Patient loses appeal over level of damages for 442-day unlawful detention

A mentally disordered patient unlawfully detained in hospital for 442 days has lost an appeal over the level of damages he should be awarded.

In Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 the appellant argued that he should have received substantial damages instead of the nominal damages awarded by His Honour Judge Hand QC at the Central London County Court.

The background circumstances were that the patient would anyway have been detained lawfully had the defendant NHS trust been aware of the unlawfulness.

The agreed facts were:

• On 16 July 2008, the appellant, who suffers from schizophrenia, was detained in the NHS trust's hospital under section 3 of the MHA.
• On 2 April 2009, the First-tier Tribunal (Mental Health) reviewed the appellant's case and ordered his discharge, but postponed that discharge until 15 April 2009 in order that a Community Treatment Order ("CTO") could be put in place. A CTO was put in place but was technically flawed, because section 17A(2) of the MHA provides that only a person "liable to be detained in a hospital in pursuance of an application for admission for treatment" can be made subject to a CTO. When the appellant was released on 15 April 2009, he was no longer a detained patient, so that the CTO was unlawful and invalid.
• On 19 August 2009, the NHS trust, acting by a responsible clinician, purported to recall the appellant to hospital under section 17E(6) of the MHA in reliance on the CTO, and thereafter detained him in hospital. Detention of the appellant for the 422 days between 19 August 2009 and 3 November 2010 (when he was discharged) was, therefore, unlawful. The NHS Trust accepted liability for the tort of unlawful imprisonment and/or for acting unlawfully under section 6 of the Human Rights Act 1998.
• The FTT reviewed the appellant's case twice during his detention on 21 January 2010 and 26 May 2010, deciding on both occasions that his condition required continued detention.
• Neither the appellant nor anyone responsible for his mental health care was aware that the appellant's detention was unlawful until 3 November 2010. The appellant's independent psychiatric expert reported on 10 October 2013 that the appellant's readmission under section 3 of the MHA would have been indicated throughout the period of unlawful detention on the basis of his mental state, known vulnerability and the fact that he was refusing medication.
• Had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway.
• On 3 November 2010, the unlawfulness of the appellant's detention came to light at a scheduled FTT hearing. He was released that same day and then lawfully readmitted and detained under section 3 of the MHA until discharged on 13 September 2011; he was detained again on 18 April 2013.

The appellant raised three grounds in his appeal:

1. Whether HHJ Hand QC was wrong to hold on the basis of the cases of Lumba and Kambadzi that the appellant was only entitled to nominal damages when he was detained by the NHS trust without any statutory authority or jurisdiction.
2. Whether, for policy reasons, an award of substantial damages was required on the basis of the decision of the European Court of Human Rights in Wintwerp v. The Netherlands (1979-80) 2 E.H.R.R. 387; and
3. Whether, even if the fact that the appellant would anyway have been detained was relevant to the appropriate quantum of damages, those damages ought to have been more than nominal to reflect both his loss of liberty and loss of the procedural and substantive protections afforded by a lawful detention.

The Court of Appeal rejected the appellant’s case on all three grounds.

Giving the judgment of the court, Lord Justice Vos said on the first ground: “It is clear, as the judge held, that the appellant in this case sustained no loss, because he would in fact have been lawfully been detained on 19th August 2009 under section 3 of the MHA, had the lack of authority to make a CTO been drawn to the NHS trust's attention.

“That, as it seems to me, is enough. It demonstrates that, no substantial damages are necessary to put the appellant in the position that he would have been in, had the tort relied upon not been committed.”

Lord Justice Vos added: “I would, therefore, conclude that the judge was right to decide on the basis of Lumba and Kambadzi that the appellant was only entitled to nominal damages. Now that the law has been clarified by these cases, neither [the rulings in] Christie nor Kuchenmeister points to any different conclusion.”

On the second ground, the Court of Appeal judge said the ECtHR’s decision in Wintwerp said nothing about the appropriateness of the compensation to be awarded once a finding of false imprisonment is made. “In the circumstances of this case, I do not think that there were any policy considerations that required a substantial award of damages," he added.

On the third ground, Lord Justice Vos said: “Once it is clear that the appellant sustained no loss, because he would in fact have been lawfully detained anyway whether or not the breach had occurred, it is hard to see how an award of anything more than nominal damages could be justified, whether as compensatory damages or as a just satisfaction.

“For this reason, I do not think that the damages ought to have been more than nominal either to reflect the loss of liberty or the loss of the procedural and substantive protections afforded by a lawful detention. Both these grounds for a substantial award are ruled out, as Baroness Hale acknowledged at paragraph 74 in Kambadzi, by the inappropriateness after Lumba of vindicatory damages in this kind of case.”