Section 137 Mental Health Act 1983 (MHA) is widely misunderstood – very widely. The thing about which needs stating upfront and we’ll state it again at the end is this: it’s not a power someone can use – it’s conferring confirmation of legal status on people in just some limited circumstances.
The section states –
Section 137 MHA
(1) – any person required or authorised by or by virtue of this Act to be conveyed to any place or to be kept in custody or detained in a place of safety or at any place to which he is taken under section 42(6) above shall, while being so conveyed, detained or kept, as the case may be, be deemed to be in legal custody.
(2) – a constable or any other person required or authorised by or by virtue of this Act to take any person into custody, or to convey or detain any person shall, for the purposes of taking him into custody or conveying or detaining him, have all the powers, authorities, protection and privileges which a constable has within the area for which he acts as constable.
(3) – in this section “convey” includes any other expression denoting removal from one place to another.
So the first thing to note is this is about conveyance – it’s not about wider-ranging activity under the Act.
SHOW ME WHAT THIS MEANS
Imagine you are an Approved Mental Health Professional who is attending someone’s house to assess them for admission under the MHA. The doctors have completed two medical recommendations for admission, the AMHP decides the patient should be admitted and makes the application. They are now authorised by section 6 MHA to “take and convey” that patient to hospital. Somewhat obviously, the AMHP is not a police officer but section 6 is giving them the authority to “take and convey” the person so this is where s137 is stating the patient themselves has now had a condition of “legal custody” applied to them, by virtue of the AMHP’s MHA application, and the AMHP themselves will now have all the powers of a constable to take and convey.
This will be include the right to use reasonable force to achieve the admission safely, the right to use force to prevent obstruction of this purpose and so on. That’s clear enough so far, but it is usually the case that AMHPs do not actually take and convey their own patients after application. Section 6 expressly allows them to delegate this power to others and s137 is of relevant to police, paramedics or even private sector contractors if they become involved in assisting the AMHP.
Police officers have no legal powers of their own to take and convey MHA patients after the application for admission, so where they do this, they are acting under the delegated authority from the AMHP’s section 6 powers. So the legal custody still stems from s137 conferring it upon the patient, not from the fact the person is physically being handled and transferred by the police. Paramedics are in the same position: and we know ambulance crews have been used for s6 MHA movements where legal questions emerge in difficult situations.
The same sort of s137 relevance would occur if, for example, an AMHP or mental health nurse re-detained an AWOL patient to return them to hospital or if paramedics were assisting in transferring a s3 MHA patient from a mental health unit to an Emergency Department for urgent treatment – the section is all about conveyance.
WHAT DOES IT NOT MEAN
This post was prompted by discussion about how s135(1) warrants might be actioned in the Right Care, Right Person era. The question emerged about whether other professionals could force entry to premises under the warrant if the police are declining to attend or taking their merry time about arriving.
No! – under no circumstances.
Firstly, both kinds of section 135 warrant can only be executed by the police so at least one police officer must be present to take responsibility for the situation and how it is conducted. Section 135(1) warrants in particular are about more than entry to premises, it’s also about a decision to remove the patient from the premises to a Place of Safety (PoS) for assessment there. Both entry and removal are police powers under this warrant, notwithstanding the law demanding an AMHP and DR be present and the Code of Practice requiring discussion between the police, AMHP and DR about whether to assess in situ or remove to the PoS.
It is known, for example, that AMHPs may bring a locksmith to the premises to assist in gaining entry by drilling out the lock – this causes less damage to the patient’s door and is cheaper and faster to just have the locksmith then fit a new lock but s137 doesn’t allow the locksmith to act with all the powers of a constable. It doesn’t prevent them doing this sort of thing on behalf of the police who are legally responsible for forcing entry and to assist the local authority in minimising the bill for securing the patient’s property. It’s quite simply not what s137 MHA is about.
REMEMBER
This is not a power to be used – it is merely confirmation that some people, in some circumstances are in a legal state of custody and those responsible for them have the powers of a constable, even if they’re not a police officer.
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, 2024.
I am not a police officer.
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.
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