The claimant (W) was removed from her home and detained overnight at a hospital pursuant to a warrant issued under s135(1) Mental Health Act 1983 (The 1983 Act).
The warrant directed that a police constable should be accompanied by an approved social worker and 2 named medical practitioners, in this case W’s GP and a consultant psychiatrist.
The warrant was executed at W’s address with an approved social worker (ASW) and a medical practitioner, neither of whom were named on the warrant.
W issued proceedings against the police and NHS Trust for failing to lawfully execute the warrant and false imprisonment. She alleged that her removal and detention were unlawful because the constable had not been accompanied by the GP named on the warrant.
At first instance, the court found that the warrant had been lawfully executed. It authorised but did not require the constable to take 2 medical practitioners with him. Since it was lawfully executed then there could be no false imprisonment.
W had appealed on the basis that there was an implied power in s135 (1) for magistrates to impose “any condition which can sensibly relate to the execution of a warrant which protects the interests of the person liable to be removed whilst furthering the object of the grant of the warrant.” The conditions imposed had not been complied with and the execution of the warrant had been unlawful. She succeeded. So the Trust appealed on this point to the House of Lords.
The court examined s135 of the 1983 Act in detail and looked at the history of the provision and considered its correct interpretation. The section provided for the issue of a warrant authorising any constable to enter the premises specified in the warrant. It also provided for the constable to be accompanied by an approved social worker and a registered medical practitioner. The section was an emergency provision designed for circumstances where a person ought to be admitted to hospital, but where the usual 1983 Act assessments could not be made in advance because of problems in gaining access to the patient. It applied to a person “believed to be suffering from a mental disorder” but who had not yet reliably been shown to be so.
The key issue was whether the magistrate had the power to identify the professionals who were to accompany the police officer. The court found several persuasive factors that pointed towards there being no implied power for a magistrate to impose such conditions.
(1) It found that the statutory history of the provision had been relaxed in relation to naming professionals on such a warrant.
(2) If Parliament had wished to retain provisions for naming professionals then it would have been easy to do so, and nothing in the 1983 Act gave the magistrate a power to impose any conditions on the warrant.
(3) The objective of the section was to protect vulnerable people from harm and could only operate effectively where limiting conditions were not imposed by a magistrate.
(4) Although it might be helpful if the social worker and doctor were familiar with the patient or the case, it was not necessary for the proper functioning of the section.
This case will have been a cause for relief for Emergency Out of Hours teams whose ASWs may need to come on and go off shift in the middle of a long drawn out s135 situation.