I recently received an enquiry about a legal question I’ve probably assumed was taken for granted, but which may be worth covering: it relates to processes at a Place of Safety where someone has been arrived there after a warrant was issued under s135(1) Mental Health Act (MHA), rather than because of police use of s136 MHA. Those familiar with legal specifics will know that where officers use s136 MHA to detain and safeguard someone in public and remove them to a Place of Safety, they may be held at the location for up to 24hrs in the first instance, to enable assessment and for arrangements to be made for any ongoing care which is required.
Although it’s often debated and there remain some disagreements about this, the legal picture means that once the person removed under s136 MHA has arrived at the Place of Safety and been accepted there, it’s perfectly legal for healthcare staff to take over the ongoing detention of the patient and for the police to leave. Of course, that is subject to something of a risk assessment and a reality check: on those more infrequent occasions where there is a real risk to the safety of NHS staff, the police can remain to support them and this all begs the obvious question: when should the police leave and when should they stay?
Well, there are various factors you can think about to assist in determining this and various processes areas can / should / may decide to implement to make any process work as smoothly as possible, but the answer ultimately is found in working out how the law and important guiding principles should play out and local agencies reaching agreement as to how it will all operate. The Royal College of Psychiatrists guidance on Section 136 and Places of Safety (2011) does state (on p8) the police should be able to withdraw within an hour, even if the patient exhibits “disturbed” behaviour. The aspiration of one hour was lowered to thirty-minutes in subsequent guidance to NHS commissioners in 2013. Areas need to have a joint protocol which covers this – amongst many other things.
APPLICATION TO 135(1) MHA
So what does this mean if the arrival at the Place of Safety is prefaced by use of a warrant under s135(1), instead of s136? Actually not much, in my view —
- If you execute the s135(1) warrant by detaining someone to remove them to a PoS, it’s very similar to s136(1) where you remove someone to a Place of Safety – the only real difference is the location from which the person is removed and that fact one power requires a warrant, the other does not.
- But once you arrive at the PoS, the person you removed may be detained at the PoS for the “relevant period” of 24hrs – this is outlined in s135(3) with some legal wording which is roughly similar to s136(2) … “they may be held”.
- Both of these powers – s135(3) and s136(2) – arguably allow anyone who is a party to the operation of the PoS to detain the patient pending assessment under s136 or pending assessment / admission under s135.
- This is not a police-only power — even if s135(1) is a warrant that only the police can execute (and even though s136(1) is a power only open to the police), the subsequent authorities to hold the person at the place of safety are not police only.
So when does the warrant end? – strictly speaking, upon arrival at the PoS where the legal power used to remove (s135(1) MHA) is then superseded by the subsequent power to detain at the PoS (s135(3) MHA). They are two different powers of detention and this is the the legal point which is sometimes overlooked. The person can then be held under s135(3) for the 24hrs period.
But then we have the partnership / joint protocol aspect covered at the top of the post. The Code of Practice to the Mental Health Act 1983 (England 2015, Wales 2016) requires agencies to agree on how the duties arising from these powers will be handled and if partnership is a word that means anything, presumably this has to be a genuine agreement, with compromise and flexibility on both sides. For example, there are some things which are just not set down explicitly in law and these points sometimes come up as individual questions as well. This is where managers need to sit down and agree, whilst realising the law isn’t clear either way about who must do what, on various things in the Place of Safety pathway (and the more general interface between policing and mental health, for that matter!) –
BLACK AND WHITE / SHADES OF GREY
- Is it lawful for the police to just leave the PoS after handing over to NHS staff? – well, yes and no, hence the need for agreement and flexibility.
- Yes in the sense that nothing in law expressly states the police should stay at a Place of Safety throughout the process which follows.
- No in the sense that there is caselaw (Webley v St George’s, 2014) about who owns a duty of care if the police were to leave –
- Are the police obliged to remain if NHS staff insist on it? – well, yes and no.
- If NHS staff are unwilling or unable to take over responsibility for a particular person to allow the police to leave, then there is a risk in a civil claim if the police were to leave anyway, as per the Webley case, above.
- If the police were under pressure of resources where a decision had to be taken about whether to remain, it may be justified in more unusual circumstances where finite resources have to be prioritised elsewhere. (I’ve actually had this situation once!)
The summary of this is, however: process which should follow arrival at a Place of Safety after a s135(1) warrant should almost identical to the process which would follow use of s136 MHA – its the process which leads up to detention under s135(1) or s136 which differs enormously. In my view, almost all policy which is written about Place of Safety processes, should apply equally to s135(1) warrants and s136.
NB: warrants under s135(2) are issued for very different reasons and do not involve removal to a Place of Safety. They related to patients who are Absent Without Leave or absconded and who require removal (back) to the hospital where they are detained or liable to be detained.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views 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
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