Surrey Police v PC & Ors

Applications to authorise a vulnerable person’s deprivation of liberty in a police station under the inherent jurisdiction or Mental Capacity Act 2005 should be made only in exceptional circumstances. Where such an application is contemplated, it should be brought promptly during ordinary court hours, with all relevant public bodies joined or notified, a clear chronology and evidence of the legal basis for detention and restraint, and timely notification to the Official Solicitor.

Public bodies must collaborate actively where a person’s detention lacks a clear legal framework. Article 5 requires a lawful and fair procedure protecting against arbitrary detention. The court may depart from the general costs rule where the conduct and roles of the parties justify doing so.

Surrey Police applied urgently for orders concerning PC, a 26-year-old man arrested for criminal damage and believed to be experiencing a serious mental health crisis. After detention under section 136 of the Mental Health Act 1983, difficulties arose over assessment, the availability of a hospital bed and the legal basis for continued detention in police custody.

The application was initially framed under the Mental Capacity Act 2005 but was ultimately dealt with under the inherent jurisdiction of the High Court. PC was later detained under section 2 of the Mental Health Act 1983 and conveyed to hospital. The court also considered the Official Solicitor’s costs and the practice to be followed in future cases.

1. Outcome and guidance. The court authorised PC’s short-term deprivation of liberty under the inherent jurisdiction because of the immediate risk to his life or limb and the absence of a suitable operative legal framework. The court could not authorise detention under the Mental Capacity Act 2005 because the Schedule 1A provisions made PC ineligible.
2. Applications of this kind should be exceptional. They should be issued during normal court hours as soon as an uncertainty about the legal basis for continued detention arises. Each public body involved should be joined or given sufficient notice. The evidence should preferably be contained in one statement setting out the chronology, alternatives considered, care and support provided, legal framework, and any proposed physical or chemical restraint.
3. The legal basis for restraint, together with the factual and medical evidence supporting it, must be stated clearly. The Official Solicitor should be alerted in good time. Public bodies must also consider how the person will participate in the proceedings and how security for the Official Solicitor’s costs will be provided.
4. Article 5(1) ECHR requires detention to be lawful and conducted through a fair and proper procedure offering protection against arbitrariness. The difficulties of operating services in a dynamic situation do not displace the need to identify and maintain lawful authority for detention.
5. Applying the approach in Mazhar v Birmingham Community Healthcare Foundation NHS Trust & Ors [2020] EWCA Civ 1377, the matter was listed back before the court the following morning. The court departed from the general costs rule, applying the framework discussed in Re GH (Mastectomy: Best Interests: Costs) [2023] EWCOP 50 and London Borough of Hillingdon v Neary & Ors [2011] EWHC 3522 (COP). Surrey County Council was ordered to pay the Official Solicitor’s costs because it should have acted more proactively and supported the police in bringing the matter before the court.

This was a first-instance application. The urgent application was heard out of hours and restored before the court the following morning.