Detention and human rights

A man accused of harassing women he did not know has failed in his human rights challenge to his detention under the Mental Health Act 1983. Having successfully secured a writ of habeas corpus to release him from a mental health institution, he has lost his initial bid for the High Court to declare that his detention ran contrary to his human rights. He is now appealing the decision. Elspeth Wrigley looks at the case.

The case of TTM v London Borough of Hackney & Ors [2010] EWHC 1349 (Admin) has raised important questions about the extent of the ancient right of habeas corpus (relief from unlawful detention) and its interaction with the far more recent Article 5 of the European Convention on Human Rights 1950 (“ECHR”), as well as the ability of any wronged claimant to recover damages in circumstances where they are wrongly detained.

Stalking, psychosis and detention

The claimant in this case, a 27-year-old Lithuanian national, had begun harassing women he did not know. He was arrested twice in November 2008. The first time he was cautioned but on the second occasion on 13 November 2008, he was taken by the police to Homerton Hospital and admitted for assessment under s.2 of the 1983 Act. The claimant was thought to be suffering from a delusional or psychotic illness and, after several weeks at the hospital, he was detained under s. 3 of the 1983 Act on 9 December 2008.

However, TM (his brother, acting as his nearest relative) became concerned that the claimant’s treatment was inappropriate. On 16 January 2009 TM was advised of his right as the nearest relative to require the claimant’s release under s.23(2)(a) of the 1983 Act and two days later, the hospital managers received a fax from TM’s solicitors, giving notice that he intended to discharge the claimant on 22 January 2009. However, following a meeting between TM, his solicitor and the hospital staff, it was agreed that the claimant would remain in hospital. The impression was given that the claimant would remain as a voluntary patient for another two weeks, but that if he attempted to discharge himself, he should be reassessed and s.5(2) used only if there was any change in presentation.

Detention under s. 3 of the Mental Health Act 1983

Following this agreement the claimant was examined by the clinician Dr Lyall. However, his conclusion was that the claimant’s condition was serious and he should be detained under s. 3 of the 1983 Act. Although this view was shared by some of the doctors, there was no universal consensus that the claimant’s condition was serious enough to warrant sectioning. For this reason, the relevant Approved Mental Health Professional (“AMHP”) Ms Bailey, sought the advice of two independent medical advisers with a view to an application under s. 3 of the 1983 Act.

On 30 January 2009 they assessed the claimant and agreed that he should be admitted under s.3. Ms Bailey then applied to section the claimant and a number of telephone conversations followed between Ms Bailey and TM regarding his brother. There was some uncertainty as to exactly what was agreed in this calls. However, although in the second call TM said he was not agreeing to the application, Ms Bailey believed that TM expressed a later change of mind, and made the application accordingly. When it became apparent that there was a s.11(4)(a) objection to detention, the responsible clinician exercised his powers under s.25 and barred the discharge.

On 4 February 2009 an application for a writ of habeas corpus was lodged by TM and pre-action letters were sent to the defendants indicating that a judicial review claim would be made unless it was agreed that the claimant should be released from the s.3 detention. On 10 February 2009 this claim was lodged and the application heard by Burton J, as a matter of some urgency, the following day.

The writ of habeas corpus

In deciding whether to grant the remedy of habeas corpus the judge had to make the finding of fact as to whether Ms Bailey was reasonable in believing TM had changed his mind between 10.30am and 3.15pm in support of the claimant remaining in hospital.

After considering the evidence, Buxton J found that although she honestly believed that the claimant’s brother was agreeing to the sectioning, she should have in fact concluded that he was not. At paragraph 48 he summarised it thus: “… although Ms Bailey genuinely believed that there had been a change of mind by the nearest relative, it was not reasonable for her so to have believed. He was so objecting and, in those circumstances, he had given notice to her of his objection, and she had received that noticed, prior to 3.15.”

On this basis the admission under s. 3 of the 1983 Act was not lawful and the writ issued.

Buxton J was also asked to consider whether the claimant could recover damages. He did not make any finding that damages could or should always be awarded within habeas corpus proceedings and noted that the pending judicial review proceedings were the more appropriate avenue for such considerations.

Damages and judicial review

While the habeas corpus application succeeded in achieving the claimant’s release, he subsequently made an application for judicial review in which he sought a declaration that his admission to hospital under s. 3 of the 1983 Act had been unlawful. In addition, he also sought to recover damages (as required by Article 5(5) and 8 of the ECHR) and to be granted leave to pursue a claim for damages against the first defendant under s. 139(2) of the 1983 Act. Finally, the claimant also sought a declaration from the court that ss.139(1) and 6(3) of the 1983 Act were incompatible with the ECHR.

However, despite the fact that the writ for habeas corpus had been granted, the claim was dismissed on all grounds, for the reasons set out below.

The lawfulness of the s.3 admission

The claimant submitted that the s.3 admission was unlawful, as not only had TM’s objections to his brother’s detention been disregarded by the hospital managers, but neither of the two medical practitioners who recommended admission had any previous acquaintance with the claimant (in breach of s.12(2) of the 1983 Act).

The court however, did not accept these submissions. Mr Justice Collins found that the hospital managers were entitled to rely on Ms Bailey’s confirmation that there had been no objection from the nearest relative. Furthermore, the fact that neither medical practitioner knew the claimant did not make the matter unlawful. Following R (on the application of E) v Bristol City Council [2005] EWHC 74 (Admin), the decision to use two professionals who came afresh to the claimant’s case but had access to all the hospital notes and medical staff was reasonable and a proper exercise of judgment of what was in claimant’s best interests. As such there was no breach of s.12(2) and the decision was lawful in this respect.

The right to pursue damages under ss. 139(1) and (2)

Mr Justice Collins also considered whether a claim for damages should be permitted against the first defendant (the London Borough of Hackney) having regard to s.139(2) of the 1983 Act.  Sections 139(1) and (1) provide:

“(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, unless the act was done in bad faith or without reasonable care.

(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court…”

Mr Justice Collins recognised that, despite acting properly, the AMPHP (Ms Bailey) was unreasonable in her belief that TM had consented to his brother’s detention. However, he found that the lawfulness of the claimant’s detention did not depend on whether the AMPHP reasonably believed that there was no objection, but whether there was an objection.

On this basis, damages should only follow if there is negligence or bad faith. Mr Justice Collins accepted Burton J’s findings that there had been none. He did note, however, that in circumstances where there had been a lack of reasonable care, there was no reason in principle why a duty of care should not exist. However, as on the facts of this case there was no reasonable prospect of success in any negligence claim, the judge declined to give leave under s. 139(2).

Damages under then Human Rights Act 1998 (“HRA 1998”)

The claimant also submitted that he should recover damages as required by Article 5(5) of the ECHR.  Article 5 provides:

“5. 1. … No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ..

(e) the lawful detention … of persons of unsound mind …

4. Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.

5. Everyone who has been a victim of … detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

The claimant also sought to recover damages under Article 8 (right to private life) but the judge had little time for this on the basis that if the detention was lawful, there would be no breach of Article 8, and if it were not, Article 5(5) provided for an enforceable right to compensation, where Article 8 did not. He therefore proceeded to consider Article 5 alone.

In terms of the claimant’s right to damages under s.7 HRA 1998, the crucial question for the judge was whether the detention was regarded in domestic law as lawful. There was important authority supporting the view that the correct conclusion was that, absent any negligence or bad faith, the detention was to be regarded as lawful until a court decided that it was not. As it could not be shown that the claimant’s detention was unlawful in domestic law, there was no breach of Article 5 and no claim for compensation under Article 5(5) of the ECHR, therefore there could be no claim under s 7 HRA 1998.

In the light of this the judge dealt swiftly with the final point, the compatibility of s. 6 (3) and s. 139 of the 1983 Act with the HRA 1998 at paragraphs 53: “In those circumstances, there is no incompatibility in either s. 139 or s. 6(3). Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), the detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that the release must follow. It is equally unnecessary to read down either of the provisions.”

In the light of this, a declaration that the detention was unlawful from the moment Burton J reached his decision is all the relief that the claimant could obtain.

No breach of human rights

On the facts of this case the court found that there was nothing unlawful about the claimant’s detention under s. 3 of the 1983 Act, and that furthermore there could be no claim under s.7 of the 1998 Act or any incompatibility in either s.139 or s.6(3) of the 1983 Act.

However, this is not the end of the matter, which has subsequently been appealed.  Given the importance of the issues it raises, in particular in relation to habeas corpus and the HRA1998, and the perhaps vexed question of when a ‘mistake’ however honestly made, can be considered to be negligent, it will be interesting to see how the matter is reevaluated on appeal.

Elspeth Wrigley is a pupil at 1 Crown Office Row. This article first appeared on the UK Human Rights Blog (http://ukhumanrightsblog.com) run by the chambers.