Section 136 and "de-arrest"

Law and practice Mental Health Act
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Thanks a lot, Simon.

Also, I am looking for guidance in following scenarios:

  1. Someone is arrested by the police; then showing symptoms mental disorder (either in public place or in police station)- then the police de-arrest them and detain under S 136 and bring to A&E for assessment. - is this in line with the MHA?

  2. Similar scenario as above, someone is arrested by police and in police custody, showing symptoms of mental disorder; police brought them in A&E under section 136 ‘without’ de-arresting them. Is this in line with the MHA?

Please cite/give the link of the text of the relevant part of the act.

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Hello, I would really appreciate if anyone could kindly answer my above queries. Many thanks in advance.

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The question isn’t quite right, because the question is not about whether either scenario is “in line with the MHA”. The MHA says nothing at all about either scenario, except to the extent that using s136 must be lawfully done - appears to be suffering a mental disorder, immediate need of care or control, own interests or protection of others, etc…

The questions in each scenario are more about implicit and express police powers under the Police and Criminal Evidence Act 1984 - if the police have arrested someone, they may only do so where this is necessary against certain criteria (outlined in s24 PACE). If those criteria are no longer satisfied or where the evidential basis for the arrest for the offence is no longer justified, the officers would be obliged to consider release from arrest (known as de-arrest, informally). If someone who was initially arrested subsequently shows signs of a mental disorder, nothing in PACE prevents the officers deciding to de-arrest and if the criteria for using s136 are also met, to use that power instead. Coroners in the the past have had harsh words to say, for example, about choosing to arrest (or persisting with arrest) those who are obviously seriously mentally ill and may be better handled (at least initially) by removal to hospital or a Place of Safety for assessment. Of course, if any there is / was any use of s136 where there was suggestion of an offence, that can be looked at after MH / s136 assessment, if necessary.

In the second scenario, the person has been arrested and remains under arrest: where someone in police custody requires medical assessment or treatment, they can be transferred to hospital for that. This usually happens in my experience, for physical illness / injury where A&E is required. That said, nothing in PACE prevents it happening where there are (serious) concerns for someone’s mental health but it may be subject to whether an A&E deparment or liaison psychiatry service is willing to assess someone who is (still) under arrest by the police. So will, some won’t.

Does that help?!

(My answer is my own view of the legal issues at play, does not reflect any organisation’s policy or practice which often impacts upon the way legal decisions are taken.)

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