Khamba & Ors v Harrow London Borough Council & Ors

This is an application by the First Defendant Harrow Council, referred to here as “D1”, to strike out a claim brought against them and others in respect of allegations made at common law and under the Human Rights Act (“HRA”) in respect of a mental health assessment  on the Third Claimants by a Mental Health Professional (an “AMHP”) for whom D1 is said by the Claimants to be responsible.

The claim is made following a serious physical attack upon his mother, the First Claimant, by the Third Claimant on 23 December 2018(they are referred to here as C1 and C3 respectively) and the psychiatric injury suffered by the Second Claimant (C2), the sister of C3, who came upon the aftermath of the attack.

The allegations of breach against D1 concern an assessment for detention undertaken pursuant to the Mental Health Act 1983 (referred to here as “the MHA” or “the Act”) on 14 August 2018 co-ordinated by an AMHP. She and two medical practitioners saw C3 in police custody, and assessed him as not to be sectioned under the MHA. He remained in police custody and was then released.

The claim was issued on 28 July 2022 with Particulars of Claim dated 16 December 2022. In its Defence in June 2023 a number of formal and other concerns were raised by D1, and thereafter the claim was amended, following a CMC on 8 February 2024.  

A detailed chronology of events is given by the Claimants. No issue is taken with it by D1 at this stage, the points made in this application raise issues of law. The court will take the alleged facts at their highest for the purpose of testing the legal submissions in this application. 

D1 seeks a strike out, pursuant to CPR 3.4(2)(a) or CPR 3.4(2)(b), on the grounds that the permission of the Court to bring these proceedings was not sought as required by s.139(2) MHA and the proceedings are therefore a nullity. In the alternative, D1 seeks to strike out the common law claims, arguing that no duty of care is owed as regards an assessment for detention which the Claimants say was carried out here negligently, in breach of duty, and to strike out certain parts of the cases based on rights arising under the ECHR. Summary judgment is also sought in the same terms.

D1 seeks a strike out or summary judgment similarly with respect to the HRA operational duty claims by C2, but does not assert that C2’s claims of systemic breach are demurrable. There is nothing in the pleaded case, says D1, to suggest that D1 knew, or ought to have known, of any risk to C2 at the point of D1’s limited involvement on 14 August 2018. Any allegation that D1 had a duty to protect C2 is bound to fail. 

As to C3, a strike out is sought, or summary judgment, as to all of C3’s Human Rights Act (“HRA”) claims. The ill-treatment or consequences required to engage Articles 2, 3, 5 and 8 do not arise in this case, says D1.

D1 also seeks the strike out of C2 and C3’s claims to be victims of any breach of the ECHR rights of other family members, when those family members can enforce their rights themselves.  D1 do not seek to strike out C1’s claims under the HRA, save in relation to the requirement under s.139(2) MHA 1983, nor do they seek to strike out the claims of C2 relating to alleged systemic duties arising under Articles 2, 3 and 8 of the ECHR.

The Claimants say that some two years before the index attack, C3 had begun to exhibit signs of significant psychiatric illness. Through December 2016 and in October 2017 there were a number of visits to his GP and to Northwick Park Hospital, then on 11 November 2017, the police were called to the family home following a violent episode by C3 while at a family party during which he also tried to self-harm. C3 was taken to Northwick Park Hospital where it was concluded he had capacity, and so did not require admission. 

 On 12 November 2017, a referral was made to “Safeguarding Adults (Harrow)”, operated by D1, to which it is said no response was received.  During 2017 and into January 2018 C3 had further visits with his GP saw a life coach and hypnotherapist as well as a private psychiatrist. On 25 April 2018, that psychiatrist saw C3 for a second time and found him in the middle of a psychotic episode with probable thought disorder. On 14 May 2018, he prescribed Aripiprazole, an anti-psychotic, to C3.  

Between June and July 2018, C3 became increasingly violent and hostile. On 9 August 2018,  the same psychiatrist assessed C3 as detainable under the MHA, and the next day contacted D2’s Single Point of Access (“SPA”) mental health contact and C3 was referred to D2’s Crisis  Resolution and Home Treatment Team (“Harrow CRT”) the same day.  The records show that Harrow CRT made numerous notes. The Claimants rely on one in particular made by a Registered Mental Health Nurse attached to Harrow CRT that the plan would be to admit C3 voluntarily for short-term treatment and if not, carry out a Mental Health Act assessment. On 1 August 2018, this nurse referred the case to the duty AMHP (not the AMHP here) to arrange an urgent assessment. The Claimants say this was not actioned, rather, the nurse and a support worker visited the family home to carry out an informal assessment. On the same day, the nurse requested an urgent assessment on the basis of a perceived high level of risk posed by C3.

At about 6 PM on 11 August the registered mental health nurse attached to D1 referred the case to the duty AMHP (not the AMHP here) to arrange an urgent assessment. No action was taken on the referral, but the family was visited in order to assess C3. The registered mental health nurse concluded there was a high risk to family and a formal assessment under the MHA was required. He listed a number of features of concern. However C3 refused the voluntary admission. It was advised the police were contacted if he became aggressive again. A formal NHS assessment was requested on the basis that C3 was not suitable for community support. A few days later the urgent assessment was downgraded to a “planned assessment” as it was deemed not to be urgent by a Staff Nurse. 

On 12 August 2018, following a telephone update between a staff nurse attached to Harrow CRT and C1, the request for an urgent assessment was downgraded to a referral to the Harrow West Community Mental Health team.  The next day, C3 became increasingly aggressive pushing C1 to the floor and threatening to drop/throw a sofa footrest at her.   C1 telephoned the SPA in the early evening, but the student nurse present stated they were unable to help, as a doctor and an AMHP had not yet been appointed to carry out any assessment. C1 was again advised to contact the police or emergency services if she felt unsafe. Late in the same evening C1 called the police saying she was in fear of immediate unlawful violence and C3 was threatening to kill himself.

On the date of the alleged breaches, shortly after midnight 14 August 2018, several police officers attended and found C3 in the garden pacing around with his shirt off, rambling and swearing. A police note stated that in the view of the officer C3 was in urgent need of an assessment and that a mental health setting was more appropriate than police custody.  

Just after 8.00 AM on 14 August 2018, C1 updated D2’s day treatment team about events, including the arrest of C3. A registered mental health nurse saw C3 in his cell at 10.00AM. C3 denied the incident for which he had been arrested, and claimed his mother had been overreacting. The nurse assessed the risk as “medium,” and stated in the note he made that C3 had “sufficient insight into the current situation”, but said he would benefit from a further assessment by the AMHP team to decide whether compulsory admission was necessary. 

Arrangements were made for C3’s assessment to be conducted by two clinicians, approved under s.12 MHA, that is to say D3 and D4. An AMHP (accepted for the purposes of this application as employed by D1) also attended.  Neither D3 nor D4 was employed by or affiliated to either D1 and/or D2. They had no background knowledge of C3’s mental health difficulties. At around 2 PM on 14 August 2018, the two doctors D3, D4 and the AMHP, conducted an assessment of C3.

The assessment concluded that C3’s mental state did not satisfy the statutory criteria for compulsory detention pursuant to s. 2 MHA. At 17:51 C3 gave a no comment interview to the Police, and at 18:35 a decision was taken to take no further action; C3 was released from Police custody.

 The relevant notes of the encounter of C1, C3’s mother, with the AMHP show the AMHP had a discussion with her and reviewed the custody record. The AMHP was aware of the incident earlier that day, and she had a discussion with C3. The record of the AMHP, held by D2, continues as follows: 

On 15 August 2018, a Care Programme Approach Initial Assessment was opened by D2.  It is the Claimants’ case that no assessment took place and there was no follow up. On 17 August 2018, the psychiatrist who had examined C3 on 9 August wrote to C3’s GP saying he considered C3 a probable suicide risk. On 22 August 2018, C1 called D2’s Harrow Community Mental Health Team (“CMHT”). A voicemail in response said the case had been closed. On 23 August 2018, C3’s GP phoned the SPA and Harrow CMHT, they were told the case was closed because they had concluded that he was not detainable and no follow-up was planned.  

The Claimants say that through August and September 2018 C3 continued to be very abusive toward C1 and deteriorated.  C1 phoned the Police after C3 attempted to cut his wrists on 17 September 2018, but no further support was offered. C1 reported to his GP that C3 was increasingly violent and the doctor made an urgent 24-hour referral saying C3 was at high risk of violence and aggression and there were safeguarding concerns for his mother and sister.   On 21 September 2018 C1 called Harrow CMHT’s duty social worker twice to express her concerns. The duty social worker spoke to the AMHP and the Duty Manager. By agreement, they told C1 to phone the Police if C3 became violent and provided her with details of a domestic violence charity, saying the case would be discussed in the team next week. The recorded plan was to “hand over to Duty Manager”.  Between 24 September and 26 October 2018, C1 made several more attempts to report C3’s deteriorating mental health and fear for her own safety. On 26 October 2018, a trainee GP and worker from the local Drug and Alcohol Service attended the family home to assess C3 but he was not at home. On 5 November 2018 the case was officially closed. The GP was notified on 16 November 2018. 

The Claimants say that during the period from the closure of C3’s case until the violent incident on 23 December 2018, there was no material change in C3’s behaviour.

In the early hours of 23 December 2018, C3 violently attacked C1 in their home resulting in her very serious injury including blindness. C2 returned home and found C1 badly injured, herself suffering a laceration to her finger and shock. The injury was sustained when trying to take C3’s weapon, a knife, from him.

  C3 was charged with C1’s attempted murder.  He was tried in January 2020, and found not guilty by reason of insanity. He has since been diagnosed with paranoid schizophrenia with auditory hallucinations and disordered thought and at the time of the hearing of this Application was detained in a secure psychiatric hospital under a Hospital Order. 

The Claimants’ pleadings say with reference to the assessment of 14 August 2018:

The Claimants plead the relevant paragraphs of statutory guidance to be found in the MHA Code of Practice which indicate the factors to be taken into account when considering whether a patient should be detained. These include, unsurprisingly, matters such as family and social circumstances, the impact of a deterioration upon those with whom the patient lives, risk of suicidal self-harm, evidence that the patient mental health will deteriorate without treatment, the history of the patient’s mental disorder and the protection of others. The nature of the risk presented and the likelihood of harm resulting and the severity of any potential harm are set out as factors to be considered. The willingness and ability of those involved in the patient’s life to provide care and support is another relevant consideration as are alternative methods of managing risk and harm to others both physical and psychological. Consultation with relatives carers and friends and family is encouraged.

In respect of the duty alleged against D1, it is said

Thus the Claimants allege vicarious liability through an assumption of responsibility because of 

It is also said that D1 had a “special control” over the risk that C3 posed such that D1 owed a duty to C1 and C2 and to C3 himself, otherwise by reason of the status of D1 as the provider of the AMHP’s services.  

Causation is said to arise because but for the breaches of duty the attack would not have happened such that

C1 brings claims under Articles 2, 3 and 8 ECHR. D1 does not seek to strike out those claims nor do they seek summary judgment of any part of C1’s HRA claim save in relation to the requirement under s.139(2) MHA 1983.

C2 alleges breaches of operational duties and systemic duties under Articles 2, 3 and 8. No challenge is made in this Application to the systemic allegations.

A challenge is made to those HRA claims under the category of “operational” duty under which it is said that a protective duty was owed to C2 in respect of her rights arising, in other words that D1 knew or ought to have known of the risk of death or ill-treatment to C2 by reference to ( in respect of Article 2), Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 at para [29]; and as to Article 3, AB v Worcestershire County Council & Birmingham City Council [2023] EWCA 529 at para [56]. In respect of Article 8, reference is made to MP & Others v Bulgaria Application no. 22457/08 @[108].

Mr Bowen submitted that even though C2 was not mentioned in any notes made (as is now accepted) the duty nonetheless arises as the local authority ought to have known there was a potential victim living with C3. Her specific identity need not be known. Further, they should have realised that he presented a real and immediate threat to her, and such is pleaded as arising on the day of his assessment. Although, contrary to earlier assertion, she was never identified, there is sufficient Mr Bowen submits for the case to continue in respect of her. Notes in the records dated 2017 and 2018 are mentioned which refer to a physical risk to “family members”.

As to C3, the Claimants argue, as expressed in their skeleton argument, that

“The Defendants (including D1) owed a duty to protect C3 from himself. … C3 does not claim that the process undertaken pursuant to the MHA amounted, inherently, to inhuman or degrading treatment. It is not suggested that the consequent disposal of C3’s criminal case and his hospital detention amounts to inhuman or degrading treatment in and of itself.

Rather, C3 contends that the failure of the D1 to adhere to its positive obligations caused a heightened risk of harm to C3, as a result of actions taken by C3 himself, which was sufficient to meet the minimum threshold of severity necessary to engage Article 3 ECHR. Reliance is placed upon the risk of C3 self-harming and the exacerbation to C3’s pre-existing mental health conditions caused by the knowledge of the consequences of his actions on 23rd December 2018.”

It is said that a protective duty was owed by D1 to C3 who ought to have known or did know of the real and immediate risk of C3 harming himself or that he would do things that, in effect “made himself worse”. Reliance is placed on the case of Rabone v Pennine Care NHS Trust [2012] 2 AC 72, SC(E) where the Court recognised a duty to a mental patient who later went on to commit suicide. This by extension should apply to a person in the position of C3 to mean there is a duty to prevent him engaging in harmful conduct caused by his mental illness.

The case of Paposhvili v Belgium (Application No. 41738/10) (Grand Chamber) at [175] supports the proposition say the Claimants that Article 3 covers suffering which flows from a naturally occurring illness, where it is, or risks, being exacerbated by treatment or other measures for which authorities can be held responsible, and the responsibility is engaged because of acts which result in the risk of (C3) being exposed to treatment prohibited by Article 3. This also applied to Article 8 they submit – such that there is a duty to protect where the authorities ought to know of a “risk to the interference with the physical or moral integrity” of an identified individual”.

The position of C2 and C3 as victims, in the absence of a direct breach of their rights, has been challenged and Mr Bowen submits that the interpretation so far placed on victimhood is not a fixed rule. Further here both direct and indirect claims are advanced, and Mr Bowen says there is no reason in practice that there could not be such a claim here where the state’s protective duty is in issue.

Liability is comprehensively denied by D1

The Claimants and D1 essentially agree with the core propositions as to the law. It is agreed therefore that public authorities and public sector professionals are prima facie subject to the same general principles of common law negligence as private persons.  D1 refers to Michael and Others v Chief Constable of South Wales Police and another [2015] UKSC 2; [2015] AC 1732; Poole Borough Council v GN and another [2019] UKSC 25; DFX v Coventry City Council [2021] EWHC 1444. D1 argues, and the Claimants agree, that when exercising statutory functions under MHA 1983, there is no assumption of responsibility unless such a duty of care would be imposed under conventional principles of tort, and that  public authorities and public sector professionals are (in the same way as  private individuals), generally not under any duty to prevent the occurrence of harm by third parties.  

 Here, D1 says that, properly analysed, all the AMHPs in contact with C3 were undertaking a statutory function; C3 was not their patient and an AMHP does not provide care or treatment.  There was no voluntary assumption of responsibility nor any relationship akin to contract (by reference to the categories described in Hedley Byrne v Heller [1964] AC 465 and Spring v Guardian Assurance Plc [1995] 2 AC 296).  Further, neither C2 nor C3 were the subject of a statutory assessment by the AMHP.  

D1 denies that any AMHP was exercising a special skill or providing services or advice upon which the Claimants foreseeably relied. Any special skill, advice as to, or services in support of, the MHA assessment was for the benefit of the Trust and/or the local authority, who were subject to public law obligations and deployed social workers to meet them. Reference is made by D1 to the observations of Lord Reed at paras [ 81], [87], [88] and [91] of Poole where it is explained that the council’s investigating and monitoring of the Claimants’ position by the social worker in that case did not involve the provision of a “service”.  There, as here, he submits there was no provision of professional advice on which a claimant would foreseeably rely as there had been in Phelps v Hillingdon [2001] 2 AC 619, concerning educational psychologists, where the liability was based upon the Hedley Byrne principles.

Nor did the Claimants “entrust their safety” to the council nor had the council accepted responsibility for it says Mr Weston: there was no assumption of responsibility to the Claimants here. A public body might do so of course - such as in the hospital setting (and see also X v Bedfordshire County Council [1995] 2 AC 633 per Lord Browne-Wilkinson). However, the nature of the statutory function here just does not support that interpretation.

There is further, says D1, no common law duty requiring a public body to take a statutory step (i.e. here to apply for detention) because that would be to create a statutory duty to act, actionable at private law. Or, put another way, the scope of any common law duty of care cannot encompass or extend to a requirement to take a statutory step.  D1 makes reference to a line of earlier cases East Suffolk Catchment Board v Kent [1941] AC 74; Stovin v Wise [1996] AC 923; Gorringe v Calderdale MBC [2004] 1 WLR 1057].

D1 also denies as an initial point that any common law duty of care arises upon an AMHP as regards organising an assessment for admission under the MHA 1983 because this would be inconsistent with the statutory scheme. A duty to an individual would or might be in conflict with the need under s.2 and s.3 MHA 1983 to consider the patient’s interests, that person’s health and safety as well as the protection of the wider public or others generally. 

 D1 also argues that the D1 did not have “special control” over any of the Claimants. C3 was in police custody at the time of the MHA assessment and the AMHP had no power or control over him.

There was no basis therefore under which an exception to the “no liability for omissions” principle could be applied to these facts to impose a duty of care.

D1 notes particularly that when C3 was arrested and conveyed to the police station he was seen by a psychiatric nurse who assessed him to be a medium risk with insight into his current condition. It was at that point that arrangements were made for the AMHP and the two doctors to attend to undertake an assessment to consider whether a detention application should be made. They had had no previous contact with C3 before and there was no contact between any of them and any of the Claimants between 14 August 2018 and the incident on 23 December 2018.

D1 notes that no other relationship or contact is pleaded. 

D1 argues further that the Claimants have misunderstood the scope of the AMHP’s role. An MHA assessment was only co-ordinated by the AMHP - it was actually undertaken by D3 and D4, the doctors. The statute places the duty upon a local social services authority to “make arrangements for an approved mental health professional…”   whohas overall responsibility for co-ordinating the process of assessment as set out in the Code of Practice: Mental Health Act 1983, paragraph 14.41.

The Defence pleads (and it is the case) that  the AMHP can make an application for detention to the managers of a hospital to which admission is sought (MHA s.11) but it is a prerequisite under s.2 MHA 1983 that two registered medical professionals have provided written recommendations in the prescribed form, for detention. Thus the statutory duty to determine whether to make an application for detention or not under section 13 of the Act is only placed on the AMHP once two positive medical recommendations are received. 

The AMHP is described by D1 in terms of providing a “further safeguard if the medics recommend detention” and as having no power to make an application absent the two positive medical recommendations.

D1 also relies on the fact that it cannot be said that the relevant AMHPs created the risk posed by C3, nor was there a sufficient degree of “control” so as to become liable for any injury caused to third parties in the sense explored in Dorset Yacht v Home Office [1970] AC 1004. There was no physical control here - C3 was in police custody at the time of the assessment.

 D1 also denies any voluntary assumption of responsibility by either D1 or the AMHPs as regards the Claimants.

 D1 also emphasises that the cases have frequently stated that the mere foreseeability of harm is not a sufficient basis for a duty of care to arise by reference to Poole; DFX v Coventry City Council [2021] EWHC 1444; and X v Bedfordshire County Council [1995] 2 AC 633]. 

Mr Weston submits that as regards C2 there is nothing in the pleaded case to show C2 was at risk from C3 at or before the date of the AMHP assessment on 14 August 2018. It is accepted she does not personally feature in the pleaded factual chronology up to that point, save where it is asserted in the particulars of claim that on 11 August 2018 a mental health nurse carried out an assessment and recorded that the “risk to [C1] and [C2] was high.” But the reference to C2 is now accepted to be wrong – as is the pleaded date. The focus was entirely on C1. Mr Weston submits in effect that the evidence does not support the submissions: indeed, D2’s clinician states in the materials: “he is not aggressive towards others but [C1]only.”

C2 was not known to D1 – there was Mr Weston submits, clearly no protective duty. And there is no pleaded basis on which it could be advanced at trial that there was a risk D1 or the AMHP herself should have known about.

As to C3, D1 submits in writing that it is tritethat for any Article to be engaged the claimant must show that they suffered ill-treatment or consequences encapsulated by the relevant Article. However, C3 cannot do this and his HRA claim should be disposed of in its entirety. The right to life under Article 2 is engaged where the subject dies or faces a life-threatening situation (reference is made to Makuchyan v Azerbaijan and Hungary (Application no.17247/13) at para [94]). Mr Weston submits simply that

“C3 was not the subject of the attack on 23 December 2018. He did not try to commit suicide. He was not in a life-threatening situation. Article 2 is not engaged”.

The issue of Article 3 has recently been dealt with he submits. He refers to the following passages which deal both with severity and the issue of “treatment” by another:

In respect of Article 8 D1 says that any breach of Article 8 either (i) requires the same threshold as in Article 3 to be met ( by reference to Bedford v Bedfordshire [2013] EWHC 1717 para [22;] and DSD v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB) para [242]; or (ii) at least requires ill-treatment that amounts to a breach of moral and physical integrity. He refers also to Spadijer v Montenegro, no. 31549/18, 9 November 2021, at para [81] where it was said:

“In order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one’s private life…Not every act or measure which may be said to affect adversely the moral integrity of a person necessarily gives rise to such an interference…”

Mr Weston says in his submission it is not possible to characterise the harm/ill-treatment C3 says he suffered under the HRA namely “the attack on 23 December 2018 and MK’s loss of liberty.” The attack was perpetrated by him himself. This is not “treatment” that he suffered, nor is it akin to suicidality and it does not reach the severe categories reflected in case law.

In terms of Article 5 D1 says again, simply, that D1 did not deprive C3 of his liberty- D1 did not even know he had been taken into police custody following the attack on 23 December 2018.

D1 also argues that C2 and C3’s reliance as a victim on the violation of C1’s rights is misconceived. By section 7(1) HRA a claim is to be brought by the victim – and refers to Article 34 ECHR – where it is undefined also. The submission of Mr Weston was made in reliance upon the Practical Guide on Admissibility Criteria (2023) 60 EHRR (which he notes has been referred to before in case law and was relied upon in Daniel v St George’s Healthcare NHS Trust [2016] 4 WLR 32 see [14]). This Guide states that a direct victim must be directly affected by the breach complained of [28]. Indirect victim status can apply to close family members where the direct victim has died or gone missing [30-31] so as to ensure rights under the Convention are enforced in cases of death or missing persons: the present position is far from that. The claims made by C2 and C3, via C1, are not sustainable.

There is no dispute as to the applicable principles.  I am required to determine D1’s applications to strike out on the basis that the assumed facts are true (see the White Book and the notes to CPR. 3.4 and for a recent example Tindall v Chief Constable of Thames Valley Police [2022] 4 WLR 104 para 75).

I adopt in the main the way in which the framework was expressed in the Claimants’ skeleton argument namely that a claim can only be struck out under CPR part 3.4(2)(a) if it is bound to fail (Hughes v Colin Richards & Co [2004] EWCA Civ 266; [2004] P.N.L.R. 35, CA and  Civil Procedure (the White Book) 2025, commentary at CPR 3.4.2).    A strike out is not appropriate where the law may properly be said to be developing: novel points of law should be based on actual findings of fact, Husson v Secretary of State for the Home Department[2020] EWCA Civ 329, per Simler LJ at para [ 63] see also in Poole itself per Lord Reed at paras [89]-[90].

It is the Claimants’ submission (disputed by D1) that this case raises a novel point of law.

 As to the summary judgment application, as set out in the notes in the White Book,  for the purposes of CPR r 3.4(2)(a) and strike out,  the applicant is generally bound to accept the accuracy of the facts pleaded, in contrast, under CPR r 24.2, where the court is considering whether a case has a realistic prospect of success it may be required to examine the evidence that is relied upon to prove the claim including  any evidence that can reasonably be expected to be available at trial, but it must not conduct a mini-trial: MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) T. Nonetheless, it is not uncommon for an application  for summary judgment to give rise to a short point of law and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it then it should grasp the nettle. 

The preliminary question in the case is whether D1’s submission that section 139 of the Act required permission is correct in the present circumstances. It is agreed that permission was not obtained. D1 argues the proceedings are therefore a nullity. The Claimants say that in the circumstances permission was not required. If it was required, they agree the result is a nullity.

The relevant provisions in respect of the framework, the duty upon AMHPs, applications for admission and the requirement for permission are found in the MHA 1983 and regulations made under it.

A person may be approved under section 114 of the MHA by a local social services authority to act as an AMHP for the purposes of the MHA. Given the nature of the submissions made it is necessary to set out in rather more detail than usual the admission provisions and the three main sections dealing with the process.

In Part II of the Act headed “Compulsory admission to hospital and guardianship” Sections 2 and 3 deal with admissions for assessment and for treatment respectively under a subheading “Procedure for hospital admission” They provide:

“2 Admission for assessment. 

(1)

A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (2) and (3) below. 

(2)

An application for admission for assessment may be made in respect of a patient on the grounds that— 

(a)

he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and 

(b)

he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons. 

(3)

An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with. 

3.— Admission for treatment.

(1)

A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2)

An application for admission for treatment may be made in respect of a patient on the grounds that—

(a)

he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(c)

it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section and

(d)

appropriate medical treatment is available for him.

(3)

An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a)

such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and [(d)]⁴ of that subsection; and

(b)

a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.

(4)

In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

Under the Subheading “General provisions as to applications and recommendations”, Sections 11 to 13 provide relevantly as follows:

With respect to protection under the 1983 Act section 139 provides:

The competence, training, supervision and practice of AMHPs is the subject of The Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 SI 2008/1206.

I turn first to the section 139 question.

The Claimants say firstly that no permission was required because the Court in their case is concerned with an omission, not an act.

Further and in any event, the Claimants submit that the statute does not apply in circumstances where the assessed person is not detained under that Act, accordingly it does not apply here. The Claimants submit they are entitled to rely upon the clear wording of the Act which refers to “acts” alone. The Court must look in the round at what was happening which would show that it was a failure to admit to hospital that is the substance – and that is an omission, and not therefore covered by section 139. 

In answer to the first submission D1 argues that it would be perfectly possible to plead most tortious claims in terms of either an act or an omission to do something, and that the characterisation placed upon the material facts by a claimant cannot determine the application or otherwise of the 1983 Act.  Further, as a matter of characterisation of what was happening here, it was an assessment, and that assessment was necessarily carried out under the 1983 Act. D1 submits that the statutory purpose is to protect those in the position of the AMPH.

To support the submission that the statutory purpose of the section is the protection of those involved in the mental health sphere, reliance is placed by D1 upon the case of Seal v Chief Constable South Wales Police [2007] UKHL 31. In that case, which concerned a visit by the police following a disturbance and Mr Seal’s arrest for breach of the peace, the claimant had been taken to a place of safety under section 136(1) of the 1983 Act and was thereafter detained. He was released after a week but sued just before the expiry of limitation, challenging the justification for his detention and claiming damages. No leave under section 139(2) had been obtained. In rejecting an argument that Article 6 of the ECHR was infringed, Lord Bingham reflected that the protection of those responsible for the care of mental patients from being harassed by litigation had been accepted as a legitimate legislative objective. The restrictions on litigation placed by section 139 did not impair the very essence of the right; he noted that the threshold for leave was “set at a very low level” (see paras [15] and [20]). 

In para [15] of Seal Lord Bingham recorded they had been referred to no judicial opinion or academic commentary suggesting that a failure to obtain leave was merely a procedural irregularity which could be cured. When declining to accept that leave could be given retrospectively, the House of Lords reflected that the whole basis of the legislation of the 1983 Act appeared to be a consensus of longstanding judicial, professional and academic opinion that lack of consent rendered the proceedings null. This view was reached in spite of clear submissions that injustice might ensue where a litigant might find his proceedings invalidated by failing to comply with a requirement in statute that he was ignorant of at the time when a statutory time bar would block his claim. The strict rule could have harsh effect the court accepted, but Parliament must have recognised that there might be hard cases. This was “a price worth paying for the reassurance and protection given” by the relevant sections.  It was acknowledged that similar provisions had been in existence since 1930, and also that the matter involved a fundamental right - namely access to the court by a particularly vulnerable group. They dismissed by a majority an appeal against a challenge to the conclusion that lack of the required leave under the MHA rendered any proceedings begun a nullity. This was so even where the operation of limitation provisions would mean the right of action was lost. This construction of section 139 (and of the Limitation Act) did not infringe Article 6 ECHR as argued, even in the case of a person who may have been subject to the MHA regime. This supported the proposition that Parliament intended to make leave a precondition of any effective proceedings. The requirement for leave was characterised (by Lord Brown) as being to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued, (at para [74]). After canvassing the legislative history, at [75] Lord Brown dismissed the Article 6 claim in strong terms

“To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful.”

This was not a protection that could be secured other than by a clear and inflexible rule such as section 139(2).  Mr Seal was a litigant in person who may well have been in ignorance of time limits and the requirements of the section. Nonetheless certainty was achieved by the statute, and this clear interpretation was re-enforced by the legislative history. The description by Dr Larry Gostinin his Mental Health Services Law and Practice (1986) in terms that “The provision does not create a personal immunity which is capable of being waived,but imposes a fetter on the court’s jurisdiction which is not so capable,” was cited with approval.

In Pountneyv Griffiths AC [1976] 314 a nurse on duty at Broadmoor had allegedly punched a patient who then instituted a prosecution for assault but without acquiring leave under the Mental Health Act 1959. The nurse was convicted, and applied for certiorari on the grounds the proceedings were a nullity because leave had not been obtained. D1  relies on the case because there the patient argued that the scope of  protection was limited to actions or purported actions done in discharge of functions expressly provided for by the wording of the section, that is to say only applied to those who signed certificates, made orders for detention or disposed of patients’ property – express acts under the statute. Contrary to this argument the court held that the relevant statutory protection (then contained in section 141) applied also to staff discharging their day-to-day duties in the control of patients during their patients’ treatment. 

The court emphasised the statutory words which are repeated in section 139(1) “any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act”. The statute referred to “any act” (and not merely to certain specified acts), limited only by the words “purporting to be done” et cetera. The punch had occurred in the course of the nurse taking him back after a family visit. It was held that family visits -which included a patient being taken back to his quarters - were part of a patient’s treatment in hospital. The nurse in question was accordingly acting in pursuance of the Act, and the conviction was properly quashed.

D1 submits that the local authority are assisted by that case in that the Court held that acts which were “ancillary to detention” were covered by the requirement for leave before proceedings could be brought.   The acts of the AMHP here, said Mr Weston, were the arranging for an assessment under the MHA and that was likewise ancillary to a detention, as well as being an act under the statute and so such activities were covered by the protection of section 139.  

Consideration of the meaning and scope of section 139 has recognised it is unusual for a failure in a procedural requirement to invalidate a substantive claim, but has nonetheless analysed the statutory intention of this section as being to provide substantial protection for the putative defendant, and not a mere procedural hurdle.  As Lord Bingham said in Seal at para 20, the section was designed to protect “those responsible for the care of mental patients from being harassed by litigation…”.

In my judgement as a broad starting point, such a wide purpose does not tend towards supporting a narrow construction of the section.

Looking first to the natural meaning of the words in context, in my judgement section 139 of the MHA is drafted with reference to the activities of the relevant personnel carrying out the statutory function - described as “acts done or purportedly done.”  That is to say, it is not a question of whether the law might characterise circumstances as an act or an omission, as elsewhere in tort, or whether a claimant has pleaded the incident as being one or the other.  It refers to the AMHP carrying out their functions under the Act. 

The difficulty I find with the Claimants’ approach is that a description both as an act and as an omission might, as D1 argues, easily apply to the same circumstances. If the Claimants were correct, it would be possible to avoid the protective effect of the statutory provision merely by choices as to how pleadings were phrased, which would defeat the statutory purpose as described.

This interpretation is fortified in my view by the words of section 13.  The AMHP was carrying out the statutory tasks there described. As Mr Weston says, the assessment itself is plainly an act done under the Act – see s 13(1) and (2), and done on behalf of the local authority. It is wrong, as Mr Lemer sought to do, to re-characterise the statutory task by looking at what happened compendiously, or “overall” and calling it an omission to admit to hospital.

 Accordingly, in my judgement the requirement for permission covers what is carried out pursuant to the statute, and that includes the actions of the AMHP here, whether the facts might be pleaded as acts or pleaded as omissions or described globally in some other form of words. The purpose of the section reflects a strong policy of protection of those responsible for the care of mental patients.  As the House of Lords recognised following Winch v Jones [1986] 1 QB 296 the Act was plainly intended to provide those who operate under the mental health legislation with protection. The section is designed to strike a balance between the legitimate interests of an applicant, who may apply in an appropriate case, and the interests of the respondents not to be subjected to the risk of being harassed by baseless claims. The test is recognised as being relaxed: the court will give permission where the complaint “appears to be such that it deserves the full investigation which will be possible if the intended applicant is allowed to proceed.” (per Donaldson LJ giving the judgement of the Court in Winch v Jones).

 I also reject the Claimants’ submission that section 139 does not apply to those not detained under the Act.

Mr Lemer points to Seal and says that was a case of a detained patient, which is not the position here, and the protection does not and should not extend to the non-detained situation. It is a restrictive clause and should be construed narrowly.

Mr Weston relies upon the short case ofLebrooy v London Borough of Hammersmith & Fulham [2006] EWCA 1976 (QB) where a litigant in person brought a claim against the London Borough of Hammersmith and Fulham in respect of allegations of defamation allegedly contained in medical notes in respect of his mental ill-health. These notes were made in the course of enquiries for the purpose of determining whether the claimant should be admitted to hospital under the MHA with a view to determining appropriate medical treatment or care. The court applied the case of Pountney and rejected, without reflecting detailed argument, a submission that section 139 only applies to those who have been detained.  I accept as the Claimants say, that the point in issue there was not reasoned through, but I also accept, when reasoned through, that it does represent the law.

 Not only is the wording of the Act not limited in this way, in my view the Claimants’ submission fails to recognise the character of many of the acts authorised by the MHA. As a matter of logic, once it is appreciated that the Act encompasses a number of actions by professional personnel in respect of persons not limited to those who have achieved the status of detained person, and that, necessarily, actions are authorised by statute which are preliminary to the formal detention of a person under the 1983 Act, there can be no distinction between the detained and non-detained patient. Necessarily, in my judgement statutory authority will be needed for the functions of a person in the position of the AMHP. That authority comes from the 1983 Act. What the AMHP does, as a professional, fulfilling her obligations pursuant to section 13 of the Act is necessarily “acts done in pursuance of this Act or regulations or rules made under this Act” as described in the section.

It is nothing to the point that Clerk and Lindsell on Torts 24^th edition to which the Claimants drew my attention states in chapter 14 entitled “Trespass to the Person andHarassment” under section 6 “Defences to Trespass to the Person” Part one (i) “Confinement and treatment for mental disorder under the Mental Health Act 1983” that the section applies with respect to detained persons. The whole chapter refers to detained persons; non constat the section does not apply to non-detained patients such as C3.

 The Claimants (on the section 139 point, through submissions by Mr David Lemer) argued before me that section 139 ought to be read down in order to accommodate the current claim.

There is no directly applicable authority to support the proposition that section 139(2) requires to be read down in present circumstances. The closest decision to which the Claimants refer by analogy, is the Court of Appeal decision M v London Borough of Hackney [2011] EWCA Civ 4, (otherwise known as TTM), a judicial review case alleging unlawful imprisonment and therefore a breach of Article 5. There, by agreement, the parties conceded that section 139(1), (not as here section 139(2)), could be read down under the Human Rights Act in respect of unauthorised detention such that the unlawful detention (as the court there found) could be compensated in damages. 

The AMHP there had non-negligently made an honest mistake as to the consent of the nearest relative. The AMHP had therefore completed the forms on the basis that an original objection had been withdrawn, when it had not. The completed form which “appear[ed] to be duly made” was (under s6 of the Act) sufficient authority for the hospital to detain, so the Health Authority were not liable, they had acted lawfully. However, it did not render the detention itself lawful, because one of the precedent facts foundingits legality was missing, and the application was therefore prohibited by section 11(4)(aa) of the Act. The Court read down section 139(1) removing the protection which extended otherwise to a claim such as that, involving a bona fide act done with reasonable care.

The case is relied upon  by the Claimants with respect to the imposition of a duty of care, as well as the scope of any section139 protection, for the description by Toulson LJ (giving the judgment of the Court) of the role played by an AMHP when an application is made to a hospital trust for the admission of the patient, to support their proposition that the AMHP is directly responsible for detention and does more than preparatory acts as was suggested by D1. The Claimants note that the Court held the detention of the claimant was unlawful

“inasmuch that it was brought about directly by the conduct of the AMHP for which she had no lawful justification, notwithstanding that she acted in complete good faith.”

per Toulson LJ at para 39. This they say incidentally illustrates also the causative effect of the role of the AMHP. These facts were different they submitted from the acts of social workers and others in Poole or HFX or similar cases.

Toulson LJ in the context of an article 5 argument, described a

 “… statutory scheme involving two agents of the state, between whom the scheme provides for an internal division of responsibility. The first agent [the AMHP] has responsibility for ensuring that any application which it makes for a patient’s detention is lawfully made. The second agent [the hospital trust] has responsibility for carrying out the detention on the application of the first agent, provided that the application appears to be in order.”

I do not find this description, nor the approach of the Court to this Article 5 judicial review is of persuasive force for the issues here- either as to the scope of section 139 or as to a duty of care in the current case. Seal concerned the illegality of detention - a pure power to detain point, and the HRA point was agreed - there was no argument between the parties as to a write down of section 139(1) in order to allow recovery of damages for breach of Article 5. The case did not involve reading down section 139(2) at all. As Mr Weston submitted, the two sub sections are very different.

It was argued on behalf of D1 and I accept that the case of Seal makes absolutely clear that the time limit may not be extended by the court, and reliance on the section constitutes no breach of rights arising under Article 6.

One argument raised on behalf of the Claimants was based upon R v Runighian [1977] Crim LR 361. That was a case under the 1959 Act involving leave in the Crown Court (as was then appropriate). The admission of the patient in that case did not take place under the provisions of the then extant Mental Health Act 1959, rather he was an informal patient. He accused a nurse of assaulting him and brought a prosecution without first seeking leave. The court held that he did not require leave because, as an informal patient he was not admitted and detained under the mental health legislation; acts done to an informal patient after their admission (under a permissive section of the Act) were not done “in pursuance of the Mental Health Act”.

This case does not make good the Claimants’ submission that if you are not detained under the Act, the provisions of what is now section 139 do not apply to you. The situation of a voluntary patient under the 1959 Act is entirely different from the position of C3 here who was involved in the formal processes of the 1983 Act and the activities of which he complains were those that are set out in the statute itself, and are preliminary, if completed with positive outcome, to detention under the Act.

Accordingly I am clear

I have been asked to go on to consider the case as advanced on behalf of the Claimants in any event and do so taking first the allegation of a duty of care at common law.

D1’s case is that the Claimants are wrong to allege that D1 owed each of them a duty at common law. A common law duty would be inconsistent with the statutory scheme of the Mental Health Act 1983. Alternatively there is no analysis of the relationship between these parties in this case that would give rise to a duty. There is no decided case in which such a duty has been found, D1 points out. Further as a matter of analysis, on the basis of recent case law Mr Weston submits no duty should be found.

The arguments were in large part based upon a series of recent cases of the highest authority concerning the liability of a public authority, with duties under statute, for liability in negligence to individuals.  There was little disagreement as to the effect of these authorities but Mr Bowen submitted for the Claimants that they were not of assistance in the present circumstances.

Mr Weston made the following propositions in his written argument:

Both D1 and the Claimants recognise that the liability of public authorities in negligence has been the subject of recent high level consideration and in addition to those mentioned above the cases of Michael v Chief Constable of South Wales [2015] UKSC 2; [2015] AC 1732, and Robinson v Chief Constable of West Yorkshire [2018] UKSC [2018] 4; [2018] AC 736 are of relevance to the scope of duty.

Mr Weston submitted in essence as his preliminary point that the obligations under the 1983 Act upon an AMHP to consider whether to make an application for admission, namely whether a person ought to be detained in the interests of his own health or safety or for the protection of others, would conflict with a further superimposed common law duty to the assessed person or to others such as family  and would restrict and inhibit the performance of the statutory duty.

Mr Weston pointed to the case of E v East Berkshire County Council [2005] 2AC 373. In that case it was postulated that healthcare and childcare professionals owed duties to the parents of children who were treated in a child protection scheme. The parents had been suspected of child abuse and they brought actions for negligence against a local authority, and others, for damages for the harm caused by unfounded allegations made by the professionals. There the House of Lords held that the professionals ought not to be subject to conflicting duties owed both to the children and to the parents. Mr Weston drew attention to the speech of Lord Nicholls who expressed it at para 71 that whilst ordinarily the interests of parent and child were congruent, here their interests were in conflict. Accepting a duty of care upon the professionals to the parents would cloud the duty owed to the child (para [86]). 

Here the conflict was between a duty to carry out the AMHP’s tasks under the Act, which was carried out in the public interest, and a duty to the potential patient and a duty to his relatives/others who came in contact with him. A similar example was the court declining to hold a duty of care upon the Commissioner of Police to her employees to protect their reputational issues in misconduct proceedings. In an action against individual police officers by an aggrieved person arrested as a terrorist, the Commissioner settled his claim admitting liability and apologising on behalf of the officers – who had been exonerated by their disciplinary tribunal.  The court held that the Commissioner’s public duty was inconsistent with the imposition of the further obligation to the officers in this manner, the Commissioner was required to be free to act appropriately as she considered in the public interest (James-Bowen v Commissioner of Police of the Metropolis [2018] 1 WLR especially para [33] citing SXH v Crown Prosecution Service [2017] 1 WLR 1401 where a duty of care to victims or suspects was not placed upon the CPS.

In each case, says D1, where public duties are owed such as by the police or the CPS to the wider public, a comparison is to be drawn with the AMHP and their duties which would conflict with individual duties to prospective patients and their families. 

It is important to note that the AMHP attended at the police station together with D3 and D4, the doctors, in order to undertake a statutory assessment. They met together but as we know neither D3 nor D4 certified that C3 was suffering from a mental disorder that warranted his detention, as they had to do in order for the AMHP to make any application. This means that C3 was judged not to fulfil the criteria of section 2(2) of the 1983 namely he was not

The Code of Practice: Mental Health Act 1983 by paragraph 14. 41 provides in a section headed “Setting up the assessment” that, AMHP’s who assess patients for possible detention under the Act “have overall responsibility for co-ordination the process of assessment.” The AMHP must liaise with the nearest relative, must also liaise with the potential patient. The duty upon the AMHP (and the highest it can be put) as set out above is to

“… interview the patient in a suitablemanner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.”

It seems to me that (aside from arguments as to the subsidiary nature of the AMHP’s duties under the Act in any event), this role is inconsistent with duties in private law to be owed variously to the patient, to his relatives, or to others with whom he may come into contact.

The AMHP is performing a facilitative role for the local authority that has public facing duties in respect of appropriate admissions for assessment or treatment under the Act.

The submission of D1 was articulated by their solicitor as follows, and I agree:

“Any private law duty of care would be inconsistent with the statutory framework. MHA 1983 requires a nuanced analysis of whether the person being considered for admission requires detention for their own health and safety or with a view to the protection of other persons. The least restrictive option should be adopted.

If a common law duty of care was owed to the Third Claimant in the decision as to whether to apply to detain or not, this could conflict with the statutory duty to protect the public (if not detained) or with the requirement to ensure the least restrictive option (if detained).

Similarly, performance of the statutory obligation would not be consistent with a common law duty of care requiring regard to be had to the interests of those with whom the mentally ill person may come in contact [with]when not detained (such as the First and Second Claimants).”

The interests of the potential patient and other persons may be consistent with proper consideration by the AMHP, or they may not: very often they may not be. Certainly in the circumstance of the present case one can see how the interests of C1 and C3 here might not be coterminous. Furthermore the interests of the general public are a necessary consideration under the Act. The case of James-Bowen is an illustration of the courts’ reluctance to impose a common law duty of care where it might, although not necessarily would, conflict with a duty to the public. In D v East Berkshire at [71] and at [86] the court highlighted in the child abuse context the risk of countervailing interests if a duty were owed in a number of competing directions. Further a potential inconsistency is sufficient - see Poole at paras [65] and [75]. Even though, as recognised in D, some professionals do owe duties to for example both a patient and an employer, in situations of sensitivity, a super-added duty of care clouds the statutory obligations.

In my view the imposition of a duty as argued by the Claimants is inconsistent with the proper functioning of the role of the AMHP under the Act.

The submission of D1 was, as set out above, to the effect that there was no assumption of responsibility, there was no promise, and no reliance. It was suggested by the Claimants that a service was being performed here, but that was not the case said Mr Weston - the AMHP was not providing services, she was not providing care. The assessment team were statutorily obliged in an assessment to consider the patient, but that did not give rise to a common law duty and this, it was submitted, was the same position as in HXA: the social worker was obliged to consider the interests of the child, but that did not create a duty. There was indeed said D1 a direct comparison to be made with the social worker in HXA. No duty was found in that case. This was not a clinical duties type of case - no one has assumed care of C3. The clinical duties began once a person was admitted and detained pursuant to the Act. Similarly there was no undertaking to protect here. Merely taking steps that will be of benefit to a person does not without more give rise to a duty to them- this was true of HXA and is, Mr Weston submitted true here.

Mr Bowen submitted that there was no policy reason, nor authority to suggest there could not be a parallel negligence duty with a statutory duty.

In the present case, accepting this was a case of asserted liability for an omission, he developed his submissions on the exceptions and assumption of responsibility by reference to the characterisation of the role of the AMHP. In answer to my question as to how HXA was to be distinguished, he submitted that the AMHP was “autonomous” and in a completely different position from the social worker in HXA. The former exercises their own judgement, here there is a therapeutic relationship. Although not a doctor, the AMHP performs a service he submitted of a medical and psychiatric nature. It is a sensitive and flexible area of the law he said and the position should be looked at globally - the whole transaction, as it were, constituted an assumption of responsibility. Looking at the totality of the evidence including the history with the former views of other doctors you cannot say this was merely performing a statutory duty: this is a professional relationship. This is a Hedley Byrne situation: telling C1 to go to the police.

The Claimants submitted that here there was an assumption of responsibility of the type considered possible in para [106] of HXA – thus

“106 We agree with Baker LJ that it is plainly incorrect to say that there can never be an assumption of responsibility by a local authority, in respect of social work functions, to protect a child from harm. The obvious example is where the local authority has obtained a care order and has thereby taken on parental responsibility for a child: see para 30 above. In that situation, therefore, the local authority has assumed responsibility to use reasonable care to protect the child from harm including harm from third parties”.

He also relied upon [108] and argued here there was reliance too as an example of what was described there:

“… for instance, in a case like YXA, where one has a vulnerable young child with learning difficulties, it would be inappropriate to insist on specific reliance by the child in order to and that there was an assumption of responsibility triggering a duty of care during the respite period.”

I disagree with this proposition. The AMHP is not, as submitted, taking on “a therapeutic and advisory role.” That is just not what the functions described entail in my judgement. It is not correct to describe what is happening as a “service” nor is it equivalent to a doctor/patient relationship. Responsibility was not assumed.

In paragraph [17] of HXA the following pleaded case was set out:

“Paragraph 14(l) alleges:

“In November 1994 there was a child protection investigation after the defendant received a referral alleging that [HXA’s] mother had assaulted [HXA]. The defendant’s social worker decided to seek legal advice with a view to initiating care proceedings. The defendant resolved to undertake a full assessment, but did not do so.

Para 14(vv) alleges:

On 27 January 2000, a child protection conference was held. It was noted that [HXA] had reported that [Mr A] had touched her breast. The defendant resolved not to investigate this due to fear of how [Mr A] would react and because it was wrongly thought that there had been no previous similar concerns. It was resolved to do keeping safe work with [HXA], although this was never done”.

On that basis, in paragraph [93] of HXA the Supreme Court said

“In relation to HXA’s claim we have set out the particulars in paras 14(l) and 14(vv) at para 17 above. HXA alleges that an assumption of responsibility flows from the facts in those paragraphs.…However, the nature of the statutory function relied on does not itself entail the local authority assuming responsibility towards HXA to perform the investigation with reasonable care. Furthermore, it is clear from para 81 of [Poole] … that a local authority investigating HXA’s position does not involve the provision of a service to HXA. Rather, the investigation is to enable the local authority to decide whether to bring care proceedings, which investigation would have involved determining the ability of HXA’s mother and her partner (Mr A) to keep HXA safe, the level of risk to HXA and whether the section 31 threshold was met. In addition, no facts are alleged in the particulars from which it could be inferred that HXA had entrusted her safety to the local authority or that the local authority had accepted that responsibility…”.

In my judgement that is a clear parallel with the present situation and no duty arises on the basis suggested by Mr Bowen. It is not possible as he submitted to “move forward by analogy” here so as to place a duty on the AMHP as urged.

Mr Weston submitted this was clearly not a control situation. In my view he is correct. It was very far from thespecial degree of control so as to create a duty of care to C3 as regards those he foreseeably injuredas in Dorset Yacht v Home Office [1970] AC 1004. In the present case C3 was not under any control on 23 December 2018, and when he attacked C1. On 14 August 2018, the only control he was subject to was police custody. The AMHP did not have control of, nor any power to control, C3. Furthermore, in any event, it is clear from Tindall as D1’s solicitor points out, that the power of control without any actual exercise of control is insufficient to found a duty (see para [85]).

It is sought to be said that there was in any event negligence in the time before the assessment, because certain information was not known or communicated to the team. Further, there were breaches of duty afterwards. Again, I do not agree that there are arguable breaches of duties owed by D1 arising from the matters pleaded here.

There is evidence of professional views formed in the course of the history amongst various professionals as to the state of affairs, and as to the correct approach at various different points in time, but there is no case pleaded that suggests there was negligence by D1, or that a duty lay on D1 whether through the AMHP or otherwise that was broken here. Furthermore, differences of professional opinion as regards a fluctuating mental health condition over a period of many months is not of itself evidence that one or more of those opinions was negligently held, or that steps not taken were negligently omitted to be taken. The presence of earlier difficulties shown in the notes could not point towards the assessment of 14 August being negligent; nor the failure to furnish the complete history of interactions with services. Such is not foreseen or necessary for the statutory task imposed by the relevant sections of the Act.

The Claimants also say that there exists already an established duty category into which the AMHP‘s actions fall. This is not a case where a policy consideration comes into play. Reliance was placed on the case of Darnley v Croydon Health Services NHS Trust (SC(E))[2019] AC 831 to support that proposition. Similarly on Tyler Lukes v Kent and Medway NHS Social Care Partnership Trust [2024] EWHC 753. 

I do not find Darnley of assistance. Darnley was a case in which the Supreme Court considered the position where a claimant arrived  at the accident and emergency department of the defendant’s hospital  explaining he had been assaulted by being struck over the back of the head and he thought that he had a head injury, that he was feeling very unwell and that his head was hurting. Both he and his companion said he needed urgent attention and was really unwell. He was told he would have to wait four or five hours before being seen by a medical person. He said he thought he could not, he thought he was about to collapse. The receptionist did not tell him as she should have done he would be seen by a triage nurse within 30 minutes. The claimant waited 19 minutes and then went home because he was feeling worse and was unwilling to wait for up to four to five hours. He deteriorated an hour later; an extradural haematoma caused permanent brain damage in the form of a severe and very disabling left hemiplegia.  The judge, although  finding that if  he had been told that he would be seen within 30 minutes he would have waited, and his later collapse would have occurred within a hospital setting, and he would have recovered,  held that it was not fair, just and reasonable in all the circumstances to impose liability.  

The Court of Appeal dismissed the appeal but it was allowed by the Supreme Court. They observed in that case that only where the Court went beyond established categories of duty did the fair just and reasonable policy assessment attach: here the case did not. The Court held it was in fact well established that there was a well-recognised duty to a person booked into a hospital system in this way, and thus placed in a relationship with the health care provider. That provider, the hospital, owed a duty not to act in such a way as foreseeably to cause a patient physical harm. There was no distinction between medical and non-medical in this situation - the defendant’s duty to take care not to provide misinformation to patients was not avoided by it having been provided by reception staff as opposed to medical staff. 

In Darnley the Court (Lord Lloyd-Jones with whom all agreed) reflected at para [15] that  

“it is, normally, only in cases where the court is asked to go beyond the established categories of duty of care that it will be necessary to consider whether it would be fair, just and reasonable to impose such a duty. The recent decision of the Supreme Court in James-Bowen v Comr. of Police of the Metropolis [2018] 1WLR 4021 was such a case and it was necessary for the court on that occasion to consider whether extension by analogy of established categories of duty was justified and the policy implications of such an extension. By contrast, Robinson itself involved no more than the application of a well-established category of duty of care and all that was required was the application to particular circumstances of established principles. 

It had been analysed in the Court of Appeal that it would “create a new head of liability for NHS health trusts”. But Lord Lloyd-Jones said: 

“To my mind, however, the present case falls squarely within an established category of duty of care. It has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospital’s wards. The duty is one to take reasonable care not to cause physical injury to the patient: Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, per Nield J, at pp 435—436.”

He continued:  

“In the specific context of this case, where misleading information was provided as to the time within which medical attention might be available, it is not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care. …. The defendant had charged its non-medically qualified staff with the role of being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability.”

 This is quite clearly the commonplace duty of the hospital to the admitted patient. It is not the present situation.

The Darnley decision referred to Kent v Griffiths [2001] QB 36 where the London Ambulance Service was held liable in negligence for its delay in responding to an emergency call as a result of which the claimant suffered brain damage. Observations were made with regard to the existence of a duty of care (at para [45]) that what was being provided was a health service and Lord Woolf asked rhetorically why the position of the ambulance staff should be different from that of doctors or nurses. More specifically, in Darnley Lord Lloyd-Jones stated (at para [49]) that the acceptance of the emergency call in Griffiths established a duty of care and that, if wrong information had not been given about the arrival of the ambulance, other means of transport could have been used. This was thus an established category since in both cases, as a result of the provision of inaccurate information by non-medically qualified staff, there was a delay in the provision of urgently required medical attention with the result that serious physical injury was suffered. In truth, this was not a duty of care case that was established: the question was one of whether there had been a negligent breach of duty. 

These examples are relied upon by Mr Bowen to say here there exists an established category of duty –a policy test does not apply. As I have said I do not accept that the present case is in any sense in that category at all- this is a quite different situation.

However, to the extent that it was submitted also that this is a new area of law as well, and therefore the case should not be struck out for that reason, I disagree. I accept D1’s submission that it is not. D1 considers that the law of duty of care has already and recently been extensively considered and it is described (by Mr Bermingham on behalf of D1 at para 25 of his First Statement)  to be “settled”, although it is also conceded that there is no authority for the Claimants’  proposition that an AMHP owes a duty of care when considering whether to detain  under the MHA (see D1’s application skeleton argument, para  28).

The recent authority of Tindall howeverputs the matter beyond doubt. Tindall was a case where the police should have carried out a detailed investigation prior to, and at the scene of, an accident on ice to identify the cause; Appropriate signs should have been placed; gritters should have been requested and the police should have stayed at the scene until the gritters arrived; and the road should have been closed.

Lord Leggatt in that case at [38] recalled that the general rule was stated in

He stated the rule is not absolute and referred, at paras 98-100, to what he described as two well recognised exceptions. The first, as exemplified by Dorset Yacht which is a situation where the defendant is in a position of control over the third party who has directly caused the damage. The second is where there is an assumption of responsibility by the defendant to the claimant to safeguard the claimant. Neither exception applied on the facts of the case. In particular, the Supreme Court rejected an argument that there had been an assumption of responsibility by the police call handler.

In Tindall Lord Leggat said also at para[68]:

“Mr Bowen cited the many judicial statements urging caution before striking out a claim in an area of law which is uncertain and developing, and emphasising the desirability that any further development of the law should be on the basis of actual and not hypothetical facts: see eg X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 740-741; Barrett v Enfield London Borough Council [2001] 2 AC 550, 557; Waters v Comr of Police of the Metropolis [2000] 1 WLR 1607, 1613-1614. In the last of these passages Lord Slynn of Hadley described the law of negligence in relation to public authorities as such a developing area. That was a fair description when these cases were decided. But it is not true now. The law has since been settled by successive decisions of this court, particularly the seminal decisions in Michael and Robinson outlined earlier in this judgment. We agree with the Court of Appeal that the applicable law is clear and not in a state of flux.”

Michael was the case of the police caller who mis-classified an emergency call and the caller was stabbed waiting for the police to arrive. Robinson was the case of the little old lady who recovered damages after she was injured by negligent police on a raid where the duty not foreseeably to cause injury was given effect.

I respectfully agree that for the purposes of this application the law is settled: the cases of Poole and HXA together with Tindall make that clear. I do not accept that the distinctions sought to be made about the role of the AMHP nor other distinctions impinge upon that conclusion.

These cases also make clear in my judgement that the common law case on duty should be struck out even were the section 139 point not in play.

It is possible to take this section of the judgment more shortly. In spite of Mr Lemer’s intricate and interesting submissions on this area (by skeleton argument, orally and by several later written notes), for which I was grateful, I have come to the clear conclusion that the Human Rights Act claims that D1 here seeks to strike out or obtain summary judgment in, do not survive scrutiny.

This is essentially for those reasons advanced by Mr Weston as set out above. The issue is a straight forward one: no matter the theory behind avenues of potential liability under the various Articles, even were those frameworks to be made out, the factual position in this case just does not support the positions advanced.

The ill-treatment here does not reach the threshold in my judgement of engaging Articles 2 and 3, but in any event, the operational obligations inherent in the Article 3 claim or the same claim but phrased in terms of Articles 2 or 8, do not get off the ground because the nature of the obligation that falls upon the state in such cases is incapable of being made out here.

As it was said in Osman v United Kingdom (1998) 29 EHRR 245 as to Article 2

“In the opinion of the court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of the above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

…

For the court, and having regard to the nature of the right protected by article 2, a right fundamental to the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.”

As to C2, C3’s sister who is not mentioned in the notes – and one note indeed suggests no risk to anyone but to C1 - there is in my judgement nothing that shows that D1 ought to have known of her and have been put on notice such as to incur the obligations set out in the relevant case law.

Even on the imposition of a less stringent testin breach of positive obligations under Article 8, namely to take the necessary steps to ensure effective protection of the applicants right to respect for private and family life, the Claimants cannot show (as is argued by Mr Lemer) that D1 knew or ought to have known that C3 presented a real and immediate risk of harming himself or acting as he did – whether so as to affect others or indeed himself. The evidence at its highest, and which is pleaded, does not show any feature of his behaviour that prefigures the events of 23 December 2018 or suggests that he was at the time of the alleged breach in such a position.

I would also point to a passage in the judgment of Green J inDSD v Commissioner of Police of the Metropolis [2014] EWHC 436 (QB)where he said

“I cannot see any circumstances in which Article 8 would provide a broader level of protection than is accorded by Article 3. In none of the Strasbourg authorities has the Court treated Article 8 as having an effect extending beyond Article 3. This is logical. Article 8 is a circumscribed obligation which is subject to competing interests. It has, by its very nature, a more limited ambit than Article 3 which is clear unequivocal and brooks of no exception. I take comfort in this conclusion from the trenchant observations of Lord Justice Gross in Allen (ibid) at paragraphs [56] and [57]. He took the view that in the absence of success under Article 3 it would not be possible to succeed under Article 8. He added this more generally (with which I concur):

“I add only this: it would be necessary to think long and hard before acceding to any claim raising the prospect of some generalised positive obligation on the State to intervene under Art. 8, without the closest scrutiny of the limits of any such postulated obligation. The ramifications otherwise could be most unfortunate – not least, the unhappy prospect of widening the scope of Art. 8 still further”.

However as I say, the factual matrix is in any event insufficient to place the obligations on D1.

As was stated byLord Dyson in Rabone v Pennine Care NHS Trust, at para 15,

“As the ECtHR said at para 115 of the Osman case, the operational duty exists in ‘certain well-defined circumstances’. The court has held that there is a duty on the state to take reasonable steps to protect prisoners from being harmed by others including fellow prisoners (Edwards v United Kingdom (2002) 35 EHRR 487) and from suicide(Keenan v United Kingdom (2001) 33 EHRR 913). The same duty exists to protect others who are detained by the state, such as immigrants who are kept in administrative detention (Slimani v France (2004) 43 EHRR 1068) and psychiatric patients who are detained in a public hospital (Savage v South Essex Partnership NHS Foundation Trust (MIND intervening)) [2009] AC 681) …”

All other matters being equal, I do not accept as was pressed by Mr Lemer that the present case falls into a similar category. C3 was here not detained by D1, he was not a case like Ms Rabone, nor on facts similar to those cases where state failures have taken place and founded a claim.

Whether the case is put in respect of Article 2, 3 or 8 in respect of C3 it seems to me that in each case this claim fails on the basis it is not possible to characterise what happened to C3 vis a vis the local authority in the sense required under the HRA. Nothing was actually done to C3 and his situation is a very long way away from that of Ms Rabone or an incarcerated person or any category of persons to whom the duty to prevent self-harm arises – and this is far from being a case of that order.

As to victim status, I agree with Mr Weston,a direct victim must be directly affected by the breach complained of but the cases show that indirect victim status can apply to close family members in those circumstances where the direct victim has died or gone missing in order not to render the rights of the deceased a nullity. That is far from this case. In circumstances where each Claimant can bring their own claim for any breach of their rights, it is I accept undesirable for members of the family to remain a party to the proceedings as indirect or additional victims of the same alleged breach. The indirect claims would fail for this reason also.

I conclude that the submissions of the local authority are to be accepted in their entirety. Both as to strike out and as to summary judgment.