Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor  EWHC 2617 (QB) (13 October 2011)
The High Court of England and Wales considered the circumstances in which the compulsory admission to hospital of non-compliant incapacitated patients under the Mental Health Act 1983 (MHA) may constitute a deprivation of liberty in contravention of article 5 the European Convention of Human Rights (ECHR).
The Court found that the procedures provided for detention by the MHA to be comprehensive. It held that Ms Sessay's detention for 13 hours in contravention of the procedure provided by the MHA constituted a deprivation of liberty in contravention of article 5 of the ECHR.
The claimant, Sawida Sessay, was taken by police officers to the Maudsley Hospital and detained for 13 hours pending the making of an application to admit her compulsorily under s 2 of the Act. Section 2 of the MHA provides for the compulsory admission and detention of a patient to hospital for assessment (or assessment followed by treatment) for up to 28 days.
The police officers entered the claimant's home following receipt of a complaint that Ms Sessay had not been caring properly for her child. They formed the view that the claimant was mentally disordered, were concerned for her welfare and that of her child and considered it was in Ms Sessay's best interests that she be taken to hospital to be assessed.
The officers considered that Ms Sessay could be detained under s 135 of the MHA, which provides for the detention in a place of safety for up to 72 hours of a person believed to be suffering from a mental disorder but unable to care for themselves. However, they were unable to exercise that power due to the lack or a warrant and the absence of approved practitioners. They therefore relied on s 5 of the Mental Capacity Act 2005 (MCA), which provides power to, and procedures for, detaining a patient for up to six hours pending the making of an application under s 2 of the MHA where there is a risk that they will leave the hospital before the application is completed.
However, Ms Sessay was detained for 13 hours before the application for her admission under s 2 of the MHA was completed. She claimed that her treatment amounted to unlawful detention and/or deprivation of liberty in breach of article 5 of the ECHR. She further sought a declaration that the general practice and policy of the South London & Maudsley NHS Foundation Trust of holding persons awaiting assessment for admission for up to eight hours is unlawful.
The Court held that the MHA provides comprehensively for the compulsory admission to hospital of non-compliant incapacitated patients, that the common law principle of necessity does not apply in this context and that the claimant's detention was consequently unlawful. It found that this unlawful detention constituted a breach of her rights under article 5 of the EHCR. However, the Court did not consider that the Trust's policy of holding persons for up to 8 hours to be unlawful.
Was the detention unlawful?
The Court did not accept the submission that a lacuna existed in the MHA which could only be filled by the common law doctrine of necessity. It considered that the MHA provides comprehensively for such admission for the following reasons:
- the MHA provides a procedure for compulsory hospital admissions;
- Parliament has expressly provided for the situation where the application is one of urgent necessity;
- the Code of Practice provides guidance in relation to emergency applications;
- the Trust has provided its own policy regarding potential time delays;
- where a patient evidences an intention to leave before an application for admission is completed, hospital staff may contact the police who have the power to detain under s 136 of the MHA; and
- the House of Lords has held that the statutory powers of detention conferred on hospital authorities are exhaustive and that any common law power of detention which the authority might otherwise have possessed have been impliedly removed.
The Court noted that the European Court of Human Rights has held that a claimant was deprived of his liberty in breach of article 5(4) of the ECHR in circumstances in which the doctor had used the common law doctrine of necessity rather than statutory powers to detain, which did not meet the requirement in article 5(1)(e) that detention be carried out in accordance with the procedure prescribed by law.
Did the unlawful detention constitute a deprivation of liberty in breach of article 5?
The Court observed that, in considering the operation of article 5 of the ECHR, the starting point must be the specific situation of the claimant and account must be taken of a wide range of factors. These include the type, duration, effects and manner of implementation of the deprivation of liberty.
It considered the principles relating to lawfulness and protection against arbitrary detention, noting:
- lawfulness requires conformity with procedural and substantive aspects of domestic law;
- the relevant law must meet the standard of lawfulness set by the Convention which requires that the law be sufficiently precise to allow the citizen to foresee to a reasonable degree the consequences which may follow a particular action; and
- it must be established that the detention conformed with the essential objective of article 5(1), being to prevent the arbitrary deprivation of liberty.
The Court further observed that authorities suggest that a deprivation of liberty, to breach article 5, must be for more than a negligible length of time and that there is room for a pragmatic approach to be taken which takes full account of the circumstances.
The Court found that the claimant was detained under s 5 of the MCA, which does not confer on police officers the powers to remove persons to hospital which are provided by ss 135 and 136 of the MHA, and that the defendant failed to establish lawful justification for the detention.
Although the Court considered that a detention at common law will not necessarily constitute a deprivation of liberty for the purposes of article 5, it found that it did so in this case. The Court held that no justification for the deprivation of liberty was provided by the fact that Hospital staff considered that power existed to detain Ms Sessay under s 136 of the MHA (although this power was not exercised), and that some of the delays in processing her application for admission had not been adequately explained.
The Court finally found that, although a deprivation of liberty occurred in respect of Ms Sessay's detention, the Trust's policy that persons be held for up to eight hours is not unlawful, and that there was no evidence that the hospital was unable to process applications in a timely manner when the case is one of urgent necessity. This finding of the Court suggests the adoption of a pragmatic approach, in circumstances where the statutory procedures provide for a maximum six hour detention.
Relevance to the Victorian Charter
The right to liberty and security of the person is protected by the Victorian Charter of Human Rights and Responsibilities. Section 21 relevantly provides:
- Every person has the right to liberty and security.
- A person must not be subject to arbitrary arrest or detention.
- A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.
Section 21(7) further provides that any person deprived of liberty is entitled to apply for a declaration or order regarding the lawfulness of his or her arrest or detention.
The consideration by the High Court of Ms Sessay's detention provides useful guidance in respect of the approach which may be taken by Victorian courts to the application of s 21 of the Charter. It suggests that, where statutory procedures for lawful detention are comprehensively provided, courts may be willing to take a pragmatic approach, but reluctant to consider any significant departure from such procedures to be lawful.
The decision can be found online at http://www.bailii.org/ew/cases/EWHC/QB/2011/2617.html.
Catie Shavin is a lawyer at Allens Arthur Robinson.