Ward v Commissioner of Police of the Metropolis and another
| Jurisdiction | UK Non-devolved |
| Judge | LORD CARSWELL,BARONESS HALE OF RICHMOND,LORD HUTTON,LORD STEYN,LORD RODGER OF EARLSFERRY |
| Judgment Date | 10 May 2005 |
| Neutral Citation | [2005] UKHL 32 |
| Court | House of Lords |
| Year | 2003 |
| Date | 10 May 2005 |
and others
[2005] UKHL 32
The Appellate Committee comprised:
Lord Steyn
Lord Hutton
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
HOUSE OF LORDS
My Lords,
I have had the advantage of reading the opinion prepared by my noble and learned friend Baroness Hale of Richmond. For the reasons which she has given I would allow the appeal and dismiss the claim against both defendants.
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it and for the reasons which she gives I would allow the appeal and dismiss the claim against both defendants.
My Lords,
The issue of principle in this appeal is whether, when issuing a warrant under section 135 of the Mental Health Act 1983, a magistrate has power to impose a condition that the constable executing it should be accompanied by a particular approved social worker and/or medical practitioner. The wording of subsection (1) shows that the magistrate has a discretion whether or not to grant a warrant.
Under the somewhat similar provision in section 15(2) of the Mental Deficiency Act 1913 it was necessary to name the constable and the doctor, but both of these requirements have been abolished. Now section 135(4) simply says that, when executing the warrant, the constable is to be accompanied by an approved social worker and by a registered medical practitioner. The contention for the Trust is that where Parliament has regulated, in this more relaxed way, the class of persons who are to accompany the constable, there is no room for implying any power for the magistrate to stipulate any particular member of that class.
In Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473, 478 Lord Selborne LC held that the doctrine of ultra vires
"ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires."
Lord Blackburn said, at p 481, that:
"those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited."
Here there is no express prohibition on the magistrate imposing the condition. So, looking at the matter reasonably, can imposing such a condition be fairly regarded as incidental to the magistrate's power to issue the warrant?
The requirement relates to the manner of execution of the warrant. Obviously, as my noble and learned friend, Baroness Hale of Richmond, points out, a requirement of this kind could often make it more difficult in practice to execute the warrant. So it could never be appropriate for a magistrate to impose the requirement unless, in his considered judgment, there was a justification for doing so which would outweigh that potential disadvantage. On any view it would only be appropriate in exceptional cases. But the magistrate might be told of circumstances where, exceptionally, such a condition seemed appropriate. The execution of the warrant will often be upsetting for the patient. Sometimes, a specially vulnerable patient might be greatly reassured if the constable were accompanied by a social worker or a medical practitioner whom she knew and trusted. Conversely, the presence of a social worker or medical practitioner whom she distrusted might make the situation much worse. In such cases, if made aware of the position, a magistrate might reasonably consider that, in order to facilitate the execution of the warrant, he should specify or exclude a particular social worker or medical practitioner. In my view, a power to impose such a condition in the interests of the patient could properly be regarded as incidental to the statutory power to issue the warrant. The same would apply, for instance, to a condition that the warrant should not be executed at night.
It appears that in this case the informant completed the form containing the warrant and did so most ineptly. The informant inserted the names of two medical practitioners and an approved social worker who were to accompany the constable. The magistrate signed the form. There is nothing in the affidavit of Mr Reed, the principal administrative clerk of the court, to suggest that, in signing and issuing the warrant, the magistrate would actually have applied his mind to whether, or why, these individuals should be specified. In particular, there is nothing to show why he specified the names of two medical practitioners. This was plainly ultra vires since section 135(4) provides that only one need be present. That being so, it is clear that in this case there was no legitimate exercise of any power to specify the names. In the circumstances they can be severed from the rest of the warrant. Shorn of the names, the warrant was valid, as was its execution.
For these reasons I agree that the appeal should be allowed and the claim against both defendants dismissed.
My Lords,
This case concerns a little known and little used provision in the Mental Health Act 1983, designed to cater for people who are believed to be suffering from mental disorder and may be in need of care or protection. Mrs Ward, who complains about its use in her case, is acting in person, so I shall try to give a fuller explanation of how and why the case has come before us than would be necessary had she had lawyers acting for her. She has been in the unenviable situation of being deprived of her liberty so that assessments could be made which revealed that compulsory intervention was not warranted. Anyone who has been through that distressing experience would feel deeply aggrieved and a profound sense of injustice. It can only have made matters worse that she has had to defend a judgment of the Court of Appeal in her favour without legal representation. We are grateful to Mr Hugo Keith, who has done his best to uphold that judgment, but as our amicus curiae and not as her representative.
For centuries it was assumed that people of unsound mind (a much narrower category than the mental disorders of today) should be locked up, whether in their own homes or, increasingly during the 19th century, in institutions designed for that purpose. The 20th century saw a progressive retreat from that position. Now it is assumed that people with mental disorders and disabilities should be treated just like everyone else: see Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954 – 1957, Cmnd 169, para 7. But we have kept the possibility of detaining and treating them against their will in the interests of their own health or safety or for the protection of others. We rightly regard this as a serious step which should only be taken when the patient has reliably been shown to have a mental disorder of a nature or degree which warrants it: see Winterwerp v Netherlands (1979) 2 EHRR 387.
Hence the compulsory procedures require that there be a professional assessment and diagnosis before the patient is compulsorily admitted to hospital. Unless there is an emergency, the opinions of two doctors, one of them an approved specialist in mental disorder and if possible one of them having prior knowledge of the patient, are required: Mental Health Act 1983, ss 2(3), 3(3), 12(2). Both must have examined the patient before making their recommendations: s 12(1). In an emergency, one is sufficient: s 4(3). Admission is on the application, either of the patient's nearest relative or of an approved (ie specialist) social worker, who must have seen the patient within the 14 days ending when the application is made: s 11(1), (5). The social worker must interview the patient before making an application: s 13(2). These days, the nearest relative rarely makes the formal application, although he or she has a right to require that a social worker assess the case: s 13(4).
Very occasionally, a crisis will arise in which there is good reason to suppose that a person ought to be admitted to hospital (or otherwise taken care of) but the necessary assessments cannot be made in advance because of problems in gaining access and speaking to the prospective patient. Section 135(1) of the Mental Health Act 1983 is designed to cater for that difficulty. In certain quite narrowly defined circumstances, an approved social worker may apply to a magistrate for a warrant authorising a police officer to gain access to premises, by force if need be, and if thought fit to remove the person to a place of safety, such as a hospital or nursing home, with a view to making an application for her compulsory admission or other arrangements for her treatment and care. When executing the warrant, the police officer must have with him an approved social worker and a doctor: s 135(4). In practice, it is likely that the social worker will have co-ordinated the arrangements for everyone to attend. Once access has been gained, the professionals may be able to complete the formalities for an emergency admission there and then. But if that is not possible or appropriate, the professionals should be able to help the police officer to decide whether or not it is 'fit' to take the person concerned to a place of safety. If removed, the person is in legal custody with all that that entails: s 137(1). Once at the place of safety, she may be detained for up to 72 hours: s 135(3); but there is no power to impose medical treatment: see s 56(1)(b).
Of necessity, therefore, section...
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