Yet another PFD notice which should be causing concern and questions – indeed for this one, I go so far as to say it should be investigated as to who anyone thought what occurred here was legal. You may remember me recently highlighting a situation brought before the High Court in London, an out-of-hours application by Surrey Police about a situation deteriorating in their cells where someone who had originally been arrested was languishing whilst efforts to find beds were made. Well this PFD for Mr Juan Martin from London, is an example of something similar following use of s136 MHA where the deteriorating situation took place in a Place of Safety (PoS) rather than in police custody.
- Mr Martin was detained by Sussex Police at Beachy Head, an area well known for suicide and which has a number of volunteer patrols run by local churches to try and identify people who may have travelled there at a very difficult time.
- Having been detained under the Mental Health Act 1983 (MHA) by officers, he was removed to a Place of Safety on 6th April 2022.
- For reasons not explained in the PFD, it states he was then “informally held” at an “assessment centre” in London on 07th April and assessed under the MHA on 11th April.
- It’s not clear whether the assessment centre was a London PoS or something else.
- He was deemed to require admission under s2 MHA but no bed was immediately available so he remained there “under common law” until the following day, the 12th.
- The bed which was identified for him was one where it was thought a patient would be leaving hospital but that didn’t happen, in the end.
- Another bed apparently became available at 5pm on 12th April but the Coroner noted there was no documentary evidence of this.
- Just after 7pm a fire alarm was activated and during the management of patients during the alarm, Mr Martin ran off from the unit.
- He was seen the following day climbing over the fence of a bridge at height and he allowed himself to fall in front of the police officers who attended to try and save him.
- Absolutely tragic.
FIRST THINGS FIRST
We need to get rid of this common law thing first of all. I’m not saying there is never a role for common law in the management of some mental health emergencies but it certainly doesn’t allow detention of someone “informally held” in an assessment centre for five days(!) until they can be assessed under the MHA. Did anyone else read the timeline and wonder why a MHA assessment did not take place in Sussex during the first 24hrs of the s136 detention? There is actually a legal duty to arrange that, because the purpose of s136(2) is to hold someone at a Place of Safety once they arrive there in order that they may be examined by a Doctor and interview by an Approved Mental Health Professional (AMHP).
I’d love to know if that happened and if not, why not, given it’s a legal requirement and the purpose of s136 once safety is re-establish and someone taken to a PoS?!
We also need to remember this argument formed part of the Sessay case from 2010. That involved a situation where the police had unlawfully removed someone from their private home “under the Mental Capacity Act” and they were then held in a Place of Safety for a day or so just as if they’d been removed there under s136 MHA from a public place. The patient, Ms Sessay, was then seen by an AMHP and two doctors who “sectioned” her. However, she brough legal action against the Metropolitan Police and the South London and Maudsley NHS Trust for three things –
- The Commissioner’s reliance on the MCA was unlawful – the Met didn’t contest this and admitted liability.
- The Trust unlawfully held the claimant in a PoS without lawful authority – this is the part where common law was claimed and the trust did not admit liability. However, they lost – that aspect of the claim was found proved.
- Argument was also put that MHA assessment and admission must also have been unlawful, following as it did from two unlawful actions by the police and trust – that was not proved and was dismissed.
The judge in Sessay made a point of addressing the perceived problems and shortcomings of the MHA which had been raised by the defendants. He dismissed the points made and specifically stated the common law doctrine of necessity does not apply in the Sessay situation (in paragraph 34), which was nothing like as long as that for Mr Martin, detained for over five days.
WHAT LEGAL BASIS
So I’d really like to know on what legal basis the person was transferred from the Sussex PoS to a London PoS – and then held there for five days until a MHA assessment could occur? You’re going to have to work really hard to convince me that’s lawful – it seems a straight-forward enough Article 5 violation because you cannot deprive someone in the UK of their liberty unless through a process prescribed in law. Nothing in the MHA allows detention for five days (or six if you include the 136 process which preceded it) to allow a Doctor and AMHP to conduct an assessment.
Then we have the post-MHA assessment period – more than 24hrs of further detention whilst we look for beds. And no mention by the Coroner here of s140 provision in London, or what the joint policy for s140 MHA should or did say. (I suspect it would be should say, because most areas don’t have the joint protocol on the operation of s140 MHA which is required by paragraph 14.80 of the Code of Practice to the MHA.) And yet if we think about the comments of the High Court judge in the Sussex High Court application published last month, we see an expectation that someone in this process, potentially the AMHP, should have been trying to ensure a legal basis for this person’s liberty to be withdrawn.
It seems the judge in the Surrey case had an expectation that where detention is drifting unlawfully in to deprivation of liberty territory, that steps are taken to re-establish a legal basis for holding someone. Had a MHA assessment already been completed, for example in Sussex and s2 MHA admission indicated, an application could have been made to the hospital where the assessment centre was and the patient held under s2 there. Failing that, there needs to be a discussion about urgent admission provision, capacity and capability. The Secretary of State for Health – to whom the PFD is addressed – could be well placed to answer this, but the PFD doesn’t raise it. Just like another recent PFD about a lack of beds didn’t raise it, either.
And some AMHPs have started urgently discussing what the Surrey High Court application means for expectations upon them where they are prevented from completing their duties under the Act because of the failures of another organisation they cannot control – the NHS – to supply a bed in a timely way.
IMPROVISING
“If there’s no bed, there’s no bed and that’s the end of it”, said one AMHP to me about twenty years ago but unfortunately that’s not true. The combined effect of the MHA itself and the Human Rights Act 1998 means it’s unlawful not to ensure someone’s fundamental human rights and in this scenario that would include Articles, 2, 3, 5 and 8 – if not more. You cant just randomly detain people lkke tjis (A5) and you cdnt just push extremely unwell people out to their fate whilst very unwell (A2, A3 – depending how badly it might end).
And here’s a question for you: the PFD states Mr Martin attempted at one point to push through a door and was “persuaded” by staff to remain. Bearing in mind that took place well in to this highly questionable period in the London PoS, imagine the encounter had aggravated things and he’d used physical force or violence on the staff member to move them away so he could push through the door. Imagine as well he may have caused minor damage to the door as he left.
What would be the expected redress for violence towards NHS staff and property? – well, what if he’d put forward this defence to any allegation of assault or damage?
“I was being held unlawfully in an NHS building where I did not with to remain, entirely outside the prescriptions of domestic law and in violation of my human rights. I used reasonable force to extricate myself from a false imprisonment by people who had no right in law to keep me there and that did necessitate some damage to the door as well. I submit a defence to these allegations because I am permitted in law to free myself from this, it being entirely unlawful.”
Argue that, if you can.
This situation is a real mess – one of many; and staff need to be really careful they don’t drift in to the commission of offences themselves. People in the past have been arrested for holding victims in rooms for days on end and refusing to let them leave without a lawful basis for it. The fact you’re a healthcare professional (or for that matter a police officer) doesn’t mean you can just shout “common law” and do what feel you must.
You have to have an actual legal basis for your actions and you should be able to explain what they are against a background of what we know from cases like Sessay and Surrey.
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, 2024
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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