On 11 December 2017, significant amendments will come into force altering the power of the police to detain people who appear to be suffering from mental disorder. This blog post is intended to highlight the fact of the amendments, outline some key changes and point to sources of further information. 

The relevant powers are currently contained in sections 135 and 136 of the Mental Health Act 1983 (“MHA”). Section 135 requires the grant of a warrant by a magistrate; s136 does not.

From 11 December 2017 there will be in force:

  • amendments to ss135, 136 and 138;

  • new regulations, namely the Mental Health Act 1983 (Places of Safety) Regulations 2017 (setting out circumstances in which a police station may be used as a place of safety; requirements when a police station is used as a place of safety; and persons to be consulted) (“the Places of Safety Regulations 2017”). 

The amendments are made by Chapter 4 (ss80-83) of the Policing and Crime Act 2017, which come into force by virtue of regulation 3 of the Policing and Crime Act 2017 (Commencement No. 4 and Saving Provisions) Regulations 2017 (“the Commencement Regulations”).

The Department of Health and the Home Office have published guidance on the new law: "Guidance for the implementation of changes to police powers and places of safety provisions in the mental health act 1983" (October 2017) (“the Guidance”). Paragraph 1.8 summarises the main changes to the police powers and places of safety provisions as follows:

  • section 136 powers may now be exercised anywhere other than in a private dwelling;

  • it is now unlawful to use a police station as a place of safety for anyone under the age of 18 in any circumstances;

  • a police station can now only be used as a place of safety for adults in specific circumstances, which are set out in regulations;

  • the previous maximum detention period of up to 72 hours has been reduced. to 24 hours (unless a doctor certifies that an extension of up to 12 hours is necessary);

  • before exercising a section 136 power police officers must, where practicable, consult one of the health professionals listed in section 136(1C), or in regulations made under that provision;

  • a person subject to section 135 or 136 can be kept at, as well as removed to, a place of safety. Therefore, where a section 135 warrant has been executed, a person may be kept at their home (if it is a place of safety) for the purposes of an assessment rather than being removed to another place of safety;

  • a new search power allows police officers to search persons subject to section 135 or 136 powers for protective purposes.”

Significantly, a police station may never be used as a place of safety for anyone under 18, and the Places of Safety Regulations 2017 set out extremely onerous requirements which must be met before a police station may be used as a place of safety for an adult. The key requirements are that:

  • the behaviour of the adult poses an imminent risk of serious injury or death to her/him, or to another person, (regulation 2(1)(a)(i))

  • because of that risk, no place of safety other than a police station in the relevant police area can reasonably be expected to detain the adult, ((regulation 2(1)(a)(ii)) and

  • so far as is reasonably practicable, a healthcare professional will be present and available to the detained adult throughout the period in which s/he is detained at the police station ((regulations 2(1)(a)(iii) and 4(1)(b)).

Examples of further requirements are as follows:

  • One of a list of health professionals must be consulted before a decision is made to use a police station as a place of safety ((regulation 2(2)).

  • The use of the police station as a place of safety must be authorised by an officer of the rank of inspector or above (regulation 2(1)(b)).

  • During the use of the police station as a place of safety, the custody officer must (among other requirements) ensure that the welfare of the detained adult is checked by a healthcare professional at least once every thirty minutes, and any appropriate action is taken for her/his treatment and care (regulation 4(1)(a))

The Guidance makes clear at paragraph 3.1 that: 

“…The expectation remains that, with limited exceptions, the person’s needs will most appropriately be met by taking them to a ‘health-based’ place of safety - a dedicated section 136 suite where they can be looked after by properly trained and qualified mental health and other medical professionals…”

The changes do not apply to cases already in train on 11 December 2017, a s135 warrant was issued or a s136 removal started. See regulation 4 of the Commencement Regulations and Annex A of the Guidance.

The amendments are considered in detail from the perspective of the police by Michael Brown who blogs at mentalhealthcop.wordpress.com (see “The PACA Series”) and tweets at twitter.com/MentalHealthCop. Thanks are due to Michael for providing extremely helpful advance information following his contact with the Home Office as to when the amendments were likely to come into force.