MHA 1983 s139
Mental Health Act 2007
- This section is not changed by the Mental Health Act 2007.
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- Adorian v Commissioner of Police of the Metropolis  EWHC 1081 (QB) — Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court; Seal v. Chief Constable of South Wales Police  UKHL 31 distinguished because of differences from s139 MHA 1983; permission now granted.'
- Adorian v Commissioner of Police of the Metropolis  EWCA Civ 18 — Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court.
- CV v South London and Maudsley NHS Foundation Trust  EWHC 742 (Admin) — (1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case
- C v South London and Maudsley Hospital NHS Trust  EWHC 480 (Admin) — Unsuccessful application for permission to appeal against refusal of leave under s139 to bring proceedings.
- DD v Durham County Council  EWHC 1053 (QB),  MHLO 51 — The claimant was gate sectioned at Durham prison and detained under s2, then s3, in a Middlesborough hospital. He had complaints of false imprisonment and breaches of Article 3 and 8 relating to matters such as his being kept in seclusion, the lighting in his room, the number of people supervising his activities and a general lack of privacy. (1) He needed leave under s139 to bring civil proceedings against Durham County Council and Middlesborough City Council. This was refused: there was no realistic prospect of establishing illegality against the AMHPs who made the recommendations for s2 and s3 as AMHPs are (a) not required to choose or investigate the quality of the place of detention, (b) not required to research medical views earlier than those in the statutory recommendations, (c) not responsible for the medical or other regimes to which a detained person is subjected. (2) The AMHP who applied for s3 detention was employed by Middlesborough, so ..→
- DD v Durham County Council  EWCA Civ 96,  MHLO 31 — DD wished to bring proceedings against local authorities arguing that (a) the two assessing AMHPs owed a duty to him (a legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held); (b) that by making the application for admission, each was in breach of duty; and (c) that the county council was responsible vicariously for that breach of duty. (1) The Court of Appeal (reversing the High Court decision in this respect) decided that the argument was sufficient for leave under s139 to bring proceedings to be granted. (2) DD should not have been made responsible for the costs of Middlesbrough City Council.
- Johnston v Chief Constable of Merseyside Police  EWHC 2969 (QB) — (1) A court faced with an application for permission under s139(2) must (a) balance the applicant's interest to be allowed to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interest of the respondent not to be subjected to the risk of being harassed by baseless claims, and (b) consider whether the proposed claim has a real prospect of success. (2) On the facts, permission was granted. (3) Under the relevant test under the Limitation Act 1980 (which was explained) the 3-year limitation period on the assault claim was dis-applied.
- Lebrooy v LB of Hammersmith and Fulham  EWHC 1976 (QB) — Claims struck out for having no prospect of success; in any event, no permission had been obtained under s139 so the proceedings were a nullity.
- R (Smith) v LB Camden  EWCA Civ 1207 — Unsuccessful application for permission for second appeal against strike-out of claim for want of compliance with s139. (The claim was for damages of £100 billion for wrongful removal from his flat and for being forced to live in various mental health institutions where he claimed to have been assaulted many times.)
- Seal v Chief Constable of South Wales Police  EWCA Civ 586 — Mental disorder — Practice — Leave to bring proceedings — Claim by patient for damages against police officers — Failure to obtain leave to bring proceedings — Whether proceedings rendered nullity — Whether subsequent grant of leave permissible — Mental Health Act 1983, s139(2). It was a mandatory requirement to seek leave from the High Court under s 139(2) of the Mental Health Act 1983 to bring civil proceedings for actions purported to be done under that Act. Failure to seek leave rendered the proceedings a nullity.
- Seal v UK 50330/07  ECHR 806 — Statement of facts and question lodged with court. Case concerns the procedure under s139 MHA 1983.
- Seal v UK 50330/07  ECHR 1976 — The claimant issued his claim on the eve of the limitation period without seeking leave under s139; the House of Lords had found that his claim was therefore a nullity. (1) No breach of Article 6 was found because (a) the six-year limitation period pursued a legitimate aim, (b) s139 was to restrict access to the court only where the claim was manifestly unmeritorious, and its general aim of protecting those who exercise powers under that Act, including the police, pursued a legitimate aim, (c) the decision to strike out did not impair the very essence of the applicant's right of access to court and was not disproportionate: he had not explained his delay or failure to seek leave, and should bear the consequences of his own decisions, and in any event could continue his non-MHA claims (2) No breach of Article 6 taken with Article 14 was found because he did not argue it in any substance and, by not having argued it previously, had failed to exhaust domestic remedies.
- TTM v LB Hackney  EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be ..→
- TW v LB Enfield  EWHC 1180 (QB),  MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that ..→
- X v MHRT for NI (2012) NIQB 1,  MHLO 31 — In previous judicial review proceedings, X had established that in NI where there is a mandatory duty to discharge it cannot lawfully be deferred. He now sought to bring a negligence and false imprisonment claim against the Tribunal and the Trust for his detention during a six-week deferral period. To sue the Tribunal he required leave of the High Court (under Article 133 Mental Health (Northern Ireland) Order 1986, the equivalent of s139): the test is whether on the materials immediately available to the court the complaint deserves fuller investigation. Leave was refused because there had been a difficult question of statutory construction and no bad faith or lack of reasonable care.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 38. Offences and protection for acts done — paragraphs 38.15 to 38.17
Protection for acts done in pursuance of this Act
139.—(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, [...] unless the act was done in bad faith or without reasonable care.
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.
(3) This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.
(4) This section does not apply to proceedings against the Secretary of State or against [the National Health Service Commissioning Board, a clinical commissioning group,] a [Strategic Health Authority,] [[Local Health Board] [, Special Health Authority or Primary Care Trust]] [or against a National Health Service trust established under [the National Health Service Act 2006 or the National Health Service (Wales) Act 2006]] [or NHS foundation trust] [or against the Department of Justice in Northern Ireland] [or against a person who has functions under this Act by virtue of section 12ZA in so far as the proceedings relate to the exercise of those functions]
(5) In relation to Northern Ireland the reference in this section to the Director of Public Prosecutions shall be construed as a reference to the Director of Public Prosecutions for Northern Ireland.
- Mental Capacity Act 2005 s67 & sch 6; Mental Capacity Act 2005 (Commencement No.2) Order 2007 wef 1/10/08
- Health and Social Care Act 2012 sch 5 para 30; Health and Social Care Act 2012 (Commencement No.4, Transitional, Savings and Transitory Provisions) Order 2013/160 art 2 (1/4/13). This removes reference to SHA and PCT. Note sch 1 para 3: 'Section 139 of the Mental Health Act 1983 (protection for acts done in pursuance of this Act) 1 continues to apply to proceedings brought against a Primary Care Trust or Strategic Health Authority before that date, if those proceedings are continued after 31st March 2013.'
- NHS Reform and Health Care Professions Act 2002 (Supplementary, Consequential, etc Provisions) Regulations 2002
- References to Health Authorities Order 2007 para 13(11)
- Health Act 1999 (Supplementary, Consequential, etc Provisions) Order 2000
- Health Authorities Act 1995
- National Health Service (Consequential Provisions) Act 2006 wef 1/3/07
- NHS and Community Care Act 1990
- Health and Social Care (Community Health and Standards) Act 2003
- Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010/976 sch 14 para 28, wef 12/4/10
- Health and Social Care Act 2012 s38; Health and Social Care Act 2012 (Commencement No.4, Transitional, Savings and Transitory Provisions) Order 2013/160 art 2 (1/4/13)
Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 applies this section to articles 2 to 11 of that Order.