MHA 1983 s136
This section allows a constable to remove an apparently mentally disordered person from a public place to a place of safety for up to 72 hours for the specified purposes. The place of safety could be a police station or hospital (often a special s136 suite).
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.
- MS v UK 24527/08  ECHR 1762 — Statement of facts and question lodged with the court. The case relates to detention under s136 beyond the permitted 72-hour period and a subsequent civil claim against the Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office.
- MS v UK 24527/08  ECHR 804,  MHLO 46 — MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and ..→
- 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; ..→
- Seal v Chief Constable of South Wales Police  EWCA Civ 586 — Mental disorder — Practice — Leave to bring proceedings — Claim by patient for damages against police officers — Failure to obtain leave to bring proceedings — Whether proceedings rendered nullity — Whether subsequent grant of leave permissible — Mental Health Act 1983, s139(2). It was a mandatory requirement to seek leave from the High Court under s 139(2) of the Mental Health Act 1983 to bring civil proceedings for actions purported to be done under that Act. Failure to seek leave rendered the proceedings a nullity.
[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 30.16 to 30.19
- Mental Health Act 1983 Code Of Practice for England, 10. Police powers and places of safety
- Royal College of Psychiatrists, 'CR159: Standards on the use of Section 136 of the Mental Health Act 1983 (England and Wales)' (July 2011). See Royal College of Psychiatrists page for details
[Removal etc of mentally disordered persons without a warrant]
136.—[(1)If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—
- (a) remove the person to a place of safety within the meaning of section 135, or
- (b) if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.
(1A) The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—
- (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.
(1B) For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.
(1C) Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult—
- (a) a registered medical practitioner,
- (b) a registered nurse,
- (c) an approved mental health professional, or
- (d) a person of a description specified in regulations made by the Secretary of State.]
(2) A person [removed to, or kept at,] a place of safety under this section may be detained there for a period not exceeding [the permitted period of detention] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care.
[(2A) In subsection (2), “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 a place of safety, the time when the constable decides to keep the person at that place; 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.]
[(3) 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 (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.
(4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of [the permitted period of detention] mentioned in that subsection.]
[(5) This section is subject to section 136A which makes provision about the removal and taking of persons to a police station, and the keeping of persons at a police station, under this section.]
Last updated: 9/2/18
- 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 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
- 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.
- Home Office Circular 7/2008: The Use Of Police Stations As Places Of Safety Under Section 136 Of The Mental Health Act 1983. Home Office Circular 7/2008 relates to the use of police stations as places of safety 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 (3) and (4) allow a person to be moved from the original place of safety to another (more suitable) place.
- HMIC, CQC, HIW and HMIP, 'A Criminal Use of Police Cells? The use of police custody as a place of safety for people with mental health needs' (20/6/13). (1) The introduction to this joint review states that it: (a) examines the extent to which police custody is used as a place of safety under section 136; and (b) identifies the factors which either enable or inhibit the acceptance of those detained under section 136 in to a preferred place of safety, such as a hospital or other medical facility. (2) Among the recommendations are that: (a) The Codes of Practice should be amended to bring detention times for those detained in police custody under section 136 in line with those in the Police and Criminal Evidence Act 1984, which allows up to 24 hours in police custody (out of the maximum of 72 hours for which they can be detained overall); (b) The Mental Health Act 1983 should be amended to remove a police station as a place of safety for those detained under section 136, except on an exceptional basis. The ‘exceptional basis’ should be clearly defined in law and should reflect the wording currently used in the Codes of Practice, namely, where a person’s behaviour would pose an unmanageably high risk to other patients, staff or users of a healthcare setting.
- Paul Pigott, 'Concern over mental health detentions by police in Wales' (BBC Wales News, 15/11/13)† This article criticises the increase in s136 police station detentions, in particular in comparison with the large decrease in North Wales following co-operation between North Wales Police and the local Health Board.
- Sarah Wollaston, 'Why are so many mentally ill children being held in prison cells?' (Guardian 'Comment is free' site, 28/11/13)† This article, written by a Tory MP, complains about inadequate funding for mental health services and calls for an end to mental health detention in police cells.