Finding fault

Master of the Rolls, Sir Thomas Bingham, said he was 'horrified' by the implications of Law J's 1993 judgment regarding habeas corpus in the realm of mental health detention. Strong words '“ but he would be yet more horrified by the consequences of the recent decision of Collins J.

In R v Hackney London Borough Council and East London NHS Foundation Trust & the Secretary of State for Health, ex parte TTM [2010] EWHC 1349 (Admin) QBD, the claimant succeeded on an application for a writ of habeas corpus as it was accepted that his nearest relative had objected on the morning of the admission. Strangely, Burton J held that the approved mental health professional (AMHP) had acted properly, even though her belief that the claimant's nearest relative had changed his mind in one of the later telephone calls was not objectively reasonable.

The claimant lodged a separate judicial review application of unlawful detention alongside the habeas application. A claim for damages for false imprisonment under articles 5 and 8 of the ECHR was lodged, as well as in negligence and for breach of statutory duty. In successful habeas cases involving sectioned patients, generally the trust or local authority will offer damages and settle the claim, resulting in the judicial review application being withdrawn. Here, however, the defendants were determined to fight.

Parliament's intention in enacting section 139(1) of the Mental Health Act was that compensation should be due only following negligence or bad faith. In his judicial review application, the court accepted that in principle, there was no reason why a duty of care should not exist if an AMHP negligently believed a nearest relative had not objected; the patient should be compensated for any resulting loss of liberty. Here, there had been a breach of section 11(4)(a) of the Act, regardless of the AMHP's belief, because the lawfulness of detention was not dependent on whether a belief was genuine, but on whether in fact there was no objection. But the AMHP's honest mistake was not found to be negligent by Burton J in the habeas proceedings. The claimant had no reasonable prospect of success in establishing negligence, and so leave to bring a claim for damages was refused under section 139(2) of the Act.

There are circumstances where there is no fault on the part of the AMHP or the hospital; e.g. the hypothetical malicious cohabitee concocting evidence of mental illness and paranoia on the part of his partner. Section 139(1) would preclude the unlawfully sectioned sane partner from obtaining compensation in such circumstances. Further, section 6(3) gives the managers the right to admit the person if the admission documentation appears to be in order, but why should it protect them from liability to pay damages if the unlawfulness of the detention is discovered at a later stage because, for example, the person was not suffering from mental disorder at all?

Article 5(1)(e) would be breached in such a case, and the person entitled to compensation '“ so how can section 6(3) protect a hospital from the duty to pay compensation simply if neither the managers nor the AMHP were at fault? But what is particularly insidious about section 139(1) is that it imports a requirement of fault conspicuously absent in the tort of strict liability that is false imprisonment '“ discrimination of the worst kind against psychiatric patients.

A fatal flaw?

The claimant also complained of unlawfulness because neither of the two medical practitioners who had recommended admission had previous acquaintance with him '“ contrary to section 12(2) which is mandatory in its terms. He also argued that the hospital managers had failed in their duty of scrutiny and should have noticed both that neither doctor was from the hospital, and that the AMHP's recorded reason for 'lack of practicability' did not explain the failure. As the provision was intended to protect the patient and ensure that negative assumptions were not made about someone's presentation when ill by a professional unfamiliar with them, it was contended that this was a fatal admission flaw. Further, the breach of section 12(2) meant that the application for the claimant's admission did not 'appear' to have been duly made in accordance with section 6(3).

Collins J was persuaded by the trust's argument that R v Bristol City Council, ex parte E [2005] EWHC 74 (Admin), [2005] MHLR 83 applied to section 12(2), observing that there 'may be good reasons why a nearest relative should not be consulted or notified if that relative could not be trusted to act in the patient's interests'. Yet that was not what the case decided; in such circumstances an AMHP could avoid consultation with any nearest relative likely to object on the basis that admission was in the patient's best interests, which is precisely what the section 29 displacement process is intended for.

Collins J then held that, given the division of opinion among the clinicians acquainted with the claimant, it was entirely reasonable and in his best interests for two independent doctors to be consulted. Such doctors would come to the patient's case afresh and had access to both his hospital notes and his treating team. Thus there was no breach of section 12(2), and the trust was entitled to rely on the protection conferred by section 6(3). Consequently and worryingly, an informal patient will almost inevitably be formally detained; an assessment for admission will take place because at least one professional believes he requires compulsory admission for treatment in his best interests.

Human rights

The claimant also submitted that section 139(1) and/or in combination with section 6(3) were potentially incompatible with the Human Rights Act 1998 (HRA) because they could operate in a way that denied the enforceable right to compensation under article 5(5). The court dealt with the possible incompatibilities in an astonishing way.

Parliament clearly intended to limit claims to those where blame could be attributed, and the ECtHR's margin of appreciation permitted the limitation of liability. Therefore, Collins J held that, absent bad faith or negligence, 'the detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow'.

In so finding, the court relied upon R v Central London County Court Ex p London [1999] QB 1260 CA (Civ Div), in which Stuart-Smith LJ observed that the applicant was not entitled to 'a declaration that the decision to admit as unlawful' because '[a]t the time it was not; it can only be quashed if at the time the decision was ultra vires the hospital managers and it was not' because the application appeared to be duly made. Ex parte M supported that view. However, the court failed to address the fact that it had been decided before the implementation of the HRA or that one of its key conclusions was expressly disapproved of in Re S-C. Further, ex parte London concerned county court interim orders which are entirely different from applications for admission to hospital. In any event, any comments upon retrospectivity in both of those cases were obiter. Collins J agreed that the managers would have a duty to discharge upon discovery of a fundamental defect which invalidated the detention, but his judgment means that continuing scrutiny by hospital managers under paragraph 13.3 of the Code of Practice MHA to police the lawfulness of detention is, essentially, superfluous.

Whether or not a decision to detain is void ab initio had not been decided in previous habeas corpus proceedings, the point being irrelevant and the remedy providing purely for discharge (as in ex parte M). But the ex parte TTM decision fails to recognise that in many cases a default will not be recognised until after a patient is discharged. In such cases, it would be entirely disproportionate to require the issue of proceedings to obtain a declaration of unlawfulness. In any event, such a declaration could never assist a damages claim if the detention was only unlawful from the moment the court recognised it.

Hollow rights

Collins J's conclusion fails to take into account the fact that liberty is a fundamental right, and, further, that the right to compensation under article 5(5) for a breach of article 5(1) is mandatory. Where the procedure prescribed by law is not followed, there will be a clear breach of article 5(1)(e). But to suggest that the mere existence of a domestic procedure prescribed by law must be Europe-compliant is entirely erroneous; the procedure may not comply with the requirements of article 5, as in HL v UK [2005] 40 EHRR 32.

Although a hospital managers' decision may not be ultra vires because the admission papers appear to be valid, such a fact would not render a resulting detention lawful. Having been 'horrified' by Law J's decision in R v Managers of South Western Hospital, ex parte M [1993] QB 683 QBD, Sir Thomas Bingham MR has already attempted to clarify this issue. His judgment in Re S-C (Mental Patient: Habeas Corpus) [1996] QB 599 CA (Civ Div) states: 'It is perfectly possible that the hospital managers were entitled to act on an apparently valid application, but that the detention was in fact unlawful.'

The only difference arising from whether an invalidity was known at the time of admission or discovered later should be in the availability of exemplary damages. The consequence of ex parte TTM is that compensation to which a patient detained under an unlawful procedure is entitled under article 5(5) is irrecoverable, unless in habeas proceedings a hospital fails to release him upon the issue of a writ of habeas '“ which is surely fanciful. This renders the fundamentality of the right to liberty entirely hollow.

A writ of habeas is issued because someone is unlawfully detained. The writ does not endow unlawfulness. In the habeas application, Burton J refused to do so not because the detention had been lawful until the court said otherwise, but because he was reluctant to do so without full argument on the historical background to habeas corpus. Further, false imprisonment is a tort of strict liability, regardless of whether a detainee is aware that they are detained, and it is actionable without proof of damage (Roberts v Jones (Sued as a Chief Constable of the Cheshire Constabulary) [1999] 1 WLR 662).

It would be equally 'horrifying' if an otherwise unlawful detention was legally 'lawful' because a patient was unaware of it until after his discharge, or because no court order (either on a habeas or otherwise) was obtained. Obviously, the appearance of lawfulness cannot render a patient's detention lawful. To say that an unlawfully detained patient is not unlawfully detained until a court order exists is a legal fiction, with the consequent semantic confabulation denying the right to compensation. If Collins J is right, the implications would be horrifying as Bingham recognised in Re S-C: 'It would mean that an application which appeared to be in order would render the detention of a citizen lawful even though'¦ every statutory safeguard built into the procedure was shown to have been ignored or violated.'

It may seem surprising that this issue was not decided long before now. However, in my experience hospitals and local authorities would accept compensation was payable due to non-compliance with the Act's provisions, and the majority of claims would not reach court. Certainly, neither the local authority nor the trust sought to argue during the three-day hearing that the claimant had not been lawfully detained because he had secured his release via habeas.

I can think of no reason why the consequences flowing from the decision in ex parte TTM might not apply to all those unlawfully detained; the judgment is not necessarily limited to those who are unfortunate enough to be sectioned. This is perhaps an even more horrific consequence of the reasoning in ex parte M than the former Master of the Rolls might ever have envisaged.

Although the claim was dismissed and leave to bring damages proceedings was refused, leave to appeal was granted on limited grounds. It is hoped that the Court of Appeal will feel less constrained and disapprove the ex parte M. However, in the meantime, all such damages claims are on hold.