Where can section 136 Mental Health Act 1983 be exercised in shared areas of dwellings? – a new Preventing Future Deaths report has raised this question after a Coroner stated officers did not “understand that their powers under section 136 MHA 1980 applied to persons in a communal space within private accommodation.”
Let’s get the easy one out of the way: yes, he said “1980” and I must assume he meant it – the mistake appears six times in the document.
The substantive issues for the police here are two fold –
- can the police use section 136 MHA in the communal, living area of “assisted living facility”?
- what is the expectation of police officers at mental health incidents to check whether there are existing legal frameworks which could also be brought to bear?
POLICE CONTACT
Edward Muwanga died on 7th August 2023 at a London Underground station one day after police contact and five days after an AMHP secured a warrant under s135(1) for assessment – so we know someone thought he may be unwell and deteriorating. On 6th August, he left his accommodation, entering the road outside. Staff there were sufficiently concerned for him they dialled 999 and the Police attended. By the time of officers’ arrival, Eddie had returned to the shared lounge of his accommodation.
The Coroner states –
“The police did not speak to him. Officers believed wrongly that they could not use their powers under section 136 MHA 1980 [sic] because Eddie was in the lounge at his home, even though this was a shared lounge with other residents. The London Ambulance Service were also spoken to by both the police and staff at the accommodation. Officers left without speaking to or assessing Eddie as they felt matters were better addressed by the ambulance team. They also made no inquiries as to the existence of the section 135 MHA 1980 warrant, when information could have been obtained that addressed that. The ambulance crew assessed Eddi and called an NHS 111 doctor for approval to leave Eddie on site as they considered it was safe to do so.”
So the main question I have after reading this PFD is whether the coroner is correct to say “Officers believed wrongly that they could not use their powers under s136 MHA”.
SECTION 136(1A)
The MHA makes no mention of “communal” or “non-communal” areas, shared dwellings etc., so we have to the wording of the statute to think about whether the power can be used in a given situation. The law states –
(1A) The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—
(a) any house, flat or room where that person, or any other person, is living, or
(b) any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.
We don’t know from the PFD the precise nature of the premises. Is it a building which was a family home now being used for multiple patients with staff either working or residing there? Is it a large building being used as something like a “care home”, but without adopting that title? We simply don’t know. All you can do is go through the sub-section and ask yourself the questions which arise –
- Is it a “house, flat or room” – yes. Regardless of whether it is a family home converted for a different purpose or something else, it was definitely a room described as “a communal living space”.
- I’m imagining a number of things, depending on overall size. Is it a living room as you might find in family home or something with a wider recreational area where more people than a family could be present together? – either way, it is a room.
- Leaping ahead in the definition, it is certainly not a “yard, garden, garage or outhouse”, so that can all be set aside – it’s not relevant here.
- So that leaves just the one important qualification for the room in question:
- Is that a room where “that person, or any other person, is living”?
There is no case law point because the definition we’re taking apart was only introduced in 2017 and I’m not aware of a challenge on this point. The Coroner clearly thinks those who live in that assisted living facility are not “living” in the communal areas. Well, it depends, but I do fear there may be an error here.
COMMUNAL AREAS
We get various kinds of communal area, don’t we? –
- I’m sitting in my living room, typing this – I live here with my wife and son and we “live” in all of the rooms and the garden.
- If I were a single man, living here with two lodgers who paid me rent, the living room, kitchen and bathroom, would still be communal areas and all three of us would still be living in them, not just in the bedrooms which would be private (and potentially locked in such a landlord with lodgers arrangement).
- Are these two arrangements so very different?
- Think about a big house turned in to bedsits / small flats or a block of flats – there may well be a front door leading to a communal corridor or stairwell which takes you to the flats or rooms but which does not form part of any of them.
- In those circumstances, nobody is “living” in those communal areas – they are merely spaces through which to move to get the front door of whichever flat or room is intended.
- But if a landlord owns a property and has rented it out to three separate individuals – sometimes known as a “house of multiple occupancy” – the communal areas beyond the property’s front door won’t simply be corridors and stairwells to reach distinct dwellings, they will be shared spaces within one dwelling where several people happen to live.
Knowing that a particular part of a building is a communal area is not enough to know whether s136(1A) puts the place “IN” or “OUT” of play for use of the power.
SECTION 135(1) MHA
The second issue in this PFD is the Coroner quite rightly flagging the fact that a 135(1) MHA warrant was in existence, issued four days before police contact and five days before Mr Muwanga died. He fairly points out officers could have undertake enquiries from the scene which would have led to it becoming known a 135 warrant had been issued. Regardless of thoughts on s136 MHA, it’s fair to think officers would liaise with staff at the location and we know they did – the Coroner accepts that point albeit stating –
“The haste with which they departed – having failed to take reasonable steps to check the status of the warrant – is a noteworthy omission, and indicative of a cavalier attitude to someone in a mental health crisis.”
I’m not sure whether the Coroner is suggesting officers should be checking healthcare backgrounds at all incidents of this kind even when care staff are on the scene to brief them. We do know in this case, that staff at the assisted living facility did not know about the 135 warrant but it is obvious the Coroner thinks they should have been told – and that’s perfectly reasonable. If care staff had been told, they would have been in a position to flag that to officers on arrival, that Mr Muwanga “needs to be sectioned, they’ve issued a warrant for his assessment.”
If the idea is officers should make checks beyond the information able to be given by the staff present, should we reasonably infer they should also negate the existence of a CTO, or s17 leave which may need to be revoked, conditional discharge from which a patient may have been recalled? – where does it stop?!
SHEER SPECULATION
As some of you know, my PhD research is now focussed on Right Care, Right Person related deaths. Important to re-stress, I’m not saying RCRP has caused all the deaths I’ve flagged and trying to forge out a research project like this means having to get very precise with the terms being used, such as what I mean by “mental health” and by “police contact death”. Most importantly of all, I will have to define what I mean by “RCRP related” and as things stand when I’m merely gathering data to be analysed next year, I’m listing all inquests where RCRP is mentioned in the inquest itself, media coverage of it or within the PFD notice and any responses to it made by organisations. It’s perfectly possible this definition will narrow in due course, I’ve reached no firm conclusions on this.
But I found myself thinking a lot about these issues when reading this PFD. We can see the PFD makes no mention of it, there’s nothing in any searchable media coverage and we are yet to see what the Metropolitan Police and College of Policing will say about it. That all acknowledged, I can help but think of it and I’m not the only one. I did a thread of posts on X (Twitter) before staring to write this post and responses have asked about the extent to which RCRP affecting police culture or attitudes towards mental health incidents might have contributed to how this was handled – and we don’t know, ultimately.
What we can say is that in May 2023, the Metropolitan Police Commissioner wrote to all London NHS mental health trusts and various other agencies to tell them RCRP would be landing in the capital on the 1st September, less than a month after Mr Muwanga’s death and after there had been significant disquiet about RCRP being introduced as quickly as it was. The programme was introduced in October 2023 and the disquiet continued in February 2024 when the London Assembly heard evidence about it. It is in this context of senior police officers making bold public statements about policing & mental health, that officers have attended the incident.
TWO BITES AT THE CHERRY
And my final point is back to the Coroner: if the position is correct about s136 being feasible in the communal area, then the issue of the section 135(1) warrant becomes irrelevant, surely? If we’re saying officers could and/or should have used their powers to act unilaterally under s136, then that remains true regardless of whether there were warrants in the background which we must remember, would not allow officers to act unilaterally in any event. For the 135 warrant to have relevance to safeguarding Mr Muwanga, the police would have needed to contact and AMHP and a doctor who would then need to promptly attend the location to execute the warrant – their presence is a non-negotiable legal requirement.
There’s all manner of things worth untangling in this particular case but quite honestly, I’m left wondering a number of things here and I’ve marked my diary to check back in 56-days or so to see what the Metropolitan Police and the College of Policing have said.
Awarded the President’s Medal, by
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All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2026
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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