On 19 February 2013, in the case of DD v Durham County Council, the Court of Appeal considered whether to give leave for proceedings to be brought against Durham County Council for the alleged failure of two AMHPs to discharge their duties in respect of the claimant.

DD was assessed in prison after the end of his sentence. He had not been released as there was a serious concern that he posed a real danger to the public.

An AMHP undertook an assessment. She had been provided with the opinion of two medical practitioners approved under the Mental Health Act 1983 (MHA). She was told that one of them had identified the Hutton Unit, St Luke's Hospital, Middlesbrough as suitable for an assessment. She decided it was appropriate to detain DD under section 2. DD was transferred to the Hutton Unit and detained there. A further assessment was conducted at the unit which led to DD being detained there under section 3 MHA.

DD contended that the Hutton Unit practiced a regime that was not suitable for him, given his mental condition. After three months he was transferred to Rampton Hospital about which he makes no complaint.

The claim form alleged that the AMHPs ought to have known that the Hutton Unit was not a place where appropriate treatment was available.

At first instance, the judge rejected the application on the basis that the AMHPs owed no duty to investigate the proposed place of detention, the location where the patient would be kept and the regime to which he would be subject. DD appealed that decision.

He alleged that both Article 3 and Article 8 ECHR were breached.

Counsel for the local authority referred to the express terms of Section 13 (2) MHA and to 4.75 of the Code of Practice.

He argued that section 13 (2) limited the duty on an AMHP to "satisfying himself that detention in

a hospital was ... the most appropriate was of providing care..."

He noted that Paragraph 4.75 of the Code of Practice states "if doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a hospital bed..."

The Court of Appeal indicated that it would have been desirable for them to determine the question given the significance of the point. However, they felt that they could not do this because there were no detailed pleadings, they needed to ensure the decision fitted within the overall scheme of the MHA and because there was no prospect of agreement on the facts.

On that basis, they concluded that the judge was incorrect to refuse leave as they thought the question was at least arguable. Therefore the case has been remitted to the High Court. The Court of Appeal highlighted that the issue is of considerable importance to all AMHPs, local authorities and others in the field so it should be clarified as soon as possible.

Watch this space.