S135(1): Warrant to enter and remove a mentally disordered person from their home

 

When it comes to s.135 of the Mental Health Act, there is the law, and then there is the reality.

I’ll look at the law first, then I’ll look at how it all pans out in the real world.

If there are grounds to believe that someone with a mental disorder has been or is being, ill-treated, neglected or kept otherwise than under proper control, or is living alone and unable to care for themselves, an AMHP can apply to a magistrate for a warrant under s.135(1).

The Code of Practice states that the purpose of a warrant is to “provide police officers with a power of entry to private premises, for the purposes of removing the person to a place of safety for a mental health assessment or for other arrangements to be made for their treatment or care.”

Only an AMHP can apply for a s.135(1) warrant.

The police officer must be accompanied by an AMHP and at least one s.12 approved doctor.

The police officer can use force if necessary to get into the premises, and once in can remain and search the premises. The AMHP and the doctor can decide whether to conduct an assessment then and there, or have the patient taken to a place of safety for assessment.

Detention can last for a maximum of 72 hours. Wherever it takes place, once the assessment has been completed, the power to detain under the warrant ceases.

Sounds all quite straightforward, doesn’t it?

But this is the reality.

Before any decision is made to apply for a s.135(1) warrant, an AMHP should conduct a normal assessment. This means turning up at the patient’s house with two doctors and attempting to gain entry in order to interview the patient in their home.

Sometimes, the patient may allow entry, but then refuse to cooperate with the assessment, or insist the AMHP and doctors leave before an assessment can be completed. Sometimes, the patient may simply refuse to let the assessing team in at all.

In itself that may not be sufficient to apply for a warrant. There also needs to be evidence to support the contention that the patient is unable to look after themselves, or is a danger to themselves or others, for example.

Applying for a warrant can be complicated. It used to be that the only way an AMHP could get one was by contacting the clerk of the local magistrate’s court and asking to see a magistrate. The AMHP would then have to attend the court and have to wait for a break in normal proceedings to actually see a magistrate.

In my experience, some magistrates would simply read the application, ask a couple of questions and then provide the warrant. Sometimes, however, they might grill the AMHP extensively before being satisfied, and could refuse. In which case, more evidence would have to be obtained, such as making further attempts to conduct an assessment.

In the AMHP hub where I used to work, the region was covered by a virtual magistrate’s court. If it was necessary to apply for a warrant, the AMHP who had assessed would complete the application for the warrant, and then the senior practitioner on duty, who was also an AMHP, would then book a slot online and the application with supporting evidence would then be sent by secure email to the court.

The senior practitioner would then receive a phone call at an allotted time and answer any questions the magistrate might have. The warrant would then be sent by secure email to the AMHP hub. All that can take several days.

But then, in order to execute the warrant you first have to get all your ducks in a row.

The AMHP needs to get two s.12 doctors. The AMHP needs the police to attend at the same time as the AMHP and the doctors.

The AMHP has to make sure that a place of safety, normally the s.136 suite at the local psychiatric hospital, is available, if it is decided to remove the patient from their home for the assessment.

And the AMHP also needs to have identified that a bed is available if it is decided to detain the patient for assessment or treatment.

Oh, and let’s not forget the ambulance, which would be required if the patient was being taken to a place of safety or being admitted directly to hospital from their home.

A warrant normally lasts for 28 days. And you might need that length of time.

I’ve even known warrants to run out before they can be used.

I’ll be looking at s.135(2) in my next post.