Legal Update

1. Legal Update MHLA Conference 2011 Jonathan Wilson

2. Selected cases • TTM • habeas corpus • JR • appeal • CX – habeas corpus • DP – habeas corpus • WL –damages

3. TTM v LB Hackney (habeas corpus) CO/1065/2009

4. 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

5. 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 objectsto 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.

6. 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attendance at ward rounds and CPAs • NR did not actively object or disagree • AMHP believed that the objection had been withdrawn

7. 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

8. 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)

9. 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?’

10. TTM v LB Hackney (JR) [2010] EWHC 1349 (Admin)

11. 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.

12. 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

13. 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.

14. 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

15. 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

16. 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.

17. 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

18. 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

19. 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

20. TTM v LB Hackney (appeal) [2011] EWCA Civ 4 (appeal)

21. 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

22. 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

23. 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

24. 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

25. 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

26. CX v A Local Authority [2011] EWHC 1918 (Admin)

27. 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.

28. 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

29. 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

30. 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…’

31. DP v South Tyneside District Council (2011) Admin Court 14/7/11

32. 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.

33. 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

34. 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

35. WL (Lumba) v SSHD [2011] UKSC 12

36. 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)