SOCIAL SERVICES

Mental disorder - place of safety order - no power to specify named professionals to accompany constable

Ward v Commissioner of Police of the Metropolis and another: HL (Lord Steyn, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell): 5 May 2005



A magistrate issued a warrant under section 135 of the Mental Health Act 1983, authorising a constable to remove the claimant to a place of safety.


The warrant named a psychiatrist, social worker and medical practitioner who were to accompany the constable, but when it was executed the psychiatrist was not personally present and the medical practitioner was not the one named in the warrant.


The claimant was removed to, and detained overnight at, a hospital. She brought proceedings against the police and the health authority for false imprisonment, claiming that the warrant and its execution had been invalid.


The judge, on a preliminary issue, held that they had been valid. The Court of Appeal [2003] EWCA Civ 1152; [2003] 1 WLR 2413, allowed the claimant's appeal. The health authority appealed.


Nigel Pleming QC and Fenella Morris (instructed by Capsticks, London) for the health authority; the claimant in person; Hugo Keith (instructed by the Treasury Solicitor) as amicus curiae.


Held, allowing the appeal, that (per Lord Steyn, Lord Hutton, Baroness Hale of Richmond and Lord Carswell) there was no power in section 135 or elsewhere in the 1983 Act to insist that named persons should accompany the constable and such a power was unnecessary to make the warrant effective to achieve its purpose of enabling access to premises with the object of protecting the person concerned from harm; and that, accordingly, the names specified by the magistrate had been surplusage and had had no effect on the legality of the warrant or its execution. (WLR)






IMMIGRATION


HIV-positive illegal immigrant receiving beneficial medical treatment in UK for many years - asylum application refused - planned deportation to country with inferior medical services where life expectancy would be reduced - not amounting to inhuman treatment

N v Secretary of State for the Home Department (Terrence Higgins Trust intervening): HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood): 5 May 2005


N, a Ugandan citizen, arrived in the UK in 1998 on a false passport and claimed asylum. She was ill on arrival and was admitted to hospital where she was diagnosed as HIV positive. She subsequently developed AIDS and continued to receive treatment.


In 2001, the secretary of state refused N's application for asylum. The immigration adjudicator dismissed her appeal, but held that if she was deported to Uganda where treatment for her condition would not be available, the UK would be in breach of its obligations under article 3 of the European Convention on Human Rights, which prohibits 'inhuman or degrading treatment'.


The Immigration Appeal Tribunal allowed the secretary of state's appeal. The Court of Appeal dismissed N's appeal. She appealed to the House of Lords.


Ian Macdonald QC and Rick Scannell (instructed by Lawrence & Co, London) for N; Monica Carss-Frisk QC and Tim Eicke (instructed by the Treasury Solicitor) for the secretary of state; Nicholas Blake QC and Frances Webber (instructed by the solicitor, the Terrence Higgins Trust) for the intervener.


Held, dismissing the appeal, that it was clear from the jurisprudence of the European Court of Human Rights that article 3 did not impose an obligation on a contracting state to provide aliens indefinitely with medical treatment that was unavailable in their home countries, even if the absence of such treatment would significantly shorten their lives; that article 3 could be extended to apply only in very exceptional circumstances where the present state of health of the person who was subject to expulsion was such that, on humanitarian grounds, he ought not to be expelled unless it could be shown that the medical facilities that he obviously needed were actually available to him in the receiving state; that N's present state of health was not critical and she could live for many decades with the right treatment, and she was fit to travel; that, therefore, her case was distinguishable from D v United Kingdom (1997) 24 EHRR 423, and other similar cases of a person whose illness had reached its terminal stage so that he was beyond the reach of medical treatment and was unfit to travel; that N's case was no different from that of many AIDS sufferers who arrived in the UK from countries where medical treatment for AIDS was not available or was not of the standard freely available in the UK; and that, accordingly, although N's case evoked much sympathy, it was not an exceptional case which would give rise to an obligation under article 3. (WLR)