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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor  EWHC 2617 (QB) (13 October 2011)
Cite as:  QB 760,  EWHC 2617 (QB),  PTSR 742,  Med LR 123,  2 WLR 1071,  MHLR 94
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE SUPPERSTONE
| The Queen on the application of
|- and -
|South London & Maudsley NHS Foundation Trust
The Commissioner of Police for the Metropolis
Mr Alexander Ruck Keene (instructed by Messrs Bates, Wells & Braithwaite London LLP) for the First Defendant
Ms Debra Powell (instructed by Directorate of Legal Services) for the Second Defendant
Hearing dates: 8 July 2011
Crown Copyright ©
Mr Justice Supperstone :
"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 7th August 2010 was unlawful and breaches her rights under Article 5 and Article 8 ECHR."
(A) The Mental Health Act 1983
"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."
"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."
"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."
"(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."
"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."
"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"
(B) The Mental Capacity Act 2005
"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."
(C) The Code of Practice
"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.
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 Policy
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."
"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."
"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."
"- 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."
"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. …"
The grounds of claim
i) In the circumstances in which the Claimant was held for thirteen hours pending the decision to admit her under s.2 MHA, she was deprived of her liberty.
ii) The powers on which the Trust's medical staff purported to rely did not give lawful authority for the deprivation of liberty. The treatment therefore constituted false imprisonment at common law and/or was in breach of Article 5 ECHR.
iii) There is no power to deprive patients, such as the Claimant, of their liberty in psychiatric hospitals under the common law doctrine of necessity on which the Trust relies.
The statutory framework
"These provisions display a coherent scheme for the admission into hospital and detention there of mentally disordered persons. Sections 17 and 18 deal with what may be termed long term detention, which may only be exercised under warrant from the sheriff. The period of detention thereunder to be for six months initially, but subject to renewal by report under the provisions of s.30, with a right of appeal to the sheriff. Section 24 deals with emergency procedure in the case of 'urgent necessity', involving danger to the health and safety of the individual in question or of others. Detention for up to 72 hours is authorised where an emergency recommendation is made by a medical practitioner. Section 25 makes it clear that urgent necessity can arise in relation to one who is already a patient in a hospital. Should it arise when no medical practitioner is available, detention may be exercised on the authority of a nurse of the prescribed class (but no one else) for two hours or until the earlier arrival of a medical practitioner qualified to make a recommendation under s.24. The nurse must make a record of the circumstances. Section 26 authorises short term detention for up to 28 days, after the expiry of s.24 detention, upon report by a medical practitioner approved as having special experience in mental disorder. It is specifically enacted that successive periods of detention under s.24 or s.26 are forbidden, as are successive periods of two hour detention under s.25(2).
In my opinion it is impossible to reach any other conclusion than that the powers of detention conferred upon hospital authorities by the scheme were intended to be exhaustive. Procedure is laid down for emergency, short term and long term detention. The period of short term detention might reasonably be expected to be long enough for an application for long term detention to be submitted to and approved by the sheriff under s.18. What happened in this case was that the petitioner's condition appeared initially to be improving, so that an application under s.18 was not thought appropriate. Dr Mackay was of opinion that an application which turned out to be unnecessary would be upsetting and harmful to the patient. The petitioner's condition suddenly and unexpectedly deteriorated, and by then it was too late to have an application submitted and approved before the expiry of the short term detention. That would appear to be a situation which was not in the contemplation of the framers of the legislation. However, I am of opinion that the provisions of ss.24(6), 25(5) and 26(7) are absolutely inconsistent with a possible view that the legislature intended that a hospital authority should have a common law power to detain a patient otherwise than in accordance with the statutory scheme. That scheme contains a number of safeguards designed to protect the liberty of the individual. It is not conceivable that the legislature, in prohibiting any successive period of detention under provisions containing such safeguards, should have intended to leave open the possibility of successive periods of detention not subject to such safeguards. I would therefore hold that any common law power of detention which a hospital authority might otherwise have possessed has been impliedly removed."
"…to leave compliant incapacitated patients without the safeguards enshrined in the Act of 1983. This is an unfortunate result. … The common law principle of necessity is a useful concept, but it contains none of the safeguards of the Act of 1983. It places effective and unqualified control in the hands of the hospital psychiatrist and other healthcare professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus [nor] judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of the Act of 1983 from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration."
Lord Steyn identified the existence of a lacuna, which has come to be known as "the Bournewood gap".
False imprisonment and Article 5
"It is true that in all cases of imprisonment so far as the law of civil liberty is concerned that 'stone walls do not a prison make', in the sense that they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an imprisonment."
In Lumba v Secretary of State for the Home Department  UKSC 12 Lord Dyson observed at para 65:
"All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so."
It is irrelevant whether or not the defendant honestly and reasonably believed that he had the necessary authority to detain the claimant, if, in fact, no such authority existed (R v Governor of Brockhill Prison Ex p Evans (No.2)  2 AC 19).
"It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance."
"The Court recalls that the lawfulness of detention depends on conformity with the procedural and with the substantive aspects of domestic law, the 'lawful' term overlapping to a certain extent with the general requirement in Art.5(1) to observe a 'procedure prescribed by law'. It is also recalled that, given the importance of personal liberty, the relevant national law must meet the standard of 'lawfulness' set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail. …
It is further recalled that it must be established that the detention was in conformity with the essential objective of Art.5(1) of the Convention which is to prevent individuals being deprived of their liberty in an arbitrary fashion. This objective, and the broader condition that detention be 'in accordance with the procedure prescribed by law', require the existence in domestic law of adequate legal protections and 'fair and proper procedures'."
At para 98 the Court outlined the three minimum conditions for the lawful detention of an individual on the basis of unsoundness of mind and Art.5(1)(e) of the Convention:
"he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder."
"Even if it is not excluded that Article 5 (1) may apply to deprivations of liberty of a very short length (see X v Germany, No.8819/79, Commission Decision of 19 March 1981, Decisions and Reports (DR) 24, pp 158, 161), the Convention organs' case law shows that this provision was considered not applicable in cases where the applicants' stay in a police station lasted only a few hours and did not go beyond the time strictly necessary to accomplish certain formalities (see, for instance, Guenat v Switzerland, No.24722/94, Commission Decision of 10 April 1995, Decisions and Reports (DR) 81, pp.130, 134 [approximately 2-3 hours]…"
"No reference is made in Article 5 to the interests of public safety or the protection of public order as one of the cases in which a person may be deprived of his liberty. This is in sharp contrast to Article 10(2), which expressly qualifies the right to freedom of expression in these respects. But the importance that must be attached in the context of Article 5 to measures taken in the interests of public safety is indicated by Article 2 of the Convention, as the lives of persons affected by mob violence may be at risk if measures of crowd control cannot be adopted by the police. This is a situation where a search for a fair balance is necessary if these competing fundamental rights are to be reconciled with each other."
Application of the law to the facts
i) Part II of the Mental Health Act 1983 provides a comprehensive code for compulsory admission to hospital for non-compliant incapacitated patients such as the Claimant. The common law principle of necessity does not apply in this context.
ii) The Claimant's detention at the hospital on 7 August 2010 was unlawful and in breach of her rights under Article 5 ECHR. The Claimant is entitled to a declaration to this effect, together with damages for breach of Article 5 and for false imprisonment to be assessed, if not agreed.