R (Sessay) v SLAM & Commissioner of the Police for the Metropolis

Summary: This decision of the Divisional Court is of importance as (1) a rare decision upon the scope of ss.5-6 MCA 2005; and (2) the first decision as to the power of Trusts to detain the mentally disordered pending their admission under the MHA 1983, where the individual in question lacks the capacity to decide whether to remain at hospital pending the completion of the admission process.

On 7 August 2010 two police officers entered the private accommodation of, 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, where she was admitted to the Hospital's 's.136 suite.'

The police purported to use ss.5 MCA 2005 as their justification for taking the Claimant from her home to the hospital. Before the matter came to a hearing, the police conceded that in so doing they had acted unlawfully, and the Claimant and the police agreed the following declaration (subsequently endorsed by the court):

"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 7th August 2010 was unlawful and breached her rights under Article 5 and Article 8 ECHR."

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 was 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 sought a declaration that the general practice and policy of the Trust for holding persons awaiting assessment for admission for up to eight hours (or longer) is unlawful.

The Trust contended that there was a lacuna in the MHA 1983, such that what would otherwise be false imprisonment at common law and/or - potentially - a deprivation of liberty for purposes of Article 5 ECHR required justification, such justification being found in the doctrine of necessity.

The Divisional Court concluded that there was no lacuna, and that the MHA 1983 provided a complete statutory code for six reasons (paragraphs 35-40):

1) Part II MHA contains a procedure for compulsory hospital admissions; 2) Parliament has expressly provided (in s.4 MHA 1983) for the situation where the application is one of urgent necessity; 3) The Code of Practice provides guidance in relation to emergency applications under s.4, and also that local social services authorities are responsible for ensuring that 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, a responsibility giving rise to a requirement that a service be available 24 hours a day. 4) The Trust's own policy provided for the use of s.4, and there was no evidence of any time delays when applications were made under s.4; 5) 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. The Court clarified (a point that had previously been unclear) that 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. 6) The decision of the House of Lords in B v Forsey [1988] SLT 572 was authority for the proposition that the powers available to hospitals under MHA may not be supplemented by reliance on the common law, and could not be distinguished.

The Court also found (paragraph 45) that, if the MHA was supplemented by the common law, the same problem would arise as had arisen in the Bournewood case of ensuring that there were sufficient safeguards in place to comply with Article 5 ECHR.

However, the Divisional Court then went on to conclude that, whilst:

"[e]ach case necessarily turns on its own facts... 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." (paragraph 57)

On the facts of the case, the Divisional Court concluded that the detention of the Claimant could not be justified, in large part because the Trust staff had proceeded on the (mistaken) impression that she had been brought in under s.135 MHA 1983. The Divisional Court did, however, upheld the Trust's policy as lawful (paragraph 58), largely upon the basis of the reasoning in the paragraph cited above.

Comment: It is perhaps odd that no one had ever thought to ask what powers hospitals had in the circumstances prevailing on 7 August 2010. Even if there may be question marks as to the steps by which it they were reached, the wider conclusion of the Court is, it is suggested, entirely correct, not least because of the chaos that would otherwise ensue if hospitals were unable to take steps to require mentally disordered people who had arrived at their premises to remain their pending assessment and admission under the MHA 1983.

The Court's decision is also important for the clear endorsement of the limited scope of s.5 MCA 2005 and the fact that it cannot be used to justify steps amounting to a deprivation of liberty, no matter how well meaning those steps.

Finally, the Court's decision is of note because it would appear to allow back in purpose in determining whether there is a deprivation of liberty: the Court cited (paragraph 52) with apparent approval the dicta of Lord Hope to this end in Austin v Metropolitan Police Commissioner [2009] AC 564, and then in reaching the general conclusion cited above as to when there will be a deprivation of liberty referred back to this citation. There will no doubt be argument upon another day as to the extent to which this decision (and, indeed, Austin) can be squared with P and Q v Surrey County Council [2011] EWCA Civ 190.