Section 136: A Brief History

 

Section 136 is the only section of the Mental Health Act that does not, at least initially, involve a doctor or an AMHP. It gives a police officer the power the remove someone they believe may be suffering from mental disorder to a place of safety. The purpose of this is explicitly to facilitate the formal assessment of the person by a doctor and an AMHP.

This is how it is currently, and is very familiar to the police and AMHPs.

The official figures for use of section 136 in the year ending April 2020 is 18,665, although the data is incomplete, so it is likely to be higher. This means that on average the power is used over 50 times a day.

You might think that this section was drafted to reflect modern day policing, but in fact Section 136 has a very long history, with origins in Victorian responses to mental illness and poverty.

The Lunatic Asylums Act 1853, for instance, has a section 68. This states:

Every Constable of any Parish or Place...who shall have knowledge that any Person wandering at large within such Parish or Place.… is deemed to be a Lunatic, shall immediately apprehend and take or cause such person to be apprehended and taken before a Justice.

The Lunacy Act 1890 contains similar wording:

Every constable who shall have knowledge that any person wandering at large is deemed to be a lunatic shall immediately apprehend and take or cause such person to be apprehended and taken before a justice.

This remained pretty much the position with regard to dealing with mentally disordered people in public places until the Mental Health Act 1959.

Since the 1890 Lunacy Act, there had been a revolution in the care and treatment of people with mental disorders. The responsibility for assessment was removed from the judiciary and a more humanitarian approach was taken, which involved assessment by a Mental Welfare Officer, who was the forerunner to the Approved Mental Health Professional.

Section 136 of the 1959 Mental Health Act now stated:

If a constable finds in a place to which the public have access a person who appears to him 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, remove that person to a place of safety.

Interestingly, the Mental Health Act 1983 left the wording entirely unchanged. In fact, curiously, although the sections relating to detention all changed – for example, section 25 of the 1959 Act relating to compulsory assessment in hospital became section 2, and section 26 relating to compulsory treatment in hospital became section 3, section 136 remained the same.

There was a widespread belief among Approved Social Workers, as Mental Welfare Officers became, that this was because the police would not be able to remember a new section number, but I am sure this is untrue.

The Mental Health Act 2007, which amended the 1983 Act and replaced approved Social Workers with Approved Mental Health Professionals, did not address section 136.

It wasn’t until the Policing and Crime Act amended section 136 in December 2017 that there was any further change to the wording.

At first glance, the wording does not appear greatly different. Section 136(1) now reads:

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... remove the person to a place of safety.

In fact, there was a crucial change to the police power, as, after more than 150 years, there was no longer a requirement that the mentally disordered person had to be in “a place to which the public have access”. Section 136(1A) now says that the power may be exercised “at any place” other than the person’s own home and private property.

The other major change to section 136 was, of course, reducing the length of time that detention in a place of safety for assessment could last. Since 1959, the maximum time was 72 hours; now, reflecting changes in attitudes towards the human rights of mentally disordered people, the maximum length of time has been reduced to 24 hours.