The Policing and Crime Act received Royal Assent on 31 January 2017. The purpose of this briefing note is to look at the changes that this Act will bring to s135 and s136 of the Mental Health Act 1983 and what mental health providers and commissioners need to do to implement them.
As a result of the snap UK General Election implementation of the regulations has been delayed and it is anticipated that the changes will not be in force until mid-July at the earliest. However it is crucial that prior to that, action in relation to these provisions is taken and swift engagement and dialogue with local police services is strongly recommended.
Key issues for mental health
The Act will amend police powers under sections 135 and 136 of the 1983 Act in relation to people who are experiencing mental health problems. The key changes are set out below:-
1. Assessments can take place in a private dwelling.
A private dwelling may be used as a "place of safety" if the person to be assessed agrees to its use as a place of safety and:-
- Is the sole occupier of the place; or
- Is an occupier of the place but not the sole occupier and one of the other occupiers also agrees; or
- Is not an occupier of the place but they and one of the occupiers agrees.
2. Detaining a person at a "place of safety" under s136
Children - In relation to children the new s136A(1) states that "A child may not…be removed to, kept at or taken to a place of safety that is a police station." This means that a police station can never be used as a place of safety for a person under the age of 18 under any circumstances.
Adults - In relation to adults the circumstances where police stations can be used as a place of safety will be limited by regulations to "specific circumstances". These regulations will also make provision as to how adults are treated while at the police station. We will not have any confirmed detail on this until the regulations are published.
3. Police officers' powers to detain and remove people experiencing a mental health crisis from any place other than a private dwelling.
Under the Act the police may act promptly to protect individuals or the public from harm in line with the 1983 Act without the need to seek a warrant. The exception to this is that a warrant will be required for private dwellings.
4. Police consultation with healthcare professionals
Before exercising powers under s136 "if it is practicable to do so" a police officer must consult a registered doctor or nurse, an AMHP or "a person of a description specified in regulations made by the Secretary of State."
5. Reduction of period of detention for assessment
The maximum period of time for which a person can be detained for assessment will be reduced to 24 hours and a medical practitioner can extend this by an additional 12 hours. This step can be taken if the medical practitioner considers that the condition of the person detained is such that it would not be practicable for the assessment of the person to be a carried out before the end of 24 hours. If the person is detained at a police station and the assessment is carried out at the station, the medical practitioner may only extend the time period if a superintendent or officer of higher rank approves it.
6. Protective searches
The police may conduct protective searches "to the extent that is reasonably required" of a person subject to removal under sections 135 or 136 to ensure that they do not present an immediate danger to themselves or others. This does not authorise a constable to require a person to remove any of their clothing other than an outer coat, jacket or gloves but does authorise a search of a person's mouth.
Practical steps and recommendations
Commissioners should work with local providers and services to review current provision of s.136 suites and identify potential alternative and additional beds that could be allocated as places of safety going forwards.
Providers should liaise with local police services to discuss local protocols for accessing swift assistance and intervention in the increasing range of environments.
Commissioners should review the scope of mental health providers to determine whether provision and recruitment is necessary to ensure sufficient levels of mental health professionals.
All parties need to be clear about the new legal powers, roles and responsibilities.
When people are detained by the police as a result of a mental health crisis their experience can be a traumatic one. An appropriate environment is essential for those in need of mental health care and these amendments are vital. However, legislation alone is not the answer. Changes in the law can only be translated into practice with additional appropriate funding reaching the frontline of care.
In June we are hosting the Bevan Brittan annual mental health seminars. One of the sessions at the seminars will be looking at the Policing and Crime Act 2017 in relation to s135 and s136. We will be looking at the changes in more detail, draft guidance and the implications and actions needed to be taken by mental health professionals.
If you would like to attend in our Bristol or London office, please book your place below. The Mental Health seminars will be from 9:30am (registration) until 13:00pm followed by a networking lunch.