Expedient, but for whom?

Some police forces have leapt very eagerly upon the Mental Capacity Act (MCA); so eagerly, in fact, that they have begun to use it in preference to the Mental Health Act. That might be a perilous course.

Section 5 of the MCA gives all manner of people the power provide care to an incapable person. It seems it is now being used to take people to hospital who appear to be suffering from mental disorder.

That is already covered by section 136 of the Mental Health Act (MHA), of course, provided the person concerned is in a public place and appears to be in immediate need of care and control. Thereafter, he may be held in hospital for up to 72 hours while being assessed for possible admission, whether as an informal or a detained patient.

It is not hard to see why in this situation, the MCA might be preferred to the MHA: a constable who uses section 136 might have to remain with the patient while a bed is found for him, which might not be for several hours. The section 5 power, however, appears to carry no such expectation, and it is not subject to the formal arrangements that would otherwise apply.

But there are significant problems with this approach. First, of course, while section 5 may be invoked in a public place, it will only apply to someone who is, or appears to be, incapable, and so might not cover everyone to whom section 136 might apply.

The second problem will affect doctors and nurses more than constables, but it should be no less compelling for that. While section 136 includes the power to detain a patient after he arrives at hospital, section 5 does not: the relevant constable cannot confer such a power on those who receive the patient, and the MCA itself does not contain it. If the patient is incapable, it might be possible for the hospital authorities to invoke the Deprivation of Liberty Safeguards (although they will have to act with great speed in order to do so); but if he is capable, they will only be able to detain him substantively by using the MHA, a possibility section 136 would have given them fully 72 hours to investigate.

The use of section 5 of the Mental Capacity Act instead of section 136 of the Mental Health Act might well be expedient for chief constables, but that will almost certainly be at the expense of the NHS. It should not be contemplated, therefore, without proper, informed consultation with all concerned.

Some mental health claims will now be easier to defend, and correspondingly harder to bring

Where he says he is the victim of acts performed under the Mental Health Act, anyone wanting to claim damages will now face a more difficult task. That is the result of an interlocutory decision in Johnston v The Chief Constable of Merseyside Police [2009] EWHC 2969 (QB), which concerned a proposed claim by a man who had been apprehended by the police.

In January 2006, Mr Johnston, who has a history of mental health problems, was at a property on Merseyside. An occupier of the property became concerned about his behaviour and summoned an ambulance. In accordance with usual practice, the police attended as well. Mr Johnston acknowledged that he had needed medical help, but said he had not wanted the police to be called.

On the basis of the witness statements and other evidence, there is a profound conflict between the parties as to what happened next. It appears to be common ground, however, that Mr Johnston was sprayed with CS gas and sustained severe blistering to the skin on his face, left ear and chest. He was detained, put in handcuffs and taken to hospital, but he was not subsequently charged with any criminal offence.

Mr Johnston alleges that these acts amounted to false imprisonment and assault. The Chief Constable, however, claims they were covered by section 136 of the Mental Health Act 1983 (MHA), which applies where someone who appears to be suffering from mental disorder is found in a public place, and permits a constable to take that person to a place of safety. Under section 139(2), no claim concerning the use of MHA powers may proceed without the permission of the High Court. The Chief Constable argued that Mr Johnston should be denied such permission.

The leading authority on permission claims of this kind is still Winch v Jones [1986] 1 QB 296, in which Sir John Donaldson, MR said, “The issue is whether, on material evidence immediately available to the court, […] [the claim] deserves the fuller investigation which will be possible if [it] is allowed to proceed.” Subsequently, the House of Lords said that by this test, “the threshold for obtaining leave under section 139(2) has been set at a very unexacting level […] an applicant with an arguable case will be granted leave.” (Seal v Chief Constable of South Wales Police [2007] UKHL 31, per Lord Bingham at [20])

For the Chief Constable, it was argued that, 25 years on, the Winch v Jones test should be tightened. It was noted that the Civil Procedure Rules now provide, amongst other things, that summary judgment may be given where a claimant “has no real prospect” of success (rule 24.2(a)(i)).

Notwithstanding the changes wrought by the CPR, the judge, Mr Justice Coulson said “it would be wrong to modify in any significant way” the Winch v Jones test. (See [12]) He went on, however, to permit himself one modification, noting that it would be “absurd” for a court to grant permission under section 139 where, had it asked itself the “CPR Part 24 question”, it would have concluded that the proposed claim had no real prospect of success. (See [13]) For that reason, the judge said the CPR question should indeed be asked upon any claim under the MHA. (See [14])

In fact, Coulson J concluded that the Mr Johnston’s proposed claim did have a real prospect of success, and he therefore granted the necessary permission under section 139. (The proceedings also included a limitation point, which, again, was decided in the claimant’s favour.)

It isn’t every potential defendant whose position will be strengthened by this decision. For esoteric, historical reasons, no permission has ever been required for proceedings concerning the acts or omissions of the Secretary of State or the NHS under the MHA. (MHA, section 139(4)) Where a claim relates to the use of section 136, however, or to the initial decision to detain a patient in hospital, this case will make a difference.

The Winch v Jones test for permission under section 139 has not been displaced. In fact, it is now considerably tighter, with a potential claimant having to show that his case is not merely arguable, but that it has a real chance of success. That is a palpable change, whose effect might well be to forestall claims that would otherwise have proceeded all the way to trial. And plainly, therefore, the change is a good deal more ‘significant’ than the judge was prepared to allow in Mr Johnson’s case.

What is a public place?

Where a person who is in a public place appears to be suffering from mental disorder, section 136 of the Mental Health Act allows him to be arrested by a police constable and detained for up to 72 hours in an appropriate place of safety.

It is hard to find definitive statistics on section 136. The Mental Health Act Commission has suggested that between 2002/3 and 2003/4, the power was used 4,450 times, with patients detained either in hospital or in a police station. (MHAC, 2006, In Place of Fear? Eleventh Biennial Report, 2003-2005, paragraph 4.165 and figure 76) The Independent Police Complaints Commission, however, has calculated that in 2005/6, patients detained under section 136 were held in police cells on 11,517 occasions. (Maria Docking et al, September 2008, Police Custody as a “Place of Safety”: Examining the Use of Section 136 of the Mental Health Act 1983, IPCC Research and Statistics Series: Paper 11, pages 10 & 11)

Because the concept of a public place is used in a wide variety of statutes, the cases it produces are rarely collected together, and as a result, it is hard to know quite what the law permits.

The new Reference Guide to the Mental Health Act 1983 says that a ‘public place’ is “any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.” (Paragraph 30.17). Because of the courts, however, we also know: that the grounds of a bail hostel have been held not to be a public place. (Harriott v DPP [2005] EWHC (Admin) 965) The contrary may be true both of the upper landing and of a communal balcony in a block of flats. (Knox v Anderson (1983) 76 Cr App R 156; Carter v Metropolitan Police Commissioner [1975] 1 WLR 507)The front garden of a private house will not usually be a public place, (R v Edwards (1978) 67 Cr App R 228) even if it is so small that someone standing in it could inflict harm on a pedestrian on an adjacent pavement. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) A car park is a public place, at least during licensing hours, (David Lewis v DPP [2004] EWHC (Admin) 3081) and, even if it is said to be for customers only, if it is attached to commercial premises and accessible from a public place. (May v DPP [2005] EWHC (Admin) 1280) Finally, a private driveway shared by neighbouring private properties is not a public place; members of the public who use it do so as visitors rather than as members of the public. (R v Bogdal [2008] EWCA Crim 1)

It is felt that sometimes, where a person with mental disorder is found in a private place, police constables will attempt to entice him into a public place simply so that the section 136 power can be used. The standard texts say that such a tactic would be unlawful, but a brand new case suggests that it is not.

In that case, a police officer was held to have acted lawfully where he arrested a woman for being drunk and disorderly in a public place, having physically escorted her from a garden to a private footpath. The High Court accepted that the constable had been attempting to reach a negotiated conclusion that would have been in the woman’s own interests, and that he was not motivated by the desire to justify an arrest for an offence that could only be committed in a public place. The High Court said he could properly be said to have acted in conformity with generally acceptable standards of conduct. (McMillan v CPS [2008] EWHC (Admin) 1457)

In order to understand the limits of the section 136 power, practitioners will have to look beyond the Mental Health Act, which was responsible for only one of the cases mentioned above. The other cases were brought under statutes as diverse as the Public Order Act 1936, the Prevention of Crime Act 1953, the Criminal Justice Act 1988, the Road Traffic Act 1988 and the Dangerous Dogs Act 1991. Conventional guidance is rarely so diverse as to embrace all these sources.