DD v Durham County Council & Anor

Leave under section 139(2) of the Mental Health Act 1983 requires only a realistic, non-fanciful prospect of success. An approved mental health professional’s statutory responsibilities concern assessment and recommendations for detention. They do not ordinarily extend to selecting the hospital, investigating its facilities, or supervising the regime imposed after detention. A local social services authority may be vicariously responsible for an approved mental health professional acting on its behalf under the statutory scheme, even without an employment or contractual relationship. Liability for the conditions of detention will not, however, be attributed to the professional merely because he or she made the application for detention.

The claimant sought leave under section 139(2) of the Mental Health Act 1983 to bring proceedings against Durham County Council and Middlesbrough City Council. His proposed claims concerned detention between December 2009 and March 2010 and alleged breaches of the Human Rights Act 1998 and false imprisonment. The complaints related principally to seclusion, lighting, supervision and lack of privacy at the Hutton Centre.

The issues were whether there was a realistic prospect of establishing illegality against either approved mental health professional involved in the claimant’s detention, and which authority would be vicariously responsible for the second professional’s conduct.

1. Threshold for leave. The application was governed by section 139(2) of the Mental Health Act 1983. The threshold was relatively low, but the claimant had to show a realistic prospect of success, meaning a prospect that was more than merely fanciful.
2. Scope of an approved mental health professional’s functions. An approved mental health professional recommends detention under sections 2 or 3 and must exercise independent judgment in the statutory context, taking account of relevant circumstances and qualified medical advice. The professional does not choose the institution, investigate its facilities, assess the quality of its regime, or control the claimant after admission. The medical practitioners determine the need for clinical assessment or treatment and whether a suitable bed is available.
3. There was no legal basis for requiring the professionals to investigate the proposed place of detention, the claimant’s room or the regime to which he would be subjected. Nor was the first professional required to reassess earlier psychiatric opinions when current medical advice supported further assessment.
4. Vicarious responsibility. Under sections 13 and 145(1AC), the statutory scheme requires an approved mental health professional to be treated as acting on behalf of a local social services authority. In the circumstances, Durham had the section 13(1) obligation and discharged it by arranging for the second professional to consider the claimant’s case. Durham would therefore have been vicariously responsible for any wrongdoing by her, although there was no employment or contractual relationship between them.
5. The alleged conditions at the Hutton Centre could not be attributed to either professional merely because one had made the application for detention under section 3. The application for leave was rejected.

The judgment records that the matter had previously been adjourned by Lang J on 20 February 2012 so that aspects of the proposed claims could be clarified. The present application was heard and rejected at first instance.