14 October 2009

FOURTH SECTION
Application no. 24527/08
by M.S.
against the United Kingdom
lodged on 9 May 2008

STATEMENT OF FACTS
THE FACTS
The applicant, M.S., is a British national who was born in 1970 and lives in Birmingham. He is represented before the Court by Mr P. Carlin of Scott‑Moncrieff, Harbour & Sinclair, a firm of lawyers based in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant suffers from severe mental illness and impairment. In the early hours of 6 December 2004, police found the applicant sitting in his car in a state of mental confusion, sounding the vehicle’s horn, talking of a dead sister and asking to be arrested. He was arrested at 4.32 a.m. and detained at a police station under section 136 of the Mental Health Act 1983. The police also went to the applicant’s home, where they found his aunt, who had bruises to her face and upper body that had been inflicted by the applicant.
Upon his arrival at the police station, the applicant was assessed by the Forensic Medical Examiner, who concluded that he was not fit to be interviewed or charged with any criminal offence. Soon afterwards the applicant was assessed by two psychiatrists as well as by an Approved Social Worker. These assessments had to be conducted from the other side of the cell door, in view of the applicant’s state and behaviour. They concluded that he was acutely mentally unwell and should be admitted to a psychiatric hospital for assessment and treatment under section 2 of the Mental Health Act. Steps were taken to find a suitable hospital. The applicant was assessed by staff from one institution, the Meadowcroft Unit, who recommended that he be transferred to medium secure accommodation at Reaside Clinic, Birmingham. The police station made contact with Reaside that afternoon, requesting an urgent assessment of the applicant. At 6.08 p.m. Reaside’s Consultant Forensic Psychiatrist, Dr Maganty, telephoned the police station and was informed of the assessment of the applicant, and of the fact that he was unfit to be interviewed or charged. Dr Maganty advised that the applicant should be charged and kept in custody and stated that someone from Reaside would come to the police station that evening. A later phone call from Reaside indicated that nobody from the clinic would attend the station that day.
During his first day in police custody, the applicant’s condition and behaviour deteriorated. The custody records indicated that by 6.45 a.m. the applicant had lowered his trousers, was waving his testicles around and was licking the wall of his cell. He accepted three meals that day, and numerous drinks.
The next day, December 7, the police station and Reaside were in contact several times during the day regarding the applicant. The custody records refer to an unwillingness on the part of Reaside to accommodate the applicant, and, by evening, the concern and frustration of the police at the situation. The applicant’s behaviour deteriorated during the day. By midday he had removed all of his clothing. A later entry in the custody records indicates that he had drunk water from the bowl of the toilet in his cell.
On the third day of the applicant’s detention, Dr Maganty arrived and examined him shortly after 11 a.m. He noted that the applicant was completely naked, shouting loudly and smeared with what appeared to be food and faeces. His mood 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 reiterated his view that the applicant should be charged. The police maintained that it was not his decision to make. The doctor then 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. However, at 7.46 p.m. a call was received from Reaside to say that the applicant could not be taken until the following morning. An hour later there was a second call to inform the police that Reaside was prepared to pay compensation of £20,000 to the applicant for unlawful detention. 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.
The custody record for the applicant’s third day of detention indicates that by 7 a.m. he was naked and rocking to and fro. He later began to bang his chest and rant. He displayed similar behaviour around 1 p.m. The applicant was provided with food and drink at 8.18 a.m., and further drinks of water during the day. The next mention of food in the custody record is at 7.13 p.m. The applicant dropped this on the floor.
On the fourth day, 9 December, the applicant was admitted to Reaside at 7.29 a.m., i.e. 3 hours after the maximum period allowed under the Mental Health Act.
On 5 June 2006, the applicant lodged claims against the Birmingham and Solihull Mental Health NHS 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. In Dr Exworthy’s opinion, Dr Maganty should have assessed the applicant within 24 hours of being made aware of the situation. The delay in assessing him and in admitting him to Reaside had delayed the applicant’s treatment and recovery.
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.
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.
In relation to the claim under the Human Rights Act, the judge considered that Dr Maganty should be treated 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.
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
Section 136 of the Mental Health Act 1983 provides as follows:
"136 - (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.......
136 - (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 necessary arrangement for his treatment or care".
COMPLAINTS
The applicant complains under Article 3 of the Convention about his detention by the police. He also complains under Article 13 about the lack of an effective remedy.
QUESTION TO THE PARTIES

Has the applicant been subjected to degrading treatment, in breach of Article 3 of the Convention?