CONTENTS
1. Policy Statement
Lancashire County Council has a legal duty to employ, authorise and maintain Approved Mental Health Professionals (AMHPs) in order for it to meet statutory obligations under the Mental Health Act (1983) (MHA). Section 13 of the Mental Health Act (1983) states that if a local authority has reason to think that an application for admission to hospital or a Guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an AMHP to consider the patient’s case on their behalf.
An AMHP is a qualified professional Social Worker, Nurse, Occupational Therapist or Psychologist who has undertaken specialist training in mental health conditions and the law concerning mental health care and treatment. AMHPs are approved to act in their roles by local authorities who ensure that they undergo regular training and professional supervision in order to meet the requirements to practice. The majority of AMHPs in Lancashire are employed by Lancashire County Council whilst the remainder are in the employ of other agencies and are authorised to act in an AMHP capacity on behalf of Lancashire County Council. All AMHPs are subject to the same legal requirements, Codes of Practice and local policies in respect of their AMHP practice irrespective of their employer.
Without the permission of a legal occupier, AMHPs do not have a right to enter private premises for the purpose of carrying out an assessment under the MHA. However, where an AMHP believes a person is suffering from a mental disorder and that it is necessary for them to have an assessment of their mental health, but access has been (or is likely to be) refused, or where an assessment cannot safely be undertaken without the power to remove the person from the premises to a place of safety, consideration should be given to applying to a magistrate for a warrant under Section 135 of the MHA.
Mental disorder is defined for the purposes of the Act as “any disorder or disability of the mind” within the meaning of Section 1 of the Act (see also Defining Mental Disorder chapter).
For the purposes of legal clarity the service user is defined in this document as the patient.
Chapter 16 of the Mental Health Act (1983) Code of Practice provides statutory guidance on obtaining a warrant; the need for agreed local policies; removal to, transfer between, and assessment at a place of safety.
Guidance on Lancashire County Council’s process for the application for, and implementation of warrants under Section 135 of the Act is contained in Section 3, Procedures and Section 4, Flowcharts, Diagrams and Examples.
Lancashire County Council works alongside partner agencies including Lancashire Constabulary, HM Courts & Tribunals Service, North West Ambulance Service, Lancashire & South Cumbria Foundation Trust and Lancashire acute hospital trusts in meeting its obligations under Section 135 of the Mental Health Act (1983) in a safe and effective manner. This policy works alongside and is informed by the Lancashire Multi-Agency 135 & 136 Mental Health Act 1983 Procedure (which is in Practice Guidance area of the portal).
Therefore to fulfil its duty under Section 135 of the Mental Health Act 1983, Lancashire County Council will, working with its statutory, voluntary and private sector partners, comply with legislation, regulations and statutory guidance in a manner that is relevant, coherent, timely and sufficient.
The county council will make all reasonable adjustments to ensure that all disabled people have equal access to participate in the eligibility decision in line with the Equality Act 2010.
The geography and population of Lancashire is diverse and our policies and practice will aim to deliver services and supports that are representative of the communities in which we work.
Lancashire County Council will follow relevant legislation, policies and guidance to ensure our practice is of high quality and legally compliant. Where our customers or those we come into contact with wish to challenge or raise concerns in regard to our decisions, regarding eligibility, the complaints procedure should be followed.
2. Key Definitions and Principles
2.1 Section 135(1) warrant
To grant a warrant under Section 135(1) of the MHA, a magistrate must be satisfied that an individual is believed to be suffering from mental disorder and is either being ‘ill-treated, neglected or kept otherwise than under proper control’, or is living alone and unable to care for themselves.
In most cases it will be the refusal of access to private premises which leads the AMHP to consider applying for a section 135(1) warrant, though it is of note that an AMHP may apply for a section 135(1) warrant in cases where there is no actual or anticipated refusal of access, but where the power to remove to a place of safety for assessment is deemed necessary to ensure the safety and welfare of the patient and/or others during the assessment process. (However, for a warrant under section 135(2) to be granted, admission to the premises must have been refused or refusal anticipated).
A Section 135(1) warrant authorises a police officer to enter private premises and, if thought fit, remove the person named on the warrant [1]to a place of safety for a mental health assessment or for other arrangements to be made for their treatment or care. When acting on a Section 135(1) warrant a constable must be accompanied by an AMHP and a doctor, preferably one approved under Section 12 of the Act.
Changes to the Mental Health Act (1983) brought about by the Policing and Crime Act (2017) enable the assessment to take place in private premises without the need to remove the patient to another place of safety.
See Section 2.3, Places of safety for more information.
[1] A section 135(1) warrant can be granted in respect of a person whose name is not known.
2.2 Section 135(2) warrant
A Section 135(2) Warrant provides police officers with a power of entry to private premises for the purposes of removing a patient who is already liable to be taken to, or returned to hospital, or any other place, or into custody under the Act.
A section 135(2) warrant must also be granted by a magistrate. It enables a police officer to enter the premises, search for, and remove the person named in the warrant so they can be taken to, or returned to, the hospital or place where they ought to be. Such a warrant may be used, for example, to help return a patient who has absconded, or who needs to be transported to hospital for the first time, and where access to the premises where they are staying has been refused or is anticipated.
Any person with authority from the relevant hospital or local authority can apply to a magistrate for a section 135(2) warrant – unlike the section 135(1) warrant it need not be an AMHP exclusively who makes the application to the magistrate. Such an authorised person may accompany the police officer in the execution of a section 135(2) warrant.
An AMHP may make an application for a Section 135 (2) Warrant rather than a Section 135(1) Warrant if they are satisfied an individual is already liable to be detained in hospital. For example an AMHP application for admission to a specified and available hospital bed (based on a suitable interview and two valid medical recommendations) has been made but the patient is not accessible due to being in a private premises and is refusing access to allow conveyance to hospital.
A person who is subject to a Community Treatment Order (CTO) and who is recalled to hospital under section 17E MHA is also liable to be detained and therefore, should they fail to comply with the recall notice and refuse access to their premises in pursuance of such a notice, a section 135(2) warrant should be sought.
2.3 Places of safety
Amendments to the Mental Health Act (1983) made by the Policing and Crime Act (2017) allow for a patient to be assessed in a private dwelling where a section 135(1) warrant has been executed. If the AMHP, doctor and patient are all in agreement that assessment can take place in the dwelling for which the section 135(1) warrant has been obtained then this can be considered to be a place of safety.
Where the patient is not the sole occupier of that dwelling, the agreement of both the patient and another occupier is required (as per section 135(7) MHA).
Within Lancashire there are a number of formally agreed places of safety including Section 136 Suites, acute hospital emergency departments and police custody suites.
Police custody should only be used as a last resort where the behaviour of the patient poses an imminent risk of serious injury or death to themselves or another person and, because of that risk, no other place of safety in the relevant police area can reasonably be expected to detain them.
A child (under 18) may not be taken to a police station as a place of safety.
2.4 Conveyance
If the police officer removes the patient from the premises to take them to a place of safety (as authorised by the warrant), the officer must accompany the patient to the place of safety in all instances regardless of the patient’s presentation or level of compliance. The warrant authorises the constable (not the AMHP or any other person) to remove the patient to the place of safety.
Furthermore, the officer’s attendance is required at the place of safety in order to complete local 135 monitoring documentation and to undertake a joint risk assessment with the person in charge of the place of safety (as per the Multi-Agency 135 & 136 Mental Health Act 1983 Procedure)
Where practicable the AMHP present at the execution of the warrant should also attend the place of safety to provide a handover and continuing support to the patient, and to coordinate assessment at the place of safety as necessary.
An ambulance should be used for conveyance to a place of safety. Police vehicles should only be used where the risks are such that this necessary for the safety of the patient and/or other persons.
3. Procedures
3.1 Applying for a Section 135(1) warrant and a Section 135(2) warrant
If an AMHP (or other authorised person in the case of section 135(2) warrants) is satisfied that it is necessary and proportionate to apply to a magistrate for a section 135 warrant they must complete the following documentation:
- Fee account form
- Warrant application form (in Microsoft Word format only)
- 135 warrant (in Microsoft Word format only)
(See also, Section 6, Further Information)
The completed documents must be attached to an email and sent to [email protected]
The court will contact the applicant by email or telephone to advise of the time to expect a telephone call from the magistrate.
The applicant receives a telephone call and will initially speak to the legal adviser who will ask the applicant to repeat after them the oath/affirmation (copied below):
Witness Affirmation:
“I (Full Name) do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth the whole truth and nothing but the truth.
Oath:
“I swear by ………. (according to religious belief) that the evidence I shall give shall be the truth the whole truth and nothing but the truth.”
“To the best of my knowledge and belief this application discloses all the information that is material to what the court must decide including anything that might reasonably be considered capable of undermining any of the grounds of the application.”
In addition to the written application form the applicant will be expected to present their evidence verbally to the magistrate and answer any additional questions the magistrate may have in relation to the application.
If granted, the warrant will be emailed back to the AMHP endorsed by the magistrate. Please note there may be a slight delay due to court processes. The AMHP should print 4 copies (one to be handed to the occupier, one to be retained by police, one for the person in charge of the place of safety and one to be returned to the court).
If it is not possible for the applicant to coordinate the execution of the warrant this task will need to be handed over to another AMHP to be coordinated. The electronic version of the warrant along with the warrant application form should be emailed to the AMHP service at [email protected] and any printed copies of the warrant should be left at the nearest agreed location for MHA documentation.
Following the MHA assessment a copy of the warrant must be returned to the Court using the same email address [email protected] advising whether executed or not. Where the warrant has been executed a scanned copy of the warrant including the police officers endorsement on the reverse should be returned to the Court.
An on-call magistrate system is in operation to deal with out-of-hours warrant applications. For such applications please contact 07747031059 to speak to the on-call Clerk. The Clerk will ask for the documentation to be emailed to them and will make arrangements for a hearing with an on-call magistrate. The out of hours email address for warrant applications and fee account form is [email protected] ([email protected])
The applicant must ensure that the correct parts of the warrant application form are completed as some relate only to either section 135(1) or section 135(2) or to the specific grounds for the application. The applicant should also take care to use the correct warrant as the 135(1) warrant and 135(2) warrant have different wording as they apply to different circumstances.
On the fee account form the applicant must complete all peach coloured boxes on parts 1 and part 2 of the form:
The current fee is £75.
Fee Account Number is PBA0087596
Fee Account Name is LANCASHIRE CC
Customer’s own fee account reference is the SU’s LAS number
Section 135 warrants are valid for 3 months from the date of issue. Section 135 warrants can only be used for one entry to the specified premises and once executed cannot be used even if the person sought in the premises is not found. In such instances a copy of the warrant should be left at the premises and a new warrant will need to be sought if a further entry is required.
Please ensure that printed warrants are kept in a safe, locked but readily accessible place as per the safe place procedure for the storage of MHA forms.
3.2 Executing a Section 135(1) warrant
Having been granted a warrant it will be necessary to liaise with the following professionals and agencies to coordinate the execution of the warrant:
- LSCFT bed hub – to check availability of a place of safety (135/136 Suite).
The Bed hub will also be able to advise whether a private ambulance can attend. This is of benefit in relation to warrant assessments and can reduce conveyance delays – though this is not essential as NWAS will treat all section 135 referrals as category 2 urgent response)
- Police – to arrange attendance of officers to execute the warrant. Police request as much notice as possible to increase the likelihood of them being able to dispatch officers at the arranged time.
- Doctor (preferably a section 12 approved doctor). Whilst it is only necessary for one doctor to attend for the execution of a section 135(1) warrant and removal to a pace of safety, the AMHP should bear in mind the likelihood of the assessment going ahead at the address and thus the possibility that a second doctor may be required.
It is good practice where possible to ensure that all parties are in attendance before executing the warrant.
It is not necessary to identify a hospital ‘bed’ before executing a warrant but it will be necessary to have identified a suitable place of safety in advance (see Section 2.4, Conveyance) as it may be necessary to remove the patient to such a specified place of safety.
In executing a section 135 warrant the police may use force if necessary to gain access to a property. The police also have powers to search the patient if there are reasonable grounds to believe they may be concealing items which may cause injury to themselves or others
The patient must be informed of the reasons for executing the warrant and must be provided with a copy on entry.
Having considered any identifiable risks it may be deemed appropriate to consider the dwelling at which the warrant has been executed to be a place of safety (see Section 2.3, Places of safety) and if the conditions of section 135(7) MHA are met the assessment may take place at that dwelling.
Prior to leaving the property it is imperative that the AMHP ensures that all necessary arrangements have been made to care for and safeguard dependents (e.g. children, other vulnerable adults and pets). Action must also be taken to secure the property and to meet any duties under Section 47 of the Care Act (2014).
The AMHP must ensure that the responsible police officer completes the endorsement section on the reverse of each copy of the Warrant.
If the patient is not located after executing the warrant, a copy of the warrant (endorsed by the officer) must be left at the property.
In recording the Mental Health Action form on LAS the AMHP should specify whether a Section 135 Warrant was gained and if it was used.
3.3 Executing a Section 135(2) warrant
Under section 135(2) any person with authority from the relevant hospital or local authority can apply to a magistrate for a Section 135 (2) Warrant. This does not need to be an AMHP although an AMHP may be well placed to make the application depending on their role and expertise. Neither an AMHP nor doctor are required to attend with the police to execute a Section 135(2) warrant. It is good practice for a suitably qualified professional to attend the execution of a 135(2) warrant but this is not a legal requirement.
Where an employee of LSCFT (whether or not an AMHP) is the applicant for a section 135(2) warrant in respect of an absconded patient or CTO recall patient, there is local agreement that the LCC Fee account can be used to process payment.
3.4 Assessment of a place of safety
The powers of detention under Section 135(1) of the MHA last for 24 hours from the arrival at the place of safety. A doctor may extend the powers of detention up to a maximum of 36 hours in certain circumstances. The doctor must have examined the patient and be satisfied that an extension is necessary as it would not be possible to conduct an adequate mental health assessment without extension beyond the 24 hour period. This must be due to the patient’s presentation or health – the detention under section 135 cannot be extended due to the unavailability of professionals or because a bed is not available to admit to before the expiry of the 24 hours.
As soon as is practicable after arrival at the place of safety arrangements must be made for the assessment to take place.
The patient must be informed of their legal rights whilst detained under section 135 MHA and a record must be kept of such, including whether or not the patient understood these rights – these processes will be undertaken by the detaining Trust.
Local policies should be followed for the provision of an AMHP to coordinate a MHA assessment under section 13 MHA.
4. Section 135 Warrant Application Process
5. Section 135 Process for Executing a Warrant
Print 4 copies of the warrant:
- One for the person named on the warrant (or to be left at the address if entry is made but the person is not present);
- One for the police officers executing the warrant;
- One for the person in charge of the place of safety;
- One to be returned to the magistrates court indicating whether executed or not.
Co-ordination – liaise with the following:
LSCFT bed hub to confirm availability of a place of safety and, to arrange private ambulance attendance.
Contact the police via 101 (or using the Request for Police Attendance Form, Appendix1) as soon as possible to give them notice of the intention to execute a warrant. Obtain a police log number and update the log via 101 (or using the form at Appendix 1) as plans are confirmed.
Doctor(s) – not required for s.135(2). For s.135(1) a medical practitioner (preferably s.12 approved) must be present.
Any person who may be able to help avoid the need for forced entry – key holder, trusted worker or family member etc.
Executing the warrant:
In the execution of the warrant a police officer may, if necessary, use force to gain access to the property. The officer also has powers to search the person named in the warrant.
The person must be informed that a warrant has been executed and be given a copy of the warrant.
The police officer must endorse each copy of the warrant on the reverse.
Removal to a place of safety:
An Ambulance should be used for conveyance to the lace of safety. Police vehicles should only be used where the risks are sufficient to make this necessary for the safety of the person and/or others.
The AMHP should escort the ambulance to the place of safety where practicable.
Where there is no prearranged private ambulance in attendance, NWAS ambulance should be booked by calling 03451 400144.
Inform the NWAS call-taker that this is a 135 warrant transfer on a Category 2 response.
The police officer must also accompany the person to the place of safety in order to undertake joint risk assessment process with the person in charge of the place of safety.
Before leaving the property:
Ensure that all necessary arrangements have been made to care for and safeguard dependents e.g. children, vulnerable adults or pets.
Action must also be taken to secure the property. (Where police have forced entry, they will typically be equipped to assist with lock replacement).
The above apply whether or not a person is removed to a place of safety.
Assessment at the Place of Safety:
Depending on the distance to the place of safety / doctor availability, it may not be possible for the doctor in attendance at the address to travel to undertake assessment at the place of safety. Assessment with a different doctor(s) may need to be arranged.
Notify magistrates of the outcome:
Once a warrant has been executed, irrespective of whether the person sought was found, that warrant cannot be used to make a further entry to the address.
The warrant (which will have been endorsed on the reverse by the police officer if executed) should be scanned and emailed back to the magistrates court at [email protected] advising whether executed or not.
6. Further Information
6.1 Relevant information
Mental Health Act (1983) Code of Practice
6.2 Relevant policies
Section 135 & 136 Multi-Agency Procedure (Sept 2023) (in the Practice Guidance section: staff only, log in required)
Appendix 1 – Request for Police Attendance Form
Request for Police Attendance to Execute a Section 135(1) Mental Health Act 1983 Warrant (opens in Word)
