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Bostridge v Oxleas NHS Foundation Trust [2014] EWCA Civ 1005, [2014] MHLO 85

The judge had awarded only nominal damages because the patient had suffered no loss as a result of his unlawful detention. The Court of Appeal gave permission to appeal, stating as follows: "Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss. I have been persuaded that these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent."

Related judgments

Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79, [2015] MHLO 12

39 Essex Street

39 Essex Street have kindly agreed for the following summary to be reproduced below. For the original newsletter see 39 Essex Street Mental Capacity Law Newsletter#August 2014

Short Note – the Court of Appeal to examine nominal damages in the mental health context

Summary

The question of whether the principles relating to the assessment of damages set down in the Supreme Court decision of Lumba should be applied in the mental health context is to be reviewed by the Court of Appeal, permission having been granted on 1 July 2014 to the claimant to appeal the decision of HHJ Hand QC in Bostridge v Oxleas NHS Foundation Trust.

The appeal is of wider significance, because it is likely that it will also dictate the approach that would be taken to claims for damages for false imprisonment and/or unlawful deprivation of liberty arising out of deprivations of liberty under the MCA 2005.

The facts of Mr Bostridge’s case are, insofar as relevant for present purposes, these. He was discharged from detention by the FTT (Mental Health) in April 2009, his discharge being deferred so a Community Treatment Order could be put in place. However, for technical reasons that need not detain us here, what was then purported to be put in place as CTO was not, in fact, a CTO such that, when his condition deteriorated in August 2009 and he was recalled to hospital and detained thereafter (with six days of leave) until November 2010, his detention was at all stages – and was admitted by the Defendant Trust – to be unlawful. The Defendant admitted that the period of 442 days amounted to false imprisonment and/or unlawful deprivation of liberty for purposes of Article 5 ECHR. His case was reviewed twice by a Tribunal during his detention (with no one realising the fact that the detention was unlawful), on both occasions the Tribunal finding that his condition warranted continued detention. The Claimant never realised that his detention was unlawful, nor did anyone involved in his care. A jointly instructed psychiatrist who reported in the subsequent claim brought on his behalf after it was realised that he had been unlawfully detained indicated that his re-admission to hospital in August 2009 was necessary as at that point, that there was no evidence that he had suffered damage during the period of unlawful detention due to his being unlawfully detained, and that he would have suffered the same unhappiness and distress had been lawfully detained.

Against that backdrop of agreed facts, HHJ Hand QC had to assess the quantum of damages that fell to be awarded the Claimant for both false imprisonment and unlawful deprivation of liberty. The Defendant relied heavily on the cases of Lumba and Mighty v Secretary of State for the Home Department [2011] UKSC12 and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23! (discussed in more detail in Alex’s article, co-written with Catherine Dobson, “At what price liberty? The Supreme Court decision in Lumba and compensation for false imprisonment” [2012] Public Law 628)

HHJ Hand QC held that Lumba and Kambadzi were authority for three propositions (of application beyond the immigration detention context):

1. the tort of false imprisonment is established even where the detention has caused no loss because it would have been inevitable if the detainer had acted lawfully;

2. there is no principle in the law of England and Wales of “vindicatory” damages;

3. where there is no loss suffered as a consequence of unlawful detention, damages for false imprisonment will be nominal.

It being accepted that there was no loss: the Claimant would have been detained had his illness been correctly addressed via s.3 MHA 1983, as it should have been on 19 August 2009, and thereafter he would have received precisely the same treatment and he would have been discharged in September 2011. HHJ Hand QC therefore held that he was entitled to judgment and to nominal damages.

Mr Bostridge applied for permission to appeal. The transcript of the permission hearing before Kitchin LJ ([2014] EWCA Civ 1005Not on Bailii!) contains the following material passages: “7 Mr Drabble submits that in approaching the matter as he did the judge fell into error because the decisions of the Supreme Court in Lumba and Kambadzi do not establish that only nominal damages follow where there was a complete absence of statutory authority for a detention. To the contrary, Mr Drabble argues, there is a distinction between an unlawful detention where there was no threshold power to detain and detention which is unlawful on other grounds despite there having been lawful authority to detain in the first place. Moreover, Mr Drabble continues, the Act reflects the particular importance of compliance with the procedural requirements for lawful detention and it is simply no answer to the appellant's claim to say that he could have been detained had the appropriate procedures been followed. What is more, says Mr Drabble, the appellant has lost the protection of the rights and procedures which Parliament has provided in the Act for vulnerable persons such as him. That, he says, is a real not a nominal loss.

8 I have been persuaded that these are points which merit consideration by this court, both because an appeal would have a reasonable prospect of success and because the appeal raises a point of principle, namely the approach to be adopted where a person responsible for an unlawful detention was not in a position lawfully to detain the subject without ensuring that an important condition precedent had been fulfilled, the condition precedent being compliance with the safeguards contained in section 3 of the Act. Further, in the circumstances of this case, compliance with those safeguards was not a matter which lay wholly within the power of the respondent. Comment

Whilst the “Lumba principles” are well-established in the context of immigration detention, precisely how they apply in the mental health – and mental capacity – context is less obvious. As Alex and Catherine Dobson noted in their article in Public Law – in arguments echoed on behalf of Mr Bostridge: “Policy arguments could, for example, be made that the causation approach should not apply to the power to authorise the detention of individuals under the Mental Health Act 1983 or the Mental Capacity Act 2005. Both statutory schemes already protect certain categories of decision-maker from damages claims where the relevant decisions are taken in good faith and with reasonable care. This might give rise to the inference that Parliament intended procedural errors falling outwith the statutory exceptions to sound in substantive damages. There are good reasons why this would be so. Procedural requirements for the detention of individuals with mental disorders under the Mental Health Act 1983 or the Mental Capacity Act 2005 provide a crucial framework for overseeing the decisions taken by a care professional or medical practitioner in the exercise of their judgment in respect of particularly vulnerable individuals. It might properly be thought to be particularly important that they not be devalued by the award of nominal damages.” We also hope that the appeal will consider the question of whether the principles set down in Lumba and Kambadzi apply solely to the domestic tort of false imprisonment (which was the only cause of action run in those cases) or also extend to actions brought under the Human Rights Act 1998 for a breach of Article 5 ECHR. The tort of false imprisonment is not co-existent with a deprivation of liberty (see, very recently, Walker v Cmr of Police for the Metropolis [2014] EWCA Civ 897!), and it may be said that the principles that apply to the award of damages should be those derived from the ECHR and ECtHR (in principle those of just satisfaction) rather than those from the context of domestic torts. The decision in R (KB & Ors) v MHRT [2003] EWHC 193 (Admin)! suggests that the need for a claimant to establish their loss also applies in the context of (at least) Article 5(4) ECHR, but there remains some unhelpful ambiguity in this area which we hope that the Court of Appeal will address in due course.

It goes without saying that local authorities and CCGs will be likely to looking to the appeal with some interest given that – if (in broad terms) HHJ Hand QC’s approach is correct – this will have a significant impact upon the quantum of any damages that those whom the decision of the Supreme Court in Cheshire West have shown are unlawfully deprived of their liberty might be able to recover.

External link

Possible Bailii link (not there when last checked, but it might have appeared since 0700 this morning!)

Transcript