R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB)

The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; if even this procedure is too slow then the police can be asked to detain under s136 (an A&E department being a place to which the public have access): there is no lacuna in the MHA. There is unlikely to be unlawful detention or breach of Article 5 if there is no undue delay during the processing of an application under ss2 or 4 MHA 1983. (3) On the facts, as the detention was purportedly under s5 MCA and the application for detention under s2 MHA was delayed, the claimant had been detained in hospital without lawful justification, and deprived of her liberty in breach of Article 5; she was entitled to damages.

Case report

Introduction

1. Sections 135 and 136 of the Mental Health Act 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety;
2. Sections 5 and 6 of the Mental Capacity Act 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136 of the Mental Health Act 1983;
3. Sections 2 to 6 of the Mental Health Act 1983 comprise a comprehensive statutory scheme for the admission of non-compliant patients to hospital and there is no lacuna in them to justify a resort to common law detaining powers when dealing with the admission of patients;
4. In relying on a power to detain the Claimant under s136 of the Mental Health Act 1983 which they did not in fact have, the hospital unlawfully detained her, and it was irrelevant that there were alternative powers under s2 and s4 of the Mental Health Act 1983 that they might otherwise have used;
5. The Claimant is entitled to a declaration that her rights under Article 5 ECHR, and at common law, were infringed by the hospital, and damages;
6. The Claimant's challenge to the hospital's policy for the admission of patients failed;
7. The Court approved the settlement between the Claimant and the police, both as to declaratory relief in the terms set out at (1) and (2) above, and as to damages for breach of her Article 5 and 8 ECHR rights.

Overview

The Claimant, a 24 year old Sierre Leone national (23 at the time of the events in dispute), brought proceedings against the Defendants claiming declarations and damages for unlawful detention on 7 August, 2010. Her claim arose initially as a challenge to the Defendants’ use of purported powers under Section 5 of the Mental Capacity Act 2005 (“MCA 2005”) to take her from her bedroom to hospital, without a warrant, and subsequently to hold her there pending completion of formal admission procedures. The Second Defendant (“the police”), acting under that provision, had taken the Claimant from her private accommodation on the morning of 7 August, 2010 and – after removing her baby from her under their emergency Children Act 1989 powers – conveyed her to the First Defendant’s Maudsley Hospital (“the hospital”). She was then held there for 13 hours in the “s136 Suite” (although there was evidently some confusion amongst hospital staff about the precise statutory power) before being formally detained at 10.20 pm that evening under Section 2 of the Mental Health Act 1983 (“MHA 1983”). Neither s135 nor s136 MHA 1983 was engaged. The Claimant’s case was that prior to her formal detention at the end of the day under Section 2 of MHA 1983, there was no lawful power either to detain her or to convey her to hospital, and the Divisional Court agreed.

Specifically, the Divisional Court (per Supperstone J) accepted the Claimant’s submission that the MHA 1983 sets out a comprehensive scheme for the detention of patients, either by way of application under ss2-6 of that Act, or by the use of the police powers to take and convey set out in ss135-6. The reliance on s5 MCA 2005 by, at various times, both Defendants could not provide a lawful basis for the conveyance or detention of the Claimant, and further – approving B v Forsey [1988] SLT 572, HL – there was in this context no lacuna in MHA 1983 which the common law of necessity was or should be required to fill. Further, the Claimant not having been lawfully conveyed to hospital under ss135-6 MHA 1983, there was no power for the hospital to detain her there under those provisions either. However, the Divisional Court also held that the hospital’s policy, providing for timescales of 4 hours in the normal course and a maximum period of 8 hours for processing patients’ formal admission, was not per se unlawful, although the question of whether there was in any particular case an unlawful detention should be decided on a case by case basis. In this case, there was.

Facts

Concerns had been raised about the mental health of the Claimant, a single mother, and the police had visited her in her accommodation on the morning of August 7, 2010. There they searched her bedroom and (after finding a small amount of cannabis) subsequently removed the Claimant together with her 22 month old baby first by police van to Peckham police station and then, after taking her baby into emergency police protection, to hospital. On arrival at the hospital the police officers completed and handed in a “ss5-6 MCA 2005 form” stating the basis upon which they considered the Claimant to lack capacity and upon which they had therefore used their “powers” under the MCA 2005 to bring her to hospital.

Upon arrival at the hospital, the Claimant was considered to show signs of having a psychotic illness and was, at 9.20 am, given a “s132 form” by the nurse (which the Claimant refused to sign) stating that she was being held at the hospital under s136 of MHA 1983. Other staff there plainly considered the Claimant’s ongoing detention at the hospital to be authorised by s5 MCA 2005, however. The Claimant was medicated and required to remain in the s136 suite until eventually, at 10.20 pm that night, formal admission procedures under s2 MHA 1983 were completed.

Decision

Prior to the hearing, the Second Defendant and the Claimant concluded a settlement, the basis of which was the declaratory relief set out at (1) and (2) in the above headnote, together with a recognition that the Claimant’s rights under both Article 5 and 8 ECHR had been violated, and a damages payment of £500.

At the hearing, the Claimant argued that - in relation to the MCA 2005 – the starting point was s4A(1): “This Act does not authorise any person (‘D’) to deprive any other person (‘P’) of his liberty.” Further, unless the case fell into one of the exceptions to that provision which this did not, then there was no power to detain the Claimant under that Act. The applicable scheme was as set out in MHA 1983, which was a complete scheme. In accepting this argument, the Court rejected the First Defendant’s submission that there was a lacuna in the Act, covering the period between a patient’s arrival at hospital and the completion of formal admission and detention procedures, that the common law of necessity might be required to fill.

The Court gave six reasons for its decision (paragraphs 35-40):-

1. Part II MHA 1983, taken together with ss135-6 MHA 1983, sets out a procedure for the compulsory admission of patients;
2. Parliament had expressly provided in s4 MHA 1983 for applications of urgent necessity;
3. The Code of Practice provides guidance in relation to s4 MHA 1983 admissions;
4. The Defendant’s own policy provided for urgent admissions to be by way of s4 MHA 1983;
5. If a patient tries to leave before completion of a s4 MHA 1983 application, the hospital can contact the police to use their powers under s136 MHA 1983. For these purposes, the A&E department of a hospital is a “place to which the public have access”;
6. Approving B v Forsey [1988] SLT 572, HL, the powers available to hospitals under MHA 1983 may not be supplemented by reliance on the common law. Citing Lord Keith: “These provisions display a coherent scheme for the admission into hospital and detention there of mentally disordered persons….. any common law power of detention which a hospital authority might otherwise have possessed has been impliedly removed.”

The Court also added (paragraph 45) that any reliance on the common law in these circumstances would not be “in accordance with the law” for the purposes of Article 5 ECHR.

However, the Court did not accept that the hospital’s policy, which provided a target of 4 hours to process patient admissions, and a long-stop maximum of 8 hours, was per se unlawful, although the question of whether there had been an unlawful detention either at common law or under Article 5 ECHR would be decided on the facts of each particular case.

Having found that, on the facts, the Claimant was detained for 13 hours, and that the First Defendant had failed to establish any lawful justification for that detention, the Court held that the Claimant’s claim for damages and declaratory relief succeeded, both at common law and under the Convention.

The Court also found that the First Defendant’s admissions policy was not unlawful, and approved the terms of settlement agreed between the Claimant and the Second Defendant.

Other

Full title: R (Sawida Sessay) v (1) South London and Maudsley NHS Foundation Trust and (2) The Commissioner of Police for the Metropolis

Hearing 8/7/11

Judgment: 13/10/11

Before: Pitchford LJ, Supperstone J

Mr Christopher Buttler (instructed by Messrs Steel & Shamash) for the Claimant

Mr Alexander Ruck Keene (instructed by Messrs Bates, Wells & Braithwaite London LLP) for the First Defendant

Ms Debra Powell (instructed by Directorate of Legal Services) for the Second Defendant

Citations

[2011] All ER (D) 159 (Oct)

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