Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor

The issue that arises in this case concerns non-compliant incapacitated patients, that is those who are not willing to be admitted and do not have the capacity to consent to admission, to psychiatric hospitals pending the making of an application for their compulsory admission to hospital for assessment under section 2 Mental Health Act 1983 (“MHA”).

On 7 August 2010 two police officers entered the private accommodation of Ms Sawida Sessay, the Claimant, following a complaint from a neighbour that the Claimant had not been caring properly for her child. The officers formed the view that the Claimant was mentally disordered and were concerned for her welfare and that of her child. The officers reasonably formed the view that it was in the Claimant’s best interests that she be taken to hospital for the purposes of being assessed and receiving help in relation to her mental health. They drove the Claimant and her child to Peckham police station, where the child was taken into police protection. Then they drove the Claimant on to the Maudsley Hospital (“the hospital”).

The officers considered that the Claimant was a person who fell within the scope of s.135 MHA, but they could not exercise that power because they did not have a warrant and were not accompanied by an approved mental health professional or a registered medical practitioner, as would have been required under s.135. Instead, the officers relied upon s.5 Mental Capacity Act 2005 (“MCA”) to justify taking the Claimant to hospital. On arrival at the hospital, the officers took the Claimant to what is known as the “136 Suite” to which persons brought in by the police under s.135 or 136 MHA are taken.

The Claimant brought proceedings against the Commissioner of Police for the Metropolis, the Second Defendant, in respect of the actions of the police officers. Subject to approval by the court the Claimant and the Second Defendant have agreed that the following declaration be made:

“1.

Sections 135 and 136 of the Mental Health Act 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 of the Mental Capacity Act 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136 of the Mental Health Act 1983.

2.

The Claimant’s removal to hospital by the Second Defendant’s officers on 7^th August 2010 was unlawful and breaches her rights under Article 5 and Article 8 ECHR.”

The Claimant arrived at the hospital at 09.20 on 7 August 2010. The application to admit her under s.2 MHA was not received by the Hospital Managers until 22.20, thirteen hours later. The Claimant’s case is that her treatment in the hospital amounted to detention and/or deprivation of liberty, which was not lawful and in breach of Article 5 ECHR. Further the Claimant seeks a declaration that the general practice and policy of the First Defendant (“the Trust”) for holding persons awaiting assessment for admission for up to eight hours (or longer) is unlawful.

The Mental Health Act 1983

Part II of MHA is concerned with Compulsory Admission to Hospital and Guardianship. Sections 2-6 cover procedure for hospital admission.

Section 2 authorises the compulsory admission of a patient to hospital for assessment (or for assessment followed by medical treatment), and for detention for this purpose for up to 28 days. It provides as follows:

“2.

—(1) A patient may be admitted to a hospital and detained there for the period allowed by sub-section (4) below in pursuance of an application (in this Act referred to as ‘an application for admission for assessment’) made in accordance with sub-sections (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 should 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 sub-section (2) above are complied with.

(4)

Subject to the provisions of section 29(4) below, a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act.”

Section 3 provides for the compulsory admission of a patient to hospital for treatment and for his subsequent detention which can last for an initial period of up to six months (s.20(1)).

Section 4 is headed “Admission for assessment in cases of emergency”. It provides, in a case of urgent necessity, for the compulsory admission of a person to hospital for assessment for a period of up to 72 hours:

“4.

—(1) In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions of this section, and any application so made is in this Act referred to as ‘an emergency application’.

(2)

An emergency application may be made, either by an [approved mental health professional] or by the nearest relative of the patient; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above, and that compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay.

(3)

An emergency application should be sufficient in the first instance if founded on one of the medical recommendations required by section 2 above, given, if practicable, by a practitioner who has previous acquaintance with the patient and otherwise complying with the requirements of section 12 below so far as is applicable to a single recommendation, and verifying the statement referred to in sub-section (2) above.”

Section 5 provides for applications for compulsory detention under ss.2 or 3 to be made in respect of mentally disordered patients who are already receiving treatment in hospital as informal patients. It also includes powers that can be used if it is considered that an informal patient (except a community patient) might leave the hospital before there is time to complete an application under either ss.2 or 3. Section 5(4) provides that:

“If, in the case of a patient who is receiving treatment for mental disorder as an in-patient in a hospital, it appears to a nurse of the prescribed class—

(a)

that the patient is suffering from mental disorder to such a degree that it is necessary for his health or safety or for the protection of others for him to be immediately restrained from leaving the hospital; and

(b)

that it is not practicable to secure the immediate attendance of a practitioner [or clinician] for the purpose of furnishing a report under sub-section (2) above,

the nurse may record that fact in writing; and in that event the patient may be detained in the hospital for a period of six hours from the time when that fact is so recorded or until the earlier arrival at the place where the patient is detained of a practitioner [or clinician] having power to furnish a report under that sub-section.”

Subsection (5) provides that:

“”A record made under subsection (4) above shall be delivered by the nurse (or by a person authorised by the nurse in that behalf) to the managers of the hospital as soon as possible after it is made; and where a record is made under that sub-section the period mentioned in sub-section (2) above shall begin at the time when it is made.”

Section 6 authorises the applicant or anyone authorised by him to take and convey the patient to hospital within specified periods, and authorises the hospital managers to detain the patient once he has been admitted. The material parts of section 6 provide as follows:

“(1)

An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital at any time within the following period, that is to say—

(a)

in the case of an application other than an emergency application, the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application;

(b)

in the case of an emergency application, the period of 24 hours beginning at the time when the patient was examined by the practitioner giving the medical recommendation which is referred to in s.4(3) above, or at the time when the application is made, whichever is the earlier.

(2)

Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subs.(1) above, or being within that hospital, is treated by virtue of s.5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.”

Sections 11-15 are general provisions as to applications and recommendations. Sections 11, 12 and 13 are material to the present case. They provide, as relevant, as follows:

“General provisions as to applications

11.—(1) Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment … may be made … by an [approved mental health professional]; and every such application shall specify the qualification of the Applicant to make the application.

(2)

Every application for admission shall be addressed to the managers of the hospital to which admission is sought… …

(5)

None of the applications mentioned in sub-section (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application. …

(7)

Each of the applications mentioned in sub-section (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by two such practitioners.

“General provisions as to medical recommendations

12.

—(1) The recommendations required for the purposes of any application for the admission of a patient under this Part of this Act… (in this Act referred to as ‘medical recommendations’) shall be signed on or before the date of the application, and shall be given by practitioners who have personally examined the patient either together or separately, but where they have examined the patient separately not more than five days must have elapsed between the days on which the separate examinations took place.

(2)

Of the medical recommendations given for the purposes of any such application, one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance.

[(2A) A registered medical practitioner who is an approved clinician shall be treated as also approved for the purposes of this section under sub-section(2) above as having special experience as mentioned there].

Duty of approved mental health professionals to make applications for admission or guardianship

13.

—(1) If a local social services authority have reason to think that an application for admission to hospital … may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf.

(1A) If that professional is—

(a)

satisfied that such an application ought to be made in respect of the patient; and

(b)

of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application.

(2)

Before making an application for the admission of a patient to hospital an [approved mental health professional] shall interview the patient in a suitable manner 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. …

(5)

Nothing in this section shall be construed as authorising or requiring an application to be made by an approved mental health professional … as restricting the power of a local social services authority to make arrangements with an approved mental health professional to consider a patient’s case or of an approved mental health professional to make any application under this Act.”

Part X of MHA contains miscellaneous and supplementary provisions. Relevant miscellaneous provisions include the following:

“Duty of managers of hospitals to give information to detained patients

132.

—(1) The managers of a hospital … in which a patient is detained under this Act shall take such steps as are practicable to ensure that the patient understands

(a)

under which of the provisions of this Act he is for the time being detained and the effect of that provision; and

(b)

what rights for applying to a [tribunal] are available to him in respect of his detention under that provision;

and those steps shall be taken as soon as practicable after the commencement of the patient’s detention under the provision in question.

Warrant to search for and remove patients

135.

—(1) If it appears to a justice of the peace, on information on oath laid by an approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder— …

(b)

being unable to care for himself, is living alone in any such place,

the justice may issue a warrant authorising any constable… to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care.

(3)

A patient who is removed to a place of safety in the execution of a warrant issued under this section may be detained there for a period not exceeding 72 hours.

Mentally disordered persons found in public places

136.—(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.

(2)

A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an [approved mental health professional] and of making any necessary arrangements for his treatment or care. …

Notification of hospitals having arrangements for reception of urgent cases

140.

It shall be the duty of every Primary Care Trust and of every Local Health Board to give notice to every local social services authority for an area wholly or partly comprised within the area of the Primary Care Trust or Local Health Board specifying the hospital or hospitals administered by or otherwise available to the Primary Care Trust or Local Health Board in which arrangements are from time to time in force—

(a)

for the reception of patients in cases of special urgency”

The Mental Capacity Act 2005

The Mental Capacity Act 2005 (“MCA”), as amended by the Mental Health Act 2007, provides, in so far as is material, as follows:

“4A Restriction on deprivation of liberty

(1)

This Act does not authorise any person (‘D’) to deprive any other person (‘P’) of his liberty.

(2)

But that is subject to—

(a)

the following provisions of this section, and

(b)

section 4B

(3)

D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)

A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P’s personal welfare.

(5)

D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty). …

5 Acts in connection with care or treatment

(1)

If a person (‘D’) does an act in connection with the care or treatment of another person (‘P’), the act is one to which this section applies if—

(a)

before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b)

when doing the act, D reasonably believes—

(i)

that P lacks capacity in relation to the matter, and

(ii)

that it will be in P’s best interests for the act to be done.

(2)

D does not incur any liability in relation to the act that he would not have incurred if P—

(a)

had had capacity to consent in relation to the matter, and

(b)

had consented to D’s doing the act.

(3)

Nothing in this section excludes a person’s civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

(4)

Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).

6 Section 5 acts: limitations

(1)

If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.

(2)

The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.

(3)

The second is that the act is a proportionate response to—

(a)

the likelihood of P’s suffering harm, and

(b)

the seriousness of that harm.

(4)

For the purposes of this section D restrains P if he—

(a)

uses, or threatens to use, force to secure the doing of an act which P resists, or

(b)

restricts P’s liberty of movement, whether or not P resists. …

(6)

Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by—

(a)

a donee of a lasting power of attorney granted by P, or

(b)

a deputy nominated for P by the court.

(7)

But nothing in subsection (6) stops a person—

(a)

providing life-sustaining treatment, or

(b)

doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.”

Schedule 1 enables what are called standard and urgent authorisations to be granted in respect of persons in a hospital or care home in certain circumstances. A person can only be deprived of liberty by the MCA where (i) the deprivation is authorised by an order of the Court of Protection under s.16(2)(a) of MCA; or (ii) the deprivation is authorised in accordance with the deprivation of liberty procedures set out in Schedule A1 to the MCA; or (iii) the deprivation is carried out because it is necessary in order to give life sustaining treatment, or to carry out a vital act to prevent serious deterioration in the person’s condition, while a decision as respects any relevant issue is sought from the court. (J v Foundation Trust [2010] Fam 70).

The Code of Practice

The Code of Practice (“the Code”) prepared in accordance with section 118 MHA includes the following guidance in relation to emergency applications for detention in hospital under section 4:

“Applications for detention for assessment in an emergency

5.2

The Act permits an application for detention for assessment to be made under section 4 on the basis of a single medical recommendation, but only in very limited circumstances. An application for detention under section 4 may be made only when:

•

the criteria for detention for assessment under section 2 are met;

•

the patient’s detention is required as a matter of urgent necessity; and

•

obtaining a second medical recommendation would cause undesirable delay.

Urgent necessity

5.4

Section 4 should be used only in genuine emergency, where the patient’s need for urgent assessment outweighs the desirability of waiting for a second doctor.

5.5

Section 4 should never be used for administrative convenience. So, for example, patients should not be detained under section 4 merely because it is more convenient for the second doctor to examine the patient in, rather than outside, hospital.

5.6

An emergency may arise where the patient’s mental state or behaviour present problems which those involved cannot reasonably be expected to manage while waiting for a second doctor. To be satisfied that an emergency has arisen, the person making the application and the doctor making the supporting recommendation should have evidence of:

•

an immediate and significant risk of mental or physical harm to the patient or to others;

•

danger of serious harm to property; or

•

a need for physical restraint of the patient.

Availability of second medical recommendation

5.7

It is the responsibility of primary care trusts (and other NHS commissioners) to ensure that doctors are available in the timely manner to examine patients under the Act when requested to do so by AMHP’s [approved mental health professionals] and in other cases where such an examination is necessary.

5.8

If AMHPs find themselves having to consider making emergency applications because of difficulties in securing a second doctor, they should report that fact to the local social services authority (LSSA) on whose behalf they are acting (or in accordance with locally agreed agreements, if they are different).

5.9

Hospital managers and LSSAs should monitor the use of section 4 to ensure that it is not misused and to allow action to be taken to rectify any problems with the availability of doctors.

Detention under section 4

5.11

Patients detained under section 4 should be examined by an appropriate second doctor as soon as possible, to decide whether they should continue to be detained. If the doctor who made the recommendation for the section 4 application was not a doctor approved under section 12, the Act requires the doctor making the second recommendation to be so approved.”

The Trust has a “Joint operational policy for the reception and care of service users admitted to a place of safety under section 136 Mental Health Act 1983” (“the Policy”), issued in April 2010. The Policy includes, so far as is relevant, the following:

“3.6

Other

The Place of Safety (136 suite) must not be used for supervised confinement. The doors of the Place of Safety (136 suite) must not be locked while a person is in situ. There may be some circumstances when the door to the Place of Safety is required to be locked i.e. for reasons of immediate safety and security. This decision must be made on the basis of a risk assessment.

5.0

Role of the Mental Health Unit

5.5

If an assessment is to take place, the duty Approved Mental Health Professional – AMHP, must be informed as soon as possible of a pending assessment by the Place of Safety (136) co-ordinator.

5.6

An assessment should take place as soon as possible after arrival at the unit by the duty doctor. If the person detained in the Place of Safety (136 suite) is deemed likely to require admission informally or under section of the Mental Health Act the Specialist Registrar, a Section 12 approved doctor, and an Approved Mental Health Professional will need to be called. It is the Place of Safety (136) co-ordinator’s responsibility to contact these individuals as soon as possible after the person is admitted to the Place of Safety (136 suite) has arrived.

5.11

The maximum time any person should be held in the Place of Safety (136 suite) is eight hours. The aim of this policy is for people admitted to the Place of Safety (136 suite) to remain there for no more than four hours. Please see local protocol for escalation of bed management – see appendix 4.”

Appendix 5 (“Mental Capacity Act Assessment Flow Chart”) to the Policy includes the statement that:

“If a patient has capacity then we would either look to an informal admission for a compliant patient or the sectioning process for a non-compliant patient. If getting two doctors causes a time delay then section 4 should be used to ensure there are no time delays.

If a patient lacks capacity and is non-compliant then staff should also follow the sectioning process, considering section 4 if there are any time delays. If a client lacks capacity and is compliant then staff should apply their powers under the Mental Capacity Act. This allows for a patient to be treated and admitted if it is in their best interest and a proportionate response to the risk that the patient faces if they do not receive that care and treatment. It has been decided that as a standard, Staff should stick to the time limits set out for when clients are admitted under section 136.”

The parties have produced an “Agreed Chronology” which helpfully summarises the relevant factual background to this claim.

The Trust was notified at 0830 on 7 August 2010 that the Claimant was being referred to them. At 0920 the Claimant was brought to the hospital by the Police and admitted to the “s.136 Suite”. The Police completed a form relating to “Section 5-6 Mental Capacity Act 2005”, noting that the Claimant lacked capacity to make decisions about risks to her health. The contemporaneous note completed by the Trust recorded that the Claimant was “brought in on a Section 5(6)”. The Section 132/132A Form completed by the Trust at 11.05 recorded 0920 as being the time at which the section commenced.

At 0920 the duty doctor arrived. At 0930 the bed manager was bleeped. Between 0942-0944 a referral was made to Southwark Social Services for the attention of the duty AMHP, it being noted on the report completed by the AMHP that it was an urgent case and the response time was thirty minutes. Ms Brown [AMHP] was informed at this point by the Nurse on duty at the s.136 suite that the Claimant had been brought in on a s.136 MHA. In addition she spoke to the Police Constable involved who also stated that the Claimant had been brought to the suite under s.136.

At 1030 the Duty Doctor, Dr Chakrabarti, assessed the Claimant. His assessment (entered into the system at 1153) noted the following: “[P]sychomotor agitation ++- hyperactive, restless, laughing and giggling. Was co-operative for the purpose of the interview, however from time to time had threatened staff – to hit/push/slap them; had threatened to throw tea at them (however had not done) – couple of times banged the glass window in the nursing office very hard, punched the walls, and pushed staff and got into the nursing staff not wanting to leave. Rapport was established with difficulty.” Dr Chakrabarti noted that the Claimant’s judgment was impaired, and that she had nil insight: “[d]oes not think she has a mental illness, does not consider admission is necessary and did not feel the need to take medicines.” He concluded that she posed high risks to herself and others (in the latter regard because she was caring for a 20-month-old child). He recorded his impression as “[p]sychosis NOS” [which is understood in this context means “Not Otherwise Specified”], and that she was suffering a manic episode. Under plan, the doctor recorded:

“1.

Recommendation for Section 2

2.

Have discussed the case with AMHP, and SpR on call Dr Dan

3.

Have been told by staff that they would come around 1300.

4.

PRN written up in drug chart: Lorazepam, Promethazine, and Midzolam.”

At 1030 it was noted that the AMHP would attend at 1300. At around this time, the Claimant was offered Lorezapam (a sedative), but declined. In a note completed at 1441 a nurse recorded the events leading up to the offer of this as follows: “while in the suite Sawida behaviour remains changeable sometimes calm or giggling inappropriately; she was also observed to be responding to visual hallucination by asking nursing staff to read the information that was written on the wall; however the wall is blank. Other times her behaviour was hostile and aggressive towards nursing staff and making threats to harm staff with punches or beating staff up and also make threats to pour hot tea on staff. On two occasions she forced her way into the nursing office and has refused to move until the police can be called to get an update about her daughter, however this was explained to her several times. She was advised to return to the patient area but became more threatening and elated in mood. Alarm was activated and emergency team was called on the arrival of ES1 staff and the team Sawida went back into the patient area but continued to make threats Sawida has also been banging the viewing window in the nursing office very hard and has punched the wall and has also been activating the wall emergency alarms. She was therefore offered 2mg Lorezapam PRN to alleviate her agitation which she denied with threats when she was told about it.”

At 1030 the Specialist Registrar was bleeped. At the same time the Home Treatment Team was contacted. At 1100 a section 132/132A form completed by the Trust recorded that the Claimant was informed of her rights. At 1105 the Claimant declined to sign the form. At 1130 the Claimant took Lorezapam in the presence of the emergency team. The note completed at 1441 by the ward nurse recorded that “she took it when it was brought to her at 1130hrs with the emergency team present”. At 1155 the Lorezapam took effect and the Claimant fell asleep.

Between 1250 and 1300 the Home Treatment Team attended. The Claimant was asleep; in the light of the information obtained from the Duty Doctor’s assessment and the s.136 suite staff, the recommendation was that Home Treatment was not indicated. The bed manager was informed of the need for an admission. It was noted at that point that the AMHP was aware that arrangements were being made for an admission. At 1430 a nurse noted that the Specialist Registrar called to see whether the AMHP was at the s.136 suite. At 1650 a nurse called the duty AMHP regarding the s.2 assessment, and informed them that there was a bed available. The AMHP said that she would speak to the Specialist Registrar to arrange a time for an assessment as the Claimant was now awake. At 1820 the Specialist Registrar attended the s.136 suite. It was noted that the AMHP was expected to arrive at 1830.

At 1900 Dr Sherwood, and Dr Kim Shyan Hwang, the Duty Specialist Registrar approved under s.12 MHA, assessed the patient together with the AMHP. The Duty Specialist Registrar noted that the Claimant “[a]ppeared drowsy, having spent the majority of the day asleep”. He recorded his impression that “from this morning’s account I believe this is likely to have been a manic episode, which has been treated to some extent with sedating medication today. She has no past psychiatric history and certainly warrants an admission to hospital for assessment. I do not believe she will remain in hospital voluntarily [sic]”. The plan was noted as being

“- Commence sec 2 proceedings.

- Admit to hospital for assessment…”

The joint recommendation completed by the two doctors was that the Claimant was suffering from a mental disorder of a nature or degree which warranted her detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period, and ought to be detained in the interests of her own health, in the interests of her own safety and with a view to the protection of other persons. It was noted that the Claimant “is not agreeable to admission on a voluntary basis”. The AMHP assessment included the following: “Sawida is unwilling to accept informal admission so I completed an application for s.2 MHA, because in all the circumstances of the case I believe that detention under s.2 MHA is the most appropriate way for her to receive the care and treatment of which she stands in need.”

At 1930 on 7 August the AMHP decided to make the application for detention. At 2220 the application was accepted by the Hospital Managers. At the same time the Claimant was transferred to another ward within the Hospital. She had her rights read to her pursuant to s.132 MHA.

On 19 August the Claimant applied for discharge from detention under s.2 MHA. On 1 September 2010 the First Tier Tribunal (Health, Education and Social Care Chamber) Mental Health declined to recommend the Claimant’s release. On 4 September the Claimant’s detention under s.2 MHA expired. Prior to that she had been assessed for admission for treatment under s.3 MHA. Her nearest relative had objected which prevented an application being made at that point, and the AMHP had reviewed the situation. The decision was taken not to seek to displace the nearest relative; accordingly the s.3 application did not proceed any further. The Claimant agreed to stay informally. On 9 September 2010 the Claimant was discharged.

On 22 September 2010 in a letter before action the Claimant’s solicitors noted that the Claimant was “grateful for the care she received at [the] hospital” and that her instructions were “not to approach this matter on the basis of any intentional wrongdoing by [the Trust] who was… placed in something of an invidious position by the circumstances of her arrival at [the] hospital. It would not be right not [to] recognise this at the outset, so we make it clear. Nevertheless, unlawful detention is a tort of strict liability.” On 5 November 2010 judicial review proceedings were issued. On 30 December 2010 permission was granted to apply for judicial review.

Ms Kay Burton, Head of the Mental Health Act team at the Trust, explains in her witness statement that patients admitted to “section 136 suites” are not limited to those brought in under s.136 MHA:

“2.

One of the functions of the MHA Office is to receive and, where appropriate, audit information relating to admissions to the Trust’s hospitals. This includes admissions to the Trust’s four designated ‘Places of Safety’, which are sometimes referred to as section 136 suites. We compile statistics relating to the number of admissions to the Places of Safety of patients who are brought in by the police using sections 135 and 136 of the MHA and also sections 5 of the Mental Capacity Act 2005 (‘MCA’). During the period December 2009 to December 2010, 24 people were brought to the Trust’s Places of Safety under section 5 of the MCA, compared with 714 people brought in under s.136 of the MHA. Of the 24 patients brought in under the MCA, 9 were then detained under sections 2 or 3 of the MHA.

3.

… This case has highlighted the difficulties faced by staff when patients are brought to Places of Safety under the MCA. When a patient is admitted under section 135 or 136 of the MHA, there is a clear authority under the MHA to hold the patient and if necessary deprive them of their liberty. However, when a patient is brought to hospital under the MCA, we are conscious that staff should not deprive the person of his or her liberty whilst at the same time trying to manage their mental health needs, the manifestations of which are usually acute, psychotic or manic and which make them a risk to themselves and/or others.

4.

The Trust has developed a policy, which has been submitted in evidence in this case. This policy has a dedicated part that attempts to give practical guidance to staff on how they should best manage patients who are brought to the Trust’s Places of Safety by the police under the MCA. …”

In summary the grounds upon which the Claimant alleges that her detention at the hospital by the Trust’s medical staff was unlawful are as follows: