The changes to sections 135 and 136 of the Mental Health Act introduced by the Police and Crime Act 2017 came into force on 11 December 2017.
Hill Dickinson is a company providing legal advice and support to the NHS and independent healthcare organisations. They have written the following explanation of the changes:
“The key changes are designed to ensure that police officers are able to act more quickly and flexibly, whilst ensuring that people receive the assessment and treatment they need as soon as it is required. The changes relate to:
- places of safety
- time limits
- protective searches
- the duty to consult
- decreased detention times
Definition of ‘public place’
The current wording of section 136 in relation to where police can exercise their powers is open to interpretation and often causes difficulties. Case law over the years has assisted to better define what is ‘a place to which the public have access’, however this remains a tricky area. The changes when they come into force will define this more clearly, by specifically identifying the following places where police cannot exercise their powers under section 136:
‘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.’
Save for in these excluded areas, the police will be able to exercise their powers under section 136 anywhere. This should allow officers to act quickly to protect people found in places such as railway lines, offices and rooftops which have previously not necessarily been considered as ‘places to which the public have access’.
Where practical to do so, the police have an added duty to consult: a registered medical practitioner, a registered nurse or an approved mental health professional, before deciding to remove a person to or to keep them at a place of safety.
Places of safety
The amendments make clear that it will be possible to use a suitable private property as a place of safety, with the consent of the occupier. Therefore, a person’s own home could potentially be a place of safety, as could places such as community centres or other multiple use buildings.
A new provision (section 136A) will prevent the use of police stations as a place of safety for under 18s and also increase the safeguards in place where a police station is used as a place of safety for an adult. Section 136A permits the secretary of state to make regulations regarding the use of police stations as places of safety. It is expected that such regulations will include provision for regular review and ensuring that appropriate medical treatment is available.
The maximum period for detention under section 135 and section 136 to allow for a mental health assessment to be completed, is currently 72 hours. This will be reduced to an initial maximum period of 24 hours. The period will still commence from the time when the person arrives at the place of safety or the time a police officer enters the property if he/she subsequently decides to keep the person at that place.
It will be possible, at the end of the 24 hour period, for an extension of up to 12 hours to be granted, but only where it would not have been practicable to assess the person in the first 24 hours i.e. only where the condition of the person makes it necessary to do so. That extension can be granted by the registered medical practitioner responsible for the examination of the patient.
Section 136C will introduce the power for protective searches to be undertaken where a police officer has reasonable grounds to believe that the person may be a danger to themselves, or others, or is concealing an item on his or her person that could be used to cause physical injury to themselves or to others.
The government has produced guidance to support the implementation of the changes which can be accessed here.
The changes to the legislation have the clear aim of protecting patients’ rights, which is welcome. The reduction in time limits is likely to increase pressure on services, particularly in light of the current bed situation. Effective implementation, particularly in relation to the duty to consult and reduced detention times, will involve local authorities, healthcare providers and the police working very closely together. Policies and procedures will need to be updated and training may be required.”
Further sources of information
You can find the full article by Hill Dickinson here: https://www.hilldickinson.com/insights/articles/mental-health-act-1983-important-changes-coming-force-11-december-2017
The government has issued “Guidance for the implementation of changes to police powers and places of safety provisions in the mental health act 1983” which you can read here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/656025/Guidance_on_Police_Powers.PDF
The mental health charity Mind have also written about these changes. You can see their article here: https://www.mind.org.uk/news-campaigns/legal-news/legal-newsletter-march-2017/policing-and-crime-act-2017/