Aiming high

Anyone who claims to be the victim of acts performed under the Mental Health Act and wants to claim damages will now face a more difficult task. That is the result of an interlocutory decision in Johnston v The Chief Constable of Merseyside Police [2009] EWHC 2969 (QB), which concerned a proposed claim by a man who had been apprehended by the police.

In January 2006, Mr Johnston, who has a history of mental health problems, was at a property on Merseyside. An occupier of the property became concerned about his behaviour and summoned an ambulance. In accordance with usual practice, the police attended as well. Mr Johnston acknowledged that he had needed medical help, but said he had not wanted the police to be called.

On the basis of the witness statements and other evidence, there is a profound conflict between the parties as to what happened next. It appears to be common ground, however, that Mr Johnston was sprayed with CS gas and sustained severe blistering to the skin on his face, left ear and chest. He was detained, put in handcuffs and taken to hospital, but he was not subsequently charged with any criminal offence.

Mr Johnston alleges that these acts amounted to false imprisonment and assault. The chief constable, however, claims they were covered by section 136 of the Mental Health Act 1983 (MHA), which applies where someone who appears to be suffering from mental disorder is found in a public place and permits a constable to take that person to a place of safety. Under section 139(2), no claim concerning the use of MHA powers may proceed without the permission of the High Court. The chief constable argued that Mr Johnston should be denied such permission.

The leading authority on permission claims of this kind is still Winch v Jones [1986] 1 QB 296, in which Sir John Donaldson MR said: 'The issue is whether, on material evidence immediately available to the court, ['¦] [the claim] deserves the fuller investigation which will be possible if [it] is allowed to proceed.' Subsequently, the House of Lords said that, by this test, 'the threshold for obtaining leave under section 139(2) has been set at a very unexacting level ['¦] an applicant with an arguable case will be granted leave'. (Seal v Chief Constable of South Wales Police [2007] UKHL 31, per Lord Bingham at 20).

Tightening the test

For the chief constable, it was argued that, 25 years on, the Winch v Jones test should be tightened. It was noted that the Civil Procedure Rules now provide, among other things, that summary judgment may be given where a claimant 'has no real prospect' of success (rule 24.2(a)(i)).

Notwithstanding the changes wrought by the CPR, the judge, Mr Justice Coulson, said 'it would be wrong to modify in any significant way' the Winch v Jones test (see 12). He went on, however, to permit himself one modification, noting that it would be 'absurd' for a court to grant permission under section 139 where, had it asked itself the 'CPR part 24 question', it would have concluded that the proposed claim had no real prospect of success (see 13). For that reason, the judge said the CPR question should indeed be asked upon any claim under the MHA (see 14).

In fact, Coulson J concluded that Mr Johnston's proposed claim did have a real prospect of success, and he therefore granted the necessary permission under section 139 (the proceedings also included a limitation point, which, again, was decided in the claimant's favour).

It isn't every potential defendant whose position will be strengthened by this decision. For esoteric, historical reasons, no permission has ever been required for proceedings concerning the acts or omissions of the secretary of state or the NHS under the MHA (MHA, section 139(4)). Where a claim relates to the use of section 136, however, or to the initial decision to detain a patient in hospital, this case will make a difference.

The Winch v Jones test for permission under section 139 has not been displaced. In fact, it is now considerably tighter, with a potential claimant having to show that his case is not merely arguable, but that it has a real chance of success. That is a palpable change, whose effect might well be to forestall claims that would otherwise have proceeded all the way to trial. And plainly, therefore, the change is a good deal more 'significant' than the judge was prepared to allow in Mr Johnson's case.