R (ZN) v South West London and St George's Mental Health NHS Trust (2010) CO/9457/2009

The de facto detention of an informal incapacitous patient, and the series of detentions under s5(2), was unlawful. (Claim settled by consent.)

Summary

A floridly psychotic patient, ZN, was subject to a series of detentions under s5(2) MHA 1983 during a three week period at the Defendant's hospital, and between those periods was informally detained. The Judicial Review claim was settled with a declaration by consent that the Claimant had been unlawfully detained throughout.

There was a consensus amongst the treating team that ZN lacked the capacity to consent to admission, but there were concerns that she would attempt to leave the ward. She was therefore detained under s5(2) MHA 1982 on May 21st, and the process for formal detention under s3 MHA 1983 was set in motion. However, that process could not be completed because the nearest relative objected, and the s5(2) detention expired 72 hours later on May 24th, 2009. A decision was then taken to displace the nearest relative but that process was also never completed and ZN remained an informal patient. As she lacked capacity, on May 26th ZN's clinical file was annotated with the instruction: "If she tries to leave place on section 5(2)". Subsequently, upon trying to leave the ward on May 28th, 2009, ZN was once again detained under s5(2) 1983. There was also evidence that between these periods of formal detention under s5(2), the claimant was informally detained on the ward because her various requests to leave were not met, and because of the threatened coercive use of s5(2) MHA 1983. Eventually, after a delegation of the nearest relative's powers on June 10th, 2009, the Claimant was formally detained on June 11th and the arbitrary use of statutory powers came to an end.

The Claimant issued judicial review proceedings against both the Defendant Hospital and the Claimant's Responsible Clinician, seeking declarations that the periods of informal detention, and the second use of s5(2) powers from May 28th - May 31st, 2009, were unlawful, together with a claim for damages.

Consent Order

The proceedings were compromised, with the parties agreeing by consent an Order made in the Administrative Court on June 18th, 2010 that permission be granted and the damages claim transferred to the County Court, together with a declaration in the following terms:-

"AND UPON IT BEING NOTED that the Defendants acted at all times in what they perceived to be the best interests of the Claimant in the light of her mental health needs and clinical presentation

BY CONSENT, IT IS HEREBY DECLARED THAT:

1. The Claimant was unlawfully detained by the First Defendant whilst she was an informal patient at Springfield Hospital during the following periods:-

(a) May 26th to May 28th 2009; (b) May 31st, 2009 to June 11th, 2009.

2. The Claimant was unlawfully detained under s5(2) of the Mental Health Act 1983 by the First Defendant at Springfield Hospital from 14.25 hours on May 28th to 14.24 hours on May 31st, 2009.

3. The First and/or Second Defendant unlawfully fettered their discretion, and sought unlawfully to fetter the discretion of others, in causing or permitting the Claimant's file to be marked on May 26th with the annotation: 'If she tries to leave place on section 5(2)'.

4. The contemplated use of a series of detentions of the Claimant under s5(2) of the Mental Health Act 1983 was unlawful."

Representation

For the Claimant: Matthew Seligman, instructed by Steel & Shamash (Frances Rattray).

For the Defendants: Capsticks Solicitors LLP.