Mental health law briefing 244 – Guidance to changes made by the Policing and Crime Act to police powers and places of safety provisions in the Mental Health Act
On 31 October 2017 the Department of Health and Home Office published guidance to support the implementation of changes to the police powers and places of safety provisions in the Mental Health Act 1983 (made by the Policing and Crime Act 2017).
The changes relate to police powers to act in order to ensure the care and safety of those experiencing a mental health crisis. They come into force on 11 December 2017.
The guidance is not statutory and should be used in conjunction with other relevant guidance and standards. The existing Codes of Practice in England and Wales in relation to the 1983 Act remain in force and healthcare professionals must continue to have regard to the Codes in the exercise of their functions. It is likely that when the Codes are updated they will incorporate the guidance in relation to the places of safety provisions.
We have set out the changes to the police powers and places of safety provisions here:
Key changes to provisions
- Section 136 power may now be exercised anywhere other than in a private dwelling and its associated buildings or grounds.
- A person subject to section 135 or 136 can be kept at, as well as removed to a place of safety. 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 purpose of an assessment rather than being removed.
- New section 136(1B) enables a police officer to enter any place in which section 136(1) applies (if necessary by force) to remove a person.
- Before exercising a section 136 power officers must, where practicable, consult one of the health professionals in section 136(1C) or in regulations made under that provision.
- By virtue of the new section 136A(1) a police station may not be used as a place of safety for a person under the age of 18 under any circumstances.
- A police station can only be used as a place of safety for adults in the specific circumstances, set out in The Mental Health Act 1983 (Places of Safety) Regulations 2017:
- the behaviour of the person poses an imminent risk of serious injury or death to themselves or another person
- because of that risk, no other place of safety in the relevant police area can reasonably be expected to detain them, and
- so far as reasonably practicable, a healthcare professional will be present at the police station and available to them
The guidance envisages movement to a different place if the person’s behaviour has moderated, however such a judgment should also include an assessment of whether a person’s behaviour would pose the imminent risk were it not for the fact that they were in the police station. Moving a person multiple times is to be avoided.
- The maximum detention period will be 24 hours (reduced from 72 hours), which can be extended for a further 12 hours by the responsible medical practitioner if a Mental Health Act assessment cannot be completed within the permitted period due to the person’s mental or physical condition.
- New Section 136(C) will allow for police officers to search persons subject to section 135 or 136(2) or 136(4) for protective purposes.
- Section 138 deals with retaking a person who escapes from custody.
Places of safety
A place of safety is now defined as:
- A hospital
- An independent hospital or care home for mentally disordered persons
- A police station
- Residential accommodation provided by a local social services authority
- Any other suitable place (with the consent of a person managing or residing at that place)
The legislation continues to provide for a range of locations to be used allowing for flexible and tailored response.
The guidance confirms that with limited exceptions, the person’s needs will most appropriately be met by taking them to a ‘health-based’ place of safety. That is a dedicated section 136 suite where they can be looked after by properly trained and qualified mental health and other medical professionals.
Local Commissioners may wish to consider increasing local places of safety capacity. This can be done by entering into formal arrangements with third parties to establish additional bespoke places of safety, or by undertaking contingency planning with local partners to identify potential temporary places for use should other facilities be unavailable, or both.
Other suitable places
The guidance states that there are two principle requirements for determining whether a place is suitable:
- whether the place itself is suitable
- whether appropriate agreement is given to the use of the place as a place of safety
Different provisions in relation to the appropriate agreement apply depending on whether the place is a private dwelling (and the number of occupiers) or another type of premises.
The guidance helpfully flags up the transitional provisions in the legislation, it is important to be aware of the changes and the time limits applicable. Agencies need to be very clear about whether the pre/post commencement provisions apply. Clear record keeping will be vital.
Action for change
The guidance suggests steps that health, policing and other partners may wish to consider for implementing and monitoring the changes in their area. Suggestions include:
- review of existing training courses
- impact monitoring
- revision of local policies to strengthen liaison and information sharing systems
The guidance states that an extension to the period of detention can only occur to enable a Mental Health Act Assessment to be completed. This is more limited than the reason for an extension of time under the new s.136B which appears to be much broader as regards the ‘assessment’ to be completed. However, the guidance is non statutory.
The guidance touches upon an issue which is likely to cause practical difficulties from the outset. As the police station will be unavailable in all but limited circumstances, consideration will have to be given to situations where behavioural or other grounds mean that staff at other places of safety are reluctant to admit the person. Resources will need to be directed towards resolving such situations swiftly.
For more information or guidance please contact:
T. 020 7227 7455
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.