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Diplomatic immunity and the Mental Health Act

We often hear how diplomatic immunity applies to criminal law, but how does it apply to detention under the Mental Health Act? We explain.

Diplomatic immunity is a topic that is often reported upon from the perspective of criminal law. Tabloids frequently whip up outrage at tales of ambassadorial cars wilfully disregarding the capital’s parking regulations, but they rarely consider the profound effect of the Diplomatic Privileges Act 1964 on mental health legislation.

Diplomatic Privileges Act

The UK is a signatory to the 1961 Vienna Convention on Diplomatic Relations. The Vienna Convention on Diplomatic Relations obliges diplomats and their families to respect the laws and regulations of the host country. Nevertheless, the Convention, by virtue of the Diplomatic Privileges Act, confers on all entitled members of a foreign mission (and family members forming part of their household) immunity from legal jurisdiction, providing their presence has been notified to, and accepted by, the Foreign and Commonwealth Office.

The effect of the Diplomatic Privileges Act means that without a waiver from a head of mission (usually an ambassador) under Section 2 of the Act, a diplomatic agent or their dependant, may not be made subject to criminal or civil proceedings. Further, such persons cannot be detained compulsorily under any Act of Parliament, including the Mental Health Act 1983.

Mental Health Act

So what can be done when a healthcare provider is presented with a patient who is suitable for detention under the Mental Health Act when it is discovered that they are possessed of diplomatic immunity under the Diplomatic Privileges Act 1964?

Regrettably, neither the Mental Health Act, its Code of Practice nor the professional commentaries offer a panacea for this difficult, if rare problem.

When presented with such circumstances, healthcare professionals should:

  • Seek legal advice
  • Seek consent from the patient to contact their head of mission
  • If consent is not given, consider GMC guidance on confidentiality and consider whether this would constitute a justifiable breach of the patient’s confidentiality. Such circumstances would appear to present a reasonable prospect of justifying such a breach. Any decision should be clearly recorded
  • Contact the Foreign and Commonwealth Office — Diplomatic Missions and International Organisations Unit to request:
    • Confirmation of the patient’s status, and
    • That the relevant head of mission is asked to consider the waiver of immunity.
  • Where waiver is refused or cannot be secured the detention of a patient would be unlawful, exposing the clinician to both civil and criminal sanctions. The defence normally provided by section 139 of the Mental Health Act would not apply.

Exceptional circumstances

In the most exceptional circumstances, a potential justification for detention in the absence of waiver would be authorising detention under the common law defence of acting in self-defence or defence of another.

The test for applying such measures is that of reasonableness. A clinician would have to have identified an immediate and continuing risk to the safety of a person and then act in such a way to mitigate that risk in the most reasonable and proportionate manner available. The limitations of the common law justification are clear, it is envisaged as a short term, emergency measure.

For further guidance on the interaction between diplomatic immunity and the Mental Health Act, contact our mental health solicitors.

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