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

The Claimants say firstly that no permission was required because the Court in their case is concerned with an omission, not an act.

Further and in any event, the Claimants submit that the statute does not apply in circumstances where the assessed person is not detained under that Act, accordingly it does not apply here. The Claimants submit they are entitled to rely upon the clear wording of the Act which refers to “acts” alone. The Court must look in the round at what was happening which would show that it was a failure to admit to hospital that is the substance – and that is an omission, and not therefore covered by section 139. 

In answer to the first submission D1 argues that it would be perfectly possible to plead most tortious claims in terms of either an act or an omission to do something, and that the characterisation placed upon the material facts by a claimant cannot determine the application or otherwise of the 1983 Act.  Further, as a matter of characterisation of what was happening here, it was an assessment, and that assessment was necessarily carried out under the 1983 Act. D1 submits that the statutory purpose is to protect those in the position of the AMPH.

To support the submission that the statutory purpose of the section is the protection of those involved in the mental health sphere, reliance is placed by D1 upon the case of Seal v Chief Constable South Wales Police [2007] UKHL 31. In that case, which concerned a visit by the police following a disturbance and Mr Seal’s arrest for breach of the peace, the claimant had been taken to a place of safety under section 136(1) of the 1983 Act and was thereafter detained. He was released after a week but sued just before the expiry of limitation, challenging the justification for his detention and claiming damages. No leave under section 139(2) had been obtained. In rejecting an argument that Article 6 of the ECHR was infringed, Lord Bingham reflected that the protection of those responsible for the care of mental patients from being harassed by litigation had been accepted as a legitimate legislative objective. The restrictions on litigation placed by section 139 did not impair the very essence of the right; he noted that the threshold for leave was “set at a very low level” (see paras [15] and [20]). 

In para [15] of Seal Lord Bingham recorded they had been referred to no judicial opinion or academic commentary suggesting that a failure to obtain leave was merely a procedural irregularity which could be cured. When declining to accept that leave could be given retrospectively, the House of Lords reflected that the whole basis of the legislation of the 1983 Act appeared to be a consensus of longstanding judicial, professional and academic opinion that lack of consent rendered the proceedings null. This view was reached in spite of clear submissions that injustice might ensue where a litigant might find his proceedings invalidated by failing to comply with a requirement in statute that he was ignorant of at the time when a statutory time bar would block his claim. The strict rule could have harsh effect the court accepted, but Parliament must have recognised that there might be hard cases. This was “a price worth paying for the reassurance and protection given” by the relevant sections.  It was acknowledged that similar provisions had been in existence since 1930, and also that the matter involved a fundamental right - namely access to the court by a particularly vulnerable group. They dismissed by a majority an appeal against a challenge to the conclusion that lack of the required leave under the MHA rendered any proceedings begun a nullity. This was so even where the operation of limitation provisions would mean the right of action was lost. This construction of section 139 (and of the Limitation Act) did not infringe Article 6 ECHR as argued, even in the case of a person who may have been subject to the MHA regime. This supported the proposition that Parliament intended to make leave a precondition of any effective proceedings. The requirement for leave was characterised (by Lord Brown) as being to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued, (at para [74]). After canvassing the legislative history, at [75] Lord Brown dismissed the Article 6 claim in strong terms

“To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful.”

This was not a protection that could be secured other than by a clear and inflexible rule such as section 139(2).  Mr Seal was a litigant in person who may well have been in ignorance of time limits and the requirements of the section. Nonetheless certainty was achieved by the statute, and this clear interpretation was re-enforced by the legislative history. The description by Dr Larry Gostinin his Mental Health Services Law and Practice (1986) in terms that “The provision does not create a personal immunity which is capable of being waived,but imposes a fetter on the court’s jurisdiction which is not so capable,” was cited with approval.

In Pountneyv Griffiths AC [1976] 314 a nurse on duty at Broadmoor had allegedly punched a patient who then instituted a prosecution for assault but without acquiring leave under the Mental Health Act 1959. The nurse was convicted, and applied for certiorari on the grounds the proceedings were a nullity because leave had not been obtained. D1  relies on the case because there the patient argued that the scope of  protection was limited to actions or purported actions done in discharge of functions expressly provided for by the wording of the section, that is to say only applied to those who signed certificates, made orders for detention or disposed of patients’ property – express acts under the statute. Contrary to this argument the court held that the relevant statutory protection (then contained in section 141) applied also to staff discharging their day-to-day duties in the control of patients during their patients’ treatment. 

The court emphasised the statutory words which are repeated in section 139(1) “any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act”. The statute referred to “any act” (and not merely to certain specified acts), limited only by the words “purporting to be done” et cetera. The punch had occurred in the course of the nurse taking him back after a family visit. It was held that family visits -which included a patient being taken back to his quarters - were part of a patient’s treatment in hospital. The nurse in question was accordingly acting in pursuance of the Act, and the conviction was properly quashed.

D1 submits that the local authority are assisted by that case in that the Court held that acts which were “ancillary to detention” were covered by the requirement for leave before proceedings could be brought.   The acts of the AMHP here, said Mr Weston, were the arranging for an assessment under the MHA and that was likewise ancillary to a detention, as well as being an act under the statute and so such activities were covered by the protection of section 139.  

Consideration of the meaning and scope of section 139 has recognised it is unusual for a failure in a procedural requirement to invalidate a substantive claim, but has nonetheless analysed the statutory intention of this section as being to provide substantial protection for the putative defendant, and not a mere procedural hurdle.  As Lord Bingham said in Seal at para 20, the section was designed to protect “those responsible for the care of mental patients from being harassed by litigation…”.

In my judgement as a broad starting point, such a wide purpose does not tend towards supporting a narrow construction of the section.

Looking first to the natural meaning of the words in context, in my judgement section 139 of the MHA is drafted with reference to the activities of the relevant personnel carrying out the statutory function - described as “acts done or purportedly done.”  That is to say, it is not a question of whether the law might characterise circumstances as an act or an omission, as elsewhere in tort, or whether a claimant has pleaded the incident as being one or the other.  It refers to the AMHP carrying out their functions under the Act. 

The difficulty I find with the Claimants’ approach is that a description both as an act and as an omission might, as D1 argues, easily apply to the same circumstances. If the Claimants were correct, it would be possible to avoid the protective effect of the statutory provision merely by choices as to how pleadings were phrased, which would defeat the statutory purpose as described.

This interpretation is fortified in my view by the words of section 13.  The AMHP was carrying out the statutory tasks there described. As Mr Weston says, the assessment itself is plainly an act done under the Act – see s 13(1) and (2), and done on behalf of the local authority. It is wrong, as Mr Lemer sought to do, to re-characterise the statutory task by looking at what happened compendiously, or “overall” and calling it an omission to admit to hospital.

 Accordingly, in my judgement the requirement for permission covers what is carried out pursuant to the statute, and that includes the actions of the AMHP here, whether the facts might be pleaded as acts or pleaded as omissions or described globally in some other form of words. The purpose of the section reflects a strong policy of protection of those responsible for the care of mental patients.  As the House of Lords recognised following Winch v Jones [1986] 1 QB 296 the Act was plainly intended to provide those who operate under the mental health legislation with protection. The section is designed to strike a balance between the legitimate interests of an applicant, who may apply in an appropriate case, and the interests of the respondents not to be subjected to the risk of being harassed by baseless claims. The test is recognised as being relaxed: the court will give permission where the complaint “appears to be such that it deserves the full investigation which will be possible if the intended applicant is allowed to proceed.” (per Donaldson LJ giving the judgement of the Court in Winch v Jones).

 I also reject the Claimants’ submission that section 139 does not apply to those not detained under the Act.

Mr Lemer points to Seal and says that was a case of a detained patient, which is not the position here, and the protection does not and should not extend to the non-detained situation. It is a restrictive clause and should be construed narrowly.

Mr Weston relies upon the short case ofLebrooy v London Borough of Hammersmith & Fulham [2006] EWCA 1976 (QB) where a litigant in person brought a claim against the London Borough of Hammersmith and Fulham in respect of allegations of defamation allegedly contained in medical notes in respect of his mental ill-health. These notes were made in the course of enquiries for the purpose of determining whether the claimant should be admitted to hospital under the MHA with a view to determining appropriate medical treatment or care. The court applied the case of Pountney and rejected, without reflecting detailed argument, a submission that section 139 only applies to those who have been detained.  I accept as the Claimants say, that the point in issue there was not reasoned through, but I also accept, when reasoned through, that it does represent the law.

 Not only is the wording of the Act not limited in this way, in my view the Claimants’ submission fails to recognise the character of many of the acts authorised by the MHA. As a matter of logic, once it is appreciated that the Act encompasses a number of actions by professional personnel in respect of persons not limited to those who have achieved the status of detained person, and that, necessarily, actions are authorised by statute which are preliminary to the formal detention of a person under the 1983 Act, there can be no distinction between the detained and non-detained patient. Necessarily, in my judgement statutory authority will be needed for the functions of a person in the position of the AMHP. That authority comes from the 1983 Act. What the AMHP does, as a professional, fulfilling her obligations pursuant to section 13 of the Act is necessarily “acts done in pursuance of this Act or regulations or rules made under this Act” as described in the section.

It is nothing to the point that Clerk and Lindsell on Torts 24^th edition to which the Claimants drew my attention states in chapter 14 entitled “Trespass to the Person andHarassment” under section 6 “Defences to Trespass to the Person” Part one (i) “Confinement and treatment for mental disorder under the Mental Health Act 1983” that the section applies with respect to detained persons. The whole chapter refers to detained persons; non constat the section does not apply to non-detained patients such as C3.

 The Claimants (on the section 139 point, through submissions by Mr David Lemer) argued before me that section 139 ought to be read down in order to accommodate the current claim.

There is no directly applicable authority to support the proposition that section 139(2) requires to be read down in present circumstances. The closest decision to which the Claimants refer by analogy, is the Court of Appeal decision M v London Borough of Hackney [2011] EWCA Civ 4, (otherwise known as TTM), a judicial review case alleging unlawful imprisonment and therefore a breach of Article 5. There, by agreement, the parties conceded that section 139(1), (not as here section 139(2)), could be read down under the Human Rights Act in respect of unauthorised detention such that the unlawful detention (as the court there found) could be compensated in damages. 

The AMHP there had non-negligently made an honest mistake as to the consent of the nearest relative. The AMHP had therefore completed the forms on the basis that an original objection had been withdrawn, when it had not. The completed form which “appear[ed] to be duly made” was (under s6 of the Act) sufficient authority for the hospital to detain, so the Health Authority were not liable, they had acted lawfully. However, it did not render the detention itself lawful, because one of the precedent facts foundingits legality was missing, and the application was therefore prohibited by section 11(4)(aa) of the Act. The Court read down section 139(1) removing the protection which extended otherwise to a claim such as that, involving a bona fide act done with reasonable care.

The case is relied upon  by the Claimants with respect to the imposition of a duty of care, as well as the scope of any section139 protection, for the description by Toulson LJ (giving the judgment of the Court) of the role played by an AMHP when an application is made to a hospital trust for the admission of the patient, to support their proposition that the AMHP is directly responsible for detention and does more than preparatory acts as was suggested by D1. The Claimants note that the Court held the detention of the claimant was unlawful

“inasmuch that it was brought about directly by the conduct of the AMHP for which she had no lawful justification, notwithstanding that she acted in complete good faith.”

per Toulson LJ at para 39. This they say incidentally illustrates also the causative effect of the role of the AMHP. These facts were different they submitted from the acts of social workers and others in Poole or HFX or similar cases.

Toulson LJ in the context of an article 5 argument, described a

 “… statutory scheme involving two agents of the state, between whom the scheme provides for an internal division of responsibility. The first agent [the AMHP] has responsibility for ensuring that any application which it makes for a patient’s detention is lawfully made. The second agent [the hospital trust] has responsibility for carrying out the detention on the application of the first agent, provided that the application appears to be in order.”

I do not find this description, nor the approach of the Court to this Article 5 judicial review is of persuasive force for the issues here- either as to the scope of section 139 or as to a duty of care in the current case. Seal concerned the illegality of detention - a pure power to detain point, and the HRA point was agreed - there was no argument between the parties as to a write down of section 139(1) in order to allow recovery of damages for breach of Article 5. The case did not involve reading down section 139(2) at all. As Mr Weston submitted, the two sub sections are very different.

It was argued on behalf of D1 and I accept that the case of Seal makes absolutely clear that the time limit may not be extended by the court, and reliance on the section constitutes no breach of rights arising under Article 6.

One argument raised on behalf of the Claimants was based upon R v Runighian [1977] Crim LR 361. That was a case under the 1959 Act involving leave in the Crown Court (as was then appropriate). The admission of the patient in that case did not take place under the provisions of the then extant Mental Health Act 1959, rather he was an informal patient. He accused a nurse of assaulting him and brought a prosecution without first seeking leave. The court held that he did not require leave because, as an informal patient he was not admitted and detained under the mental health legislation; acts done to an informal patient after their admission (under a permissive section of the Act) were not done “in pursuance of the Mental Health Act”.

This case does not make good the Claimants’ submission that if you are not detained under the Act, the provisions of what is now section 139 do not apply to you. The situation of a voluntary patient under the 1959 Act is entirely different from the position of C3 here who was involved in the formal processes of the 1983 Act and the activities of which he complains were those that are set out in the statute itself, and are preliminary, if completed with positive outcome, to detention under the Act.

Accordingly I am clear

I have been asked to go on to consider the case as advanced on behalf of the Claimants in any event and do so taking first the allegation of a duty of care at common law.