The case of Black v Forsey arose from a complex set of circumstances involving the detention of a mentally ill patient at Argyll and Bute Hospital in November 1985. The key circumstances were as follows:
- The respondent, Black, had a history of mental illness and had been treated at the hospital previously in 1984 and 1985.
- On 9 October 1985, Black was admitted to the hospital following an incident of breach of the peace, under an emergency recommendation made by his GP under section 24 of the Mental Health (Scotland) Act 1984.
- A report under section 26 of the Act authorised his detention for up to 28 days from 12 October 1985.
- By 28 October, Black’s condition had improved, and Dr Mackay (physician superintendent) decided against applying for longer-term detention under section 18.
- However, on 5 November, Black relapsed into a hypomanic state, threatening violence against staff.
- This created a dilemma as the section 26 detention was due to expire at 2pm on 9 November, but there wasn’t enough time to obtain sheriff approval for a section 18 application.
- Despite knowing that continued detention would be technically unlawful, Dr Mackay and Dr Forsey decided to keep Black detained, believing his release would pose significant risks to himself and others, particularly his wife.
- An emergency recommendation was made by Dr Forsey on 9 November, and a further report by Dr Mackay on 12 November, both attempting to authorise continued detention.
- The Sheriff eventually approved a section 18 application on 29 November.
The core issue arose from this gap in statutory provisions – where a patient detained under section 26 improves initially but then deteriorates too late for a section 18 application to be processed before the section 26 period expires. The medical staff faced a difficult ethical decision between releasing a potentially dangerous patient or continuing detention without clear legal authority.
Issues elucidated
The Black v Forsey case elucidated several key legal issues, primarily centred around the relationship between common law powers and statutory provisions regarding the detention of mentally ill patients. These were:
- Existence of Common Law Power: The case confirmed that a common law power exists for private individuals to detain mentally disordered persons in cases of necessity. This power allows for temporary restraint of a person who is a danger to themselves or others until proper statutory authority can be obtained.
- Scope of Hospital Authorities’ Powers: The crucial issue was whether this common law power extended to hospital authorities and their staff acting in an official capacity. The House of Lords ruled that while individual medical practitioners might have common law powers, when acting as agents of a hospital authority, their powers are limited to those explicitly provided by statute.
- Exhaustive Nature of Statutory Scheme: The Mental Health (Scotland) Act 1984 was found to provide a comprehensive and exclusive scheme for detaining mentally ill patients. The court interpreted the legislation as intentionally exhaustive, leaving no room for residual common law powers for hospital authorities.
- Gaps in Statutory Provisions: The case highlighted a significant gap in the statutory framework – situations where a patient improves initially but deteriorates too late for the standard procedures to be followed before current detention authority expires.
- Ethical Dilemmas vs Legal Constraints: The judgment acknowledged the difficult ethical position of medical professionals who must balance patient safety with legal constraints. While the detention was deemed illegal, the court expressed sympathy for the doctors’ moral decision to protect the patient and public.
- Need for Legislative Reform: All judges emphasised the need for Parliament to amend the legislation to address situations like the one in this case, where medical professionals face an impossible choice between releasing a potentially dangerous patient or continuing detention without clear legal authority.
- Distinction Between Personal and Institutional Powers: The case clarified that while individual doctors might retain common law powers as private citizens, these do not extend to actions taken as representatives of a hospital authority.
- Temporary Nature of Common Law Power: The court emphasised that even where common law powers exist, they are strictly temporary and cannot justify prolonged detention. The common law power is limited to immediate emergencies pending statutory authorisation.
