Author: Alexander Cornelius, (pupil barrister, 12KBW)
In the tragic case of Dobson v Chief Constable of Leicestershire Police [2025] EWHC 272 (KB), HHJ Bird examined whether the police had assumed responsibility for the wellbeing of a person released from custody. The court held that there was no assumption of responsibility, and the claim failed. Alexander Cornelius, pupil barrister at 12KBW, analyses the reasoning and parties’ choice of expert evidence.
Facts
The Claimant, who had type 1 diabetes, was living a troubled life. He was an alcoholic and live in an adapted cow shed. From 20 December 2018, the Claimant had an escalating series of interactions with the police including being forcibly taken to hospital after cutting one of his wrists. (He was temporarily deemed to lack capacity on that occasion).
On 23 December, he was arrested on suspicion of malicious communications and public order offences. The police were called after the Claimant told his girlfriend that he intended to take his own life by overdosing on insulin.
Whilst in custody, the Claimant was noted to be drunk and refused to answer any questions. He declined an offered medical examination. Insulin was brought to him from his parents’ house and a nurse purchased disposable syringes from a pharmacy so he could take it.
A mental health care practitioner arrived and attempted to engage with the Claimant, but he refused to co-operate. It was accordingly impossible to ascertain his mental state and whether he posed a risk to himself or others, but it was noted that there was no evidence of disordered thoughts.
After interview, it was determined that there was insufficient evidence to charge the Claimant, and therefore no longer any power to detain him under the Police and Criminal Evidence Act 1984. Before authorising his release, the custody sergeant (PS White) considered whether to extend his detention to allow him to be assessed by the mental health team but once again the Claimant refused. PS White also considered whether there were any alternative places to release the Claimant to, but he made it clear he would leave any hostel he was placed in and return to his cow shed. He was accordingly released and given back his insulin. On Christmas Day 2023, he sadly took a near-fatal dose of insulin, causing a severe brain injury.
The Claim
The pleaded case was that the police had assumed responsibility to protect the Claimant from harm. It was alleged that he should not have been released after it was determined there was not enough evidence to charge him. Instead, a full mental health assessment should have been ordered under section 13 of the Mental Health Act 1983 and the statutory power under Section 136 of the 1983 Act (or a common law power) should have been used to detain him pending that assessment. Had the Defendant complied with their duty of care, it was argued, the Claimant would have been protected and would not have harmed himself when released from custody.
The Defendant accepted that a duty of care arose whilst the Claimant was in custody, but denied that it extended to the post-release period as the Claimant was no longer under police control.
Judgment
The Claimant had been examined by a mental health practitioner who concluded that he displayed no obvious active signs of mental illness. It was not possible to conduct a full mental health assessment because the Claimant refused to engage. The practitioner had considered relevant health records, so was aware that the Claimant had previously interacted with mental health services and had self-harmed. There was no basis for finding anything other than that the practitioner had fulfilled their professional duties.
It was not appropriate to draw an adverse inference from the fact that the mental health practitioner had not given oral evidence, applying the principles set out in Efobi v Royal Mail Group [2021] UKSC 33. The practitioner had made an entry in the custody record recording the extent of their interaction with the Claimant and it was doubtful whether oral evidence going beyond that would have been of any assistance.
Under Section 37 of the Police and Criminal Evidence Act 1984, a custody officer can only detain a person for the period necessary to determine if there is sufficient evidence to charge them with the offence(s) they have been arrested for. Once it has been established that there is not enough evidence they must be released, either on bail or without bail depending on the circumstances.
Once a person is released from police custody, they are no longer under the actual control of the police. However, the police may still be regarded as having control over a person if they could and should have exercised some other power to detain them. This proposition emerges from Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 where a vulnerable woman was admitted to hospital because of a high risk of suicide. The hospital could, and should, have exercised its power to detain her under the 1983 Act when she attempted to leave. Accordingly, the hospital had constructive control over her.
There was no power to detain the Claimant under Section 136 of the 1983 Act, which permits a constable to take a person to a place of safety and detain them there if they appear to be suffering from mental disorder and are in immediate need of care or control. The police are entitled to rely on medical advice when it is available and are entitled to assume that if a detained person refuses to undergo a full assessment, then a medical professional would consider if any further intervention was required and advise accordingly.
At the point the Claimant was discharged, he had been assessed as displaying no active symptoms of mental illness and there was no recommendation that he required a full mental health assessment. The police were not required to second-guess the medical advice they had received, and accordingly there was no basis for concluding that the requirements of Section 136 were met. If the power of detention had been exercised, it would have been unlawful.
There was no common law power of detention on the grounds of necessity because the 1983 Act provides a complete code (applying R (Sessay) v South London and Maudsley NHS Trust [2011] EWHC 2617). The legislative purpose of Section 136, with its safeguards, would be defeated if there was any residual common law power to detain someone when the statutory criteria were not met.
It followed that there was no assumption of responsibility to protect the Claimant from self-harm after release because the element of control was missing. Even if there was a duty of care and it had been breached, causation would not have been established because it was unlikely that if he had been detained for a full mental health assessment, he would been admitted to hospital. This was because of the evidence of the Defendant’s forensic psychiatrist that there was no active suicidal ideation in custody or active evidence of any severe mental disorder.
Comment
The case emphasises the importance of analysing what is alleged to give rise to an assumption of responsibility. In the context of police liability, the requirement of control is crucial. Whilst someone is detained in custody, the police have complete control over them and there is the obvious risk of a detained person self-harming. Ordinarily, once a person with capacity is released then they become responsible for themselves as they have regained their autonomy and control over their actions. Just because a statutory power of detention exists, it does not mean that responsibility has been assumed. The circumstances must be examined carefully to see whether the power could have been lawfully exercised.
No doubt defendants who exercise custodial powers under the 1983 Act will be relieved at the finding that they are entitled to rely on the advice given to them by competent medical practitioners in determining whether they should exercise the power of detention.
The judgment also contains some interesting discussion of which expert should be preferred in the context of deciding whether a mental health assessment was required and if so, what would have been the outcome. The Claimant had instructed Dr Mischa Mockett, a consultant child and adolescent psychiatrist whilst the Defendant had instructed Dr Dinesh Maganty, a consultant forensic psychiatrist.
Dr Maganty approached the task by considering how the Claimant was behaving in custody and how he would have appeared to those dealing with him. Dr Mockett was more focussed on the Claimant’s history of mental health issues which Dr Maganty did not consider to be the correct approach because diagnosing a mental disorder requires contemporaneous evidence of symptoms like disordered thoughts or abnormalities of perception.
When asked to give a view on whether a mental health assessment should have been conducted, Dr Maganty based his conclusion on his own practical experience and knowledge. Dr Mockett had no such experience and relied on internet searches about the proper approach to be followed when someone is detained in police custody.
Unsurprisingly, Dr Maganty’s evidence was preferred given that he had experience of the matter he was asked to give an opinion on. The case is yet another illustration of the importance of choosing experts carefully and ensuring that they have the qualifications and experience necessary to provide a properly informed opinion on the specific matters they are required to address. If not, the other side has plenty of ammunition for cross-examination and there is an easy route for a judge to find that they prefer the evidence of another expert.
This article has also been published on our personal injury blog site.
