Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor

Part II of the Mental Health Act 1983 provides an exhaustive code for compulsory admission to hospital. The common-law doctrine of necessity cannot supplement it to authorise detention of a non-compliant incapacitated patient. Sections 5 and 6 of the Mental Capacity Act 2005 do not authorise police removal to hospital or a place of safety for the purposes of sections 135 and 136 of the Mental Health Act 1983. Whether detention constitutes false imprisonment or deprivation of liberty under Article 5 depends on the circumstances, including its duration, manner and legal justification.

The claimant was taken by police from her private accommodation to hospital after officers considered that she was mentally disordered and required care. The officers lacked the warrant and accompanying professionals required by section 135 of the Mental Health Act 1983 and relied instead on sections 5 and 6 of the Mental Capacity Act 2005.

She was held in the hospital’s section 136 suite for about 13 hours before an application under section 2 of the Mental Health Act 1983 was accepted. The issues were whether the detention was unlawful, whether common-law necessity filled an alleged statutory gap, and whether the Trust’s policy permitting detention in the suite for up to eight hours was unlawful.

1. Part II of the Mental Health Act 1983 is a comprehensive code governing compulsory admission of non-compliant incapacitated patients. Sections 2 to 6 provide for ordinary, emergency and related admission procedures. Section 4 addresses urgent necessity and undesirable delay.
2. The common-law doctrine of necessity cannot supplement that code. The reasoning in B v Forsey [1988] SLT 572 applied. Any statutory gap was for Parliament to fill. R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 concerned informal admissions and did not alter that conclusion.
3. False imprisonment requires imprisonment and absence of lawful authority. Whether there is imprisonment is factual; lawful authority is a question of law. Once direct and intentional confinement is shown, the defendant must establish lawful justification.
4. Under Article 5, deprivation of liberty depends on the individual circumstances, including the type, duration, effects and manner of implementation of the measure. Adequate legal safeguards and fair procedures are required.
5. The claimant was detained because she could not leave the suite unassisted and staff would have prevented her departure. The Trust had no lawful authority. Its staff wrongly treated her as detained under section 136, and sections 5 and 6 of the Mental Capacity Act 2005 did not authorise the police removal. The Trust could not retrospectively rely on sections 2 or 4 of the Mental Health Act 1983.
6. The claimant was deprived of liberty for Article 5 purposes. The cumulative circumstances included 13 hours’ confinement, formal notification that she was not free to leave and an unexplained delay of approximately 3½ hours after the doctors’ recommendations.
7. The Trust’s policy was not unlawful on its face. Whether detention constitutes false imprisonment or deprivation of liberty depends on the facts, and applications under sections 2 or 4 must be processed without undue delay.
8. The claim against the Trust succeeded. Declarations were granted, with damages for breach of Article 5 and false imprisonment to be assessed if not agreed. The agreed consent order against the police was approved.