Man detained by police under mental health law was not denied access to justice

10 December 2010 by Adam Wagner

Seal v United Kingdom (Application no. 50330/07) – Read judgment

The European Court of Human Rights has rejected the claim of a man detained by the police for 9 days under mental health law. Despite legislation deliberately making it difficult to sue authorities carrying out mental health functions, the court ruled that the law did not unduly restrict access to the courts.

Although Mr Seal ultimately lost, his claim – and in particular a strong dissenting judgment by Baroness Hale in the House of Lords – highlights the tricky line the state must tread in relation to people with mental health problems in relation to their access to justice.

A blocked driveway

On 9 December 1997 Mr Seal was arrested at his mother’s house for breach of the peace and, under the 1983 Mental Health Act. The facts were not entirely clear, but the disturbance related to Mr Seal not bein able to park his car as his mother’s drive was blocked by other cars. He was taken by the police to St Tydfil’s hospital where he was detained and eventually released nine days later.

On 8 December 2003, on the eve of the expiry of the 6 years within which he could do so, he issued a claim against the police for “trespass, assault, wrongful arrest, misuse of police powers, misuse of section 136 of the 1983 Act, falsehood and personal injuries sustained”.

The 1983 Act was designed to make it harder to sue authorities carrying out functions under it, compared to, for example, personal injury cases. Under the section 139 of the 1983  Act, the leave of the High Court was required prior to the commencement of any claim relating to the exercise of powers under that Act. Mr Seal failed to seek High Court leave before commencing his claim. It was also only possible to sue if an act was done in bad faith or without reasonable care.

What happened next as the case wound it way through the courts was convoluted, but in essence the case was initially struck out due to Mr Seal’s failure to obtain leave from the High Court to bring the claim in the first place, and then reinstated. It was reinstated as at least part of the claim related to the police’s powers outside of the 1983 Act, which only allows the police to detail someone if they are in a public place, appear to be suffering from a mental disorder and in in immediate need of care or control. Mr Seal argued that his mother’s house was not a public place.

Narrow loss in the House of Lords

As is true of most cases that reach the European Court of Human Rights, which will only hear cases once a person has exhausted all of their domestic legal options, Mr Seal’s case had plotted a long and tortuous path through the English courts. It had ultimately reached the House of Lords (now the Supreme Court) where his appeal was rejected by a narrow 3-2 majority.

Relying in particular on Article 6 § 1 (right to a fair trial), Mr Seal complained about the decision to strike out his civil claim against the police for assault and false imprisonment. The House of Lords considered whether it was too difficult, as Mr Seal contended, to bring a claim under the Mental Health Act 1983. Mr Seal argued that the lower courts should have at least allowed him to argue his case both under the 1983 Act and separate from it. Lord Bingham, who was in the majority, said:

The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective… What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level. (para 20)

Baroness Hale dissented, arguing that those with mental health problems were not being well enough protected:

Despite the antiquity of this provision, which dates back to the Mental Treatment Act 1930, the question has never arisen directly before. But it concerns a fundamental constitutional right – the right of access to the courts. It also concerns the exercise of that right by a peculiarly vulnerable group of people ..The courts here – and in Strasbourg – have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints…  The courts should be no less vigilant to safeguard the rights of mental patients, most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims.

And again, in the European Court of Human Rights

The European Court of Human Rights came next for Mr Seal. Despite quoting extensively from Baroness Hale’s dissenting judgment, the court ultimately rejected his claim.

The court began by emphasising that Article 6 embodies the “right to a court”, including the right of access. However, that right is not absolute and may be subject to limitations. Those limitations must not restrict or reduce the access left to the individual in such a way that the very essence of the right is impaired, and they must also be in pursuance of a legitimate aim.

The 1983 Act makes it difficult to bring claims against authorities carrying out activities under it because, the government argued, as it saves

the claimant from potentially lengthy litigation that would be doomed to fail where leave was refused, or encouraging early settlement of the claim in the applicant’s favour where leave was granted

Mr Seal argued that what it actually does is create a presumption that all people with mental health problems are potentially vexatious litigants. The Equality and Human Rights Commission, which intervened in the case, argued that “restriction on access to court was neither justified nor proportionate, given that there was no evidence that those subject to compulsory powers under the 1983 Act were or would be vexatious litigants“.

The court accepted the government’s argument that the restrictions on access to the courts were proportionate, and that

the provision is aimed at providing an additional layer of protection for those exercising sensitive powers under the 1983 Act and does not assume that all those who are, or have been, subject to the compulsory powers contained in the Mental Health Act 1983 are potential vexatious litigants (para 77)

Moreover, the court ruled that Mr Seal was the architect of his own demise, in that he and his legal advisors, which he consulted early on in the matter, should have been more alive to the time limits and procedural requirements (para 79). And, even after the House of Lords decision, it was still open for him to pursue the parts his claim which hadn’t been struck out: that is, the parts not under the Mental Health Act.

Could have been different

This case highlights a delicate balance which must be struck by authorities carrying out functions relating to mental health in particular, and public authorities in general.

On the one hand, the state must ensure that if authorities act unlawfully or negligently, people must have some form of redress available: usually, but not always, this is the courts. One the other, authorities must be able to carry out their functions without fear of constant litigation. For example, claims against the police are notoriously difficult to bring, and the courts have been reluctant to extend the rights of potential litigants for fear of restricting the police force’s ability to do its job.

Moreover, in a mental health context, long and unsuccessful litigation can ultimately make a person’s problems worse rather than better.

The state must also provide people access to the courts or risk breaching its obligations under article 6 of the European Convention.

Mr Seal’s case highlights the need for carefully thought-out legislation in this area, and in this instance the European Court was convinced that the Mental Health Act 1983 restrictions on bringing a claim were proportionate. However, given the strong dissent of Lady Hale and Lord Woolfe in the House of Lords, as well as the difficulties specific to this case – namely, that Mr Seal had brought his claim too late despite having taken legal advice – it is not hard to imagine a similar, less convoluted case being decided differently.

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