Khamba & Ors v Harrow London Borough Council & Ors

Section 139(2) of the Mental Health Act 1983 applies to acts performed by an approved mental health professional in carrying out the statutory assessment process, whether the claim is pleaded as an act or omission and whether or not the patient is detained. Proceedings brought without permission are a nullity.

A common-law duty of care cannot be superimposed on the statutory assessment function where it would conflict with the Act’s competing obligations to the patient, relatives and public. The pleaded facts did not establish an assumption of responsibility or sufficient control over the patient. The pleaded operational human-rights claims also failed because the necessary real and immediate risk, Article 3 threshold and victim-status requirements were not established.

The claim arose from a mental-health assessment of the Third Claimant while he was in police custody. An approved mental health professional employed by the First Defendant helped coordinate the assessment, but the assessment concluded that the statutory criteria for detention were not met. The Third Claimant was released and later seriously injured the First Claimant, while the Second Claimant witnessed the aftermath and suffered injury.

The Claimants alleged negligence and breaches of Articles 2, 3, 5 and 8 of the ECHR. The First Defendant applied to strike out the claims or obtain summary judgment, relying principally on the absence of permission under section 139(2) of the Mental Health Act 1983, the absence of a common-law duty, and deficiencies in the pleaded human-rights claims.

1. Section 139(2). The assessment and coordination undertaken by the AMHP were statutory acts done in pursuance of the Mental Health Act 1983. Their legal character could not be altered by pleading the alleged failure as an omission or by describing the events globally as a failure to detain. The protective purpose of section 139, identified in Seal v Chief Constable of South Wales Police [2007] UKHL 31, favoured a broad construction.
2. The protection applied even though the Third Claimant was not detained. The assessment was part of the formal statutory process preliminary to possible detention. Lebrooy v London Borough of Hammersmith & Fulham [2006] EWCA 1976 (QB) correctly represented the law on that point. The Court would not read down or abrogate section 139(2). The proceedings brought by all three Claimants were therefore a nullity.
3. Common law duty. Even if section 139 did not apply, the negligence claims were bound to fail. The AMHP’s role under sections 2, 11, 12 and 13 of the Act was a facilitative statutory function, not a therapeutic or advisory service and not a doctor-patient relationship. A private duty to the patient, relatives or potential victims could conflict with the statutory requirements to consider the patient’s interests, the protection of others and the least restrictive option.
4. The pleaded facts did not establish an assumption of responsibility, reliance or special control. The omissions principle and its recognised exceptions, explained in Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33, Poole Borough Council v GN [2019] UKSC 25 and HXA v Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52, did not assist the Claimants.
5. Human rights. The operational claims failed on the pleaded facts. There was no sufficient basis to show that the First Defendant knew or ought to have known of a real and immediate risk to the Second Claimant as an identified individual. The Third Claimant was not detained by the First Defendant and the pleaded events did not constitute treatment or circumstances engaging Articles 2, 3, 5 or 8 in the manner alleged. The indirect-victim claims of the Second and Third Claimants also failed where each could pursue any breach of their own rights.
6. The First Defendant’s applications for strike out and summary judgment were accepted in their entirety.