Diplomatic immunity is a topic that is often reported upon from the perspective of the criminal law. Tabloids frequently whip up outrage at tales of ambassadorial cars wilfully disregarding the capital’s parking regulations, but they rarely consider the profound effect of the Diplomatic Privileges Act 1964 (DPA) on mental health legislation.
Diplomatic Privileges Act
The UK is a signatory to 1961 Vienna Convention on Diplomatic Relations (VCDR). The VCDR obliges diplomats and their families to respect the laws and regulations of the host country. Nevertheless the Convention, by virtue of the DPA, confers on all entitled members of a foreign mission (and family members forming part of their household) immunity from legal jurisdiction, providing their presence has been notified to, and accepted by, the Foreign and Commonwealth Office (FCO).
The effect of the DPA means that without a waiver from a head of mission (usually an ambassador) under Section 2 of the Act, a diplomatic agent or their dependant, may not be made subject to criminal or civil proceedings. Further, such persons cannot be detained compulsorily under any Act of Parliament, including the Mental Health Act 1983 (MHA).
Mental Health Act
So what can be done when a healthcare provider is presented with a patient who is suitable for detention under the MHA when it is discovered that they are possessed of diplomatic immunity under the DPA 1964?
Regrettably, neither the MHA, its Code of Practice nor the professional commentaries offer a panacea for this difficult, if rare problem.
When presented with such circumstances, healthcare professionals should:
- Seek legal advice
- Seek consent from the patient to contact their head of mission
- If consent is not given, consider GMC guidance on confidentiality and consider whether this would constitute a justifiable breach of the patient’s confidentiality. Such circumstances would appear to present a reasonable prospect of justifying such a breach. Any decision should be clearly recorded
- Contact the Foreign and Commonwealth Office – Diplomatic Missions and International Organisations Unit to request:
- Confirmation of the patient’s status, and
- That the relevant head of mission is asked to consider the waiver of immunity.
- Where waiver is refused or cannot be secured the detention of a patient would be unlawful, exposing the clinician to both civil and criminal sanction. The defence normally provided by S.139 MHA would not apply.
In the most exceptional circumstances, a potential justification for detention in the absence of waiver would be authorising detention under the common law defence of acting in self-defence or defence of another.
The test for applying such measures is that of reasonableness. A clinician would have to have identified an immediate and continuing risk to safety of a person(s) and then act in such a way to mitigate that risk in the most reasonable and proportionate manner available. The limitations of the common law justification are clear, it is envisaged as a short term, emergency measure.