B. v Forsey
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Fraser of Tullybelton,Lord Griffiths,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle |
| Judgment Date | 25 May 1988 |
| Judgment citation (vLex) | [1988] UKHL J0525-2 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 25 May 1988 |
[1988] UKHL J0525-2
House of Lords
Lord Keith of Kinkel
Lord Fraser of Tullybelton
Lord Griffiths
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
My Lords,
This appeal arises out of a petition for judicial review presented by the respondent under Rule of Court 260B, in connection with his detention between 9 and 29 November 1985 in the Argyll and Bute Hospital at Lochgilphead. That hospital is administered by the third appellant, the Argyll and Clyde Health Board ("the board").
There is no dispute about the facts. The petitioner had a history of mental illness, for which he had been twice treated at the Lochgilphead hospital late in 1984 and early in 1985. On 9 October 1985 he was admitted to the hospital from police custody, following an incident of breach of the peace, and placed in the intensive care unit. The admission followed on an emergency recommendation made by the petitioner's general practitioner, Dr. Muir, under section 24 of the Mental Health (Scotland) Act 1984. On 12 October 1985 a report to the board under section 26 of the Act of 1984 was made by a Dr. McNab. This authorised detention for up to 28 days. The petitioner's condition continued to be unsettled. On 21 October his case was reviewed by the second appellant, Dr. Mackay, who was physician superintendent at the hospital. He took the view that application to the sheriff under section 18 of the Act for more permanent detention might become necessary. It was, however, his policy to defer the decision about such an application until the end of the second week of the section 26 detention. On 28 October Dr. Mackay reviewed the case again and found the petitioner to be much improved. He decided to transfer him to an open ward, and did not then envisage an application to the sheriff under section 18. However, on 5 November the petitioner relapsed into a hypomanic state, threatening to kill staff and rape female staff. He was transferred back to intensive care in a locked ward. Dr. Mackay decided to take steps to initiate an application under section 18.
Application was made by the appropriate mental health officer on 11 November, supported by recommendations by Dr. Mackay and another psychiatrist. The application was eventually approved by the sheriff at Dunoon on 29 November 1985. In terms of section 30(1) of the Act, the approval authorised detention for up to six months.
In the meantime, Dr. Mackay was faced with a dilemma. The period of detention authorised by section 26 in virtue of the report made thereunder was due to expire at 2 p.m. on 9 November. Section 26(7) forebade the immediately renewed detention of the petitioner under that section or under section 24. There was no prospect of obtaining the sheriff's approval of a section 18 application before 9 November. There was likewise no prospect of the petitioner remaining in the hospital voluntarily. While he had consented to take medication and this had resulted in some improvement in his condition, Dr. Mackay was satisfied that if allowed to leave he would discontinue medication and suffer a rapid relapse in his psychosis, and this was the view of all members of staff concerned with his case. It therefore appeared to Dr. Mackay that were the petitioner to be released on 9 November there would be reason to fear for the safety of his family, particularly his wife, and of the petitioner himself. Early in the afternoon of 9 November the first appellant, Dr. Forsey, was senior house officer on duty at the hospital. She was familiar with the petitioner's case and had discussed it with senior members of staff. She interviewed the petitioner at about 1 p.m. He was aware that his detention under section 26 expired at 2 p.m. and had his coat on ready to leave. She suggested that he stay in hospital, but he refused. Dr. Forsey then telephoned Dr. Mackay, who advised her to detain the petitioner. She then made out a recommendation under section 24 of the Act of 1984, stating the time of commencement of detention as 2 p.m. on 9 November 1985. The period of detention purported to be authorised by this recommendation expired at the same time on 12 November. On that day Dr. Mackay, having reviewed the petitioner's case and discussed it with the mental health officer, decided to make a report under section 26 with a view to detaining him until such time as the section 18 application had been dealt with. Later he met a solicitor acting for the petitioner who expressed the opinion that his continued detention would be illegal, but he nevertheless signed the report. The petitioner continued in detention.
By his petition the petitioner sought (1) reduction of Dr. Forsey's emergency recommendation of 9 November 1985; (2) reduction of Dr. Mackay's report of 12 November 1985; (3) declarator that his detention by the board in the hospital from 9 November to 29 November 1985 was unlawful, and (4) damages against the two doctors and the board jointly and severally. The answer to the petition, as originally framed, included an admission that the petitioner's detention between the dates in question was unlawful. The petition and answers came on for hearing before Lord Davidson in the Outer House, 1987 S.C.L.R. 155, and in the course of the hearing counsel for the respondents to the petition asked for and obtained leave to amend the answers by withdrawing that admission and adding an averment to the effect that the board were entitled at common law to detain the petitioner pending the sheriff's approval of the section 18 application. The Lord Ordinary, having reviewed such authority as existed, concluded that there existed at common law a power on ground of necessity to detain a person of unsound mind who was a danger to himself or others until a statutory warrant for his detention could be obtained. He went on to decide that the power had not been canalised or displaced by the Act of 1984, but was capable of being exercised where there was a gap in the statutory provisions, and that the present case revealed such a gap in respect that no provision, had been made to cover the situation where a patient detained under section 26 improved in the earlier part of the permitted period but suddenly and unexpectedly deteriorated towards the end of it, too late for an application under section 18 to be made and approved. He held that a state of necessity was present which justified the petitioner's detention at common law, and accordingly dismissed the petition.
The petitioner reclaimed. The Second Division (Lord Justice-Clerk Ross, Lord Robertson and Lord Dunpark), 1987 S.C.L.R. 395 allowed the reclaiming motion. While accepting that there existed at common law a power to detain a mentally disordered person in emergency, they held that, so far as medical practitioners and hospital managers were concerned, their powers to detain such persons were comprehensively laid down in the Act of 1984 to the exclusion of any common law power. They pronounced an interlocutor reducing Dr. Forsey's recommendation of 9 November 1985 and Dr. Mackay's report of 12 November 1985, declaring that the petitioner's detention by the board between 9 and 29 November 1985 was unlawful, and remitting to the Lord Ordinary to consider the question of damages. Against that interlocutor the present appeal is taken to this House.
In the course of the argument counsel for the appellants submitted that anyone had at common law a power to detain a mentally disordered person in a case of necessity and that this power was capable of being exercised by medical officers at a hospital in an emergency situation which was not covered by any statutory powers. Counsel for the petitioner, on the other hand, while not seriously disputing that a private person had a common law power such as was contended for by the appellants, maintained that in the present case the detention of the petitioner was not exercised by Dr. Forsey or Dr. Mackay personally but by the board, and that the board had no powers of detention beyond those conferred upon it by the Act of 1984.
In my opinion the common law does indeed confer upon a private individual power lawfully to detain, in a situation of necessity, a person of unsound mind who is a danger to himself or others. There appears to be no case law on the subject in Scotland. However, in Glegg on Reparation, 4th ed. (1955), p. 199 it is stated:
"Anyone is justified, without any warrant, in confining a lunatic likely to do harm to himself or others, but only until a warrant can be obtained."
There is a statement to similar effect in Green's Encyclopedia of the Laws of Scotland, vol. 12 (1931), p. 238, which has the authority of Lord Wark as general editor, and also in Walker on Delict, 2nd ed. (1981), p. 682. Common sense and the protection of the public demand that such a power should exist, but a person exercising the power must be able to justify his action, if challenged, by proving the mental disorder of the detainee and the necessity of detention.
The issue in the appeal turns on the question whether the Act of 1984 comprehensively lays down the powers of hospital authorities in relation to the detention of mentally disordered persons, or whether it leaves any room for any residual common law...
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