FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24527/08
by M.S.
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 7 December 2010 as a Chamber composed of:
Ljiljana Mijović, President,
Nicolas Bratza,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 May 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, M. S., is a British national who was born in 1970. He was represented before the Court by Mr P. Carlin, a solicitor with Scott‑Moncrieff, Harbour & Sinclair, a London law firm. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan, of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s detention
3. The applicant was born in 1970. At the time of filing his application, he was resident in a psychiatric clinic. According to an expert report drawn up during the domestic proceedings in this case, the applicant had been diagnosed as mentally impaired and, prior to the facts giving rise to this case, had been admitted to psychiatric hospitals twice. He also had a number of convictions against him, including for indecent assault, burglary and theft.
4. In the early hours of 6 December 2004, police were called out to deal with the applicant, who was sitting in a car sounding its horn repeatedly and behaving in a highly agitated manner. He was arrested at 4.20 a.m. and transferred to a police station, where it was noted that he was clearly suffering from some form of mental illness and that a doctor would be required. His detention was authorised under section 136 of the Mental Health Act 1983 (see § 24 below). The police also went to the applicant’s address, where they found his aunt with serious and extensive injuries to her face and upper body, which had been inflicted by the applicant. She was taken to hospital where a medical examination revealed cracked ribs and a collapsed lung.
5. The applicant was examined in his cell at approximately 5 a.m. by the Forensic Medical Examiner, Dr Thompson. In view of the applicant’s behaviour, speech and appearance, he assessed him as not fit to be interviewed or charged with any criminal offence. A formal assessment under the Mental Health Act was requested. This was done at approximately 7 a.m. by the psychiatric specialist registrar on call, Dr Onyon. He concluded that the applicant was suffering from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of other persons.
6. A second assessment was carried out shortly after 11 a.m. by another psychiatric specialist, Dr. O’Donnell. He too advised that the applicant be formally admitted to hospital for assessment. He also advised that the applicant be observed via closed circuit television, since the presence of a police officer outside his cell was causing him to become agitated. For the remainder of his time at the police station, the applicant remained under continuous observation by this means.
7. At around midday, the applicant was visited by an approved social worker, Mr Greaves. He was also seen by a community psychiatric nurse, Mr Joye. Both noted that the applicant was displaying clear signs of mental illness. The social worker filled out the relevant form for admission to a mental hospital, omitting just one point, the name of the establishment, which had yet to be determined.
8. At around 3 p.m. two members of staff from a local psychiatric intensive care unit stated that their establishment would not be able to admit the applicant and advised that he be referred to Reaside Clinic, which had a medium secure unit. The police thereupon contacted Reaside to inform them of the situation. Shortly after 6 p.m., Dr Maganty, a consultant forensic psychiatrist at Reaside, called back and was informed of the situation concerning the applicant. According to the custody record, he stated that someone would be sent over from the clinic. According to Dr Maganty’s own notes on the situation, which the Government have provided, he then consulted with a number of colleagues. Believing that the applicant would be charged and remanded in custody and that an assessment from Reaside would be required only afterwards, they considered that there was no need for their involvement before such time. At 7.24 p.m. the police received a call from Reaside informing them that the clinic would not be sending anyone to the station, but would liaise with the social worker.
9. The custody record for the applicant’s first day at the police station refers at several points to his disturbed behaviour: clapping loudly, shouting, banging on the door, lowering his trousers and waving his testicles about, and licking the wall of his cell. Dr Thompson noted that the applicant repeatedly hit his head against the wall, causing himself bruising. He was provided with and accepted food and drink at intervals throughout the day.
10. The next day, 7 December, there were further telephone contacts between the police station and Reaside regarding the applicant’s case. The police also contacted other mental health officials, but Reaside remained the only viable arrangement. During the morning Dr Maganty spoke with the duty solicitor of the Crown Prosecution Service, who informed him that should there be any evidence of the applicant assaulting his aunt then he would be charged and remanded in custody. In the event of no charge being brought, they agreed that the matter would be referred back to the doctor and social worker who had assessed the applicant the previous day. In discussion with the clinical director of Reaside, Dr Maganty noted that at that point there was no immediate action to be taken. He was later told by Dr Onyon that the applicant would be charged with assault, and arranged an appointment to assess the applicant on 9 December at HMP Birmingham.
11. An entry in the custody record at 1.46 p.m. states that the duty solicitor of the Crown Prosecution Service had concluded that there was insufficient evidence to charge the applicant. An entry at 5.01 p.m. states that there was an “internal argument” between doctors and the social services regarding the applicant. At 8.41 p.m. an entry was made in the custody record expressing concern and frustration at the lack of progress in relation to the applicant.
12. The applicant’s behaviour was observed to deteriorate over the course of the day. By midday he had removed all of his clothing. Later he drank water from the bowl of the toilet in his cell. He accepted three meals, in the early morning, mid-morning and in the mid-afternoon. He accepted a drink at 4.17 p.m., but, according to the custody record, refused all further offers of food and drink for the remainder of the day.
13. On the third day of the applicant’s detention, 8 December, the duty Inspector made an entry in the custody record at 8.53 a.m. noting his concern at the environment in which the applicant was detained, given his obvious illness. The applicant was still naked and was observed during the morning rocking to and fro on a bench, talking to himself, banging his chest and ranting.
14. Dr Maganty arrived at the police station shortly before 11 a.m., accompanied by other mental health professionals from Reaside to assess the applicant. The police refused to open the door of the applicant’s cell on the ground that this would endanger everyone’s safety. The assessment was conducted through the hatch. Dr Maganty noted that the applicant appeared agitated and was shouting loudly, and that his naked body appeared to be smeared with food or faeces. The applicant was elated, and his speech was incoherent at times. Dr Maganty concluded that the applicant was clearly unwell and required inpatient treatment in a medium-secure setting with adequate nursing resources and a clear and effective care plan. He also advised that the applicant be charged so that he could be dealt with under the criminal justice and mental health systems. The police indicated that their advice from the Crown Prosecution Service was that there could be no charge at that point in time, given the impossibility of interviewing the applicant. Dr Maganty said he would endeavour to get a place for the applicant at Reaside, although it would not be possible to receive him there until the following morning, i.e. beyond the 72-hour limit laid down by the Mental Health Act. That afternoon, the Chief Superintendent spoke to the Medical Director of Reaside, who agreed to receive the applicant the same evening.
15. Informed of this, Dr Maganty discussed the situation with nursing staff at Reaside. He was informed that the resources needed to admit the applicant could be made available for the following morning at 8 a.m. at the earliest. He considered that an admission in the middle of the night, i.e. just before the expiry of the permitted period of detention, would pose unmanageable risks for all concerned. He suggested to the Chief Superintendent that the applicant could be transferred to Reaside at the end of the 72-hour period, but that police assistance would be required to maintain him in safe conditions until it was possible to admit him. He was informed that the presence of the police could not be guaranteed for the whole period.
16. At 7.46 p.m. a call was received from Reaside to say that the applicant could not be taken until the following morning. Late that night, an Approved Social Worker from Reaside came to the police station to complete the necessary forms for the application’s admission under the Mental Health Act.
17. The applicant was provided with food and drink at 8.18 a.m., and further drinks of water during the day (9.34 a.m. and 2.28 p.m.). At the end of the afternoon a meal was not offered because the applicant was sleeping. He requested food at 7.08 p.m., which was provided but which he dropped on the floor. He refused an offer of a meal and a drink at 10.56 p.m.
18. On the fourth day, 9 December, the applicant was released from police custody at 7.27 a.m. and escorted, in handcuffs, to Reaside. According to the Government, it took eight members of the nursing staff to restrain him once admitted. He was assessed as having pressure of speech, flight of ideas, a labile mood, thought disorder and persecutory delusions. The diagnosis of a manic episode with psychotic features was made. The applicant was put into seclusion and given rapid tranquilisation on account of his bizarre behaviour and aggressive, threatening manner. He received continued medication in the following days and showed sustained improvement.
2. The applicant’s legal action against the local health authority
19. On 5 June 2006, the applicant lodged claims against the Birmingham and Solihull Mental Health NHS Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office. The defendant applied for summary judgment on the ground that the applicant had no real prospect of succeeding. A hearing was held on 14 March 2007 before District Judge Knifton. The applicant’s counsel submitted a report prepared by another Consultant Forensic Psychiatrist, Dr Exworthy, who had not interviewed the applicant but had reviewed the relevant documents. Dr Exworthy considered that Dr Maganty should have assessed the applicant within 24 hours of being made aware of the situation, since by that stage the applicant had been detained for about 12 hours. The delay in assessing him and in admitting him to Reaside had in turn delayed the applicant’s treatment and recovery.
20. The judge granted the order for summary judgment. He held that although the defendant had owed the applicant a duty of care, and that that duty had been breached, it had not caused the applicant any physical or psychological injury. The action in negligence therefore failed at causation and loss. In any event, any loss had been absolutely minimal. A delay of 31 hours in the hospitalisation of the applicant could only lead to minimal damages. The judge also rejected the claim based on the Human Rights Act on the grounds that Dr Maganty could not be seen as a public authority for the purposes of the Act, and that the situation did not meet the minimum level of severity inherent in Article 3 of the Convention. The applicant’s claim for damages based on Article 8 of the Convention was also dismissed, the judge finding that this was not an exceptional case in which compensation would be justified. The claim for misfeasance in public office could only succeed if the applicant could show complete and reckless disregard on the part of the defendant, which he had not done.
21. The applicant was granted permission to appeal. The case was heard at Birmingham County Court by His Honour Judge McKenna, who dismissed the appeal in a judgment of 14 November 2007. The judge described the applicant’s claim in negligence as “hopeless”, there being no details in the medical evidence submitted of any physical or psychiatric injury caused to the applicant. It was unrealistic to suggest that a delay of a number of hours (the applicant’s counsel having conceded that the delay was considerably less than 31 hours) in some way caused that number of hours of psychosis.
22. In relation to the claim under the Human Rights Act, the judge considered that Dr Maganty should be viewed in that context as a “public authority”. However, the claim failed because the situation did not fall within Article 3. The applicant had been lawfully detained and his basic needs had been met. The fact that he had spent an extra 12-24 hours at the police station did not make the situation so appalling as to breach Article 3. The judge found that there had been no breach of Article 8 because there had been no arbitrary or deliberate interference with the applicant’s rights. As regards the claim for malfeasance, he concurred with the decision of the District Judge.
23. In light of these findings, the applicant’s legal representatives were obliged to advise him that legal aid would not be available for him to appeal the decision further.
B. Relevant domestic law and practice
24. Section 136 of the Mental Health Ac provides:
“Mentally disordered persons found in public places.
(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above.
(2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.”
A “place of safety” is defined in section 135(6) as follows:
“In this section “place of safety” means residential accommodation provided by a local social services authority..., a hospital as defined by this Act, a police station, an independent hospital or care home for mentally disordered persons or any other suitable place the occupier of which is willing temporarily to receive the patient.”
25. The Code of Practice issued under the Mental Health Act 1983 provided at the relevant time:
The place of safety
10.5 The identification of preferred places of safety is a matter for local agreement. However, as a general rule it is preferable for a person thought to be suffering from mental disorder to be detained in a hospital rather than a police station. Regard should be had to any impact different types of place of safety may have on the person held and hence on the outcome of an assessment. Once the person has been removed to a particular place of safety, they cannot be transferred to a different place of safety.
...
10.8.c. Where a police station is used as a place of safety speedy assessment is desirable to ensure that the person spends no longer than necessary in police custody but is either returned to the community or admitted to hospital.
COMPLAINTS
26. The applicant complained that the treatment he endured during his police detention was incompatible with Article 3 of the Convention.
27. He also complained under Article 13 that there was no effective remedy available to him.
THE LAW
A. Alleged violation of Article 3 of the Convention
28. The applicant alleged that the conditions of his detention in the police cell, along with the delay in admitting him to an appropriate medical facility where his severe mental condition could be treated properly, amounted to degrading treatment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ submissions
a. The Government
29. The Government observed that in his application to the Court the applicant had made two distinct submissions under Article 3, namely that police cells are inappropriate detention facilities for the severely mentally ill and that the medical authorities failed to act with the urgency required. Regarding the former, the Government considered that the applicant had not exhausted domestic remedies, since he had not taken proceedings against the police, but against the local health authority only. Accordingly, the domestic courts had only been able to examine the complaint in relation to the second aspect, i.e. the time taken to hospitalise the applicant, and had not had the opportunity to fully address the complaint now submitted to the Court. The Government further contended that the applicant’s complaints were of a fourth instance nature insofar as he alleged that the domestic courts had committed errors of law and fact.
30. Regarding the substance of the applicant’s complaint, the Government explained that Reaside Clinic dealt with patients who were subject to the criminal process, and had a waiting list of 14 persons at the time in question. It did not usually accept patients directly off the street, which explained why staff there expected that the applicant would be charged first, and why it had not been possible to make the necessary staffing arrangements to admit the him until the morning after his assessment by Dr Maganty. They had simply been unprepared, which was insufficient to ground a violation of Article 3. While the applicant’s symptoms were manifest, his medical history, including his reaction to psychiatric medication was unknown. This posed risks that had to be carefully managed for the applicant’s own safety as well as that of Reaside staff. As stated above, it took eight trained staff to restrain the applicant when he arrived there. There was no evidence that the experience had caused any harm to the applicant. Nor was there any evidence from him, or offered on his behalf that he had experienced fear, anguish or inferiority, or had endured suffering or humiliation.
31. The Government considered that at most the applicant endured an additional 24 hours in the police station, which was not sufficient to reach the threshold of Article 3. The cases cited by the applicant all related to far worse situations that had lasted for far longer periods. The police had no choice but to keep him at the police station while a bed was found for him; the option of releasing the applicant was not open to them. Although the applicant’s mental illness could not be treated at the police station, it was nevertheless a place of safety for him since he was under constant surveillance and would have received treatment for any injury or harm inflicted. The police had provided him with adequate food and drink during the period, either on their own initiative or at his request. It had not been established that he had suffered from a lack of nutrition or hydration, or that he would have fared better in this respect in Reaside. The Government strongly rejected any suggestion that the persons who dealt with the applicant displayed a lack of concern. On the contrary, they had all sought to bring about his transfer as soon as this could be arranged. Once admitted to Reaside, the applicant had received adequate care and his condition had improved.
32. The Government regretted that the treatment of the applicant fell below the standard of best practice set for the health services in England. They added that following the events in this case, the police and health authorities in that area had agreed on a new policy to deal more rapidly and effectively with such situations. For these reasons the Government argued that the applicant complaint’s was manifestly ill-founded.
b. The applicant
33. The applicant contended that he had exhausted domestic remedies, as he had consistently and explicitly asserted the incompatibility of his detention by the police with Article 3. He had therefore given the domestic courts ample opportunity to consider his complaint.
34. He submitted that the whole experience was a degrading one. Throughout the entire period of 75 hours in the police station he had been very obviously suffering a bout of severe mental illness, one that necessitated hospital treatment as a matter of great urgency. His condition was obvious from the outset, as the initial medical examinations established. It was prolonged and, as evidenced by the entries in the custody record, exacerbated by the delay in arranging his transfer to Reaside. He maintained that while Mental Health Act allowed up to 72 hours’ detention, it was only in truly exceptional cases that anything close to this duration should be accepted. Good professional practice demanded that a person detained under that legislation should be moved to a suitable facility as soon as possible, and this was reflected in the official guidance on the use of the section 136 power.
35. While not suggesting that there had been any intention on the part of the authorities to humiliate him or cause him suffering, the applicant nonetheless considered that they had consciously allowed the situation to endure rather than act to end it, and that there had been some evidence of a cavalier attitude. He stressed that his mental illness had left him in a highly vulnerable state at the time, demanding a prompt response. There could be no justification for situations that were incompatible with human dignity. Issues such as limited availability of hospital beds or nursing staff, or the expectation that he would be charged by the police, were irrelevant. The authorities had created the situation by arresting him, and should bear responsibility for the consequences on him. His own behaviour during the period at the police station should not be seen as hindering the authorities’ endeavours to arrange for his treatment, but as evidence of the urgency of the case. Although he may not have been able to rationally perceive the nature of his situation at the time, all of the medical professionals who examined him noted that he was in an agitated and anguished state. He had also been in an unhygienic and undignified state. As for food and water, the custody record showed that his intake during the last 40 hours of detention by the police had been inadequate.
2. The Court’s assessment
36. In relation to the Government’s plea of non-exhaustion, the Court notes that although the applicant did in his initial submission distinguish between the conditions of his detention at the police station and the delay of the health authorities in commencing treatment, in his subsequent submission he made it clear that he was complaining of the experience as a whole. In light of the facts as summarised above, the Court considers this a better characterisation of the case. Furthermore, as is clear from his submissions to the Court, the applicant considers that the situation complained of was brought about mainly by health authorities, his complaint being not that he was taken to a police station to begin with, but that because of the delays in arranging his transfer to a more appropriate setting he was left there too long. The Court accordingly considers that the proceedings taken against the local health authority by the applicant were sufficient to fulfil the requirement to exhaust domestic remedies in relation to his complaint under Article 3. Nor is the complaint of a fourth instance nature. The applicant has not complained of errors by the domestic courts in the establishment of the facts of his case, or in their application of domestic law. He argues instead that their consideration of his complaint was not in accordance with the Court’s case-law under Article 3. Such a complaint is clearly within the competence of the Court. The Government’s preliminary objection must therefore be rejected.
37. The Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
B. Alleged violation of Article 13 of the Convention
38. The applicant complained that the remedies available to him had not been effective. In light of its finding that the applicant’s complaint under Article 13 is admissible, the Court likewise considers that this part of the application also raises a serious question of law calling for an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor is there any other ground for declaring it inadmissible.
For these reasons, the Court by a majority
Declares the application admissible.
Fatoş AracıLjiljana Mijović
Deputy RegistrarPresident
Full & Egal Universal Law Academy