Mental health law briefing 176 – Olympics: Diplomatic immunity

Given the nature of the forthcoming Olympics, amongst those visiting from overseas there are likely to be a number of visitors who are subject to the Diplomatic Privileges Act 1964. In the event that any such individuals require treatment under the Mental Health Act 1983 (as amended) (MHA) certain difficulties may arise.

Section 2 of the Diplomatic Privileges Act 1964 provides that “A person of a diplomatic agent shall be inviolate. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” Article 1(e) defines a “diplomatic agent” as “the head of the mission or a member of the diplomatic staff of the mission” and this definition is extended to “the members of the family of a diplomatic agent forming part of his household” who are not nationals of the receiving state.

Accordingly, diplomats (including employees of the diplomatic household) and their families cannot be detained under the provisions of the MHA in view of the implications for a person’s freedom unless the inviolability that the 1964 Act gives rise to has been lifted. The State that the diplomat represents is the only body that is legally able to lift the inviolability. The usual procedure to trigger this process is to obtain consent to detention under the MHA from the relevant Head of Mission, usually an Ambassador, so that the provisions of the MHA can then be exercised.

In exceptional cases of extreme emergency, where immediate detention of the person with diplomatic status is the only way to protect that person or another, the use of the MHA would arguably be justifiable on the basis of the right of self-defence with a duty to protect human life. If such circumstances occur the Foreign and Commonwealth Office should be contacted immediately.

It is advisable for staff in mental health units to be made aware of the potential difficulties of treating patients with diplomatic immunity under the provisions of the MHA and for procedures to be put in place so that if necessary urgent contact can be made with the relevant Embassy. Given that there may, in our experience, be potential delays in obtaining the consent of the Ambassador in such circumstances, the only satisfactory option for the hospital is to treat the patient on a voluntary basis providing the patient’s consent is forthcoming.

Alexandra Johnstone
alexandra.johnstone@rlb-law.com
© RadcliffesLeBrasseur

March 2012


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