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.

What does the Mental Health Act mean by “mental disorder”?

The legal definition of “mental disorder” for the purposes of the Mental Health Act has evolved over the years to reflect changes in society and the liberalisation of psychiatry.

The Mental Health Act 1959 was the first “modern” Act designed to deal with people with mental disorders. It replaced frankly archaic Acts such as the Lunacy Act 1890 and the Mental Deficiency Acts of 1913 and 1938. This was replaced in turn by the Mental Health Act 1983, which was further amended by the Mental Health Act 2007, which radically modified the definition of “mental disorder”.

This is an overview of those changes.

Why Does a Section 3 Last for Six Months?

I was at a committee meeting of the Mental Health Faculty of the College of Social Work the other week, and we were discussing the new Draft Code of Practice with representatives from the Department of Health (as you do), and making suggestions for changes.

One of the suggestions related to the length of time it takes for patients’ appeals and referrals to the Tribunal following a Sec.3., as it can often be 2-3 months before an appeal is heard. It was suggested that the new Code should include guidance to the Tribunal to hear these appeals much more quickly.

While we were talking about this, I suddenly wondered why detention  for treatment under Sec.3 lasts for a whole six months in the first place. This got me thinking.

Being The Masked AMHP, I just love mental health law. I wrote a blog post a while ago about the Lunatic Asylums Act 1853, one of the predecessors of the Mental Health Act. There were clear references even that far back of legislation that eventually evolved into Sec.2, Sec.3, Sec.4 and even the police powers of Sec.136.

The history of mental health legislation tends to reflect, and be enacted in response to, changes in the approach to the treatment of mental disorder. In Victorian times, there were no treatments at all for mental illness, and therefore legislation was about the humane containment of “lunatics” until they eventually spontaneously recovered, if ever.

The Lunacy Act 1890 laid down the duration for “reception orders” for admitting and detaining “lunatics”. The first spell lasted for one year. If renewal was required, this would last for 2 years. A further renewal would last for 3 years. After that, the order could be extended for 5 year periods. And judging by the records of lunatic asylums from the period, people could often be incarcerated for their entire adult lives.

However, by the time the Mental Treatment Act was enacted in 1930, the concept of “treatment” was even being reflected in the name of the legislation. Although parts of the older Lunacy Act still remained, the Mental Treatment Act introduced the concept of voluntary patients, people who recognised that they were unwell, and who were agreeable to receiving some form of treatment in a psychiatric hospital.

There was also a category for “temporary patients”. These were people deemed to have mental illness by two medical practitioners, but who were not prepared to reside in a hospital on a voluntary basis. The first period of detention would last for 6 months, and this could be extended, in three month increments, up to a maximum of 12 months. After that, the patient would have to be “certified” in writing by the Medical Officer under the Lunacy Act.

Both of these Acts were repealed by the Mental Health Act 1959. Even the name of this act contained the implication that Parliament was convinced that a state of mental “health” could be achievable.

Sec.25, the forerunner of the 1983 Act’s Sec.2, introduced a strict time limit of 28 days for assessment. It could not be extended. Sec.26, the forerunner of Sec.3, for treatment, then lasted for up to 12 months. It could be extended for a further 12 months, and after that for 2 years at a time.

The legislators of the Mental Health Act 1983 clearly thought that an order for detention lasting 12 months was out of order (cough), so reduced the duration to 6 months, with a further 6 month renewal, and 12 months thereafter.

But the 2007 Act, which amended the 1983 Act, left the lengths of time for Sec.3 unchanged. Additionally, when introducing Community Treatment Orders, they used the same timescales.

As regular readers of this blog will know, I am so incredibly ancient that I was actually a Mental Welfare Officer under the 1959 Act, and used this Act to detain several people under both Sec.25 and Sec.26.

Back then, it was not unusual for mental patients to spend many years in hospital, either informally, or detained. There were large long stay hospitals all over the country. There was very little in the way of treatment in the community.

But the drive since then has been to change the entire approach to the care and treatment of people with mental disorder from being centred around a hospital base, to being centred in the community, with admission to hospital being the exception rather than the norm. This has undoubtedly been helped by new antidepressants and atypical antipsychotics.

It is now very rare for patients to be detained under Sec.3 for as long as 6 months. In fact, when I inform patients I have assessed that I am detaining them under Sec.3, and that this will last for up to 6 months, I always hastily add the proviso: “But it’s very rare for someone to be detained for that long. Usually, people are not detained for more than two or three months.”

So taking into account that treatment and practice now means that it is unusual for a patient to be detained for a full six months, why was this not addressed back in 2007?

Since there has been a steady reduction in legal lengths of detention over the last century or so, why was the length of detention under Sec.3 not shortened further to reflect modern practice? There is a case for arguing that these timescales contravene the Human Rights Act.

I would therefore like to suggest that Sec.3 should last for no more than three months, with renewals lasting only for another three months at a time. CTO’s should perhaps have a similar time scale.

I know that this cannot be addressed by a Code of Practice, and would require a change in primary legislation. But how about it?