Ward v Commissioner of Police for the Metropolis  UKHL 32
Mental disorder — Place of safety order — Validity of detention — Warrant naming health professionals to accompany constable — Named persons absent when warrant executed — Whether warrant and execution valid — Whether power in magistrate to specify names — Mental Health Act 1983 (as amended by Police and Criminal Evidence Act 1984, s 119(1)(2), Sch 7, Pt I), s 135(1). A condition imposed by a magistrate issuing a warrant under s135 of the Mental Health Act 1983 specifying named persons to accompany the constable executing the warrant had been invalid.
The House of Lords so held in allowing an appeal by the second defendant health authority, the Epsom and St Helier University Hospitals NHS Trust, from the decision of the Court of Appeal (Ward v Commissioner of Police for the Metropolis  EWCA Civ 1152, ) allowing the appeal of the claimant, Mrs Susannah Ward, against the dismissal by Mr Recorder Layton QC at Central London County Court on 21 October 2002 of her claim for damages for false imprisonment against the Commissioner of Police of the Metropolis and the health authority.
BARONESS HALE OF RICHMOND said that the warrant in respect of the claimant had stated that the constable executing it was to be accompanied by a named psychiatrist, a named social worker and a named medical practitioner, the claimant's own doctor. In the event, a doctor from the psychiatrist's team and a different medical practitioner had attended. The issue was whether the magistrate had been entitled to impose a condition that only the named professionals should be involved in the execution of the warrant. If he had not, the names had been surplusage and the requirements of s 135 had been complied with. As a general principle, there could be implied into a statutory power such incidental powers as were necessary for its operation. The implication had, however, to be necessary to make the power effective to achieve its purpose. That could not be said of s 135(1). It might not be possible to assemble the named professionals when the warrant came to be executed, and it made little sense to delay the execution, which was for the protection of the person concerned, until they were available. The presence of a doctor and social worker who knew the case well or, in the case of the doctor, was skilled and experienced in mental health might assist in judging whether the basis for the warrant was made out, but it could not be said that that was necessary for the proper functioning of s 135. It was not permissible to imply a power to insist that named persons were present and the claimant's claim against both defendants should be dismissed.
LORD STEYN, LORD HUTTON and LORD CARSWELL agreed.
LORD RODGER OF EARLSFERRY, agreeing that the appeal should be allowed, said that in his view a power to impose such a condition in the interests of the patient could properly be regarded as incidental to the power to issue the warrant. In the circumstances of the present case, however, there had been no legitimate exercise of such power.
Ward v Comr of Police of the Metropolis and another
HL: Lord Steyn, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell): 5 May 2005
Nigel Pleming QC and Fenella Morris (Capsticks) for the health authority; the claimant in person; Hugo Keith (Treasury Solicitor) as amicus curiae.
Reported by: Michael Gardner, barrister