a Place of Safety for assessment.
Would it matter if that tent was pitched casually on public land where someone standing where the tent is pitched could detained s136 MHA without question?!
SECTION 23 PACE
I hadn’t referred to s23 of the Police and Criminal Evidence Act 1984 (PACE) but it is of potential relevance to this question because it defines “premises” for the purposes of PACE and this includes “a tent or moveable structure”. So where it is not obvious that s136 can apply, s135(1) potentially could. The word “premises” is used in section 135 but it is not defined by the MHA itself. That said, we know that MHA warrants are within the scope of sections 15/16 PACE, which related to the execution of warrants. So the overlap between PACE / MHA may mean the PACE definition of premises is useful, in the absence of the MHA having its own.
NB: it’s also worth noting that some locations could simultaneously not be a “house, flat or room” for s136 purposes, whilst still being a “premises” for s135(1) purposes … helpful, isn’t it?!
So what does this mean, where there are serious reservations about the legality of s136 MHA to a tent-related situation? It means there is an obvious argument to be had about applying to a court for a s135(1) warrant and perhaps where it is a situation involving a tent as a primary, ongoing residence and where it is lawfully pitched on private land, that’s the answer to the recent query. As with my original post: all you can do is apply the wording of the Act and remember, the definition of s135(1) MHA was first drafted in this way on 1959 – the current definition of where s136 MHA can be used was drafted in 2017. Two very different times and in some situations, it seems likely both laws could apply so you can only judge each circumstance on its individual merits, as ever.
It’s very arguable a tent is a premises for the purposes of s135(1), but where that tent is pitched in a place where use of s136 MHA would be lawful, perhaps both options are in play and decisions would be needed about which best suits the situation in terms of risk, immediacy and balancing issues of fairness and dignity for the person at the centre of the decision?
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Winner of the President’s Medal, the Royal College of Psychiatrists.
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All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2022
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