QB-2022-002447 - [2025] EWHC 2803 (KB)

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.