Family Division judge calls for more active collaboration between public bodies after considering urgent deprivation of liberty application made by police

A High Court judge has ruled that there should have been “more active collaboration” between the relevant public bodies in a situation where Surrey Police had to make an out of hours urgent application to deprive a man of his liberty in circumstances where he was in the police station.

In Surrey Police v PC & Ors [2024] EWHC, Mrs Justice Thesis concluded that the local authority, Surrey County Council, “could and should have taken more active steps to support the other public body, the police, who are less experienced in these type of applications”.

The judge also ordered the local authority to pay the Official Solicitor's costs, noting that the Official Solicitor should have been given more notice of the situation and the potential of an application being made.

Outlining the background to the case, Mrs Justice Theis said the man, PC, was arrested regarding an offence of criminal damage on 23 April. The arresting officers had concerns in respect of PC's mental health.

Due to delays in an ambulance arriving the officers decided to take PC to a hospital that was operated by Surrey and Sussex NHS Healthcare Trust.

PC was taken to the Emergency Department of the hospital where he was given lorazepam. The judge noted that the plan was to see how his mental state was over the next 24 hours given the suggestion of drug use. He was medically fit to be discharged and PC was taken to a police station.

PC arrived at police custody centre just after noon. The following morning there remained an issue regarding PC's mental health. He was seen by the Criminal Justice Liaison and Diversion Service (CJLDS) nurse.

The Approved Mental Health Professional service at the local authority was contacted by CJLDS. They did not arrange a Mental Health Act assessment as they were advised that PC was “not fit to be assessed”, the judge noted.

They suggested that PC was kept in the police station as a place of safety under s 136 Mental Health Act 1983. The local authority also suggested that he was transferred to a Health Based Place of Safety ('HBPoS') as soon as one was available.

At 2pm there was a meeting to discuss the availability of a bed at a place of safety. “Although different accounts are given by the various public bodies as to the availability of beds, the result was nothing was available”, said Mrs Justice Theis.

At around 7pm the AMHP and psychiatrists arrived at the custody centre. Both psychiatrists recommended that PC be detained under s2 MHA 1983, however there was no bed available for him.

By 7.46pm it was known that there might be an issue in respect of the legal framework that would enable PC to remain in police custody until a suitable bed was found.

In the early hours of the next day (25 April), PC's presentation deteriorated further. He was recorded as being 'out of control', said the judge. He was given lorazepam by a health care practitioner, and placed in a body cuff.

During the morning conversations took place between the police and the Trust. PC became agitated, and at times he was placed in a body cuff and restrained by five police officers. A further period of detention under s 136 MHA 1983 was implemented.

In the early evening the police made an urgent out of hours application to the court to authorise the deprivation of PC's liberty in the police custody suite, due to their concern that a second period of detention under s 136 would expire later that evening.

The judge said: “Initially the application was made seeking orders in the Court of Protection, they were ultimately made under the inherent jurisdiction due to the urgency of the situation and to cover the short period of time before a bed was available. I was informed the next morning PC's s2 detention had been effected by his conveyance to a bed at 1.48 on 26 April 2023.”

The hearing took most of the evening on 25 April due to delays in making effective contact with the relevant public bodies to enable them to join the urgent hearing.

Outlining the positions of the parties, the judge said: “The overarching concern of the Official Solicitor is that PC was clearly vulnerable and ill yet had been left in a police custody suite with what the Official Solicitor considered was inadequate care and support.”

The specific concerns the Official Solicitor identified arising from the situation were summarised by the judge as follows:

• First, the AMHP service upon initial request on the morning of 24 April 2023 appears to have delayed the mental health assessment on the basis that PC may have been intoxicated. By the time of that initial request PC had been detained for 24 hours. The local authority state they were told PC was intoxicated, which is not accepted by other agencies. Whatever was said the essential facts raised further questions that were not followed up, when they should have been.
• Second, by 2pm on 23 April the AMHP service further delayed any assessment on the basis that PC may have been intoxicated but they had not seen PC, he had by then been in custody for about 29 hours. The local authority state this view was based on prior information the AMHP received which had not been updated. Again, this raised further questions that were not followed up, when they should have been.
• Third, by 7.46 pm on 24 April it was known to the police and the local authority that there might be an issue as to the legal framework under which PC was detained in police custody but it took a further 24 hours, and only after intervention of the court, for there to be any proper consideration as to the legality of PC's situation and for him to have any form of independent representation.
• Fourth, the Official Solicitor has concerns about the circumstances of the lorazepam being given in custody. It was prescribed by a medical practitioner who had not seen PC. The Trust have acknowledged this concern and confirmed it is raising it internally. Also, it was given to PC whilst he was in the body cuff and no consideration is recorded as having been given as to whether PC had capacity to consent to being medicated with lorazepam.
• Fifth, on the morning of 25 April there was no recorded handover between the AHMP from the Emergency Duty Team, which the local authority accept. By 2.45 pm on that day it was clear the AMHP who had conducted the first assessment was not going to be available until later in the day to make any application for admission. Effectively, there was no means to admit PC to hospital under s 2 MHA 1983 unless a further assessment was undertaken. The Official Solicitor considers that this could and should have been obvious by just after 9.30 am that morning when the AMHP realised they could not access either of the medical recommendations of the previous day. The local authority state it was apparent to the AMHP that there was no bed, so a further assessment would not have resolved the issue regarding the ongoing legal framework regarding PC's deprivation of liberty.

The judge noted: “Whilst the Court and the Official Solicitor recognise the difficulties the public bodies are operating under in such a difficult and dynamic situation it is nevertheless important the focus remains on the relevant legal authority being exercised to detain PC.”

She added: "Article 5(1) ECHR guarantees that no one will be deprived of their liberty save in accordance with a procedure prescribed by law. The notion of 'lawfulness' requires a fair and proper procedure offering the person sufficient protection against arbitrary deprivation of their liberty."

Mrs Justice Theis said she endorsed guidance advocated by the Official Solicitor for future cases that involve an application to the court to authorise the deprivation of an individual's liberty in the police station either under the inherent jurisdiction of the High Court or section 4A of the Mental Capacity Act 2005:

(1) Any such application should only be made in exceptional circumstances. Every effort should be made to avoid such an application having to be considered by the Out of Hours judge.

(2) If such an application is made, or is being considered, it should be brought before the court as soon as possible during normal court sitting hours. In particular, as soon as an issue is identified that there may not be a suitable legal framework for continued detention to take place.

(3) Each public body involved in the circumstances of the deprivation of liberty should be joined as a party to the proceedings and/or given sufficient notice (preferably during office hours) that such an application is going to be made and the court will consider if they should be joined as a party. In PC's case that would have included the local authority that provided the AMHP service, the Trust which is providing/commissioning the bed and the police force which is physically detaining the person.

(4) The application should be supported by evidence, ideally in the form of one statement, which explains the relevant chronology, the steps that have been taken to find an alternative and what care and support the person will receive/has received whilst in police custody and the relevant legal framework. Should the application include authority for physical or chemical restraint the legal basis of that restraint should be set out clearly, as well as the underlying factual/medical evidence as should details of the nature of any such restraint sought.

(5) The Official Solicitor should be alerted in good time prior to any application being issued.

(6) The relevant public bodies involved in the application must actively consider in advance of any application being issued how the person who is deprived of their liberty will be enabled to participate in the proceedings. If this is to involve the Official Solicitor acting as litigation friend or advocate to the court consideration must be given by the public bodies as to how to provide the Official Solicitor security for her costs.

The Official Solicitor made an application for either all her costs to be paid by the local authority, or for her costs to be shared between the public bodies.

The application was founded on the “late stage” the Official Solicitor was notified of the application and the “lack of clarity” about the legal basis for the application, the judge noted.

The local authority agreed to fund a proportion of the costs but resisted sole responsibility. It submitted that the situation developed due to a lack of a bed, the refusal to take PC to a HBPoS both of which were outside the control of the local authority. The police made the decision to bring an urgent application without notifying the local authority, despite a s136 being in place and with knowledge that a bed was available.

Concluding the case, Mrs Justice Thesis said: “Whilst the police made the application I accept the submissions on behalf of the Official Solicitor that in this situation the local authority had the most experience and, in my judgment, should have taken a more proactive role, bearing in mind their statutory responsibilities and the growing uncertainty there was about the applicable legal framework. In the end, the police had little choice but to make the application because of the situation they found themselves in. There should be been more active collaboration between the relevant public bodies.”

On the issue of costs, the judge concluded that the local authority should pay the Official Solicitor's costs. She said: “The Official Solicitor should have been given more notice of this situation and the potential of an application being made. The local authority could and should have taken more active steps to ensure that was done and to support the other public body, the police, who are less experienced in these type of applications.”

A Surrey County Council spokesperson said: "As Mrs Justice Theis acknowledges, these are very difficult cases for public authorities where there is a requirement to respond to challenging needs against a backdrop of a lack of specialist beds. We recognise that, at the time, there could have been a more proactive stance and improved communication and information gathering. We are committed to partnership working and have learnt lessons from this incident. We continue to work closely with our police and NHS partners across the criminal justice and mental health systems to make sure we effectively support the wellbeing and safety of our most vulnerable residents.”

Lottie Winson