Our AMHP Service has from time to time had problems with Magistrates and others who are convinced
that only an AMHP can apply for a warrant under Sec.135(2).
This
is incorrect.
The
text of Sec.135(2) is as follows:
(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 … to take a
patient to any place, or to take into custody or retake a patient who is liable
under this Act …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.
In
contrast, Sec.135(1) permits a police officer to enter the premises of someone
who appears to be mentally disordered and is either being ill treated or
neglected, or, living alone, is unable to care for themselves. Only an AMHP can
apply for such a warrant. The purpose of this warrant is in order to enable the
assessment of the person in question.
A
Sec.135(2) warrant, on the other hand, is specifically for the purpose of
removing a mentally disordered person and taking them to hospital. No
assessment is required or needed. This would typically be used when a detained
patient was refusing to return from Sec.17 leave, or a CTO patient who was
being recalled to hospital and who was objecting to this. In other words, they
would have to be already “liable to be detained”.
The
Reference Guide states:
A warrant
may be applied for by a police officer or any other person who is authorised to
take or return the patient to any place or take them into custody.(para7.14)
A
police officer is first on the list, which is logical, as it is only a police
officer who can execute the warrant. Although an AMHP would be regarded as an
authorised person, we need to look at Sec.18(1)(c) for more details. This gives
an exhaustive list of those who are authorised to return or readmit people who
are either liable to be detained or who are subject to a CTO and have been
recalled. These patients can be returned “by any approved mental health
professional, by any officer on the staff of the hospital, by any constable, or
by any person authorised in writing by the managers of the hospital.”
So
as well as a constable and an AMHP, other people who can apply for a Sec.135(2)
warrant include hospital staff, local authority employees, and community staff
such as care co-ordinators in community mental health teams. Richard Jones
points out that even Mental Health Act Administrators have made applications
under Sec.135(2). (1-1330 Mental Health Act Manual 19th Edition)
I
have to say I find it surprising that a magistrate, having the support of a
Court Clerk, may still insist that the applicant has to be an AMHP.
I
find it less surprising that community staff, wishing to recall a resistant CTO
patient are ignorant or this. But I am always happy to explain to them that
they can go through the process of applying to the court for a warrant, rather
than an AMHP from our AMHP Service.
We
already have more than enough to do.