Transcript Legal Update

Legal Update
MHLA Conference 2011
Jonathan Wilson
Selected cases
1. TTM
– habeas corpus
– JR
– appeal
2. CX – habeas corpus
3. DP – habeas corpus
4. WL – damages
TTM v LB Hackney
(habeas corpus)
CO/1065/2009
TTM (habeas) – introduction
• Main issue: had there been an objection by NR
prior to s3 detention?
• Relevant law: s6(3), s11(4), s12(2), s139, s145,
Article 5…
• Chronology (four telephone calls)
–
–
–
–
–
1000 (call 1): Information given by AMHP to NR
1030 (call 2): NR objected to s3
1400 (call 3): The effect of this call was in dispute
1515: Section 3 began
1600 (call 4): NR objected to continuing detention
TTM (habeas) – objection
Section 11(4) MHA 1983:
An approved mental health professional may not make an
application for admission for treatment or a guardianship application
in respect of a patient in either of the following cases–
(a) the nearest relative of the patient has notified that professional, or
the local social services authority on whose behalf the professional is
acting, that he objects to the application being made; or
(b) that professional has not consulted the person (if any) appearing to be
the nearest relative of the patient, but the requirement to consult that
person does not apply if it appears to the professional that in the
circumstances such consultation is not reasonably practicable or would
involve unreasonable delay.
TTM (habeas) – the third call
• NR asked questions about and discussed
– the effect of s3
– his legal rights as NR of a s3 patient
– his role, e.g. attendance at ward rounds and CPAs
• NR did not actively object or disagree
• AMHP believed that the objection had been
withdrawn
TTM (habeas) – court’s approach
• Question for the court: was there a change of
mind by the NR between 1030 conversation
and admission at 1515?
• Court’s approach: on analysis of the facts, did
the AMHP act reasonably in concluding that
there was no objection?
• Treated as an objective question
TTM (habeas) – decision (1)
• AMHP acted properly and on her honest belief
• But it was not reasonable of her to have
formed the view that there had been a change
of mind by the NR between 1030 and 1515
• Therefore the s3 detention was unlawful
• The patient was discharged immediately (but
would remain in hospital voluntarily)
TTM (habeas) – decision (2)
• The claimant sought damages as part of the
habeas corpus action. Held:
– Damages are not available in habeas corpus
actions
– This does not lead to any ECHR breach, as
damages can be obtained via other means
• The court refused to offer general guidance to
AMHPs, but did state that there is no need
specifically to ask ‘Do you object?’
TTM v LB Hackney (JR)
[2010] EWHC 1349 (Admin)
TTM (JR) – doctors (1)
• S12(2):
– Of the medical recommendations given for the
purposes of any such application, one shall be
given by a practitioner approved for the purposes
of this section by the Secretary of State as having
special experience in the diagnosis or treatment of
mental disorder; and unless that practitioner has
previous acquaintance with the patient, the other
such recommendation shall, if practicable, be
given by a registered medical practitioner who has
such previous acquaintance.
TTM (JR) – doctors (2)
• Further ground (not raised in habeas corpus)
• Doctors with previous acquaintance were available, but
the clinical team disagreed about detention
• So two external doctors had been approached
• Held: it was not practicable for either of the doctors to
have been doctors with previous acquaintance
• ‘Practicablity should be approached on the basis that
the patient’s interests are to be considered’
(see R (E) v Bristol CC [2005] EWHC 74 (Admin))
• This ground of appeal failed
TTM (JR) – Trust’s defence (1)
• S6(3):
– Any application for the admission of a patient
under this Part of this Act which appears to be
duly made and to be founded on the necessary
medical recommendations may be acted upon
without further proof of the signature or
qualification of the person by whom the
application or any such medical recommendation
is made or given or of any matter of fact or
opinion stated in it.
TTM (JR) – Trust’s defence (2)
• Held: the Trust were entitled to rely on the s6(3)
defence because
– There was no breach of s12 (previous acquaintance)
– The section papers stated that there was no NR
objection, so appeared to be ‘duly made’ on receipt
• Therefore the Trust had acted lawfully
• As the Trust had acted lawfully, the detention was
lawful
TTM (JR) – correct defendant
• The LA argued that the AMHP personally was
the correct defendant
• Section 145(1AC):
– ‘References in this Act to an AMHP shall be
construed as references to an AMHP acting on
behalf of a local social services authority, unless
the context otherwise requires’
• Held: the Local Authority was vicariously liable
for any lack of care or bad faith by an AMHP
TTM (JR) – s139 (slide 1)
Section 139:
• (1) No person shall be liable … to any civil or criminal proceedings …
in respect of any act purporting to be done in pursuance of 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;
...
• (4) This section does not apply to proceedings against the Secretary
of State or against a Strategic Health Authority, Local Health Board
Special Health Authority or Primary Care Trust or against a National
Health Service trust established under the National Health Service
Act 2006 or the National Health Service (Wales) Act 2006 or NHS
foundation trust.
TTM (JR) – s139 (slide 2)
• Section 139 was used as a defence by the
Local Authority
• It was not relevant to claim against Trust
(s139(4))
• Held: there were no reasonable prospects of
success in negligence (no ‘lack of reasonable
care’ in s139(1)) as the AMHP had ‘acted
properly’
• Therefore s139(2) permission was refused
TTM (JR) – HRA damages (1)
• Article 5 ECHR
– (1) Everyone has the right to liberty and security
of person. 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
…
– (5) Everyone who has been the victim of arrest or
detention in contravention of the provisions of
this article shall have an enforceable right to
compensation
TTM (JR) – HRA damages (2)
• Held:
– Provided there was no bad faith or lack of
reasonable care, detention is lawful until the court
declares it unlawful
– In this case, detention was lawful until habeas
corpus decision, so there was no breach of
domestic law
– Therefore no breach of Article 5
– Therefore no Art 5(5) right to compensation arises
– Therefore no incompatibility in s139 or s6
TTM v LB Hackney (appeal)
[2011] EWCA Civ 4 (appeal)
TTM (appeal) – position so far
• Trust had s6(3) defence (papers appeared duly
made)
• Local authority had s139 defence (no lack of
bad faith or reasonable care)
• In any event, detention was not void ab initio,
so no unlawful detention or Article 5 breach,
so no entitlement to damages
• No decision on whether LA could be liable in
damages for detention by Trust
TTM (appeal) – s12: doctors
• Held:
– ‘Practicable’ does not mean possible
– ‘Practicability’ must have sufficient elasticity to
accommodate the interests of patient and society
– This ground of appeal failed
– Obiter, there is a distinction between a procedural
breach which goes to jurisdiction (e.g. s11(4)) and one
which goes to the exercise of jurisdiction (e.g. s12(2)),
so, when the RC supports detention, a breach of
s12(2) is unlikely to make the application invalid
TTM (appeal) – s6: lawfulness
• Held:
– The fact that the Trust acted lawfully did not make
detention lawful, i.e. the Trusts’s s6 defence was
not a ‘healing provision’
– The detention was therefore unlawful from the
outset (rather than from the habeas corpus
decision)
– This ground of appeal was successful
TTM (appeal) – liability
• Can A be liable in damages for unlawfully
causing B to detain someone?
• Held:
– The AMHP’s unlawful application directly caused a
unlawful detention and a breach of Article 5
– So the LA would be liable in damages (if s139
permission granted) even though it had not itself
detained the claimant
TTM (appeal) – s139 defence
• Held:
– Article 5(5) provides enforceable right to
compensation if Article 5 is breached
– So s139(1) (requiring bad faith or lack of
reasonable care) could be ‘read down’ to allow
claim for compensation to proceed
– Permission was therefore granted under s139(2)
• It is unclear whether permission related only
to Article 5 claim or unlawful detention claim
as well
CX v A Local Authority
[2011] EWHC 1918 (Admin)
CX – s11(4)
Reminder of section 11(4) MHA 1983:
An approved mental health professional may not make an
application for admission for treatment or a guardianship application
in respect of a patient in either of the following cases–
(a) the nearest relative of the patient has notified that professional, or
the local social services authority on whose behalf the professional is
acting, that he objects to the application being made; or
(b) that professional has not consulted the person (if any) appearing to be
the nearest relative of the patient, but the requirement to consult that
person does not apply if it appears to the professional that in the
circumstances such consultation is not reasonably practicable or would
involve unreasonable delay.
CX – (1) consultation
NR was not told:
– That she only needed to say ‘I object’ to prevent
s3
– That she could represent herself in displacement
proceedings
– Any information about nature of proceedings
– That court hearing would be after Christmas and
s2 would continue until then
• Held: No adequate consultation
CX – (2) objection
The NR withdrew her objection following advice
from the AMHP:
– AMHP advised NR that she would need legal
representation
– And that she might have to pay the legal costs
– Did not explain that she could represent herself
• Held: The withdrawal of the objection was
vitiated by misleading advice
CX – decision
• Held:
– The application was unlawful
– Therefore detention was unlawful (TTM v LB
Hackney [2011] EWCA Civ 4)
– Habeas corpus granted
• Patient was on leave at the time
• ‘Each case is different and what is required by
way of consultation will depend on the
individual facts…’
DP v South Tyneside District
Council
(2011) Admin Court 14/7/11
DP – s11(4)
Another reminder of section 11(4) MHA 1983:
An approved mental health professional may not make an
application for admission for treatment or a guardianship application
in respect of a patient in either of the following cases–
(a) the nearest relative of the patient has notified that professional, or the
local social services authority on whose behalf the professional is acting,
that he objects to the application being made; or
(b) that professional has not consulted the person (if any) appearing to be
the nearest relative of the patient, but the requirement to consult that
person does not apply if it appears to the professional that in the
circumstances such consultation is not reasonably practicable or would
involve unreasonable delay.
DP – facts
• DP had made allegations against her family,
including that she was at risk of forced marriage
and death
• The MHT had recently discharged her from s2,
finding that some allegations were delusional,
some genuine
• A decision was made to detain her under s3
• There was no consultation with NR (father) prior
to s3 detention
• Habeas corpus application
DP – decision
• Held:
– Consultation would necessarily have included
informing NR of DP’s whereabouts
– AMHP dealt with dilemma as a reasonable and
responsible MH professional would have done
– Others, including MHT, had concluded that there
might have been truth in allegations against NR
– Not practicable to consult NR
– Habeas corpus refused
WL (Lumba) v SSHD
[2011] UKSC 12
WL
• Published Home Office policy had presumption in
favour of release
• Unpublished policy was a near-blanket ban on
release
• Claimants were detained under unpublished
policy
• Held:
– Unlawful detention
– The claimants would have been detained anyway
– No loss, therefore nominal damages (£1)