MS v United Kingdom

On 03rd May 2012, MS won his claim for a violation of Article 3 ECHR (inhumane and degrading treatment) after his arrest in 2004 under s136 Mental Health Act.  He was detained in a Birmingham police station and subsequently admitted to a regional medium secure unit after more than three days in a police cell.  If you are unfamiliar with this case, I’d recommend reading the summary of the ECHR judgement.  It is a decent overview of this case and the full judgement is only for the really interested amongst you!  Not an overly long one – for an ECHR case!

This blog is longer than any other I’ve written, but I’d argue it is such an important case, I wanted to give it due coverage.

I’ve actively monitored this case almost from its beginning – I heard of the incident within a month or so of it happening as I first starting working on mental health issues.  When posted to headquarters in 2005 to work full-time on mental health, I started using it as an example of why we surely need s136 provision in NHS establishments during an early period of work on ‘places of safety’.  It is even more important now that the case has been won (subject to any appeal).

A few years later when I was again posted to work on mental health issues, specifically to ensure s136 MHA provision in NHS buildings across my force, I continued to cite this pending European case and also had to gather together material from my force for Home Office lawyers to contemplate their legal reaction to the challenge.  This involved reading the all of case papers from the initial claims made in the British Courts and forwarding summaries of policies and procedure in place at that time.

I remember saying in 2009 after reading the initial claims, that I thought the claimant would win and that in many ways I hoped that he did.  Over eight years later, he won his claim that his detention and lack of care amounted to inhumane and degrading treatment – a contravention of his European Convention Rights (article 3).

At the bottom of the blog, I’ve begun to post some viewpoints which have entered the ‘blogosphere’ and will add to the list as I discover more.  But there are four points I want to make about this case:

  • Place of Safety arguments
  • Accessing Psychiatric ‘Beds’
  • Media coverage
  • Implications


Firstly – I publicised this verdict on Twitter today and received many replies.  A few of them asked why this man was taken to a police station in the first place.  Quite simply: there was nowhere else he could have been taken.  In December 2004, there were no NHS facilities in Birmingham which were ‘designated’ as a place of safety and no healthcare establishment of any kind would allow itself to be used on a casual basis as a place of safety.

However, that is not the main issue here: not only did the judges in this case not criticise the use of a police station, they actually stated that because of the allegation of violent assault against his aunt, prior to arrest, the decision to remove him to a police station was both valid and lawful.  Far more importantly to the decision-making, it was the only available option.  The judges welcomed the developments in NHS provision around the force since this case but reminded that they were obliged to judge his treatment on that day.

I am informed via one lawyer on twitter that he was surprised the action was under Article 3 as opposed to Article 5 (right to liberty) because there is already European case-law which stipulates that a location should reflect the nature of the detention being endured – Aerts v Belgium.  There is also a very erudite explanation of MS v UK by Mind in-house barrister Martha Spurrier on the UK Human Rights Blog which is well worth reading too.

Finally, it causes me concern as to whether the detention of mentally vulnerable individuals in police stations in the future, where behaviour and presentation is acutely agitated and distressed, will bring automatic considerations upon custody sergeants that mean they are unwilling to detain people in the cells amidst fear of legal repercussions.   Let us not forget, it was only yesterday that police officers were criticised for not pushing back against and overtly challenging medical opinion where it related to safety and appropriateness of detention in police cells and we also know that detention of people in psychiatric crisis is prone to surprises of hidden, masked medical risks.

When someone is arrested under s136 MHA – whether they are removed to police cells OR to an NHS place of safety – they are not detained under a part of the Mental Health Act which allows medical treatment without consent.  In this case, once MS was received into Reaside Clinic, he was restrained and forcibly medicated by psychiatrists, consistent with the care he required and this point was agreed by his lawyers.  Such enforced treatment cannot legally occur whilst detained under s136 and certainly not in a cell.  It was the need for such medical treatment, the inability to render it and the subsequently ongoing degradation which amounted to inhumane and degrading care.


MS was quickly assessed by an FME and then subsequently by a psychiatrist whilst in custody.  The speed of his initial medical assessment and his MHA assessment was not a major issue here – in fact, the speed of the MHA assessment was faster than the average at around that time.  In any event, as I understand the verdict, it was the time taken to realise an admission after his MHA assessment and the consequent treatment endured which formed the basis of the court’s view that his detention had violated Article 3.

It does raise a question about the contingency arrangements that the NHS have access to where there is a clinical need for a particular type of bed.  In this case, there was debate between psychiatric intensive care and medium secure as to which was the clinically appropriate place.  It is not the first instance of which I am aware where detention in police cells has lasted for several days for the want of being able to access a bed within the NHS: discussion (disagreement?) occurring between providers or specialists has been cited before.

In Manchester – also in 2004 – during another case investigated by the Independent Police Complaints Commission (no link on internet that I can find), it took imminent legal action by the police in the High Court to motivate the discovery of a bed.  This is something that I have had to do three or four times in circumstances that were becoming similar and each of these examples usually revolve around an inter-area debate about which MH trust would provide a bed to a man arrested out of his home area; OR to a debate about which type of specialist psychiatric facility is the appropriate one.


I want to make just a few quick points about media coverage today.  There have been news articles written by the Daily Telegraph, The Independent and The Guardian all of which fail to address (or understand?) the most important point: detention in police cells was not, per se, the important legal issue.  It was the inability to secure the man’s onward admission into the NHS and the subsequent degradation suffered that was complained about.

Having read the articles – all published within a hour or two of the judgement – I had to wonder that the journalists had read the summary but not the full judgement because the tenor of their coverage – tell me if I’m being over sensitive, won’t you?! – implies criticism of the police when in fact, there was none.

Action brought in the English civil courts was NEVER brought against the police at any stage: only the NHS.  The police and the Home Office were merely involved parties, but were not subject of the proceedings.  And so I wondered about the extent to which the journalists understood that the conditions of this detention came about for the want of being able to access the NHS for a Place of Safety or for the want of the NHS being able to bring around adequate admissions arrangements in an appropriate facility after MHA assessment.

I found myself asking where the questions were about why PCTs in a major UK city, at that time, did not commission and ensure any PoS provision; consistent with the requirements of a Code of Practice (1999) to the Mental Health Act and various bits of national guidance?  Where are the questions about why PCTs don’t seem to have any answers when you ask them for policies and procedures around the realisation of urgent arrangements for admission, as implied by s140 Mental Health Act?  (Most of them just ask, “What’s section 140?!”)  Why does it sometimes take police services threatening legal action against the NHS – as in the IPCCs ‘Manchester’ case – to bring about the provision of responsibilities?

These are the reasons, in my personal opinion, why the MS case occurred as it did.  The ECHR judges made mention many times in their judgement of how genuinely concerned the police were about the welfare of MS, how keen they were to see him transferred out of police custody into an appropriate healthcare facility.  Having read the custody record maintained by the custody sergeants involved, this is the thing which shines through the most – concern for welfare.

It is also right to record that the psychiatrists and other professionals involved were not ‘passive’ but actively attempting to work through their service arrangements to realise a bed admission as soon as possible.  There was no benign neglect on the part of any professional, or any agency – just a range of professionals trying to do the right thing.


I have written before about s136 MHA and Places of Safety, that in partnership discussions it is often the case that you come across mental health professionals and / or commissioning managers who wish to impose what I call exclusion criteria on patients being allowed entry to an NHS place of safety.  Were those common criteria to be applied by the NHS today – and in very many areas, they still are – then the detention of individuals like MS would again end up in police cells in circumstances where cases like may lead to a Convention violation.

Royal College of Psychiatry Standards do make clear that NHS facilities should still be able to receive s136 detainees even where behaviour is highly disturbed.  This case, representing judgement on the positive legal duty owed by public authorities to those detained by the state, gives another reason – as if more were needed – why police stations should not be used as a place of safety.

When I have tweeted statements suggesting that police stations should not be used for s136 detainees, you always get replies which give behaviours upon arrest like those of MS as a reason why police stations should still be used on an exceptional basis.

We now know what the answer to that is:  MS v UK.


  1. UK Human Rights Blog by Rosalind English
  2. UK Human Rights Blog by Martha Spurrier – a reply to Rosalind English

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 OBE, 2012

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 –


18 thoughts on “MS v United Kingdom

  1. Another brilliant piece. I can only hope, now that we have the judgement, commissioners and Trust boards will support the needed changes to provision of appropriate NHS services.

    1. Thanks Doc! A case dear to my heart for many years and I’ve been willing it on for the reasons to which you allude. It has to be right, in my opinion.

  2. Spot on .. except that you are way too easy on The Telegraph, Independent and, especially, the Guardian. The first two imply criticism by the Court of the police, the Guardian goes for it explicitly in the first line of their article. By going with their knee-jerk “it’s the thuggish police’s fault” reaction they mislead the public, slander the police officers in the case (I DO hope, as they are plainly identifiable by those who know of the case locally, that the Federation funds a defamation case against the Guardian) and, in doing so, utterly fail those suffering mental illness who deserve far better that the Government and the NHS see fit to provide.

    1. OK – I’ve reflected and added to it, but I admit to finding that you influence far more in the long rung if you don’t go for the throat. Just my experience and I’ve also found there are many willing to forcfully underline the points I’ve made, as you just kindly did. 😉

      1. You are one of nature’s diplomats Sir and prove time and again….if you see yourself as a hammer, you will see everything as an nail……you dont! Thank you for another well informed blog!

      2. In my experience, its the only language they understand! (But then again, I’ve never really done internal politics and diplomacy when dealing with organisations who should know better and who are only too quick to criticise others!). 🙂

      3. I think they understand the size of the legal bill; the potential for it to happen again with another bill – that ALWAYS speaks loudly. 🙂

  3. good post discussed at work, we would love to know what the Consultant did to secure a bed their duty and what the AMHP did re; their duty to convey. If their was no bed readily available locally, a out of area bed should of been commissioned immediately, the patient could have been transferred back to local area as soon as a bed was secured. Agreed the journalists were sloppy and misinformed with their reports, by the way all AMHPs i talked to agreed with the judgement and were critical of the NHS response

    1. Really grateful to hear that, thanks very much. I also think it was the right result and although some journalists, bloggers and lawyers have offered a different view, they have compared it to various other degradations NONE OF WHICH involve the state removing someone’s liberty and keeping them in such conditions without consent. <<< That seems the key difference to me.

  4. Great summary and commentary, thanks for this. It’s worrying how far ‘the system’ has to travel, even when different stakeholders are working together to secure appropriate treatment. Thanks for contributing towards the required progress, one step closer for everyone who reads and understands this I’d say.

  5. Thanks for this excellent blog Inspector, my first visit and really a valuable resource.

    You are entirely correct, the blame DOES NOT fall on the Police in this instance. As a service you have been the victim of some unfairly skewed and misrepresentative reporting here by mainstream media.

    It was only a matter of time before the lack of medium secure beds became a live issue. I witnessed an individual with very similar presentation detained in a prison segregation unit for a significantly longer period than 72 hrs waiting for the relevant trust to make the space available. In this instance you could almost taste the multi-agency clusterfuck.

    It’s heartbreaking for those charged with care and custody watching a human being psychiatrically disintegrate through a door, particularly given that no enforcement of medication was legally available to manage agitation and distress.

    Cops just happened to be the ones left holding the hot potato here. Situation Normal All Fucked Up: It was ever thus :///

  6. Very interesting read and judgement by the ECHR. As a response PC I feel that we dont get to hear about these judgements and soemtimes are left in the dark. Detention under Sect 136 MHA is quite controversial, as it comes down to the officers opinion in that they believe the detainee is suffering from some sort of mental illness. However one officers opinion is more than likely different to another officers, especially if one of them is very experienced.

    In my years of experience, I have started to notice that trying to get an assessment on a detainee is a battle in itself, whether it be that assessment is delayed due to lack of beds or that the assessment team do not want to get out of bed to carry out an assessment at ‘silly o’clock’ in the morning.

    I have always maintained that a police cell is not a place for those suffering from mental illness.

    1. Furthermore, if you are interested, I can elaborate on something that you mentioned in the blog. If you would like to send me an email address that I could contact you on, I will explain more. Sorry to be vague about it but I am being careful.

    2. It may interest you to know, because you can deploy this argument when faced with delays, that the Care Quality Commission (formerly known as the Mental Health Act Commission) explicity deplore and advise against the practice of AMHPs delaying assessments because of a lack of beds. They advise that it is contrary to the Act. I suggest you, and any other police officers, treat yourself to a read of s13 MHA and to the 08th and 09th Biennial Reports on the Health Guidance page.

      In the biennials – paras 4.45 and 2.49 repsectively – there is clear guidance from a statutory regulator to AMHPs and the NHS.

      1. I would say if the patient is non criminal then walk away. No method of action, no cure, monopoly of no science, no law. Human Rights abuse, no mischief, lets talk science (troth) law. Arrest those for illegal injections, coerce drugging and those that run have something to say about the actual services of a inhumane service Officers.

      2. As you’ll read elsewhere on this blog, the distinction you make is a false one. In any event two points:

        1) This particular man who greivously assaulted a relative before detention by the police;
        2) Even if he had not, his presentation at the point of detention was to mean that had the police NOT detained him, they would have been guilty of all manner of neglect and disciplinary processes.

        This blog is about the challenge to policing from mental health related demands of all kinds; it’s not about offering a position on what or social, political or philosophical position on mental illness should be. Like you, I’ve formed many views about such things over the years and I often tweet or refer to the ‘debate’ that occurs about such matters. Notwithstanding it, the police are required to police and within the law, regardless of that debate.

  7. Thanks for a great article on what would appear to be a landmark judgement. Do you happen to know of any other challenges to section 136 detention that have been brought based on Article 3? Successful or unsuccessful.

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