15 November 2017, by Helen Curtis
Changes to the powers under ss 135 and 136 of the Mental Health Act 1983 are being brought in by ss 80 – 83 of the Policing and Crime Act 2017 with effect from 11 December 2017. New regulations (Mental Health Act 1983 (Places of Safety) Regulations 2017/1036) were published on 31 October 2017, also due to come into effect on 11 December 2017.
Non-statutory guidance for the implementation of the changes has been published. The list of main changes, in brief below, may belie the complexity of their application in real life situations.
- Police must now consult where reasonably practicable with a healthcare professional (reg 2(2)) before deciding whether to keep a person at or remove a person to a place of safety.
- Places of safety are to be ‘health-based’ (hospital, independent care home for mentally disordered persons, residential accommodation) or any other ‘suitable place’ which could include the home – with the occupier’s consent.
- A person can be removed from places where the public have access. This would not ordinarily include a private dwelling.
- The period of ‘permitted detention’ at a place of safety has been reduced from 72 hours to 24. A further 12 hours will be permitted where a doctor certifies an extension is necessary.
- Police stations are never a place of safety for persons under 18 years and only a place of safety for those over 18 years in certain circumstances and when authorised by inspector or above ie:-
(i) the behaviour of the person poses an imminent risk of serious injury or death to themselves or another person;
(ii) because of that risk, no other place of safety in the relevant police area can reasonably be expected to detain them, and
(iii) so far as reasonably practicable, a healthcare professional will be present at the police station and available to them.
- Regulations 4 – 7 stipulate the healthcare checks which must punctuate the period of detention if a police station is used.
- Police officers are given a new search power for ‘protective purposes’.
- Local arrangements and new protocols are suggested, specifically, ‘local commissioners may wish to consider increasing local place of safety capacity by entering into formal arrangements with third parties (such as charities, voluntary sector or private providers) to establish additional, bespoke places of safety; or by undertaking contingency planning with local partners’.
Included at the end of the regulations is the statement, ‘A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sector is foreseen’. This is difficult to reconcile with the recourse the guidance suggests the police may have to using places of safety within the private and voluntary sector.
The need for record keeping around the 11 December 2017 will be critical to determine whether the provisions which apply to the timing of decisions are pre or post-commencement of these regulations.