Mental Health powers when person is moved before police arrive

10 January 2018

Not reviewed after the date of publication

Question:

SMITH is suffering from mental disorder and, for the purposes of this scenario, is in immediate need of care and is in a public place, namely a residential street. JONES, a concerned resident of this street, brings SMITH into his home address and phones the police.

SMITH is now in a private dwelling.

Can section 136 of the Mental Health Act 1983 be used in this situation?

Answer:

The changes to the Mental Health Act 1983 means that the powers under section 136 can be exercised anywhere except for a private dwelling. Section 136(1A) provides:

136(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.'

As SMITH is in a dwelling at the time the police arrive, we are of the opinion that section 136 can no longer be used. In this situation, consideration could be given obtaining a warrant under section 135 if necessary.

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