How to Sue the Police If You Are Detained Under Section 136 of the Mental Health Act

I have blogged on numerous previous occasions about claims which I have brought on behalf of clients to whom the Police have attempted to deny access to justice by invoking Section 136 of the Mental Health Act (MHA), most recently that of a gentleman who was bundled off the street into the back of a Police car against his will whilst he was doing nothing more than simply walking along a Worcestershire road. There was absolutely no suggestion that my client had committed any criminal offence, but the police officers involved subsequently attempted to justify their kidnapping of my client – for it amounted in all particulars to exactly such an act, forcing him into a car and driving him away against his will – by reference to their powers of detention under the Mental Health Act and the Force then tried to use that same legislation not merely to raise a defence to my client’s legitimate claim but – chillingly – to attempt to deny him the opportunity to bring the claim in the first place: in effect, to shut the doors of Court in his face.

Fortunately, I opened them.

Section 136 of the Mental Health Act 1983 provides as follows-

(1)If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons—

(a)remove the person to a place of safety within the meaning of section 135, or

(b)if the person is already at a place of safety within the meaning of that section, keep the person at that place or remove the person to another place of safety.

(1A)The power of a constable under subsection (1) may be exercised where the mentally disordered person is at any place, other than—

(a)any house, flat or room where that person, or any other person, is living, or

(b)any yard, garden, garage or outhouse that is used in connection with the house, flat or room, other than one that is also used in connection with one or more other houses, flats or rooms.

(1B)For the purpose of exercising the power under subsection (1), a constable may enter any place where the power may be exercised, if need be by force.

1C)Before deciding to remove a person to, or to keep a person at, a place of safety under subsection (1), the constable must, if it is practicable to do so, consult—

(a)a registered medical practitioner,

(b)a registered nurse,

(c)an approved mental health professional, or

(d)a person of a description specified in regulations made by the Secretary of State.]

(2)A person [removed to, or kept at,] a place of safety under this section may be detained there for a period not exceeding [the permitted period of detention] for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care.

Section 135 of the Mental Health Act defines a “Place of Safety” in the following terms-

(3B)

(6)In this section “place of safety” means residential accommodation provided by a local social services authority under [F15Part 1 of the Care Act 2014 or] [F16Part 4 of the Social Services and Well-being (Wales) Act 2014] F17. . . , a hospital as defined by this Act, a police station, [F18an independent hospital or care home] for mentally disordered persons or any other suitable place F19….

[(7)For the purpose of subsection (6)—

(a)a house, flat or room where a person is living may not be regarded as a suitable place unless—

(i)if the person believed to be suffering from a mental disorder is the sole occupier of the place, that person agrees to the use of the place as a place of safety;

(ii)if the person believed to be suffering from a mental disorder is an occupier of the place but not the sole occupier, both that person and one of the other occupiers agree to the use of the place as a place of safety;

(iii)if the person believed to be suffering from a mental disorder is not an occupier of the place, both that person and the occupier (or, if more than one, one of the occupiers) agree to the use of the place as a place of safety;

(b)a place other than one mentioned in paragraph (a) may not be regarded as a suitable place unless a person who appears to the constable exercising powers under this section to be responsible for the management of the place agrees to its use as a place of safety.]

Subsequently, any person who believes that they were wrongfully detained by Police officers purportedly exercising “Section 136” powers and who now wishes to commence an action seeking damages arising out of the incident, requires the prior permission of the High Court in accordance with Section 139 of the Mental Health Act which provides as follows

(1)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.

(2)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.

In other words, if the Police invoke Section 136 of the MHA as justification for a person’s detention, then the normal freedom available to anyone who has been detained against their will, to commence an action for False Imprisonment or a claim under the Human Rights Act in the civil courts is barred, and any claim which they did issue without first obtaining permission from the High Court, as set out above, would be deemed a nullity.

This is a significant restriction on the rights of an ordinary citizen to seek an accounting in front of the open tribunal of the County Court or High Court for loss of liberty imposed or injury inflicted by agents of the state, and could have amounted to a gross defacement of the constitutional principle of access to justice which underpins the British legal system, were it not for the good health and robust independence of the legal system in England and Wales. Over the years lawyers and judges faced with the provisions of the Mental Health Act have set down cogent legal arguments and given judgments which correct the imbalance of power that might otherwise arise if the Police were simply allowed to use Section 139 as an unquestioned shield against the claims of those purportedly detained under its terms. Indeed,  I am proud to have played my own part in the development of this case law, as set out in this case report – Johnston v Chief Constable of Merseyside.

In the case of Winch v Jones [1986] Q.B. 296, the Court of Appeal determined that the test to be applied when considering to grant permission under section 139 was whether, on the materials immediately available to the court, the complaint appeared to deserve fuller investigation:

“As I see it, the section is intended to strike a balance between the legitimate interests of the applicant to be allowed, at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the Acts. In striking such a balance, the issue is not whether the applicant has established a prima facie case or even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the fuller investigation which will be possible if the intended applicant is allowed to proceed.”

In Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910, the appellant had been detained under section 136 of MHA 1983 and removed to a place of safety, following his arrest for breach of the peace. His claim for damages alleged that there had been a misuse of the power to detain him. Here the modern incarnation of the Court of Appeal upheld the test as set down in Winch v Jones,in the context of the post- 1998 Civil Procedure Rules of England and Wales. Again, in this key judgment, the Court took the side of the ‘citizen’ against the ‘State’.

As Baroness Hale astutely observed at paragraph 58 of the Seal judgment –

Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest.

I also cheerfully endorse the reference at paragraph 18 of this judgment to the principle of English law enshrined by Viscount Simmonds in 1960, a rallying call in support of access to justice and civil liberties made in the language not of the revolutionary but the traditionalist –

It is a principal not by any means to be whittled down that the subject’s recourse to her Majesty’s Courts for the determination of his rights is not to be excluded except by clear words.

And what a long and honourable tradition that is, that underpins our modern liberties and democratic state.

What is disappointing to me is that despite such clear guidance from the Courts, the Police still routinely trot out “Section 139” as a defence to frustrate, delay and demoralise Claimants who clearly have legitimate claims but who are faced with the potentially daunting prospect of having to go to the High Court to clear an artificial hurdle before the Police will properly and reasonably address their claims; all too often I see Police Forces wasting everybody’s time and money forcing High Court proceedings to be brought in cases where there is simply no basis for suggesting that the claim has no prospect of success or is ‘frivolous, vexatious or an abuse of process.’

In this respect, Police Forces often utilise Mental Health legislation to play cynical, tactical games for a litigation advantage, and thereby seek to hide their Officers from proper scrutiny for their actions behind legislation primarily intended to protect medical professionals from vexatious litigants.

There are many occasions on which acts which deprive individuals of their liberty for Mental Health reasons deserve the full investigation that substantive civil proceedings will allow; if you believe you have suffered in this way at the hands of the Police, or they are using the provisions of the Mental Health Act to attempt to frustrate your claim or complaint, please contact me for expert advice.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.

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