When 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?
In 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.
In 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.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
The Mental Health Cop blog
– won the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
– won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs
– was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
– was commended by the Home Affairs Select Committee of the UK Parliament.