Unlawful detention, unlawful assessment?

If a person is unlawfully detained (i.e. in a private dwelling), is their subsequent assessment by health/AMHP under the MHA unlawful also?

If the assessing team are not aware of the detention being unlawful, does this change matters?

Not necessarily unlawful to assess and / or admit detain, even where the original removal to the place of assessment was unlawful. Two points: the Sessay case touches upon this for MH. The Met police unlawfully relied upon the MCA to remove someone from a dwelling to a place of safety, as if they had a 135(1) warrant or had used s136, but in reality they were fudging it by “using the MCA” when there was no basis for it. The NHS / LA then had an AMHP / DRs do an assessment which concluded s2 MHA admission was required. The judgment did not rule those actions of the AMHP / DRs to be unlawful, despite the patient challenging it in the way your question implies.

There are other cases as well: in policing, there was a case where an officer made an unlawful arrest (because they failed / forgot to ‘caution’ the offender after arrest for burglary). Upon arrival at the police station, the custody officer detained the man in custody and he assaulted the sergeant so was charged with assault police. He subsequently challenged everything that happened and the court found although his arrest was unlawful, the sergeant had been entitled to believe it was lawful and was not obliged to specifically satisfy himself of that fact because that is for the arresting constable to justify, if required to do so at court. Therefore, the sergeant was acting in the execution of his duty when he was assaulted so the man was guilty of that offence, even though he could not be prosecuted for the original burglary due to an unlawful arrest.

So there are multiple precedents that one unlawful action does not mean all subsequent decisions are unlawful, especially where done by other actors in the same organisation or by other organisations who may not have been aware of the fact.

That said your final question is also key and it will turn on specific facts: the assessing team are not lawyers or judges and on one hand it’s not for them to provide any kind of judgment about the original decisions but if it’s overwhelmingly obvious it’s unlawful they can then only take the decision in front of them: if they know the patient requires urgent admission and would be at risk if they were not ‘sectioned’, for example, the detention which began unlawfully and which they know was unlawful can be rendered lawful by a necessary, proportionate decision by them. You’re not going to be able to justify letting a suicidal person walk off to face harm because you think the police may have tricked someone out of dwelling for a cigarette or some fresh air, to “create” conditions where they can fudge a 136 detention, for example.

But all cases will turn on their individual specifics and upon the rationale of the professionals who make the decisions in those difficult circumstances.

Hope this helps!



See, for example:

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Fantastically helpful - thanks so much!

Sorry- I didn’t link to the later appeal court judgement, which had a slightly different outcome:

Regarding your first question, I have nothing to add to the excellent analyis by Michael Brown. As for your second query, I agree that other professionals have to make their own decision about what they should do, based on how the person is presenting in the moment. However, those working in the public sector also have obligations to uphold people’s human rights (s.6 of the Human Rights Act). As Michael says, it would not be appropriate to send someone home who was massively at risk simply because the detention process appeared to be flawed, but it might be appropriate (for example) to advise the detaining authority of the problem and invite them to rectify it if they can. If there was a clear and obvious breach of the law you might go as far as advising the individual to get their own legal advice on what happened. It would not nomally be appropriate to say to the person “what happened was unlawful”, not least because there might be factors of which you are unaware which render the situation lawful after all.

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