139

Section 139 Mental Health Act

139When I wrote our force policy on mental health in 2005/6, I put an excerpt from s139 of the Mental Health Act on the front of the documents. This section 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).

Isn’t legal language great?! – it means that if someone does something which is said to be done under the Mental Health Act 1983, they will not be liable in civil or criminal proceedings for that action unless it can be shown that it was done in bad faith or without reasonable care. AND – before someone can sue that person or organisation in the civil courts they need the authority of the High Court; before a person may be criminally prosecuted for an offence under the Mental Health Act, the prosecuting authority must have permission of the Director of Public Prosecutions.

WHY DOES THIS MATTER?

RCJIn 1997, South Wales Police were called to an address in Merthyr Tydfil by Robert Seal, over a traffic obstruction. When they arrived at his mother’s house, they ended up arresting him to prevent a breach of the peace and having arrested him and removed him outside, the officers formed a view that he may be suffering from a mental disorder and detained him under s136 of the Mental Health Act. He subsequently initiated legal proceedings against the Chief Constable for unlawful arrest – he wasn’t ‘found’ in a place to which the public have access – and this challenge was thrown out because he had failed to secure the permission of the High Court ahead of his action.

Seal v Chief Constable of South Wales Police (2005) proceeded through the various appeal courts and eventually to the European Court in Seal v UK (2010) basically because the claimant argued that section 139 denied him access to justice:

“The section is intended to strike a balance between the legitimate interests of the applicant to seek the adjudication of the courts … and the equally legitimate interests of the respondent to not to be subjected to the undoubted exceptional risk of being harassed by baseless claims”. Winch v Jones (1986).

He lost his case because section 139 requires High Court permission before the case is commenced and this is unambiguous.  (There was a little bit more to Mr Seal’s claim: that the original arrest to prevent a breach of the peace was unlawful and therefore that he was assaulted and falsely imprisoned.  There is no particularly reason why his civil action for these non-Mental Health Act elements could not have proceeded.  For reasons of his choosing, he proceeded with no claim at all.)

THE PURPOSE OF SECTION 139

The point is to ensure that those people who exercise sensitive powers under the Mental Health Act are given an additional layer of legal protection from litigation for their acts. Such additional protections are not unique to potential claims or allegations from patients with a mental disorder: the United Kingdom and many other countries provide similar protections against claims which could be made by children or even people who have been declared bankrupt.

So it ensures that if you wish to argue that a police officer has illegally arrested you or that an AMHP has failed to take reasonable steps to consult with your Nearest Relative before ‘sectioning’ you, you must first convince the High Court that the police officer or the AMHP acted in bad faith. Equally, if you wish to allege that a psychiatrist has criminally neglect a patient, the DPP must give permission for the prosecution. Again, this is not specific to victims with mental disorders: many crimes require DPP consent before they may be prosecuted – such as the offence of inciting racial hatred.

UNEXACTING

GavelIn 2006 Mr David JOHNSTON was detained under the Mental Health Act by Merseyside Police after a third party called the ambulance service claiming that Mr JOHNSTON was acting violently. When the police arrived Mr JOHNSTON ran off and an officer pursued him, using CS spray to detain him under the Act. In 2009, Mr JOHNSTON applied to the High Court under s139 to seek leave to commence a civil action against the Chief Constable. This was granted and in 2010 Mr JOHNSTON won his claim of assault for excessive force used. It is clear from the “s139 application” that the court assessed the potential evidence against the standards outlined above, before deciding that the application was not “frivolous, vexatious or an abuse of process”, but that it had “a real prospect of success.”

I wondered at first what the point of section 139 was: it appeared to me to just make it harder for vulnerable people to assert their rights in the courts against powerful state institutions like the police or the NHS. However, as Lord Bingham stated in the original Seal case, “the threshold for obtaining leave under section 139(2) has been set at a very unexacting level … an applicant with an arguable case will be granted leave” and this has been shown. There was evidence in JOHNSTON which directly contradicted his claim but the courts took the view that it should be tested because it was not “frivolous, vexatious or an abuse of process.”

But section 139 does make sure that those who take difficult decisions in this challenging area of business are just slightly more protected than they otherwise would be from various types of legal claim – and for good reason.

___________________________________________________________________________________________________________

BadgeThe Mental Health Cop blog won

– the Mind 2012 Digital Media Award, in memory and in honour of Mark Hanson.
The Awards celebrate the “best portrayals of and reporting on mental health in the media.”
– a World of Mentalists 2012 #TWIMAward for the best in mental health blogs.
It was described as “a unique mix of professional resource, help for people using services and polemic.”

About these ads

12 thoughts on “Section 139 Mental Health Act”

  1. So s139 is a bent coppers get out of jail free card. It is time that this legislation was modernised to protect the rights of ordinary men and women of this counrty from dodgy bobbies.

      1. I don’t miss the point. The Police need to be accountable. s139 means that they are not and cannot be held to account by any ordinary person. It’s a bad law and needs to be changed. Officers who act with honesty and integrity don’t need any special protection.

      2. It’s not extra protection against honest acts: it’s is extra protection against firvilous,

        We probably have the most accountable police service in the modern world with numerous statutory agencies as well as the courts, independently holding us to account.

    1. Of course it isn’t!? – and even if it were, why not log on to talk about ‘bent’ AMHPs or DRs to whom it also applies, as well as to members of the public, paramedics and others? Or should we infer your angle from your choice of corruption target?!

      If you read the words of the act you’ll see that this protects no-one where they have acted in bad faith or without reasonable care and the Johnston case quoted shows this beyond doubt.

      Oddly enough, that’s WHY I put it in!

      1. How does the average person prove that a dishonest officer has acted in bad faith? My experience has shown me that officers are happy to tell outright lies to defend their colleagues.

        They are happy to lie to achieve political goals such as discrediting a cabinet minister.

        They are happy to alter witness statements to deflect criticism such as happened following the Hillsborough disaster.

        They are willing to sell information to the press.

        And they are happy to turn a blind eye to predators such as Jimmy Saville.

        The Police service is rife with undesirable characters and ANY act which allows them a get out of jail free card needs to be replaced.

      2. THEY?! All 135,000 of us?! Get over it – no-one denies that much of the above is worrying and disturbing, but I can also list you teachers convicted of sex offences, doctors and nurses of neglect, dentists and solicitors and members of our Armed Forces who have broken laws, been imprisoned and / or sacked.

        That isn’t the point of s139! – if you want a more general debate about policing and / or corruption, there are many other sites available that will get into that with you.

        Meanwhile, back in MentalHealthLand, s139 is far from a get out of jail free card – why don’t you just ask the officer who CS sprayed Mr Johnston if he could play that card? The action against him was allowed to proceed despite evidence which contradicted the allegation.

        So you do miss the point massively: it merely provides an extra layer of legal scrutiny ahead of any claim or prosecution: NOT JUST FOR POLICE OFFICERS, either. It ensures that where state officers take decisions of which some will never been understood or accepted, they cannot be subject to legal proceedings unless a court or the DPP has first satisfied themselves that it is not vexatious or fivilous.

        It would for example, protect YOU should you ever be in the awful position of having to apply to have a relative admitted to hospital under the MHA where you had acted reasonably and in good faith because of your concerns about risks and threats that you wanted to protect them from. It would simply prevent your relative from suing you or seeking your prosecution unless the High Court of DPP have approved the action. They would do so where your relative had an arguable claim and would strike out only those which were not arguable because you had acted in good faith and with reasonable care. Don’t take my word for it – there are various lawyers on Twitter who will make the same points who have experience of patients successfully suing their psychiatrist and so on.

  2. Good post and its nobody’s Get out of Jail Free Card it gives a balance which is required. It allows people to act in quite often stressful fast moving situations, where often action needs to be taken there and then.

    1. Well trained officers who act with honesty and integrity don’t need extra protection, even in stressful fast moving situations. The actions they take will be right and will stand up to scrutiny. s139 means they don’t have to stand up to ordinary scrutiny.

  3. This is a brilliantly informative blog for a layperson to be given access to the reality of sections of the Mental Health Acts – thank you for taking the time to unpick the legalese and make it readable.

  4. Just an additional point (although I may be wrong!), with 139 I think it’s notable that it doesn’t seem to extend to omissions, ie where a decision is not made, for example, failure to admit or discharge. Therefore where something is not done and legal action brought application to the high court is not needed. Great blog and great work!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s