Council faces payout over unlawful detention under MHA

The Court of Appeal has ordered a local authority to pay compensation following a man’s unlawful detention in hospital under the Mental Health Act 1983.

In TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4, the appellant M had been detained at Homerton Hospital between 30 January and 11 February 2009.

His detention followed an acceptance by East London NHS Foundation Trust, which manages the hospital, of an application for his admission under s.3 of the 1983 Act. The application had been completed by an approved mental health professional (AMHP), for whose conduct Hackney had accepted responsibility.

M challenged the lawfulness of his detention through a writ of habeas corpus against the NHS trust. The London Borough of Hackney was joined as an interested party.

On 11 February 2009 Burton J gave judgement for M and ordered his release. The judge concluded that although the AMHP honestly believed the brother (M’s nearest relative) had agreed to his sectioning, it was not reasonable for her to have believed that this was the case.

On the first day of the hearing M also issued a claim for judicial review against the local authority and the hospital trust, seeking damages for his detention or – if his claim was barred by the 1983 Act – a declaration of incompatibility with Article 5 of the European Convention on Human Rights. Burton J said the judicial review proceedings – rather than the habeas corpus proceedings – were a more suitable route for addressing the issue of damages.

Mr Justice Collins dismissed the claim for judicial review at a hearing on 11 June. The judge said M’s detention during the period up to Burton J’s order was not unlawful as a matter of domestic law and that there was no incompatibility as suggested. However, he gave leave to appeal on limited grounds.

M argued before the Court of Appeal that his admission for treatment under s. 3 and detention was unlawful on two grounds. The first was that his brother had objected to the application.

The second was that neither of the doctors who provided the medical assessment on which the application was founded had previous acquaintance with M. His counsel therefore argued that the application failed to conform with the requirements of s. 12(2) of the 1983 Act.

In the case M asserted a number of grounds for judicial review. These were claims for unlawful detention and/or trespass to the person, negligence, breach of statutory duty under the MHA and breach of duty under s. 6 of the Human Rights Act 1998 coupled with Article 5.

The Court of Appeal allowed the appeal. Giving the lead judgement, Lord Justice Toulson suggested that Collins J should have held that M was unlawfully detained both as a matter of domestic law and within Article 5 (the right to liberty).

The appeal court judge rejected Hackney and the Health Secretary’s argument that M was not unlawfully deprived of his liberty by the conduct of the AMHP since the conduct of the hospital trust was lawful. Following Sir Thomas Bingham in Re S-C (Mental Patient Habeas Corpus) [1996] QB 599, the fact that the hospital trust’s actions were lawful did not cure the underlying unlawfulness, he said.

Lord Justice Toulson ruled that M had been deprived of his liberty as a direct consequence of the AMHP’s unlawful act in applying for his admission in breach of the Act. “The only matter which protects the local authority from liability for false imprisonment is the statutory defence provided by s. 139(1),” he added. “That subsection does not stop the AMHP’s conduct from being unlawful. The application was an undoubted breach of the Act.”

Lord Justice Toulson explained what s. 139(1) does is limit the civil liability of the AMHP (and the local authority) for the AMHP’s unlawful act to cases where the act was done in bad faith or without reasonable care. “That restriction, however, is subject to the provisions of the Human Rights Act,” he added.

The judge ruled that M’s rights under Article 5 had been infringed and that he was entitled to compensation. “The correct starting point is to examine the nature of the conduct and whether it conformed with the safeguards for the patient’s liberty prescribed by Parliament, which it did not,” he said. “The next question is whether that conduct was the direct cause of the claimant’s loss of liberty, which it was.”

He said: “This is a case of detention by the state under a statutory scheme involving two agents of the state, between whom the scheme provides for an internal division of responsibility. The first agent has responsibility for ensuring that any application which it makes for a patient's detention is lawfully made. The second agent has responsibility for carrying out the detention on the application of the first agent, provided that the application appears to be in order.

“Things went wrong in the present case when the first agent made an application for M's detention which was prohibited by law. It cannot be right, because of the division of responsibility, to regard the resulting state detention as consistent with Article 5, when the fundamental cause of the detention was an application made in contravention of the Act.”

Lord Justice Toulson said he was not persuaded by Hackney’s submission that in cases of wrongful detention where everyone acted in good faith, it would be more appropriate for compensation to be paid by the party which detained M (i.e. the hospital).

The judge said: “Although the AMHP acted in good faith, the unfortunate fact remains that she acted in contravention of s. 11(4), whereas the hospital trust acted lawfully.”

He added: “S. 6(3) serves a positive purpose….it is in the public interest that a hospital trust should act promptly on receipt of an application for admission which appears to be in proper form, and that it should not think it necessary for its own legal protection to incur time and expense in checking the accuracy of the various matters which s. 6(3) entitles it to accept as correct.”

In conclusion, Lord Justice Toulson said he had “considerable” sympathy with the local authority’s position.

“The AMHP was clearly conscientious, and it may be that if she had not been mistaken in supposing that M’s brother no longer objected to the application, the ultimate result would have been the same, but by a different route,” he said.

“However, while that may affect the amount of any compensation, it cannot affect the legality of what occurred. Our system of law is rightly scrupulous to ensure that in matters affecting individual liberty the law is strictly applied. It is a hallmark of a constitutional democracy.”

The judge said he echoed the President of the Queen's Bench Division's "strong hope" that the parties could agree compensation without the need for further proceedings.

Philip Hoult