W v Commissioner of Police for the Metropolis and Epsom & St Helier NHS Trust [2003] EWCA Civ 1152

Mental health – false imprisonment – validity of warrant

 

W was arrested and detained overnight at a mental hospital pursuant to a warrant issued under s135 MHA 1983. She sought to claim damages for false imprisonment on the basis that her arrest by the police officer who executed the warrant, and her detention by the hospital thereafter, was unlawful because the warrant was defective or, alternatively, its execution unlawful thus depriving those who executed the warrant from protection under s139 of the Act.

 

The grounds on which the warrant had been sought were that “the client appears to have lost all insight into her irrational, bizarre and aggressive behaviour towards her family (near and extended) and to those involved in her children’s’ education. She refuses access to the professionals and any help offered. Her husband has exercised his right under the Mental Health Act 1983 and requested a formal Mental Health Assessment to be carried out…”. The consultant psychiatrist, the approved social worker and the medical practitioner who were to execute the warrant were specifically named on the warrant. The premises of execution had not been identified in any detail and neither was the police officer. The execution of the warrant took place by a police officer and the named approved social worker. The medical practitioner named in the warrant was not present and a senior registrar replaced the named consultant. The warranted, which provided for its execution within one month of being signed by the magistrate, was granted on 10 July 1997 and executed on 27 July 1997.

 

At a preliminary hearing, the Recorder had decided that, although the warrant had been sloppily drafted, both it and its execution were valid. He was satisfied that the premises of execution had been adequately, though not specifically, identified. He further concluded that s135 MHA 1983 did not require that the social worker or the registered medical practitioner be identified by name. On appeal, W argued that the warrant granted should not be construed so as to identify the premises which the police constable was entitled to enter. Secondly, even if the section did not require the approved social worker and registered medical practitioner to be identified, the fact that they were amounted to an effective condition upon which the warrant was granted which precluded its execution otherwise than in the presence of those who were named in it. Alternatively, she argued that if the magistrate had no power to impose a condition as to the names of those who were to accompany the police officer, the warrant was invalid.

 

The Court of Appeal held that, under s135, two separate questions fell to be addressed: firstly, the validity of the warrant under s135(1) and, secondly, the lawfulness of its execution under s135(4). The nature of the power being used was draconian. Although art 5 of the European Convention on Human Rights was not directly in issue, as the events occurred before the coming into force of the Convention, it was salutary to bear in mind the protection against deprivation of liberty provided by that article.

 

The critical question was whether, in granting a warrant under s135(1), the magistrates had an implied power to impose conditions on its exercise, as that was the effect of W’s submissions. In determining whether or not Parliament had implicitly given the magistrate the power to impose conditions it was relevant to take into account the fact that the s135 made no provision for how long such a warrant was to remain valid. Bearing in mind the nature of mental illness, it would be surprising if Parliament had considered that no time limit could be imposed on the length of such warrant’s validity. Therefore, Parliament must have intended that a magistrate should have the power to impose such a limit. In those circumstances, there was no justification for concluding that the magistrate’s powers to impose conditions were restricted to the imposition of a condition as to time. Any condition which could sensibly relate to the execution of a warrant, in a way which protected the interests of the person liable to be removed whilst furthering the object of the grant of the warrant, could be imposed if a magistrate considered it appropriate in a particular case to do so.  Accordingly, the warrant was valid but its execution was not, in that it did not comply with the lawful condition imposed on its exercise, and therefore W’s removal was unlawful. The matter was remitted to the County Court for a determination of the merits of the claim.

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