Context of the Mental Health Act 1983 in gaining access to an adult suspected of being at risk of neglect or abuse: a guide for social workers and their managers in England
Published: October 2014
View the Mental Health Act 1983
Under Section 115 of the Mental Health Act 1983 (Powers of entry and inspection) an approved mental health professional (AMHP) may at all reasonable times enter and inspect any premises (other than a hospital) in which a mentally disordered person is living – if the professional has reasonable cause to believe that the person is not receiving proper care.
This power can only be used after the approved professional, if asked, has produced a duly authenticated document showing that he or she is such a professional.
Section 115 does not allow for forced entry, the use of force to override the owner’s refusal to give permission to enter, or for force to be used to talk to a person alone in the dwelling. However, obstruction without reasonable cause by a third party of the approved professional acting under Section 115 could constitute an offence under Section 129 of the Act.
If entry is still refused, the AMHP may consider whether an application for a warrant under Section 135 is justified.
This section of the Act is relevant to the focus of this guide because it is one way of gaining access to a person reasonably suspected of being ill-treated or neglected. In addition, the ‘reasonable cause to suspect’ condition is mirrored in Section 42 of the Care Act (‘making enquiries’).
Under Section 135(1), a magistrate may issue a warrant authorising a police officer to enter premises specified in the warrant, using force if necessary, and if it is thought fit, to remove a person to a place of safety (defined in Section 135(6)) for a mental health assessment. The constable must be accompanied by an AMHP and a doctor.
Such a warrant may be issued only if it appears to the magistrate from information received on oath from an AMHP, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder (a) has been, or is being, ill-treated, neglected or not kept under proper control, or (b) is unable to care for himself or herself and is living alone. A person who is removed to a place of safety can be held there for a period not exceeding 72 hours. This would be with a view to making an application for detention under the MHA or other arrangements for care and treatment.
There also has to be a belief, but not a certainty, concerning the existence of a mental disorder – which is defined widely in Section 1 of the MHA.
Removal of the person to a place of safety is not inevitable. It should only take place ‘if thought fit’. Having spoken to the person, it might be decided that removal is not necessary.
Once a person has been removed to a place of safety, this does not necessarily mean an application for detention will be made under the MHA. It may be that ‘other arrangements’ for care can be made instead, such as an informal hospital admission, or regular home visits from a crisis resolution or community mental health team.
In some cases, it may be decided to do nothing, once the person has been spoken to. In these instances, the legal authority to detain the person at a place of safety lapses.
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- Gaining access to an adult suspected to be at risk of neglect or abuse: a guide for social workers and their managers in England