Securing an extension to the limitation period for alleged disability discrimination under the Mental Health Act

In the recent case of Hewlett v Chief Constable of Hampshire, the applicant has been granted permission under section 139 (2) Mental Health Act 1983 to issue proceedings in the civil courts for alleged disability discrimination against police officers who executed a section 135 MHA warrant.

Section 139 provides protection for acts done in pursuance of the MHA and the test under section 139(2) states:

“No civil proceedings shall be brought against any person in any court in respect of any act without the leave of the High Court, and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.”

The claim relates to the applicant’s treatment whilst remanded following a section 135 warrant in February 2017. The applicant has severe obsessive-compulsive disorder, but has no history of violence or substance abuse.

Two officers attended his home, along with a consultant psychiatrist, social worker and ambulance staff, whose vehicle had a cage in the back. The applicant was placed in the cage within the vehicle and, following this, he alleged he had been assaulted and falsely imprisoned.

Police officers captured some of the event on their body-worn cameras. He completed a witness statement and an investigation took place, during which he was represented by solicitors. He issued a letter of claim in July 2017. In December the defendant noted that he required permission to bring a civil claim under the MHA. An application was not made to the court until September 2018. It also included allegations of discrimination under the Equality Act 2010, on the basis that the officers had been told of his claustrophobia and aversion to being touched, but no reasonable adjustments had been made.

The case came before Judge Cotter QC to consider the narrow issue of limitation. Normally any claim for discrimination should be brought within six months; however section 118 EA also states or such other period as the court thinks “just and equitable”. This gives the court a wide discretion to allow cases to still be brought outside of the six month window, as the threshold is very low.

The Judge has granted permission for the applicant’s case and we await the judgment.

In particular, it is of note that when the applicant first lodged his complaint he raised no objection to the section 135 warrant itself. He then did not raise the further grounds until well over 15 months after the incident. We may find that the video evidence from the cameras can deal with these issues quite quickly, but we will have to wait and see.

Comment

This case raises an interesting question though – what, if any, adjustments are made by healthcare staff for patients?

It is easier to demonstrate these adjustments once patients are admitted. This can be via their care plans or within daily records. However, what happens in the community where patients are triaged? Where you have staff working in the community, it is still important to ensure they have all the relevant information and, where necessary, this feeds into how the individual is supported. All key information should still be properly recorded and documented to ensure patients, both in and out of hospital, receive the relevant care they need in a manner tailored to them.

If you would like more specific advice around treatment issues, the MHA or MHA Code of Practice, please get in touch.

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