If someone wished to legally challenge aspects of police behaviour in their use of s136 of the Mental Health Act 1983, they would first need to secure High Court permission to bring the challenge – this is set out in s139(2) of the MHA itself. There have been several legal arguments about this provision, notably in the case of Seal v the Chief Constable of South Wales Police, which escalated its way through the UK courts before ending up in Strasbourg in Seal v UK. Later, in 2009, a claimant in Merseyside brought an action against the Chief Constable and in part, fell foul of the same legal pothole which brought the wheel off the challenge in Seal.
However, Mr Johnston subsequently re-applied to the High Court for permission and it was partially granted. You can read Johnston v Chief Constable of Merseyside Police, but it focusses upon —
Section 139 MHA states —
“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, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care.” – section 139(1).
It goes on to add –
“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.” – section 139(2).
If you want to read more about the cases of Seal and of Johnston, you can read my earlier blog on this topic from 2013. These cases involve two men who brought challenges about the police use of s136 and did so without first obtaining High Court leave. Seal’s case went all the way to the European Court of Human Rights (and failed throughout) and the Johnson case introduced a new test for High Court to apply when deciding whether to grant leave on its route to partial success.
The High Court originally had to apply a test from an earlier case, Winch v Jones. In the Johnson case however, argument was made about whether Winch v Jones remained an applicable test, given how much had changed in civil procedure law over the years. Suffice to say for brevity, the Winch test still applies but the Court of Appeal ruled the High Court must consider, when granting permission under s139(2), whether the civil challenge has “a real prospect of success”. Mr Johnson was eventually allowed to bring part of his original challenge and it succeeded in a finding and an award of damages.
STILL WONDERING
I admit to thinking I wonder how the High Court would look at various kinds of challenge which could, in principle, be brought against the police after alleged misuse of s136?
There are plenty of debates around about how it works which could be the basis of a challenge: can s136 MHAA be used in police custody when an arrested person is being released for evidential reasons after having been deemed to need compulsory admission but where there is no bed? I’d say yes, for various reasons but there are claims in the other direction. When does the ‘clock’ begin for s136 (and therefore, how long overall can someone be held) if they are first detained in one place of safety, then removed to A&E for urgent treatment and subsequently moved to a health-based Place of Safety for 136 assessment? Again, I know what I think – clock starts at the first point someone arrives at any place of safety to which they are removed after use of that power, but again, there are views this is not the case – and the Code of Practice (Wales) still states that time spent in A&E doesn’t count, even though there was legal agreement by the English department of health and the Welsh Assembly government that this wasn’t correct. There have also been debates about use of s136 in hotel rooms following an inquest where an officer argued the power couldn’t be used but the vulnerable person subsequently took their own life – so what does the word “lives” mean, in the context of s136.
These are just some of the debates which could be the basis of a challenge and ultimately, no-one really knows what would happen. If the police find themselves in a position they should not be in, because the NHS cannot offer up a bed to an AMHP to finalise an application for admission under the MHA which should be able to be finalised; and officers then kept someone safe who otherwise would not be safe because of suicidal ideation or an obvious threat to others, would that be considered “act purporting to be done in pursuance of this Act”? Possibly or probably? – it’s at least arguable as a point because it isn’t obvious or settled law that use of s136 after a MHA assessment is unlawful and many argue it’s lawful even if it’s far from ideal because beds for urgent admissions should be available when they are required and these situations engage a local authority’s and the NHS’s obligations under section 6 of the HRA which, being fundamental rights, cannot be argued away because of shortages of resources or other economic factors.
Would the officers be doing this acting in bad faith and without reasonable care? – almost certainly not: they’d be acting to keep someone safe who they really believed would not otherwise be safe or would be an obvious risk to others in a context where other statutory organisation should have acted differently (or been able to act differently) and were in breach of the MHA itself (s13 and / or s140 MHA, depending on specifics).
Discuss.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2023
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – www.legislation.gov.uk
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