Neutral Citation Number: [2012] EWHC 1053 (QB)
Case No: HQ11X04847
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION FOR LEAVE 
UNDER S.139(2) OF THE MENTAL HEALTH ACT 1983

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24 April 2012 

Before :

THE HONOURABLE MR JUSTICE EADY
- - - - - - - - - - - - - - - - - - - - -
Between :

	DD
	Claimant	
	- and -
		
	(1)	DURHAM COUNTY COUNCIL
(2)	MIDDLESBROUGH CITY COUNCIL	
Defendants	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Christopher Buttler (instructed by Scott-Moncrieff & Associates LLP) for the Claimant
John Norman (instructed by DWF LLP) for the First Defendant
Patrick Limb QC (instructed by Berrymans Lace Mawer LLP) for the Second Defendant 

Hearing date:  27 March 2012
- - - - - - - - - - - - - - - - - - - - -
Judgment

Mr Justice Eady : 

1.	On 27 March 2012 I heard an application by the Claimant under s.139 of the Mental Health Act 1983 for leave to bring civil proceedings against Durham County Council and Middlesbrough City Council.  (I shall refer to them hereafter as “Durham” and “Middlesbrough”.)  The relevant statutory provisions are these:
“(1)	No person shall be liable … 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 … 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.”
The threshold for giving leave in such circumstances is relatively low and the test is whether there is a realistic prospect of success (i.e. one that is other than merely fanciful):  see e.g. Seal v Chief Constable of South Wales [2007] UKHL 31;  Lebrooy v London Borough of Hammersmith [2006] EWHC 1976 (QB);  Johnston v Chief Constable of Merseyside [2009] EWHC 2969 (QB).
2.	The matter was adjourned by Lang J on 20 February of this year, so that a number of aspects of the proposed claims could be clarified.  It has now emerged that Mr Buttler seeks to advance two claims on behalf of his client, one based on infringements of the Human Rights Act 1998 and the other founded on the tort of false imprisonment.  Both relate to the period of time for which he was detained under the 1983 Act between 11 December 2009 and 2 March 2010.  He submits that the requirement of bad faith or lack of care, contained in s.139(1), has no application in circumstances where there is a claim for alleged infringements of the Human Rights Act.  As I understand his submission, the same reasoning applies to his proposed claim based on false imprisonment because the allegations of illegality are those relied upon for the purposes of the Human Rights Act claim.  It is to be noted that the proceedings were issued on 22 December 2011, obviously well after the expiry of the primary limitation period in respect of a claim based on the 1998 Act.
3.	The factual background is as follows.  The Claimant had been sentenced in 2007 to a term of imprisonment for assault which he served in Durham Prison.  He was due to be released on 11 December 2009, but there was concern on the part of the statutory authorities that there was a serious risk of further violent offending in the light of his mental health.  There was a gap of three days between 11 and 14 December 2009, during which the Claimant continued to reside at the prison, before he saw two Approved Mental Health Practitioners (“AMHPs”).  On this occasion he saw Yvonne Travers who was employed by Durham County Council and Richard Wood, who was the Mental Health Co-ordinator at the prison.  Ms Travers has produced written evidence before the court and has stated that she understood the position to be that the Claimant had volunteered to remain in the prison over that short period.  That information came from Mr Wood.
4.	At all events, an independent assessment was carried out on 14 December with the participation of two doctors, Dr Brown (an approved medical practitioner under s.12 of the Act) and Dr Docherty (the Durham Prison GP).  The AMHPs determined that the Claimant met the requirements for detention under s.2 of the 1983 Act, for the purposes of assessment, and he was duly sent to the Hutton Centre at St Luke’s Hospital, which is a medium-secure psychiatric unit within the Tees Esk and Wear Valley Trust.  This statutory provision made it possible to detain him for that purpose for a period up to 28 days.  It is to be noted that in his evidence the Claimant makes no criticism of anything said or done by Ms Travers on that occasion.
5.	On 8 January 2010, shortly before the 28 day period was due to expire, Durham County Council arranged for the Claimant to be seen by two other AMHPs called Richard Pyatt and Sheeld Jagat Jani.  They too recommended that the Claimant be detained, this time for treatment in accordance with the provisions of s.3 of the 1983 Act.  Later the same day, in the light of that assessment, a fifth AMHP made an application for the Claimant’s admission to the Hutton Centre (which was effectively for continuation of his accommodation there).  This time the AMHP concerned was Pauline Robinson, an employee of the Middlesbrough City Council, whose services had been offered for the task, at a meeting held that day, in the light of severe weather conditions which gave rise to travel problems.  Her application was made in accordance with the Mental Health Act Code of Practice, Chapter 4, governing applications for detention in hospital.
6.	The present application is supported by the Claimant’s own statement of 23 February 2012, which gives an account of the conditions in which he was held over the relevant period.  From this it emerges clearly that he was aware that he needed treatment and wished to be detained at Rampton for that purpose.  He acknowledged, however, that both Rampton and two other local facilities were not available at the material time.  He summarises his condition as being “a paranoid, narcissistic and antisocial personality disorder”.  In seeking to explain the delay, he refers to “a culture of suing”.  He stated that it was only after other patients had talked about their experiences, and referred to compensation they had received for what appeared to be minor infringements of their human rights, that he realised that his own experiences had been far worse.  He then instructed a solicitor.
7.	The claims proposed would be based upon the acts or omissions of the relevant AMHPs and directed to whichever public authority should be held vicariously liable.  The issues I have to resolve are (a) whether there is any realistic prospect of establishing illegality against Yvonne Travers and/or Pauline Robinson and (b) whether, if so, Durham or Middlesbrough should be regarded as vicariously responsible for any acts or omissions on the part of Pauline Robinson on 8 January.  At the material time, she was employed by Middlesbrough but claimed to be acting on behalf of Durham in this context.
8.	It is important to focus on the functions of an AMHP and the limits upon them and, in the light of that, to address the complaint(s) in respect of which the Claimant proposes to seek redress.  As formulated at present, the complaints appear to relate (i) to alleged breaches of his rights under Article 3 of the Convention (which are unqualified) to protection from torture and degrading treatment and (ii) to the alleged infringements of rights under Article 8.  They concern matters such as his being kept in seclusion, the lighting in his room, the number of people supervising his activities and a general lack of privacy.  The Claimant acknowledges in evidence that he has also been held in seclusion at Rampton because of “altercations with other patients or staff”, but there (he says) the arrangements are not so intrusive or degrading.  
9.	For present purposes, Durham (but not Middlesbrough) was prepared to concede that there was an arguable case that such infringements had taken place at the Hutton Centre over the relevant period.  The question arises to what extent any such breach could be attributed to either of the AMHPs.
10.	The same facts are said to give rise, in the alternative, to a claim for false imprisonment.
11.	It is obvious than an AMHP is not directly responsible for the medical or other regimes to which a detained person is subjected.  Neither of the women concerned in this case had any control over the Claimant once he was under the care of the Hutton Centre.  An AMHP has certain responsibilities under the Mental Health Act which include recommending a person for detention under s.2 or under s.3.  Their responsibilities have to be discharged in the light of all the relevant circumstances of the case, which would include taking into account the assessments of qualified doctors.  Their functions do not extend, however, to choosing an institution in which the person concerned is to be detained – still less to researching the available facilities or carrying out a reconnaissance to assess their quality.
12.	As Ms Travers made clear in her evidence, she had never visited the Hutton Centre.  She made the first application in reliance upon a medical opinion that it was suitable for the Claimant’s needs.  It is for the medical practitioners to decide on clinical grounds whether the person concerned requires clinical assessment in a hospital environment and/or treatment.  If so, it is for them also to determine whether there is a suitable bed available:  see the Code of Practice, at paragraph 4.75.  In this instance, it was Dr Brown who identified the Hutton Centre as suitable and established that a bed was available.
13.	The AMHP will sometimes have to decide whether, in the case of a proposed assessment under s.2, there is any safe alternative available outside the hospital environment.  That may well involve making an appraisal of social factors in the light of such medical advice as is available.  In this case Ms Travers decided that there was no safe alternative (and none has subsequently been suggested).
14.	It has been submitted that an AMHP, in the position of Ms Travers and/or Ms Robinson, owes a duty to investigate the proposed place of detention, the location where the patient will be kept while there and the regime to which he will be subject.  This is said to arise because of the need to make a recommendation in the light of “all the circumstances”.  In this case, that would apparently have involved her not accepting Dr Brown’s assessment at face value and making an independent judgment of her own.  I can see no legal basis for this proposition, whether in case law or under the terms of the Mental Health Act.
15.	There is also criticism made of Ms Travers to the effect that she should have come to the conclusion, by reference to reports or notes written over a considerable period of time about the Claimant by altogether some nine psychiatrists, that he was not in need of further assessment under s.2.  She nevertheless exercised her own judgment, as she was bound to do, and not least in the light of the advice from Dr Brown and Dr Docherty.  She determined that further assessment was urgently required in a hospital setting.  I see no basis for that criticism or for seeking to hold her responsible for the treatment of the Claimant once he was detained at the Hutton Centre.  There was no need for her to go back and research earlier views, given by different doctors, at different times and in different contexts.  It was not for her to second guess the current medical advice.
16.	The other main question I am asked to determine is whether Durham or Middlesbrough should be held vicariously responsible for any acts or omissions there may have been on the part of Ms Robinson.  She was employed by Middlesbrough but is said (by Middlesbrough) to have been acting on 8 January on behalf of Durham.  On the other hand, Durham submits through Mr Norman that this is a simple case of an employer having to stand in the shoes of its employee.  He argues that Middlesbrough’s submission has no known basis in law, as it seems to be suggesting that its employee was in effect lent out or subcontracted to Durham.  She performed the role on that occasion because she was asked or instructed to do so by her employer.
17.	It is necessary to bear in mind that Ms Robinson’s involvement took place in a particular statutory context.  This probably accounts for the fact that she herself entered on her application form, on 8 January, that she was acting on Durham’s behalf.  I need to refer to certain provisions of the Mental Health Act.  The following are the relevant parts of s.13:
“(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 – 
(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.
  (1B)	Subsection (1C) below applies where – 
…
(d)	the patient is not within the area of the authority.
(1C)	Where this subsection applies, subsection (1) above shall be construed as requiring the authority to make arrangements under that subsection in place of the authority mentioned there.
   …
  (5)	Nothing in this section shall be construed as authorising or requiring an application to be made by an [approved mental health professional] in contravention of the provisions of section 11(4) above [or of regulations under section 12A above], or 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.”
18.	When these provisions are applied to the present facts, the effect on 8 January was to impose upon Durham the s.13(1) obligation in respect of the Claimant, which it discharged by arranging for Ms Robinson to consider the case on its behalf (when her services had been offered by Middlesbrough).
19.	I need also to consider part of the interpretation section (s.145):
“(1AC)	References in this Act to an approved mental health professional shall be construed as references to an approved mental health professional acting on behalf of a local social services authority, unless the context otherwise requires.”
20.	It seems clear from this that the legislative purpose is to ensure that there will be a local social services authority available to stand in the shoes of any AMHP against whom a claim is made.  The section is neutral as to whether there has to exist any employment or other contractual relationship between the relevant authority and the AMHP in question.
21.	This statutory context was considered by Collins J in TTM v London Borough of Hackney [2010] EWHC 1349 (Admin) and subsequently by the Court of Appeal at [2011] EWCA Civ 4.  My attention was drawn, in particular, to the words of Collins J at [35]:
“Before considering whether on the facts I should give leave under s.139(2) on the basis that it is arguable that there was a lack of reasonable care, I should deal with an argument put forward by [counsel] that Ms Bailey rather than the first defendant is the correct defendant.  She is a professional who must make her own decisions and cannot be dictated to or influenced by the wishes of the Council.  She may well be regarded as a person who is a public body within the meaning of the Human Rights Act.  But, as the Act makes clear, as an AMHP she has to be treated as acting on behalf of the local social services authority.  S.145(1AC) provides: – 
‘References in this Act to an approved mental health professional shall be construed as references to an approved mental health professional acting on behalf of a local social services authority, unless the context otherwise requires.’
Thus the relevant Council is vicariously liable for any lack of care or bad faith on the part of an AMHP.  It is to be noted that one of the social services functions of a local authority is the appointment of AMPHs:  see Local Authority Social Services Act 1970 (as amended) s.1A and Schedule 1 referring to s.114 of the Mental Health Act 1983, which enables a local social services authority to approve a person to act as an AMHP.  The first defendant is correctly named as a defendant and is responsible in law for the AMHP’s actions.”
In that case, it happened that the dispute was not (as here) between two authorities, but rather as to whether it was the AMHP who was to be held personally liable or the local authority.  Be that as it may, submissions were made in the light of that passage on behalf of this Claimant (and adopted by Middlesbrough) to the effect that Durham’s vicarious liability arises not as a result of employment law but through the statutory relationship.  As I have noted already, there is nothing in s.145(1AC), or elsewhere, to suggest that an AMHP can act only “on behalf of a local social services authority” by which he or she is employed.  It is true that there is no written contract setting out Ms Robinson’s role or responsibilities in relation to the Claimant.  Nevertheless,  I would hold that, in this very particular statutory context, Durham would have been vicariously responsible for any wrongdoing on the part of Ms Robinson.
22.	For similar reasons as in the case of Ms Travers, however, I would hold that none of the Claimant’s criticisms of the regime under which he was held at the Hutton Centre can be attributed to the AMHP who happened to be making the application under s.3.
23.	The application is accordingly rejected.