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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor [2011] EWHC 2617 (QB) (13 October 2011) URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/2617.html Cite as: [2012] 2 WLR 1071, [2012] QB 760, [2012] Med LR 123, [2012] PTSR 742, [2012] MHLR 94, [2011] EWHC 2617 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 October 2011

Mr Justice Supperstone :

Introduction

1. The issue that arises in this case concerns non-compliant incapacitated patients, that is those who are not willing to be admitted and do not have the capacity to consent to admission, to psychiatric hospitals pending the making of an application for their compulsory admission to hospital for assessment under section 2 Mental Health Act 1983 ("MHA").
2. On 7 August 2010 two police officers entered the private accommodation of Ms Sawida Sessay, the Claimant, following a complaint from a neighbour that the Claimant had not been caring properly for her child. The officers formed the view that the Claimant was mentally disordered and were concerned for her welfare and that of her child. The officers reasonably formed the view that it was in the Claimant's best interests that she be taken to hospital for the purposes of being assessed and receiving help in relation to her mental health. They drove the Claimant and her child to Peckham police station, where the child was taken into police protection. Then they drove the Claimant on to the Maudsley Hospital ("the hospital").
3. The officers considered that the Claimant was a person who fell within the scope of s.135 MHA, but they could not exercise that power because they did not have a warrant and were not accompanied by an approved mental health professional or a registered medical practitioner, as would have been required under s.135. Instead, the officers relied upon s.5 Mental Capacity Act 2005 ("MCA") to justify taking the Claimant to hospital. On arrival at the hospital, the officers took the Claimant to what is known as the "136 Suite" to which persons brought in by the police under s.135 or 136 MHA are taken.
4. The Claimant brought proceedings against the Commissioner of Police for the Metropolis, the Second Defendant, in respect of the actions of the police officers. Subject to approval by the court the Claimant and the Second Defendant have agreed that the following declaration be made:

"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. 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.

2. The Claimant's removal to hospital by the Second Defendant's officers on 7^th August 2010 was unlawful and breaches her rights under Article 5 and Article 8 ECHR."

5. The Claimant arrived at the hospital at 09.20 on 7 August 2010. The application to admit her under s.2 MHA was not received by the Hospital Managers until 22.20, thirteen hours later. The Claimant's case is that her treatment in the hospital amounted to detention and/or deprivation of liberty, which was not lawful and in breach of Article 5 ECHR. Further the Claimant seeks a declaration that the general practice and policy of the First Defendant ("the Trust") for holding persons awaiting assessment for admission for up to eight hours (or longer) is unlawful.

Statutory framework

(A) The Mental Health Act 1983

6. Part II of MHA is concerned with Compulsory Admission to Hospital and Guardianship. Sections 2-6 cover procedure for hospital admission.
7. Section 2 authorises the compulsory admission of a patient to hospital for assessment (or for assessment followed by medical treatment), and for detention for this purpose for up to 28 days. It provides as follows:

"2.—(1) A patient may be admitted to a hospital and detained there for the period allowed by sub-section (4) below in pursuance of an application (in this Act referred to as 'an application for admission for assessment') made in accordance with sub-sections (2) and (3) below.

(2) An application for admission for assessment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(3) An application for admission for assessment should be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in sub-section (2) above are complied with.

(4) Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act."

8. Section 3 provides for the compulsory admission of a patient to hospital for treatment and for his subsequent detention which can last for an initial period of up to six months (s.20(1)).
9. Section 4 is headed "Admission for assessment in cases of emergency". It provides, in a case of urgent necessity, for the compulsory admission of a person to hospital for assessment for a period of up to 72 hours:

"4.—(1) In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions of this section, and any application so made is in this Act referred to as 'an emergency application'.

(2) An emergency application may be made, either by an [approved mental health professional] or by the nearest relative of the patient; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above, and that compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay.

(3) An emergency application should be sufficient in the first instance if founded on one of the medical recommendations required by section 2 above, given, if practicable, by a practitioner who has previous acquaintance with the patient and otherwise complying with the requirements of section 12 below so far as is applicable to a single recommendation, and verifying the statement referred to in sub-section (2) above."

10. Section 5 provides for applications for compulsory detention under ss.2 or 3 to be made in respect of mentally disordered patients who are already receiving treatment in hospital as informal patients. It also includes powers that can be used if it is considered that an informal patient (except a community patient) might leave the hospital before there is time to complete an application under either ss.2 or 3. Section 5(4) provides that:

"If, in the case of a patient who is receiving treatment for mental disorder as an in-patient in a hospital, it appears to a nurse of the prescribed class—

(a) that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of others for him to be immediately restrained from leaving the hospital; and

(b) that it is not practicable to secure the immediate attendance of a practitioner [or clinician] for the purpose of furnishing a report under sub-section (2) above,

the nurse may record that fact in writing; and in that event the patient may be detained in the hospital for a period of six hours from the time when that fact is so recorded or until the earlier arrival at the place where the patient is detained of a practitioner [or clinician] having power to furnish a report under that sub-section."

Subsection (5) provides that:

""A record made under subsection (4) above shall be delivered by the nurse (or by a person authorised by the nurse in that behalf) to the managers of the hospital as soon as possible after it is made; and where a record is made under that sub-section the period mentioned in sub-section (2) above shall begin at the time when it is made."

11. Section 6 authorises the applicant or anyone authorised by him to take and convey the patient to hospital within specified periods, and authorises the hospital managers to detain the patient once he has been admitted. The material parts of section 6 provide as follows:

"(1) An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital at any time within the following period, that is to say—

(a) in the case of an application other than an emergency application, the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application;

(b) in the case of an emergency application, the period of 24 hours beginning at the time when the patient was examined by the practitioner giving the medical recommendation which is referred to in s.4(3) above, or at the time when the application is made, whichever is the earlier.

(2) Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subs.(1) above, or being within that hospital, is treated by virtue of s.5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act."

12. Sections 11-15 are general provisions as to applications and recommendations. Sections 11, 12 and 13 are material to the present case. They provide, as relevant, as follows:

"General provisions as to applications

11.—(1) Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment … may be made … by an [approved mental health professional]; and every such application shall specify the qualification of the Applicant to make the application.

(2) Every application for admission shall be addressed to the managers of the hospital to which admission is sought… …

(5) None of the applications mentioned in sub-section (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application. …

(7) Each of the applications mentioned in sub-section (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by two such practitioners.

"General provisions as to medical recommendations

12.—(1) The recommendations required for the purposes of any application for the admission of a patient under this Part of this Act… (in this Act referred to as 'medical recommendations') shall be signed on or before the date of the application, and shall be given by practitioners who have personally examined the patient either together or separately, but where they have examined the patient separately not more than five days must have elapsed between the days on which the separate examinations took place.

(2) Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance.

[(2A) A registered medical practitioner who is an approved clinician shall be treated as also approved for the purposes of this section under sub-section(2) above as having special experience as mentioned there].

Duty of approved mental health professionals to make applications for admission or guardianship

13.—(1) If a local social services authority have reason to think that an application for admission to hospital … may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient's case on their behalf.

(1A) If that professional is—

(a) satisfied that such an application ought to be made in respect of the patient; and

(b) of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application.

(2) Before making an application for the admission of a patient to hospital an [approved mental health professional] shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need. …

(5) Nothing in this section shall be construed as authorising or requiring an application to be made by an approved mental health professional … as restricting the power of a local social services authority to make arrangements with an approved mental health professional to consider a patient's case or of an approved mental health professional to make any application under this Act."

13. Part X of MHA contains miscellaneous and supplementary provisions. Relevant miscellaneous provisions include the following:

"Duty of managers of hospitals to give information to detained patients

132.—(1) The managers of a hospital … in which a patient is detained under this Act shall take such steps as are practicable to ensure that the patient understands

(a) under which of the provisions of this Act he is for the time being detained and the effect of that provision; and

(b) what rights for applying to a [tribunal] are available to him in respect of his detention under that provision;

and those steps shall be taken as soon as practicable after the commencement of the patient's detention under the provision in question.

Warrant to search for and remove patients

135.—(1) If it appears to a justice of the peace, on information on oath laid by an approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder— …

(b) being unable to care for himself, is living alone in any such place,

the justice may issue a warrant authorising any constable… to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.

(3) A patient who is removed to a place of safety in the execution of a warrant issued under this section may be detained there for a period not exceeding 72 hours.

Mentally disordered persons found in public places

136.—(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.

(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care. …

Notification of hospitals having arrangements for reception of urgent cases

140. It shall be the duty of every Primary Care Trust and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the Primary Care Trust or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the Primary Care Trust or Local Health Board in which arrangements are from time to time in force—

(a) for the reception of patients in cases of special urgency"

(B) The Mental Capacity Act 2005

14. The Mental Capacity Act 2005 ("MCA"), as amended by the Mental Health Act 2007, provides, in so far as is material, as follows:

"4A Restriction on deprivation of liberty

(1) This Act does not authorise any person ('D') to deprive any other person ('P') of his liberty.

(2) But that is subject to—

(a) the following provisions of this section, and

(b) section 4B

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty). …

5 Acts in connection with care or treatment

(1) If a person ('D') does an act in connection with the care or treatment of another person ('P'), the act is one to which this section applies if—

(a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b) when doing the act, D reasonably believes—

(i) that P lacks capacity in relation to the matter, and

(ii) that it will be in P's best interests for the act to be done.

(2) D does not incur any liability in relation to the act that he would not have incurred if P—

(a) had had capacity to consent in relation to the matter, and

(b) had consented to D's doing the act.

(3) Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

(4) Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).

6 Section 5 acts: limitations

(1) If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.

(2) The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.

(3) The second is that the act is a proportionate response to—

(a) the likelihood of P's suffering harm, and

(b) the seriousness of that harm.

(4) For the purposes of this section D restrains P if he—

(a) uses, or threatens to use, force to secure the doing of an act which P resists, or

(b) restricts P's liberty of movement, whether or not P resists. …

(6) Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by—

(a) a donee of a lasting power of attorney granted by P, or

(b) a deputy nominated for P by the court.

(7) But nothing in subsection (6) stops a person—

(a) providing life-sustaining treatment, or

(b) doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P's condition, while a decision as respects any relevant issue is sought from the court."

15. Schedule 1 enables what are called standard and urgent authorisations to be granted in respect of persons in a hospital or care home in certain circumstances. A person can only be deprived of liberty by the MCA where (i) the deprivation is authorised by an order of the Court of Protection under s.16(2)(a) of MCA; or (ii) the deprivation is authorised in accordance with the deprivation of liberty procedures set out in Schedule A1 to the MCA; or (iii) the deprivation is carried out because it is necessary in order to give life sustaining treatment, or to carry out a vital act to prevent serious deterioration in the person's condition, while a decision as respects any relevant issue is sought from the court. (J v Foundation Trust [2010] Fam 70).

(C) The Code of Practice

16. The Code of Practice ("the Code") prepared in accordance with section 118 MHA includes the following guidance in relation to emergency applications for detention in hospital under section 4:

"Applications for detention for assessment in an emergency

5.2 The Act permits an application for detention for assessment to be made under section 4 on the basis of a single medical recommendation, but only in very limited circumstances. An application for detention under section 4 may be made only when:

the criteria for detention for assessment under section 2 are met;

the patient's detention is required as a matter of urgent necessity; and

obtaining a second medical recommendation would cause undesirable delay.

Urgent necessity

5.4 Section 4 should be used only in genuine emergency, where the patient's need for urgent assessment outweighs the desirability of waiting for a second doctor.

5.5 Section 4 should never be used for administrative convenience. So, for example, patients should not be detained under section 4 merely because it is more convenient for the second doctor to examine the patient in, rather than outside, hospital.

5.6 An emergency may arise where the patient's mental state or behaviour present problems which those involved cannot reasonably be expected to manage while waiting for a second doctor. To be satisfied that an emergency has arisen, the person making the application and the doctor making the supporting recommendation should have evidence of:

an immediate and significant risk of mental or physical harm to the patient or to others;

danger of serious harm to property; or

a need for physical restraint of the patient.

Availability of second medical recommendation

5.7 It is the responsibility of primary care trusts (and other NHS commissioners) to ensure that doctors are available in the timely manner to examine patients under the Act when requested to do so by AMHP's [approved mental health professionals] and in other cases where such an examination is necessary.

5.8 If AMHPs find themselves having to consider making emergency applications because of difficulties in securing a second doctor, they should report that fact to the local social services authority (LSSA) on whose behalf they are acting (or in accordance with locally agreed agreements, if they are different).

5.9 Hospital managers and LSSAs should monitor the use of section 4 to ensure that it is not misused and to allow action to be taken to rectify any problems with the availability of doctors.

Detention under section 4

5.11 Patients detained under section 4 should be examined by an appropriate second doctor as soon as possible, to decide whether they should continue to be detained. If the doctor who made the recommendation for the section 4 application was not a doctor approved under section 12, the Act requires the doctor making the second recommendation to be so approved."

The Trust Policy

17. The Trust has a "Joint operational policy for the reception and care of service users admitted to a place of safety under section 136 Mental Health Act 1983" ("the Policy"), issued in April 2010. The Policy includes, so far as is relevant, the following:

"3.6 Other

The Place of Safety (136 suite) must not be used for supervised confinement. The doors of the Place of Safety (136 suite) must not be locked while a person is in situ. There may be some circumstances when the door to the Place of Safety is required to be locked i.e. for reasons of immediate safety and security. This decision must be made on the basis of a risk assessment.

5.0 Role of the Mental Health Unit

5.5 If an assessment is to take place, the duty Approved Mental Health Professional – AMHP, must be informed as soon as possible of a pending assessment by the Place of Safety (136) co-ordinator.

5.6 An assessment should take place as soon as possible after arrival at the unit by the duty doctor. If the person detained in the Place of Safety (136 suite) is deemed likely to require admission informally or under section of the Mental Health Act the Specialist Registrar, a Section 12 approved doctor, and an Approved Mental Health Professional will need to be called. It is the Place of Safety (136) co-ordinator's responsibility to contact these individuals as soon as possible after the person is admitted to the Place of Safety (136 suite) has arrived.

5.11 The maximum time any person should be held in the Place of Safety (136 suite) is eight hours. The aim of this policy is for people admitted to the Place of Safety (136 suite) to remain there for no more than four hours. Please see local protocol for escalation of bed management – see appendix 4."

18. Appendix 5 ("Mental Capacity Act Assessment Flow Chart") to the Policy includes the statement that:

"If a patient has capacity then we would either look to an informal admission for a compliant patient or the sectioning process for a non-compliant patient. If getting two doctors causes a time delay then section 4 should be used to ensure there are no time delays.

If a patient lacks capacity and is non-compliant then staff should also follow the sectioning process, considering section 4 if there are any time delays. If a client lacks capacity and is compliant then staff should apply their powers under the Mental Capacity Act. This allows for a patient to be treated and admitted if it is in their best interest and a proportionate response to the risk that the patient faces if they do not receive that care and treatment. It has been decided that as a standard, Staff should stick to the time limits set out for when clients are admitted under section 136."

Factual background

19. The parties have produced an "Agreed Chronology" which helpfully summarises the relevant factual background to this claim.
20. The Trust was notified at 0830 on 7 August 2010 that the Claimant was being referred to them. At 0920 the Claimant was brought to the hospital by the Police and admitted to the "s.136 Suite". The Police completed a form relating to "Section 5-6 Mental Capacity Act 2005", noting that the Claimant lacked capacity to make decisions about risks to her health. The contemporaneous note completed by the Trust recorded that the Claimant was "brought in on a Section 5(6)". The Section 132/132A Form completed by the Trust at 11.05 recorded 0920 as being the time at which the section commenced.
21. At 0920 the duty doctor arrived. At 0930 the bed manager was bleeped. Between 0942-0944 a referral was made to Southwark Social Services for the attention of the duty AMHP, it being noted on the report completed by the AMHP that it was an urgent case and the response time was thirty minutes. Ms Brown [AMHP] was informed at this point by the Nurse on duty at the s.136 suite that the Claimant had been brought in on a s.136 MHA. In addition she spoke to the Police Constable involved who also stated that the Claimant had been brought to the suite under s.136.
22. At 1030 the Duty Doctor, Dr Chakrabarti, assessed the Claimant. His assessment (entered into the system at 1153) noted the following: "[P]sychomotor agitation ++- hyperactive, restless, laughing and giggling. Was co-operative for the purpose of the interview, however from time to time had threatened staff – to hit/push/slap them; had threatened to throw tea at them (however had not done) – couple of times banged the glass window in the nursing office very hard, punched the walls, and pushed staff and got into the nursing staff not wanting to leave. Rapport was established with difficulty." Dr Chakrabarti noted that the Claimant's judgment was impaired, and that she had nil insight: "[d]oes not think she has a mental illness, does not consider admission is necessary and did not feel the need to take medicines." He concluded that she posed high risks to herself and others (in the latter regard because she was caring for a 20-month-old child). He recorded his impression as "[p]sychosis NOS" [which is understood in this context means "Not Otherwise Specified"], and that she was suffering a manic episode. Under plan, the doctor recorded:

"1. Recommendation for Section 2

2. Have discussed the case with AMHP, and SpR on call Dr Dan

3. Have been told by staff that they would come around 1300.

4. PRN written up in drug chart: Lorazepam, Promethazine, and Midzolam."

23. At 1030 it was noted that the AMHP would attend at 1300. At around this time, the Claimant was offered Lorezapam (a sedative), but declined. In a note completed at 1441 a nurse recorded the events leading up to the offer of this as follows: "while in the suite Sawida behaviour remains changeable sometimes calm or giggling inappropriately; she was also observed to be responding to visual hallucination by asking nursing staff to read the information that was written on the wall; however the wall is blank. Other times her behaviour was hostile and aggressive towards nursing staff and making threats to harm staff with punches or beating staff up and also make threats to pour hot tea on staff. On two occasions she forced her way into the nursing office and has refused to move until the police can be called to get an update about her daughter, however this was explained to her several times. She was advised to return to the patient area but became more threatening and elated in mood. Alarm was activated and emergency team was called on the arrival of ES1 staff and the team Sawida went back into the patient area but continued to make threats Sawida has also been banging the viewing window in the nursing office very hard and has punched the wall and has also been activating the wall emergency alarms. She was therefore offered 2mg Lorezapam PRN to alleviate her agitation which she denied with threats when she was told about it."
24. At 1030 the Specialist Registrar was bleeped. At the same time the Home Treatment Team was contacted. At 1100 a section 132/132A form completed by the Trust recorded that the Claimant was informed of her rights. At 1105 the Claimant declined to sign the form. At 1130 the Claimant took Lorezapam in the presence of the emergency team. The note completed at 1441 by the ward nurse recorded that "she took it when it was brought to her at 1130hrs with the emergency team present". At 1155 the Lorezapam took effect and the Claimant fell asleep.
25. Between 1250 and 1300 the Home Treatment Team attended. The Claimant was asleep; in the light of the information obtained from the Duty Doctor's assessment and the s.136 suite staff, the recommendation was that Home Treatment was not indicated. The bed manager was informed of the need for an admission. It was noted at that point that the AMHP was aware that arrangements were being made for an admission. At 1430 a nurse noted that the Specialist Registrar called to see whether the AMHP was at the s.136 suite. At 1650 a nurse called the duty AMHP regarding the s.2 assessment, and informed them that there was a bed available. The AMHP said that she would speak to the Specialist Registrar to arrange a time for an assessment as the Claimant was now awake. At 1820 the Specialist Registrar attended the s.136 suite. It was noted that the AMHP was expected to arrive at 1830.
26. At 1900 Dr Sherwood, and Dr Kim Shyan Hwang, the Duty Specialist Registrar approved under s.12 MHA, assessed the patient together with the AMHP. The Duty Specialist Registrar noted that the Claimant "[a]ppeared drowsy, having spent the majority of the day asleep". He recorded his impression that "from this morning's account I believe this is likely to have been a manic episode, which has been treated to some extent with sedating medication today. She has no past psychiatric history and certainly warrants an admission to hospital for assessment. I do not believe she will remain in hospital voluntarily [sic]". The plan was noted as being

"- Commence sec 2 proceedings.

- Admit to hospital for assessment…"

The joint recommendation completed by the two doctors was that the Claimant was suffering from a mental disorder of a nature or degree which warranted her detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period, and ought to be detained in the interests of her own health, in the interests of her own safety and with a view to the protection of other persons. It was noted that the Claimant "is not agreeable to admission on a voluntary basis". The AMHP assessment included the following: "Sawida is unwilling to accept informal admission so I completed an application for s.2 MHA, because in all the circumstances of the case I believe that detention under s.2 MHA is the most appropriate way for her to receive the care and treatment of which she stands in need."

27. At 1930 on 7 August the AMHP decided to make the application for detention. At 2220 the application was accepted by the Hospital Managers. At the same time the Claimant was transferred to another ward within the Hospital. She had her rights read to her pursuant to s.132 MHA.
28. On 19 August the Claimant applied for discharge from detention under s.2 MHA. On 1 September 2010 the First Tier Tribunal (Health, Education and Social Care Chamber) Mental Health declined to recommend the Claimant's release. On 4 September the Claimant's detention under s.2 MHA expired. Prior to that she had been assessed for admission for treatment under s.3 MHA. Her nearest relative had objected which prevented an application being made at that point, and the AMHP had reviewed the situation. The decision was taken not to seek to displace the nearest relative; accordingly the s.3 application did not proceed any further. The Claimant agreed to stay informally. On 9 September 2010 the Claimant was discharged.
29. On 22 September 2010 in a letter before action the Claimant's solicitors noted that the Claimant was "grateful for the care she received at [the] hospital" and that her instructions were "not to approach this matter on the basis of any intentional wrongdoing by [the Trust] who was… placed in something of an invidious position by the circumstances of her arrival at [the] hospital. It would not be right not [to] recognise this at the outset, so we make it clear. Nevertheless, unlawful detention is a tort of strict liability." On 5 November 2010 judicial review proceedings were issued. On 30 December 2010 permission was granted to apply for judicial review.
30. Ms Kay Burton, Head of the Mental Health Act team at the Trust, explains in her witness statement that patients admitted to "section 136 suites" are not limited to those brought in under s.136 MHA:

"2. One of the functions of the MHA Office is to receive and, where appropriate, audit information relating to admissions to the Trust's hospitals. This includes admissions to the Trust's four designated 'Places of Safety', which are sometimes referred to as section 136 suites. We compile statistics relating to the number of admissions to the Places of Safety of patients who are brought in by the police using sections 135 and 136 of the MHA and also sections 5 of the Mental Capacity Act 2005 ('MCA'). During the period December 2009 to December 2010, 24 people were brought to the Trust's Places of Safety under section 5 of the MCA, compared with 714 people brought in under s.136 of the MHA. Of the 24 patients brought in under the MCA, 9 were then detained under sections 2 or 3 of the MHA.

3. … This case has highlighted the difficulties faced by staff when patients are brought to Places of Safety under the MCA. When a patient is admitted under section 135 or 136 of the MHA, there is a clear authority under the MHA to hold the patient and if necessary deprive them of their liberty. However, when a patient is brought to hospital under the MCA, we are conscious that staff should not deprive the person of his or her liberty whilst at the same time trying to manage their mental health needs, the manifestations of which are usually acute, psychotic or manic and which make them a risk to themselves and/or others.

4. The Trust has developed a policy, which has been submitted in evidence in this case. This policy has a dedicated part that attempts to give practical guidance to staff on how they should best manage patients who are brought to the Trust's Places of Safety by the police under the MCA. …"

The grounds of claim

31. In summary the grounds upon which the Claimant alleges that her detention at the hospital by the Trust's medical staff was unlawful are as follows:

i) In the circumstances in which the Claimant was held for thirteen hours pending the decision to admit her under s.2 MHA, she was deprived of her liberty.

ii) The powers on which the Trust's medical staff purported to rely did not give lawful authority for the deprivation of liberty. The treatment therefore constituted false imprisonment at common law and/or was in breach of Article 5 ECHR.

iii) There is no power to deprive patients, such as the Claimant, of their liberty in psychiatric hospitals under the common law doctrine of necessity on which the Trust relies.

Discussion

The statutory framework

32. We consider first the issue of whether MHA provides a complete statutory code for the detention of the non-compliant mentally incapacitated patient for assessment and treatment in hospital, as the Claimant submits, or whether there are residual common law powers for the detention of non-compliant patients, as is contended on behalf of the Trust.
33. Mr Ruck Keene, for the Trust, submits that a lacuna exists in MHA in relation to a situation that requires a person to remain present at the hospital for the purposes of assessment and admission which can only be filled by the common law doctrine of necessity. The Trust regularly requires a period of 4-8 hours in order to carry out assessments and, where appropriate, bring about admissions under MHA. The Trust position is that in relation to both the compliant and the non-compliant incapacitated, assuming that the person can establish that they are objectively detained at common law, it is necessary for there to be a justification for such detention, and, on a proper analysis that justification lies in the application of the doctrine of necessity.
34. We do not accept that the common law doctrine of necessity applies in the present context. We are of the view that MHA provides a complete statutory code covering persons in the Claimant's position. This is so for a number of reasons.
35. First, Part II MHA contains a procedure for compulsory hospital admissions. Section 2 provides for admission for assessment (or for assessment followed by medical treatment) and for detention for this purpose for up to 28 days. Section 4 provides, in a case of urgent necessity, for the compulsory admission of a person to hospital for assessment for a period of up to 72 hours. Section 5 provides for an application in respect of a patient already in hospital. Section 6 states the effect of an application for admission. A person may be detained at a hospital for up to 72 hours if taken there by the police under s.135 (transfer from private places) or s.136 (transfer from places to which the public have access).
36. Second, Parliament has expressly provided for the situation where the application is one of urgent necessity. If the procedure under s.2 would involve undesirable delay, then an application for admission for assessment may be made under s.4. The fact that s.4 caters for short-term difficulties in locating appropriate staff shows that Parliament was alive to this issue.
37. Third, the Code of Practice provides guidance in relation to emergency applications under s.4. Further, the Code at para 4.33 states that: "LSSAs are responsible for ensuring the sufficient AMHPs are available to carry out their roles under the Act, including assessing patients to decide whether an application for detention should be made. To fulfil their statutory duty, LSSAs must have arrangements in place in their area to provide a 24 hour service that can respond to patients' needs."
38. Fourth, the Trust has provided in its own Policy that "if getting two doctors causes a time delay then s.4 should be used to ensure there are no time delays" (see para 18 above). There is no evidence that there are any time delays when applications are made under s.4.
39. Fifth, if a patient evidences an intention to leave the hospital before the s.4 application is completed, hospital staff may contact the police who have the power to detain the patient under s.136. We do not accept that there should be any problem with the use of s.136 in these circumstances. The Accident & Emergency Department of a hospital is a place to which the public have access and accordingly it is a public place for the purposes of s.136.
40. Sixth, the decision of the House of Lords in B v Forsey [1988] SLT 572 provides powerful support for the submission made by Mr Buttler, for the Claimant, that the powers available to hospitals under MHA may not be supplemented by reliance on the common law. The issue in that appeal turned on the question whether the Mental Health (Scotland) Act 1984 ("the 1984 Act") comprehensively laid down the powers of hospital authorities in relation to the detention of mentally disordered persons. In Forsey there was reason to fear for the safety of the patient's family if he were released and there was insufficient time to go through the procedure provided for by the Act which required an application to the Sheriff to extend his detention. The House of Lords held that the powers of detention conferred on hospital authorities by the 1984 Act were exhaustive and that any common law power of detention which a hospital authority might otherwise have possessed had been impliedly removed. Lord Keith said at 6:

"These provisions display a coherent scheme for the admission into hospital and detention there of mentally disordered persons. Sections 17 and 18 deal with what may be termed long term detention, which may only be exercised under warrant from the sheriff. The period of detention thereunder to be for six months initially, but subject to renewal by report under the provisions of s.30, with a right of appeal to the sheriff. Section 24 deals with emergency procedure in the case of 'urgent necessity', involving danger to the health and safety of the individual in question or of others. Detention for up to 72 hours is authorised where an emergency recommendation is made by a medical practitioner. Section 25 makes it clear that urgent necessity can arise in relation to one who is already a patient in a hospital. Should it arise when no medical practitioner is available, detention may be exercised on the authority of a nurse of the prescribed class (but no one else) for two hours or until the earlier arrival of a medical practitioner qualified to make a recommendation under s.24. The nurse must make a record of the circumstances. Section 26 authorises short term detention for up to 28 days, after the expiry of s.24 detention, upon report by a medical practitioner approved as having special experience in mental disorder. It is specifically enacted that successive periods of detention under s.24 or s.26 are forbidden, as are successive periods of two hour detention under s.25(2).

In my opinion it is impossible to reach any other conclusion than that the powers of detention conferred upon hospital authorities by the scheme were intended to be exhaustive. Procedure is laid down for emergency, short term and long term detention. The period of short term detention might reasonably be expected to be long enough for an application for long term detention to be submitted to and approved by the sheriff under s.18. What happened in this case was that the petitioner's condition appeared initially to be improving, so that an application under s.18 was not thought appropriate. Dr Mackay was of opinion that an application which turned out to be unnecessary would be upsetting and harmful to the patient. The petitioner's condition suddenly and unexpectedly deteriorated, and by then it was too late to have an application submitted and approved before the expiry of the short term detention. That would appear to be a situation which was not in the contemplation of the framers of the legislation. However, I am of opinion that the provisions of ss.24(6), 25(5) and 26(7) are absolutely inconsistent with a possible view that the legislature intended that a hospital authority should have a common law power to detain a patient otherwise than in accordance with the statutory scheme. That scheme contains a number of safeguards designed to protect the liberty of the individual. It is not conceivable that the legislature, in prohibiting any successive period of detention under provisions containing such safeguards, should have intended to leave open the possibility of successive periods of detention not subject to such safeguards. I would therefore hold that any common law power of detention which a hospital authority might otherwise have possessed has been impliedly removed."

41. Mr Ruck Keene sought to distinguish Forsey on the basis that that case was concerned with the position where Parliament had specifically legislated that a statutory power could not be used in a particular way and an argument was advanced that the common law could be used in its place. We do not accept that there is this distinction. Section 26 of the 1984 Act did not purport to exclude any common law powers and the case was not decided on that basis. In our judgment the approach adopted by the House of Lords in Forsey applies equally to the material provisions in MHA in the present case. We accept Mr Buttler's submission that if there is a lacuna it is for Parliament to fill it.
42. Mr Ruck Keene referred us to the decision of the House of Lords in R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 where as regards informal admissions the House of Lords found the statutory powers of detention conferred upon hospital authorities not to be exhaustive. However we agree with Mr Buttler that there was nothing said by their Lordships in Bournewood that cast doubt on the application of Forsey to the present case.
43. The general effect of the decision of the House of Lords in Bournewood was, as Lord Steyn observed at 497:

"…to leave compliant incapacitated patients without the safeguards enshrined in the Act of 1983. This is an unfortunate result. … The common law principle of necessity is a useful concept, but it contains none of the safeguards of the Act of 1983. It places effective and unqualified control in the hands of the hospital psychiatrist and other healthcare professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus [nor] judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of the Act of 1983 from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration."

Lord Steyn identified the existence of a lacuna, which has come to be known as "the Bournewood gap".

44. L's carers applied to the European Court of Human Rights, which held that L had been deprived of his liberty and there had been a breach of Article 5(4) of the ECHR in that the use by the doctor of the common law doctrine of necessity, instead of statutory powers to detain, did not meet the requirement in Article 5(1)(e) that such a detention must be carried out in accordance with the procedure prescribed by law: HL v United Kingdom [2004] 40 EHRR 761. Following that decision amendments were introduced to the Mental Capacity Act 2005 by the Mental Capacity Act 2007 (see paras 15-16 above) to bridge "the Bournewood gap" and provide for deprivation of liberty safeguards in relation to adults who lack capacity to decide where they should reside (see J v The Foundation Trust at para 6).
45. In our view a further reason supporting the Claimant's submission that Part II MHA provides an exhaustive code for compulsory hospital admissions is that, applying the reasoning of the European Court in HL, if the common law doctrine applies there would not be the safeguards required by Article 5 and the system as such would not be in accordance with the law (see paras 44 above).

False imprisonment and Article 5

46. We now turn to consider the relationship between applications under ss.2 and 4 MHA and false imprisonment/Article 5 ECHRR.
47. The tort of false imprisonment at common law has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it (R v Deputy Governor of Parkhurst Prison, Ex P Hague [1992] 1 AC 51 at 162C-D, per Lord Bridge. The first is a question of fact, the second a matter of pure law. As to the first, Lord Griffiths in Murray v Ministry of Defence [1988] 2 All ER 521 agreed with the statement of Atkin LJ in Meering v Grahame-White Aviation Co. Ltd [1919] 122 LT 44 that:

"It is true that in all cases of imprisonment so far as the law of civil liberty is concerned that 'stone walls do not a prison make', in the sense that they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an imprisonment."

In Lumba v Secretary of State for the Home Department [2011] UKSC 12 Lord Dyson observed at para 65:

"All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so."

It is irrelevant whether or not the defendant honestly and reasonably believed that he had the necessary authority to detain the claimant, if, in fact, no such authority existed (R v Governor of Brockhill Prison Ex p Evans (No.2) [2001] 2 AC 19).

48. For the purposes of Article 5(1), a deprivation of liberty was considered by the European Court in HL v United Kingdom at para 89:

"It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance."

49. At para 114 the Court set out the relevant principles relating to lawfulness and protection against arbitrary detention:

"The Court recalls that the lawfulness of detention depends on conformity with the procedural and with the substantive aspects of domestic law, the 'lawful' term overlapping to a certain extent with the general requirement in Art.5(1) to observe a 'procedure prescribed by law'. It is also recalled that, given the importance of personal liberty, the relevant national law must meet the standard of 'lawfulness' set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail. …

It is further recalled that it must be established that the detention was in conformity with the essential objective of Art.5(1) of the Convention which is to prevent individuals being deprived of their liberty in an arbitrary fashion. This objective, and the broader condition that detention be 'in accordance with the procedure prescribed by law', require the existence in domestic law of adequate legal protections and 'fair and proper procedures'."

At para 98 the Court outlined the three minimum conditions for the lawful detention of an individual on the basis of unsoundness of mind and Art.5(1)(e) of the Convention:

"he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder."

50. In Winterwerp v The Netherlands (1979-80) 2 EHRR 387 at paragraph 39 the European Court made clear that the first of these conditions does not apply in emergency cases. (See also X v United Kingdom (decision of 5 November 1981, Series A No.46 at paras 41 and 45)).
51. In order for there to be a deprivation of liberty falling within the scope of Article 5(1) the objective element of a person's confinement must be "for a not negligible length of time" (Stork v Germany (2005) 43 EHRR 96 at para 74, cited in the recent case of P and Q v Surrey County Council [2011] EWCA Civ 190 at para 17). In Foka v Turkey (Application No.28940/95; decision of 26 January 2009) the European Court stated at para 75:

"Even if it is not excluded that Article 5 (1) may apply to deprivations of liberty of a very short length (see X v Germany, No.8819/79, Commission Decision of 19 March 1981, Decisions and Reports (DR) 24, pp 158, 161), the Convention organs' case law shows that this provision was considered not applicable in cases where the applicants' stay in a police station lasted only a few hours and did not go beyond the time strictly necessary to accomplish certain formalities (see, for instance, Guenat v Switzerland, No.24722/94, Commission Decision of 10 April 1995, Decisions and Reports (DR) 81, pp.130, 134 [approximately 2-3 hours]…"

52. In Austin v Metropolitan Police Commissioner [2009] AC 564 at paragraph 34 Lord Hope held that there is "room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken which takes full account of all the circumstances". So where the police had reasonably believed that a breach of the peace was imminent the imposition of a cordon for many hours around an area enclosing thousands of demonstrators who could only leave with the permission of the police was lawful. Lord Hope added at para 34:

"No reference is made in Article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty. This is in sharp contrast to Article 10(2), which expressly qualifies the right to freedom of expression in these respects. But the importance that must be attached in the context of Article 5 to measures taken in the interests of public safety is indicated by Article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police. This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other."

Application of the law to the facts

53. The s.136 suite at the hospital is not locked. However the Trust accepts that patients cannot enter or leave the "136 suite" unassisted. Plainly the Trust staff would not have assisted the Claimant to leave, understanding that she had been placed there under s.136 MHA. Moreover at 1100hrs on 7 August a s.132/132A form had been completed by the Trust which recorded that she had been informed of her rights (para 24 above). The Form records that she had been given information about s.136 and understood that information. She declined to sign the form. In these circumstances we consider that the Claimant was detained.
54. Further in our view the Trust has failed to establish lawful justification for the detention. The Trust recorded that the Claimant was "brought in on a Section 5(6)", that being a reference to ss.5 and 6 MCA. In fact as the Second Defendant now accepts ss.5 and 6 MCA "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" (see para 4 above). It is clear from the actions of the Trust members of staff that they understood that the Claimant was being detained in the suite under s.136 MHA. As a matter of law that was not correct. That being so there was no lawful justification for the Claimant's detention. The fact that the Trust may lawfully have detained the Claimant under ss.2 and 4 MHA does not assist the Trust, having detained the Claimant unlawfully under other powers.
55. It does not necessarily follow from the fact that there has been detention at common law that there has been deprivation of liberty for Article 5 purposes. However we consider that the cumulative effect of the following factors resulted in the Claimant being deprived of her liberty. For a total of 13 hours she was confined in the "s.136 Suite" which is attached to the psychiatric care unit of the hospital. Both the AMHP, Angela Brown, and Sandra Williams, the nurse on duty at the hospital on the morning of 7 August 2010, understood the Claimant to be detained under s.136 MHA. It is accepted, as we have noted, that the Claimant was unable to leave the suite unassisted. We agree with Mr Buttler that inevitably Trust staff would have prevented the Claimant from leaving had she sought to do so. The Claimant was formally notified, and was recorded to understand, that she was not free to leave the hospital. Dr Chakrabarti noted that she did not consider admission to be necessary. Subsequently it was noted that she "grudgingly accepted informal admission but it seemed likely that she would take her own discharge". She was separated from and concerned about her baby.
56. Further there was no justification for the deprivation of liberty in the Claimant's case. It was no doubt because the Trust members of staff considered that the Claimant could be detained under s.136 MHA that they did not progress her application under s.2 MHA as speedily as they might otherwise have done; nor in those circumstances did they consider it necessary to make an application under s.4 MHA. However the Claimant could not be held lawfully under s.136 MHA for the reasons we have already given (see para 54 above). In any event we are not satisfied that the Trust would have been justified in detaining the Claimant for 13 hours for the purposes of an admission under s.2 MHA. There were numerous periods of delay during the day relating to the attendance of medical staff, culminating in a delay of approximately 3½ hours between the recommendation of Dr Sherwood and Dr Hwang and formal admission, in respect of which no adequate explanation has been given.

General observations

57. In our judgment Parliament provided an exhaustive code concerning compulsory admission to hospital in Part II MHA. Sections 2-6 cover procedure for hospital admission which include in s.4 admission in emergency situations. We do not accept that there is any lacuna in MHA in relation to the period when a person is at the hospital pending an application under s.2 or s.4 MHA. Each case necessarily turns on its own facts. However in our view it is unlikely in the ordinary case that there will be a false imprisonment at common law or deprivation of liberty for the purposes of Article 5(1) ECHR if there is no undue delay during the processing of an application under ss.2 or 4 MHA for admission. (See paras 48-52 above).
58. The Trust's policy is that the maximum time any person should be held in a "136 suite" is eight hours. The aim of the policy is for persons admitted to the Place of Safety to remain there for no more than four hours (para 5.11). Dr Chakrabarti described this period in his experience as "a timescale that can be kept if things run smoothly". The Trust's policy is that "if getting two doctors causes a time delay then section 4 should be used to ensure there are no time delays" (see para 18 above). It is the responsibility of primary care trusts to ensure that doctors are available "in a timely manner" to examine patients under MHA (see para 16 above). Local social services authorities are responsible for ensuring that arrangements are in place so that AMHPs are available to provide a 24-hour service that can respond to patients' needs (see para 37 above). Reading the Trust Policy as a whole we do not accept that the term of the Policy that the maximum time any person should be held in the s.136 suite is eight hours, is unlawful. Plainly whether there is false imprisonment or deprivation of liberty for the purposes of Article 5(1) will depend on the facts of the particular case. There is no evidence before this court that the Trust has not been able to process a s.4 application "in a timely manner" when they have considered the case to be one of urgent necessity. If a s.4 application cannot be completed without undue delay then the Trust's staff may need to contact the police for them to consider using their powers of detention under s.136 MHA.

Conclusion

59. In our judgment

i) Part II of the Mental Health Act 1983 provides a comprehensive code for compulsory admission to hospital for non-compliant incapacitated patients such as the Claimant. The common law principle of necessity does not apply in this context.

ii) The Claimant's detention at the hospital on 7 August 2010 was unlawful and in breach of her rights under Article 5 ECHR. The Claimant is entitled to a declaration to this effect, together with damages for breach of Article 5 and for false imprisonment to be assessed, if not agreed.

60. Accordingly, to the extent set out in paragraph 59(ii) above, this claim against the First Defendant succeeds. For the avoidance of doubt we add that the Trust policy is not unlawful (see paragraph 58 above).
61. Further, we approve the draft consent order made between the Claimant and the Second Defendant.