Section 136: Police Powers

A police officer can use Section 136 where they find a person in a public place who:

1. Appears to the officer to be suffering from a mental disorder, and
2. Appears to be in immediate need of care or control.

The officer must consider it necessary to remove the person in the interests of their own protection or for the protection of others. The officer does not need to be certain the person has a mental disorder — appearing to have one is sufficient.

Since the Policing and Crime Act 2017, Section 136 can also be used in private premises (such as a person's home) if the officer is already lawfully on the premises. This addressed a previous gap where officers could not use the power in domestic settings.

Under the 2017 reforms, the preference is strongly for a health-based place of safety (HBPoS) — a dedicated facility, usually within a psychiatric unit, specifically designed to receive and assess people under Section 136. Police cells can only be used as a place of safety in exceptional circumstances where:

• The person's behaviour poses a serious and imminent risk to the safety of others, and
• A health-based place of safety cannot safely manage that risk

The use of police custody for under-18s under Section 136 is now prohibited — children must be taken to a health-based place of safety.

In practice, delays in HBPoS availability remain a challenge in some areas, though NHS England has invested significantly in HBPoS capacity since 2017.

A person detained under Section 136 retains important rights:

• Right to be assessed: The detainee must be examined by a registered medical practitioner and interviewed by an AMHP as soon as practicable.
• Right to information: The person must be told why they have been detained and what is happening.
• Right to have someone informed: The person should be able to notify a relative, friend, or carer of their whereabouts, unless this would risk harm to others.
• Right to an IMHA: As a person detained under Section 136, you are entitled to access an Independent Mental Health Advocate.
• Right to legal advice: While Section 136 is not a custodial detention by police, you can request legal advice.

Following assessment under Section 136, there are three possible outcomes:

1. Discharge: If the AMHP and doctor are satisfied that the person does not meet the criteria for detention, they must be released. Care should be taken to ensure the person has support in place and is not simply discharged without follow-up.
2. Informal admission: If the person has capacity and consents, they can be admitted informally to a psychiatric hospital for further assessment and treatment.
3. Formal detention: If the criteria for Section 2 or Section 3 are met, an AMHP application can be made and the person will be formally detained under the MHA 1983.

The police have no power to detain the person beyond the 24-hour (or 36-hour in extended cases) period — if no assessment has been completed and no application made, the person must be released.

Section 136 detentions are subject to significant statutory oversight and data recording requirements, and there are clear routes to challenge misuse of the power.

Recording and monitoring

Every use of Section 136 must be recorded by the detaining police force. NHS England and NHS Improvement collect national data on Section 136 detentions — including the outcome of each assessment, whether a police cell was used, and whether the 24-hour period was extended. The Care Quality Commission (CQC) monitors compliance with the Section 136 regime as part of its inspection of mental health services and can report systemic failures. NHS England publishes annual statistics on Section 136 detentions, allowing benchmarking between areas and scrutiny of trends.

Section 136 suites and crisis concordat

The Crisis Care Concordat (2014) and subsequent NHS England investment programme committed to ensuring that every area has adequate health-based places of safety (Section 136 suites). The Joint Crisis Plans and NHS mental health crisis standards aim for a seamless handover between police and NHS — with the NHS taking clinical responsibility from the point of arrival at the HBPoS. In areas where this is working well, a mental health professional (often a liaison nurse or crisis practitioner) meets the person at the point of police handover.

Challenging a Section 136 detention

Because Section 136 is a short-term power for assessment, not detention or treatment, the formal routes of challenge are limited but include:

• Complaining to the police about how the power was exercised — including whether force was used proportionately and whether the person was treated with dignity. Serious complaints can be referred to the Independent Office for Police Conduct (IOPC).
• Complaining to the NHS trust responsible for the place of safety — about the quality of assessment, conditions, or delays in conducting the assessment.
• Complaining to the CQC about systemic issues with a particular place of safety or mental health service.
• Civil proceedings for false imprisonment — if the Section 136 power was exercised unlawfully (for example, where the person was not in a public place and the extended 2017 private premises amendment was not applicable), or if the detention exceeded the statutory time limit without a lawful extension.

The Mental Health Act Code of Practice 2015 (Chapter 16) sets out in detail how Section 136 should operate, including standards for health-based places of safety and the obligations of both police and NHS staff during the detention period. Where these standards are not met, a written complaint to the relevant organisations is the first step.