Disability discrimination in the provision of statutory mental health services.
Under section 139 of the Mental Health Act ("the MHA") no person can incur liability in civil or criminal proceedings in respect of any act purporting to be done under the MHA unless the act was done in bad faith or without reasonable care. The High Court has to grant leave before any civil proceedings can be brought for such an act, and the Director of Public Prosecutions must give consent before any criminal proceedings can be initiated.
Under section 118 of the Equality Act 2010 a person has 6 months from any act of discrimination in which to make a claim to the court. This time limit can be extended if it is "just and equitable" to do so.
Mr Hewlett had severe obsessive compulsive disorder, was claustrophobic and had an aversion to being touched. He had no history of violence or substance abuse. In February 2017 two police officers attended his home (along with a consultant psychiatrist, 2 social workers and ambulance staff) to execute a warrant under section 135 of the MHA. Mr Hewlett was placed in a cage in the back of the ambulance where he claimed he was assaulted and falsely imprisoned.
Mr Hewlett made a complaint, which he followed with a claim of assault and false imprisonment. The Chief Constable pointed out that Mr Hewlett needed the leave of the High Court to bring these claims against officers as they had been doing acts pursuant to the MHA. After some delay Mr Hewlett applied to the High Court for leave, and added a disability discrimination claim under the Equality Act 2010. He alleged that the officers failed to make reasonable adjustments to cater for his claustrophobia and aversion to being touched, which the officers had been made aware of.
The Chief Constable consented for the assault and false imprisonment claims to proceed, but resisted the disability discrimination claim on the basis that it had no merits and was time barred.
The Court held that the test of whether the court should grant leave to bring a claim under section 139 was not a stringent one. The Court only needed to be satisfied that the complaint deserved fuller investigation, and that in all the circumstances it had a real prospect of success, which was a low threshold. The judge considered that it may well be that the officers had a defence to the claims, and that footage from their body-worn cameras might be illuminating. But that was not the test. Mr Hewlett claimed that the officers had not adequately amended their conduct in the light of his disability and this satisfied the low threshold for leave being granted to bring the case.
In respect of the time limit, the Court considered that it had the widest discretion to extend time if it was "just and equitable" to do so. At the stage when Mr Hewlett was simply seeking leave under section 139 of the MHA all he had to do, in respect of the time limit, was show that there was a real prospect that the Court would exercise its discretion in his favour. The Chief Constable had not delivered a killer blow to Mr Hewlett's claim.
On the face of it this is a fairly dull interlocutory judgment, albeit one that gives some useful guidance on how courts will approach giving leave to instituted proceedings under section 139. What gives it interest is the choice to bring a disability discrimination claim under the Equality Act 2010 for acts carried out in pursuance of the MHA, and the Court's willingness to allow these to proceed to a full hearing.
Police officers executing warrants under section 135 or removing persons to places of safety are carrying out a "public function" and are therefore subject to the duties in Part 3 of the Equality Act. They will act unlawfully if they discriminate against people with a disability, and are under a duty to make reasonable adjustments when people are at a substantial disadvantage because of their disabilities. If officers act in bad faith or without reasonable care, then this will open them up to civil liability. In exactly the same way medical staff at hospitals are subject to Part 3 of the Equality Act 2010 and (when they are acting under the MHA) are similarly not immune from civil liability if they do not act in good faith or with reasonable care.
The Hewlett case is a reminder that the Equality Act 2010 is a useful part of the toolkit of the mental health legal practitioner. In terms of funding cases it is also useful to bear in mind that civil legal aid is available for bringing discrimination claims. In theory at least. The practice is more problematic, which is why it is also worth remembering that there is also scope to apply directly to the Equality and Human Rights Commission for assistance under section 28 of the Equality Act 2006 (sic). The EHRC can provide an individual assistance by providing or arranging the provision of legal advice, legal representation, facilities for the settlement of a dispute or any other form of assistance if the claim is one under the Equality Act 2010. We are aware that the EHRC is willing to consider applications for section 28 assistance, so it may be worth making an approach to them if you are aware of disability discrimination happening in the mental health sphere.
If you are a legal adviser and are unsure of whether you can get section 28 assistance for your client you can speak to someone for their advice on the advisers helpline, details of which can be found here.
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