Healthcare - March 2010
Harder to get?
Some mental health claims will now be easier to defend,
reports David Hewitt, and correspondingly harder to
bring.
Where he says he is the victim of acts
performed under the Mental Health Act, anyone wanting to claim
damages will now face a more difficult task. That is the result of
an interlocutory decision in Johnston v
The Chief Constable of Merseyside Police [2009] EWHC 2969
(QB), which concerned a proposed claim by a man who had been
apprehended by the police.
In January 2006, Mr Johnston, who has a
history of mental health problems, was at a property on Merseyside.
An occupier of the property became concerned about his behaviour
and summoned an ambulance. In accordance with usual practice, the
police attended as well. Mr Johnston acknowledged that he had
needed medical help, but said he had not wanted the police to be
called.
On the basis of the witness statements and
other evidence, there is a profound conflict between the parties as
to what happened next. It appears to be common ground, however,
that Mr Johnston was sprayed with CS gas and sustained severe
blistering to the skin on his face, left ear and chest. He was
detained, put in handcuffs and taken to hospital, but he was not
subsequently charged with any criminal offence.
Mr Johnston alleges that these acts amounted
to false imprisonment and assault. The Chief Constable, however,
claims they were covered by section 136 of the Mental Health Act
1983 (MHA) which applies where someone who appears to be suffering
from mental disorder is found in a public place, and permits a
constable to take that person to a place of safety. Under
section 139(2), no claim concerning the use of MHA powers may
proceed without the permission of the High Court. The Chief
Constable argued that Mr Johnston should be denied such
permission.
The test
The leading
authority on permission claims of this kind is still Winch
v Jones [1986] 1 QB 296, in which Sir John Donaldson, MR
said, “The issue is whether, on material evidence immediately
available to the court, […] [the claim] deserves the fuller
investigation which will be possible if [it] is allowed to
proceed.” Subsequently, the House of Lords said that by this test,
“the threshold for obtaining leave under section 139(2) has been
set at a very unexacting level […] an applicant with an arguable
case will be granted leave” (Seal v Chief Constable of
South Wales Police [2007] UKHL 31, per Lord Bingham at
[20]).
For the Chief Constable, it was argued that,
25 years on, the Winch v Jones test should be
tightened. It was noted that the Civil Procedure Rules now provide,
amongst other things, that summary judgment may be given where a
claimant “has no real prospect” of success (rule 24.2(a)(i)).
Notwithstanding the changes wrought by the
CPR, the judge, Mr Justice Coulson said “it would be wrong to
modify in any significant way” the Winch v Jones
test (see [12]). He went on, however, to permit himself one
modification, noting that it would be “absurd” for a court to grant
permission under section 139 where, had it asked itself the “CPR
Part 24 question”, it would have concluded that the proposed claim
had no real prospect of success (see [13]). For that reason, the
judge said the CPR question should indeed be asked upon any claim
under the MHA (see [14]).
In fact, Coulson J concluded that the Mr
Johnston’s proposed claim did have a real prospect of success, and
he therefore granted the necessary permission under section 139.
(The proceedings also included a limitation point, which, again,
was decided in the claimant’s favour).
It isn’t every potential defendant whose
position will be strengthened by this decision. For esoteric,
historical reasons, no permission has ever been required for
proceedings concerning the acts or omissions of the Secretary of
State or the NHS under the MHA (MHA, section 139(4)). Where a claim
relates to the use of section 136, however, or to the initial
decision to detain a patient in hospital, this case will make a
difference.
The Winch v Jones test for
permission under section 139 has not been displaced. In fact, it is
now considerably tighter, with a potential claimant having to show
that his case is not merely arguable, but that it has a real chance
of success. That is a palpable change, whose effect might well be
to forestall claims that would otherwise have proceeded all the way
to trial. And plainly, therefore, the change is a good deal more
‘significant’ than the judge was prepared to allow in Mr Johnson’s
case.
David Hewitt,
Partner
Weightmans LLP