View source for TTM v LB Hackney (2011) EWCA Civ 4

''(1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under [[s6]](3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to [[s11]](4) (in the face of the Nearest Relative's objection) is in breach of [[Article 5]](1); (4) [[Article 5]](5) entitles a person detained in breach of Article 5(1) to compensation, and [[s139]](1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in [[s12]](2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were.''

==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

==Thanks==
{{thanks|Ruck Keene, Alex|39 Essex Chambers}}

{{thanks|Seligman, Matthew|Campbell-Taylor Solicitors|writing a detailed summary}}

==Summary==
For more details of the facts, see 'Related Judgments' below. 

The Appellant was initially detained at Homerton Hospital in November, 2008 under [[s2]] MHA 1983 and then, with his Nearest Relative’s approval, under [[s3]] at the beginning of December, 2008. However, by 19 January 2009 the Nearest Relative, concerned with the lack of progress, had decided to exercise his right to discharge the Appellant, which took effect on 22 January, 2009. After a short period of further detention under [[s5]](2), in relation to which a damages claim was subsequently compromised, the patient was discharged by the hospital on 23 January 2009. But a week later, on 30 January 2009 a new application for detention under s3 was made by an Approved Mental Health Professional on behalf of the London Borough of Hackney, in the face of the Nearest Relative’s continuing objection. ''habeas corpus'' proceedings were then brought the following week, and the patient was finally discharged by order of the Court on 11 February 2009.

Nevertheless, at that point, a series of obstacles remained in the way of the patient’s damages claim for unlawful detention. Section 139 prevented a claim against the local authority unless it could be shown that the application for detention had been made at least 'without reasonable care', and then only if the Court granted permission for the claim to be brought. In any event, the local authority's position was that it was not, in law, responsible for its social worker’s actions. As against the detainor, the hospital relied on its immunity under s6(3). Further the Secretary of State argued that these provisions did not, as a whole, make MHA 1983 incompatible with the patient’s enforceable right to compensation where Article 5 of the European Convention of Human Rights ('ECHR') had been breached (see Article 5(5) ECHR). As a result the Appellant could not claim damages for his detention, even though he had been granted a writ of ''habeas corpus'' in respect of it.

At first instance, Collins J ruled that most of these hurdles were lawful, with the exception that [[s145]](1AC) of MHA 1983 operated to make the local authority responsible for its social worker. On all other points the claim failed and, additionally, Collins J ruled that although a writ of ''habeas corpus'' had been granted, the Appellant's detention did not become unlawful until that moment. Collins J also held that for these reasons, s6(3) MHA 1983 and the absence of any Court order to the contrary in effect 'healed' the procedural defects in the original application, and made it lawful up until the grant of ''habeas corpus''. As a result, at no point until then had Article 5 been breached. Collins J also ruled that the application for detention, although mistaken, was not negligent, and he refused permission under s139(2) for the claim to proceed on that basis as well. He did, however, grant limited permission to appeal.

The Court of Appeal allowed the appeal against the local authority. In ruling on the seven grounds identified in the headnote above, it followed the reasoning in [[Re S-C (Mental Patient: Habeas Corpus) (1996) QB 599]] to the effect that it would be a 'horrifying' result if s6(3) operated as a healing provision, and doubted dicta to the contrary in [[R v Central London County Court, ex parte London (1999) QB 1260]]. The procedural breaches by the social worker in making the application in the face of an objection from the patient’s nearest relative, which was contrary to s11(4), meant that the detention was unlawful both at common law and under Article 5 from the outset. Article 5(5) therefore gave the Appellant an enforceable right to compensation, and permission for the claim to proceed under s139(2) MHA 1983 ought to have been granted (and in that context, s139(1) should be 'read down' under s3 [[Human Rights Act 1998]] so as to give effect to the Appellant's Article 5(5) rights). 

The Court of Appeal also held that the local authority could be liable to meet a claim for false imprisonment, albeit the hospital and not it had actually detained the patient, on the basis that it had 'directly caused' the detention, and followed [[Davidson v Chief Constable of North Wales (1994) 2 All ER 597]] in this regard.

The Appellant's subsidiary argument, against the hospital, that the application for treatment was bad for another reason – in that it had been supported by two medical recommendations from doctors who did not have previous acquaintance with the patient, contrary to s12(2) – failed, on the basis that 'practicability' in this context was to be construed with some elasticity, following [[R (E) v Bristol City Council (2005) EWHC 74 (Admin)]]. Here, the disagreement amongst those treating the Appellant as to whether or not he was actually 'sectionable' justified going outside the team, to seek an opinion from two doctors without previous acquaintance of the patient.

Appeal allowed as against the First Respondent, the London Borough of Hackney.

==ICLR==
{{ICLR|TTM v LB Hackney (2011) EWCA Civ 4}}

==Other==
Appellant: Mr Richard Gordon QC and Ms. Amy Street (instructed by Steel & Shamash)

First Respondent: Alex Ruck Keene (instructed by the London Borough of Hackney)

Second Respondent: Mr Neil Garnham QC and Mr Sydney Chawatama (instructed by Capsticks LLP)

Third Respondent: Mr Jason Coppel (instructed by the Office of the Solicitor for the Secretary of State for Health)

==Citations==
M v Hackney London Borough Council and others

[2011] EWCA Civ 4; [2011] WLR (D) 2; (2011) Times, 17 February

==External links==
{{#bailii:[2011] EWCA Civ 4}}

[[Media:TTM v LB Hackney (2011) EWCA Civ 4.doc|Transcript]]

[http://www.lawreports.co.uk/WLRD/2011/CACiv/M_v_HackneyLBC.htm ICLR website]

[http://ukhumanrightsblog.com/2011/01/20/unlawful-mental-health-detention-who-is-to-blame/ Maria Roche, 'Unlawful mental health detention – who is to blame?' (UK Human Rights Blog, 20/1/11)]

[http://www.independent.co.uk/news/uk/home-news/detained-patient-wins-right-to-claim-damages-2185167.html John Aston, 'Detained patient wins right to claim damages' (The Independent, 15/1/11)]

[[Category:Consulting NR]]
[[Category:Unlawful detention cases]]
[[Category:Miscellaneous cases]]
[[Category:Detailed summary]]
[[Category:Transcript]]
[[Category:2011 cases]]