King's / Queen's Bench Division of the High Court

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

Fecha: 29-Oct-2025

The Relevant Statutory Provisions

The Relevant Statutory Provisions

68.

The preliminary question in the case is whether D1’s submission that section 139 of the Act required permission is correct in the present circumstances. It is agreed that permission was not obtained. D1 argues the proceedings are therefore a nullity. The Claimants say that in the circumstances permission was not required. If it was required, they agree the result is a nullity.

69.

The relevant provisions in respect of the framework, the duty upon AMHPs, applications for admission and the requirement for permission are found in the MHA 1983 and regulations made under it.

70.

A person may be approved under section 114 of the MHA by a local social services authority to act as an AMHP for the purposes of the MHA. Given the nature of the submissions made it is necessary to set out in rather more detail than usual the admission provisions and the three main sections dealing with the process.

71.

In Part II of the Act headed “Compulsory admission to hospital and guardianship” Sections 2 and 3 deal with admissions for assessment and for treatment respectively under a subheading “Procedure for hospital admission” They provide:

“2 Admission for assessment.
(1)
A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (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 shall 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 subsection (2) above are complied with.
3.— Admission for treatment.
(1)
A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.
(2)
An application for admission for treatment 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 makes it appropriate for him to receive medical treatment in a hospital; and
(c)
it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section and
(d)
appropriate medical treatment is available for him.
(3)
An application for admission for treatment shall 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 subsection (2) above are complied with; and each such recommendation shall include—
(a)
such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and [(d)]⁴ of that subsection; and
(b)
a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4)
In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.

72.

Under the Subheading “General provisions as to applications and recommendations”, Sections 11 to 13 provide relevantly as follows:

11.— General provisions as to applications.

(1)

Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application may be made either by the nearest relative of the patient or by an approved mental health professional; and every such application shall specify the qualification of the applicant to make the application.

(1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below

(2)

Every application for admission shall be addressed to the managers of the hospital to which admission is sought and every guardianship application shall be forwarded to the local social services authority named in the application as guardian, or, as the case may be, to the local social services authority for the area in which the person so named resides.

(3)

Before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved mental health professional, that professional shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below.

(4)

An approved mental health professional may not make an application for admission for treatment or a guardianship application in respect of a patient in either of the following cases–

(a)

the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made; or

(b)

that professional has not consulted the person (if any) appearing to be the nearest relative of the patient, but the requirement to consult that person does not apply if it appears to the professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.

(5)

None of the applications mentioned in subsection (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 subsection (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.

“12.— General provisions as to medical recommendations.

(1)

The recommendations required for the purposes of an application for the admission of a patient under this Part of this Act or a guardianship application(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 subsection (2) above as having special experience as mentioned there.

13 Duty of approved mental health professionals to make applications for admission or guardianship.

(1)

If a local social services authority have reason to think that an application for admission to hospital or a guardianship application 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—

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.

(1B) Subsection (1C) below applies where—

(a)

a local social services authority makes arrangements under subsection (1) above in respect of a patient;

(b)

an application for admission for assessment is made under subsection (1A) above in respect of the patient;

(c)

while the patient is liable to be detained in pursuance of that application, the authority have reason to think that an application for admission for treatment may need to be made in respect of the patient; and

(d)

the patient is not within the area of the authority.

…

(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.

…

(4)

It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to make arrangements under subsection (1) above for an approved mental health professional to consider the patient's case with a view to making an application for his admission to hospital; and if in any such case that professional decides not to make an application he shall inform the nearest relative of his reasons in writing.

73.

With respect to protection under the 1983 Act section 139 provides:

139 Protection for acts done in pursuance of this Act.

(1)

No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, unless the act was done in bad faith or without reasonable care.

(2)

No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.

(3)

This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.

(4)

This section does not apply to proceedings against the Secretary of State or against NHS England, an integrated care board, a Local Health Board or Special Health Authorityor against a National Health Service trust established under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 or NHS foundation trust or against the Department of Justice in Northern Ireland or against a person who has functions under this Act by virtue of section 12ZA in so far as the proceedings relate to the exercise of those functions.

…”

74.

The competence, training, supervision and practice of AMHPs is the subject of The Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 SI 2008/1206.

75.

I turn first to the section 139 question.