Section 135: Warrant to search for and remove patients
Section 135 is not necessarily a ‘criminal’ section, but it is included here because of the involvement of the police.
There are two separate types of warrant. Detention under s135(1) could precede s2 or s3 detention:
(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).
Detention under s135(2) applies to patients who are already subject to the Act:
(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.
The permitted period of detention is 24 hours, though the registered medical practitioner who is responsible for the examination may extend this by up to 12 hours if necessary to enable the assessment to be completed (s135(5), s136B).
In relation to the place of safety:
- ‘Place of safety’ is defined as ‘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.’ (s135(6)).
- Subsections (3A) and (3B), inserted by the MHA 2007, allow a person to be moved from the original place of safety to another (more suitable) place.
- A police station cannot be used as a place of safety for a child (s136A(1)).
- Safeguards apply in relation to the use of a police station a place of safety for an adult (Mental Health Act 1983 (Places of Safety) Regulations 2017).
There is no right of appeal against detention.
The patient is not subject to the Part 4 ‘Consent to Treatment’ provisions.
This section was amended by the Policing and Crime Act 2017.
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