MHA 1983 s135
Changes made by Mental Health Act 2007
- Patients can be transferred between places of safety under s135 and s136 30/4/08
- Approved Mental Health Professional replaces Approved Social Worker 3/11/08
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- R (Sessay) v South London and Maudsley NHS Foundation Trust  EWHC 2617 (QB) — The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; ..→
- R v Rosso (Rosario)  EWCA Crim 3242 — (1) The police had been entitled to force entry into a hotel room in order to detain the defendant pursuant to an application under s2; no warrant under s135 was required as they had the owners' permission and the defendant had no right to deny them entry; therefore the appeal against conviction was refused; (2) the appeal against the restriction order was also refused.
- Ward v Commissioner of Police for the Metropolis  UKHL 32 — Mental disorder — Place of safety order — Validity of detention — Warrant naming health professionals to accompany constable — Named persons absent when warrant executed — Whether warrant and execution valid — Whether power in magistrate to specify names — Mental Health Act 1983 (as amended by Police and Criminal Evidence Act 1984, s 119(1)(2), Sch 7, Pt I), s 135(1). A condition imposed by a magistrate issuing a warrant under s135 of the Mental Health Act 1983 specifying named persons to accompany the constable executing the warrant had been invalid.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 30. Powers of entry and police powers [Note that the chapter number relates to the old Reference Guide] — paragraphs 30.6 to 30.15
- Mental Health Act 1983 Code Of Practice for England, 10. Police powers and places of safety
Home Office Circular 7/2008 relates to the use of police stations as places of safety under s136, and also under this section - the use of police stations is deprecated except in exceptional circumstances involving the risk of serious harm posed by the person to himself or healthcare workers. New subsections (3A) and (3B) allow a person to be moved from the original place of safety to another (more suitable) place.
Warrant to search for and remove patients
135.—(1) If it appears to a justice of the peace, on information on oath laid by an [approved mental health professional], that there is reasonable cause to suspect that a person believed to be suffering from mental disorder—
- (a) has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or
- (b) being unable to care for himself, is living alone in any such place,
the justice may issue a warrant authorising any constable [...] to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.
[(1A) If the premises specified in the warrant are a place of safety, the constable executing the warrant may, instead of removing the person to another place of safety, keep the person at those premises for the purpose mentioned in subsection (1).]
(2) If it appears to a justice of the peace, on information on oath laid by any constable or other person who is authorised by or under this Act or under [article 8 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005] to take a patient to any place, or to take into custody or retake a patient who is liable under this Act or under the said [article 8] to be so taken or retaken—
- (a) that there is reasonable cause to believe that the patient is to be found on premises within the jurisdiction of the justice; and
- (b) that admission to the premises has been refused or that a refusal of such admission is apprehended,
the justice may issue a warrant authorising any constable [...] to enter the premises, if need be by force, and remove the patient.
(3) A patient who is removed to a place of safety in the execution of a warrant issued [under subsection (1), or kept at the premises specified in the warrant under subsection (1A),] may be detained there for a period not exceeding [the permitted period of detention].
[(3ZA) In subsection (3), “the permitted period of detention” means —
- (a) the period of 24 hours beginning with —
- (i) in a case where the person is removed to a place of safety, the time when the person arrives at that place;
- (ii) in a case where the person is kept at the premises specified in the warrant, the time when the constable first entered the premises to execute the warrant; or
- (b) where an authorisation is given in relation to the person under section 136B, that period of 24 hours and such further period as is specified in the authorisation.]
[(3A) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of [the permitted period of detention] mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
(3B) A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of [the permitted period of detention] mentioned in subsection (3) above.]
(4) In the execution of a warrant issued under subsection (1) above, [a constable] shall be accompanied by an [approved mental health professional] and by a registered medical practitioner, and in the execution of a warrant issued under subsection (2) above [a constable] may be accompanied—
- (a) by a registered medical practitioner;
- (b) by any person authorised by or under this Act or under [article 8 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005] to take or retake the patient.
(5) It shall not be necessary in any information or warrant under subsection (1) above to name the patient concerned.
(6) In this section "place of safety" means residential accommodation provided by a local social services authority under [Part 1 of the Care Act 2014 or] [Part 4 of the Social Services and Well-being (Wales) Act 2014] [...], a hospital as defined by this Act, a police station, [an independent hospital or care home] for mentally disordered persons or any other suitable place [...].
[(7) For the purpose of subsection (6)—
- (a) a house, flat or room where a person is living may not be regarded as a suitable place unless—
- (i) if the person believed to be suffering from a mental disorder is the sole occupier of the place, that person agrees to the use of the place as a place of safety;
- (ii) if the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier, both that person and one of the other occupiers agree to the use of the place as a place of safety;
- (iii) if the person believed to be suffering from a mental disorder is not an occupier of the place, both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety;
- (b) a place other than one mentioned in paragraph (a) may not be regarded as a suitable place unless a person who appears to the constable exercising powers under this section to be responsible for the management of the place agrees to its use as a place of safety.
(8) This section is subject to section 136A which makes provision about the removal and taking of persons to a police station under this section.]
Last updated: 9/2/18
- Mental Health Act 2007 s21 & sch 2; Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 (England), Mental Health Act 2007 (Commencement No. 8 and Transitional Provisions) Order 2008 (Wales), wef 3/11/08
- Police And Criminal Evidence Act 1984
- Policing and Crime Act 2017 ss80-82. In force 11/12/17: Policing and Crime Act 2017 (Commencement No 4 and Saving Provisions) Regulations 2017.
- Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005
- Mental Health Act 2007 s44; Mental Health Act 2007 (Commencement No. 5 and Transitional Provisions) Order 2008 wef 30/4/08. NB the transitional provision in the Order: until 3/11/08, AMHP is taken to mean ASW.
- Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 schedule para 29. See art 1(2) for in-force date, and art 3 for savings and transitional provision.
- Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 reg 37. Replacing "Part III of the National Assistance Act 1948". In force 6/4/16.
- NHS and Community Care Act 1990
- Care Standards Act 2000