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

(1) There was a division of opinion in the treating team so it was considered ‘impracticable’ to obtain two medical recommendations from doctors with previous acquaintance of the patient: this was lawful as a reasonable and proper exercise of judgment of what was in the patient’s best interests. (2) The hospital were entitled to rely on the s6(3) protection (that any application which appears to be duly made etc may be acted upon without further proof) because the managers were entitled to rely on the AMHP’s confirmation that there had been no objection from the NR and because there had been no breach of s12(2). (3) As an AMHP is treated as acting on behalf of the LSSA the relevant council is vicariously liable for any lack of care or bad faith on the part of an AMHP: the council was therefore the correct defendant. (4) The proposed claim was based on the AMHP’s mistaken belief that the NR had not objected. A duty of care existed but there was no reasonable prospect of success in any negligence claim: therefore leave under s139(2) was not given. (5) Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow. The claimant’s detention was lawful until prospectively declared unlawful in the habeas corpus proceedings. It followed that the detention was not unlawful in domestic law so that there was no breach of Article 5, and so no claim for compensation under Article 5(5). (6) In the circumstances there is no Convention incompatibility in either s139 or s6(3). [Caution.]

Related judgments

TTM v LB Hackney [2011] EWCA Civ 4 - Court of Appeal

TTM v LB Hackney [2010] EWHC 1349 (Admin) - judicial review

M v East London NHS Foundation Trust CO/1065/2009 - habeas corpus

Summary

The claimant had obtained release in habeas corpus proceedings but now, by way of judicial review, sought (a) a declaration that his admission under s3 was unlawful, (b) damages under Article 5(5) and 8, (c) leave under s139(2) to pursue a damages claim, and (d) a declaration of incompatibility in relation to ss139(1) and s6(3).

(1) The submitted reasons for unlawfulness

The habeas corpus proceedings had succeeded because the NR had objected to s3 detention but the AMHP wrongly (albeit honestly) believed that he had not objected.

It was now also submitted that there was a breach of s12(2) (which requires that if practicable one medical recommendation be given by a registered medical practitioner who has previous acquaintance with the patient). This was based on the fact that two doctors without such acquaintance had provided the recommendations although doctors with acquaintance were available. External doctors were chosen because there was a division of opinion in the treating team: this was a reasonable and a proper exercise of judgment of what was in the patient’s best interests, and therefore there was no breach of s12(2). In this regard, the wording in Form A6 is misleading as it suggests that the test is one of possibility rather than practicability ("please explain why you could not get a recommendation from a medical practitioner who did have previous acquaintance" should be replaced with "...did not get...").

(2) The hospital’s s6(3) defence

The protection afforded by s6(3) (that any application which appears to be duly made etc may be acted upon without further proof) depends on what degree of scrutiny the hospital managers are required to carry out when presented with an application for admission. The obligation to scrutinise arises after the admission, the admission being based merely on a check that the documents appear to amount to an application that has been duly made. If, following such scrutiny, it is apparent that there was a defect which cannot be rectified under s15 because it is fundamental, the detention should be brought to an end.

The hospital were entitled to rely on the s6(3) protection because the managers were entitled to rely on the AMHP’s confirmation that there had been no objection from the nearest relative and because there had been no breach of s12(2).

(3) The correct defendant

As an AMHP is treated as acting on behalf of the LSSA the relevant council is vicariously liable for any lack of care or bad faith on the part of an AMHP: the council was therefore the correct defendant.

(4) Leave under s139

Section 139 provides, in relation to most proposed defendants, that leave of the High Court is required to bring civil proceedings in respect of any act purporting to be done in pursuance of the MHA unless the act was done in bad faith or without reasonable care.

In Collins J's analysis, the proposed claim was based on the AMHP’s mistaken belief. In the Habeas Corpus matter in February 2009 (see below) Burton J had posed the question: "Did the AMHP act reasonably in concluding that there was an objection?" (para 40) and had gone on to find that "Ms Bailey did act properly on this occasion, but I believe that in the end it was not reasonable of her to have formed the view that she did" (para 43). On this basis, Collins J concluded in the judicial review that: "In my view, on the facts found by Burton J there is no reasonable prospect of success in any negligence claim and so I decline to give leave under s.139(2)" (para 38). Bad faith was not alleged and there was therefore no private law claim based on misfeasance in public office. Collins J did not deal with the Claimant's arguments that the local authority could also be liable for unlawful detention at common law.

(5) HRA damages

Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow.

The claimant’s detention was lawful until prospectively declared unlawful in the habeas corpus proceedings. It followed that the detention was not unlawful in domestic law so that there was no breach of Article 5, and so no claim for compensation under Article 5(5). Article 8 (the right to private life) was raised but added nothing as it was dependent on the Article 5 claim and had no associated enforceable right to compensation. Thus there could be no claim under s7 HRA.

(6) Declaration of incompatibility

In the circumstances (there being no Convention breach) there is no incompatibility in either s139 or s6(3).

Permission to appeal

Permission was granted by Mr Justice Collins to the Claimant to appeal on the following points:

whether the detention was unlawful ab initio so that compensation is payable in accordance with Article 5(5) of the European Convention on Human Rights 1950; and
whether in the circumstances there was a breach of s.12(2) of the Mental Health Act 1983.

Collins J further clarified by way of judicial annotation to the Order that if the Appellant succeeded under Article 5, the permission should extend to consideration of whether s6(3) and s139(1) MHA 1983 were compatible with a person's enforceable right to compensation under Article 5(5) ECHR. However, permission to appeal the refusal of the Appellant's application for leave under s139(2) ECHR to bring a claim for damages was refused. The Claimant applied to the Court of Appeal on July 8, 2010 for expanded permission and expedition of the appeal.

[Thanks to Alex Ruck-Keene and Matthew Seligman for this information.]