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

Liability is comprehensively denied by D1

The Claimants and D1 essentially agree with the core propositions as to the law. It is agreed therefore that public authorities and public sector professionals are prima facie subject to the same general principles of common law negligence as private persons.  D1 refers to Michael and Others v Chief Constable of South Wales Police and another [2015] UKSC 2; [2015] AC 1732; Poole Borough Council v GN and another [2019] UKSC 25; DFX v Coventry City Council [2021] EWHC 1444. D1 argues, and the Claimants agree, that when exercising statutory functions under MHA 1983, there is no assumption of responsibility unless such a duty of care would be imposed under conventional principles of tort, and that  public authorities and public sector professionals are (in the same way as  private individuals), generally not under any duty to prevent the occurrence of harm by third parties.  

 Here, D1 says that, properly analysed, all the AMHPs in contact with C3 were undertaking a statutory function; C3 was not their patient and an AMHP does not provide care or treatment.  There was no voluntary assumption of responsibility nor any relationship akin to contract (by reference to the categories described in Hedley Byrne v Heller [1964] AC 465 and Spring v Guardian Assurance Plc [1995] 2 AC 296).  Further, neither C2 nor C3 were the subject of a statutory assessment by the AMHP.  

D1 denies that any AMHP was exercising a special skill or providing services or advice upon which the Claimants foreseeably relied. Any special skill, advice as to, or services in support of, the MHA assessment was for the benefit of the Trust and/or the local authority, who were subject to public law obligations and deployed social workers to meet them. Reference is made by D1 to the observations of Lord Reed at paras [ 81], [87], [88] and [91] of Poole where it is explained that the council’s investigating and monitoring of the Claimants’ position by the social worker in that case did not involve the provision of a “service”.  There, as here, he submits there was no provision of professional advice on which a claimant would foreseeably rely as there had been in Phelps v Hillingdon [2001] 2 AC 619, concerning educational psychologists, where the liability was based upon the Hedley Byrne principles.

Nor did the Claimants “entrust their safety” to the council nor had the council accepted responsibility for it says Mr Weston: there was no assumption of responsibility to the Claimants here. A public body might do so of course - such as in the hospital setting (and see also X v Bedfordshire County Council [1995] 2 AC 633 per Lord Browne-Wilkinson). However, the nature of the statutory function here just does not support that interpretation.

There is further, says D1, no common law duty requiring a public body to take a statutory step (i.e. here to apply for detention) because that would be to create a statutory duty to act, actionable at private law. Or, put another way, the scope of any common law duty of care cannot encompass or extend to a requirement to take a statutory step.  D1 makes reference to a line of earlier cases East Suffolk Catchment Board v Kent [1941] AC 74; Stovin v Wise [1996] AC 923; Gorringe v Calderdale MBC [2004] 1 WLR 1057].

D1 also denies as an initial point that any common law duty of care arises upon an AMHP as regards organising an assessment for admission under the MHA 1983 because this would be inconsistent with the statutory scheme. A duty to an individual would or might be in conflict with the need under s.2 and s.3 MHA 1983 to consider the patient’s interests, that person’s health and safety as well as the protection of the wider public or others generally. 

 D1 also argues that the D1 did not have “special control” over any of the Claimants. C3 was in police custody at the time of the MHA assessment and the AMHP had no power or control over him.

There was no basis therefore under which an exception to the “no liability for omissions” principle could be applied to these facts to impose a duty of care.

D1 notes particularly that when C3 was arrested and conveyed to the police station he was seen by a psychiatric nurse who assessed him to be a medium risk with insight into his current condition. It was at that point that arrangements were made for the AMHP and the two doctors to attend to undertake an assessment to consider whether a detention application should be made. They had had no previous contact with C3 before and there was no contact between any of them and any of the Claimants between 14 August 2018 and the incident on 23 December 2018.

D1 notes that no other relationship or contact is pleaded. 

D1 argues further that the Claimants have misunderstood the scope of the AMHP’s role. An MHA assessment was only co-ordinated by the AMHP - it was actually undertaken by D3 and D4, the doctors. The statute places the duty upon a local social services authority to “make arrangements for an approved mental health professional…”   whohas overall responsibility for co-ordinating the process of assessment as set out in the Code of Practice: Mental Health Act 1983, paragraph 14.41.

The Defence pleads (and it is the case) that  the AMHP can make an application for detention to the managers of a hospital to which admission is sought (MHA s.11) but it is a prerequisite under s.2 MHA 1983 that two registered medical professionals have provided written recommendations in the prescribed form, for detention. Thus the statutory duty to determine whether to make an application for detention or not under section 13 of the Act is only placed on the AMHP once two positive medical recommendations are received. 

The AMHP is described by D1 in terms of providing a “further safeguard if the medics recommend detention” and as having no power to make an application absent the two positive medical recommendations.

D1 also relies on the fact that it cannot be said that the relevant AMHPs created the risk posed by C3, nor was there a sufficient degree of “control” so as to become liable for any injury caused to third parties in the sense explored in Dorset Yacht v Home Office [1970] AC 1004. There was no physical control here - C3 was in police custody at the time of the assessment.

 D1 also denies any voluntary assumption of responsibility by either D1 or the AMHPs as regards the Claimants.

 D1 also emphasises that the cases have frequently stated that the mere foreseeability of harm is not a sufficient basis for a duty of care to arise by reference to Poole; DFX v Coventry City Council [2021] EWHC 1444; and X v Bedfordshire County Council [1995] 2 AC 633].