M.S. v United Kingdom, 3 May 2012 – read judgment
In a ruling revealing stark differences between the UK courts and the Strasbourg court’s approach to the threshold for Article 3 treatment, Strasbourg has ruled that the detention of a mentally ill man in police custody for more than three days breached his rights under that provision
The Court held in particular that the applicant’s prolonged detention without appropriate psychiatric treatment had diminished his human dignity, although there had been no intentional neglect on the part of the police.
The following details are taken from the Strasbourg Court’s press release:
The applicant was arrested in Birmingham in the early morning of 6 December 2004, after the police had been called to deal with him because, highly agitated, he was sitting in a car sounding its horn continuously. His detention at a police station was authorised under the 1983 Mental Health Act, which allows the detention of a person suffering from a mental disorder for up to 72 hours for the purpose of being examined by a doctor and receiving treatment. The police subsequently found the applicant’s aunt at his address, seriously injured by him.
Following his arrest, a psychiatric specialist assessing Mr S. found that he suffered from a mental illness of a nature or degree warranting detention in hospital in the interests of his health and safety and for the protection of others. The assessment was confirmed by a second specialist. After a local psychiatric intensive care unit had informed the police that it would not be able to admit Mr S., efforts were made on the same day to place him in a clinic with a medium secure unit. However, in view of the fact that Mr S. might be charged with an offence and remanded in custody, a consultant forensic psychiatrist at the clinic did not consider that the clinic’s involvement was immediately necessary.
Mr S. remained in police custody for more than 72 hours, locked up in a cell where he kept shouting, taking off all of his clothes, banging his head on the wall, drinking from the toilet and smearing himself with food and faeces. On the second day of his custody, the prosecution service concluded that there was insufficient evidence to charge him. After more than three days in detention, following the advice of the consultant forensic psychiatrist, Mr S. was taken in handcuffs to the clinic where he received treatment.
In June 2006, Mr S. lodged claims against the National Health Service for negligence and for misfeasance in public office, complaining in particular that the delay in admitting him to the clinic had delayed his treatment and recovery. The district court rejected his claims and his appeal was dismissed by the county court in November 2007.
Relying on Article 3, M.S. complained about his being kept in police custody during a period of acute mental suffering while it had been clear to all that he was severely mentally ill and required hospital treatment as a matter of urgency. Relying on Article 13, he complained about the manner in which his case was examined.
There was no doubt that Mr S.’s initial arrest had been justified, given that, in his highly agitated state, he posed a danger to public safety and to himself. His initial detention in a police cell had been authorised under British law. It was undisputed between the parties that there had been no intention on the part of the police or the health authorities to treat him in a manner incompatible with Article 3, and the detailed detention record submitted to the Court evidenced real concern to see Mr S. transferred to a clinic.
The Court could not accept Mr S.’s criticism of the reaction of the clinic’s medical personnel. The information provided by the British Government showed that the clinic’s consultant forensic psychiatrist had not remained passive, but had been ready to assess and then admit Mr S., subject to adequate staffing arrangements being made. The Court further rejected Mr S.’s allegation that his intake of adequate liquid and food had not been ensured, as no neglect could be discerned in the police records.
However, the fact remained that Mr S. had been in a state of great vulnerability throughout his detention at the police station. As indicated by all the medical professionals who examined him, he had been in dire need of appropriate psychiatric treatment. That situation, which persisted until his transfer to the clinic on the fourth day of his detention, diminished excessively his fundamental human dignity. Throughout that time, he had been entirely under the control of the State; the authorities had thus been responsible for the treatment he experienced. In that context, the Court referred to a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of 2008, which expressed concerns that persons detained by the police in the United Kingdom were not always provided with appropriate psychiatric care. Furthermore, in Mr S.’s case, the maximum time-limit for the detention of a person in his situation had not been respected.
The Court accepted that the situation had arisen essentially out of difficulties of co-ordination between the relevant authorities when suddenly confronted with an urgent mental health case, and it took note of the Government’s submission that the case had led to improvements in the arrangements between the police and the health authorities. However, even though there had been no intention to humiliate Mr S., the Court found that the conditions he had been required to endure had reached the threshold of degrading treatment for the purposes of Article 3. There had accordingly been a violation of that article.
The Court considered that an appropriate remedy had been available to Mr S. under British law. The two courts which had considered his case had assessed it in relation to three possible remedies, including a claim for damages under the Human Rights Act. That the outcome had not been favourable for him did not mean that the remedy was in principle ineffective. There had accordingly been no violation of Article 13.
Under Article 41 (just satisfaction) of the Convention, the Court held that the United Kingdom was to pay Mr S. 3,000 euros in respect of non-pecuniary damage and 8,150 euros in respect of costs and expenses.
Going back to the summary dismissal of Mr S’s case in the UK court, the judge there held that although the defendant had owed the applicant a duty of care, and that duty had been breached, it had not caused the applicant any physical or psychological injury. The action in negligence therefore failed on 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 M. 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. On appeal, the claim equally failed because the situation had fallen far short of treatment in contravention of Article 3:
It was unrealistic to suggest that a delay of a given 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.
So why are our judges and Strasbourg poles apart on this issue? The staff at the centre was, in their own words, “simply unprepared” to deal with a mentally unstable patient off the street, and this is not in any realistic sense sufficient to ground a violation of Article 3. The cases cited by the applicant all related to far worse situations that had lasted for far longer periods. The police had no choice but to keep him at the police station while a bed was found for him; the option of releasing the applicant was not open to them. It has to be remembered that the applicant had just perpetrated a violent assault on his aunt and, in his highly agitated state, posed an obvious danger both to public safety as well as to himself. The Court acknowledges all this. Nevertheless it reaches the conclusion that (this unavoidable) situation, which persisted (despite the authorities’ best efforts) until he was at last transferred to a clinic early on the fourth day, diminished excessively “his fundamental human dignity” and thus violated his Article 3 rights.
Where is this going to end? Is every patient left too long on a trolley in an understaffed NHS hospital to be entitled to damages for such a violation? No one can doubt that the “fundamental human dignity” of often elderly people held in such a predicament has been severely compromised. What about patients in great pain, waiting for hospital beds, organs, operations? Lots of damage to dignity there. This is a prime example of using Article 3 as a social and economic right, not a basic civil right, and thus extended leaves publicly funded authorities to carry out difficult jobs with threats of litigation looming on all sides.
The UK courts recognised this claim for what it was, and dismissed it. Strasbourg should have done the same.
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