Mental health law briefing 168 – The police, Section 2 and Section 136 of the Mental Health Act
A recent case has provided some guidance on the procedure governing the detention of patients by the police prior to Section 2 admission under the Mental Health Act 1983 (MHA).
Following a complaint that the claimant was neglecting her child, two police officers visited the claimant’s residence to investigate. Concerned that she was mentally unstable, they removed her from her home and took her to a psychiatric hospital for assessment and treatment. The officers did not have authorisation to remove her under S.135 MHA, because they did not have a warrant and were not accompanied by a mental health professional or registered medical practitioner, and so relied on S.5 Mental Capacity Act 2005 (MCA).
On arrival at the hospital, one of the officers incorrectly informed the nurse on duty that the claimant had been brought in under S.136 of MHA. 13 hours later, during which time the claimant was detained, the hospital managers received the application to admit her under S.2MHA.
The claimant brought Judicial Review proceedings against the hospital trust and the Police Commissioner. She said her removal to hospital by the police had been in breach of Articles 5 and 8 of the European Convention of Human Rights. She had also been deprived of her liberty by being held for 13 hours pending the decision to admit her under S.2 MHA.
She said the trust staff did not have lawful authority to detain her during this time and consequently she had been unlawfully imprisoned and/or had her Article 5 rights breached. She further claimed that psychiatric hospitals could not deprive patients of their liberty based on the common law doctrine of necessity.
The trust submitted that there was a lacuna in the MHA in relation to the requirement for a patient to wait at the hospital until a decision is reached regarding their S.2 admission. Consequently,they had always found it necessary to rely on the doctrine of necessity.
The claimant and Police Commissioner agreed that the claimant’s removal to hospital had been in breach of the claimant’s Article 5 and 8 rights. S.5 MCA did not confer the right to move the claimant to hospital or other places of safety for the purposes set out in S.135 and S.136 MHA.
The Court held that the claimant’s detention by the trust had been unlawful. The common law principle of necessity did not apply where Part II of MHA was engaged. As stated by the European Court in the Bournewood case if the common law doctrine of necessity applied in these cases it would conflict with the safeguards required by Article 5. However, the Court added that common law detention did not automatically amount to a breach of a patient’s Article 5 right. The claimant’s deprivation of liberty unlawfully here was a result of a number of cumulative factors.
It was also irrelevant that the trust had honestly and reasonably believed they had the necessary authority to detain the claimant (here under S.136 MHA) because of incorrect information from the police, when no such lawfulauthority existed.
The claimant therefore obtained a declaration that her detention had been unlawful and in breach of Article 5. She was awarded damages for the breach and for her false imprisonment. The award of damages (as per paragraph 59 of the Judgment) was £500.
The case is useful in highlighting the dangers of detaining patients prior to a S.2 admission under MHA unless there is a clear legal basis for this (e.g S.136 MHA). Hospitals acting improperly may open themselves up to claims of Article 5 breaches and deprivation of liberty. It is now clear that the common law principle of necessity cannot be relied on when detaining a patient for these purposes. Hospitals should follow the procedure set out in Part II of MHA which provides a comprehensive code for compulsory admission to hospital for non compliant incapacitated individuals.
This case also serves as a warning to hospitals to ensure that they confirm with the police officers bringing patients to hospital that they have complied with the correct procedure.
 (R(on the application of Sessay) v South London & Maudsley NHS Foundation Trust and another  All ER (D) 159
 HL v United Kingdom  All Er (D) 39 (Oct)
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