Changes to sections 135 and 136 Mental Health Act coming into force in December

The Government has now announced when the amendments to sections 135 and 136 MHA 1983 introduced by the new Policing and Crime Act 2017 will come into force. You can read our earlier blog post here.

The Code of Practice will need to be amended to reflect these changes but, in the meantime, please be aware that as of 11 December 2017, the following key changes will apply:

Section 135

  • A person may be kept at their home for the purposes of assessment.

Section 136 

  • Use of a police station as a place of safety for anyone under the age of 18 will be unlawful.
  • Police stations can only be used in specific circumstances for adults.
  • The maximum detention period is now 24 hours. In exceptional circumstances, this can be extended for a further 12 hours where a doctor certifies this is necessary (due to the person being too mentally distressed or too intoxicated only and not due to unavailability of an Approved Mental Health Professional or doctor).
  • Before using their powers a police officer must consult with one of a number of specified health professionals.

Under both sections

  • A new search power will enable police officers to search individuals for protective purposes.

To assist, The Mental Health Act 1983 (Places of Safety) Regulations 2017 have also been published and deal with the circumstances in which a police station can be used as a place of safety and the requirements that must be met.

The Department of Health and Home Office have also published non statutory guidance to help those on the ground implement the practical changes made to the police powers and places of safety provisions in the MHA. It runs to 32 pages and helpfully addresses the changes as they might appear chronologically in any engagement.

Last, but not least, NHS England and NHS Improvement have written a joint letter to both CCGs and NHS providers. That  letter contains an annex with several matters to be considered including:

  • Revisit Royal College and CQC reports when considering commissioning provision against their recommendations, with new legal provisions in mind.
  • Local Partnerships to work quickly to update their local policies, protocols and joint working arrangements.
  • All providers of health based places of safety to ensure a clear reporting mechanism is in place so that the board (or relevant sub group) are made aware of key issues on a regular basis.
  • Ensure suitable alternatives to emergency departments are provided.
  • Ensure there are arrangements in place that allow for police officers to fulfil the requirement to consult with a mental health practitioner before using section 136.

If you would like any advice, please do not hesitate to contact me or a member of the team.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.


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