New Government guidance on implementing changes to provisions on police powers and places of safety in the Mental Health Act 1983

The government has produced new guidance on the practical application of changes to provisions in the Mental Health Act on police powers and places of…

Overview

The Department of Health and Home Office have produced new guidance for police forces, mental health services, clinical commissioning groups and ambulance services on the practical application of changes to provisions in the Mental Health Act 1983, made by the Policing and Crime Act 2017, on police powers and places of safety.

In detail

The changes relate to police powers to act in respect of people experiencing a mental health crisis. The intention is to ensure their care and safety.

This guidance has been produced 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 and via the Mental Health Act 1983 (Places of Safety) Regulations 2017, which come in to force on 11 December 2017. These changes relate primarily to police powers to act in respect of people experiencing a mental health crisis for the purposes of ensuring their care and safety. The guidance is not statutory but is intended to provide assistance to relevant organisations and professionals in identifying and understanding the implications of the various changes. 

The legal changes introduced by the 2017 Act are intended to improve immediate service responses to people who need urgent help with their mental health in cases where police officers are the first to respond.

Key provisions

The main changes to the police powers and places of safety provisions can be summarised as:

  • 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 three specific circumstances, which are set out in regulations:
    1. The behaviour of the person poses an imminent risk of serious injury or death to that person or others
    2. Because of the risk posed, no place of safety other than a police station in the relevant police area can reasonably be expected to detain the person
    3. So far as is reasonably practicable, a healthcare professional is present and available to the detainee throughout the period in which he or she is detained at the police station
  • 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.

Comment

The detention of individuals by police officers under section 136 MHA has been a practical challenge for police forces across the county. In part this has been as a result of the ambulance service sometimes refusing to take detainees to hospital where it is considered they are or could be violent and the fact that many Mental Heath Trusts do not have sufficient capacity to accept detainees even when an Approved Mental Health Professional (AMHP) has completed their assessment.

On occasions this has meant individuals being detained at police stations under section 136 MHA after the 72 hour custody time has expired, putting pressure on custody staff and exposing police forces to claims for false imprisonment.

The new guidance stresses that the individual’s needs will most appropriately be met by taking them to a ‘health-based’ place of safety where they can be looked after by properly trained and qualified mental health and other medical professionals. This should in theory reduce the dependence on police custody facilities and should be welcomed.

It does however depend on healthcare bodies being well resourced and able to accommodate requests. In areas where there has previously been a significant reliance on use of police stations as places of safety, suitable alternatives will need to be identified urgently.

Proactive joint working, as driven by local Crisis Care Concordat groups across both England and Wales, will remain key to successful implementation of the legislative changes.

If this article raises any queries, please speak to your normal Weightmans contact or Martin Forshaw, Partner on 0151 242 7949 (martin.forshaw@weightmans.com)          

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