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

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===Catchwords===
MENTAL DISORDER — Admission for treatment — Compulsory detention — Application for admission and detention approved in good faith by social worker — Application apparently valid but made by two practitioners not known to patient — Patient detained in pursuance of application — Whether application made in accordance with statute — Whether patient lawfully detained — Whether entitled to compensation — Whether statutory restrictions on right to compensation compatible with Convention right to liberty — Whether to be read down — Mental Health Act 1983, ss 6(3), 139(1) — Human Rights Act 1998, s 3, Sch 1, Pt I, art 5

===Headnote===
A hospital trust was entitled to rely upon an application for the admission for treatment of a patient under the Mental Health Act 1983 which appeared to comply with section 6(3) of the Act as being a lawfully made application pursuant to the provisions of the Act. Where such an application, completed by an approved mental health professional (AMHP), had failed to comply with those provisions, the failure rendered the patient’s detention unlawful and imposed the responsibility for the unlawful detention upon the AMHP. The statutory defence in section 139(1), which relieved the AMHP from civil liability unless he or she had acted in bad faith or without reasonable care, would be read down by virtue of section 3 of the Human Rights Act 1998 so as to permit a claim by the detained person for compensation from the AHMP.

The Court of Appeal so held allowing in part the appeal of the claimant, TTM (by his litigation friend TM), from the decision of Collins J [2010] EWHC 1349 (Admin) on 11 June 2010 to dismiss the claimant’s claim for judicial review against the defendants, Hackney London Borough Council and East London NHS Foundation Trust, seeking damages for his detention or, if it were held that his claim for compensation was barred by the terms of the Mental Health Act 1983, a declaration of incompatability with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant’s claims were for unlawful detention and/or trespass to the person, negligence, breach of statutory duty under section 11(4) of the 1983 Act and breach of duty under section 6 of the Human Rights Act 1998 coupled with article 5 of the Convention. The Secretary of State for Health was joined as an interested party. On 11 February 2009 Burton J had granted the claimant’s application for a writ of habeas corpus on the grounds that his detention under the 1983 Act was unlawful. The application for the claimant’s admission had been completed by an AMHP for whose conduct the local authority accepted responsibility.

TOULSON LJ referred to Chapter 29 of Magna Carta 1297 and said that the right to freedom enshrined therein was a fundamental constitutional right. Cases had from time to time arisen where a claimant had been detained by a third person in consequence of something said or done without justification by the defendant; see Davidson v Chief Constable of North Wales [1994] 2 All ER 597. The principle was therefore recognised at common law that there may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification. The hospital trust had acted lawfully in detaining the claimant by virtue of section 6(3) of the Mental Health Act 1983. Section 6(3) was intended to enable hospital managers, possibly at short notice, to admit for treatment someone who they had reasonable cause to believe was in immediate need of such admission for health and safety of himself or for the protection of the public. With that end in view, Parliament had considered it reasonable for hospital managers to be able to rely on an application which appeared to have been completed in accordance with the requirements of the Act. It followed that hospital managers had a defence, under section 119, against any claim which might otherwise have been made against them for acting upon an invalid application. However, it did not follow from the fact that hospital managers detained the claimant in the lawful exercise of their power under section 6(3) that he had not been wrongfully deprived of his liberty by the unlawful conduct of the AMHP who had made an unlawful written application for the claimant’s admission. On ordinary principles of common law, the claimant’s detention was unlawful inasmuch that it had been brought about directly by the conduct of the AMHP for which she had had no lawful justification, notwithstanding that she had acted in complete good faith. His Lordship referred to R v Managers of South Western Hospital, Ex p M [1993] QB 683, In re S-C (Mental Patient: Habeas Corpus) [1996] QB 599 and R v Central London County Court, Ex p London [1999] QB 1260. In In re S-C Sir Thomas Bingham MR, at p 603, had reached three conclusions directly relevant in the present case: (1) the hospital managers had acted lawfully by reason of section 6(3); but (2) that fact did not clothe the conduct of the AMHP with lawfulness; and (3), S-C’s detention had been unlawful throughout. He had spoken of section 6(3) not turning an unlawful detention into a lawful detention, and he had referred to it as plain on the agreed evidence that there had never been jurisdiction to detain S-C in the first place. His Lordship had no doubt about the correctness of this reasoning. The claimant had been deprived of his liberty as a direct consequence of the AMHP’s unlawful act in applying for his admission in breach of section 11(4). The only matter which protected the local authority from liability for false imprisonment was the statutory defence provided by section 139(1). That subsection did not stop the AMHP’s conduct from being unlawful. What section 139(1) did was to limit the civil liability of the AMHP (and the local authority) for the AMHP’s unlawful act to cases where the act was done in bad faith or without reasonable care. The restriction was, however, subject to the provisions of the Human Rights Act 1998. This was a case of detention by the state under a statutory scheme involving two agents of the state between whom the scheme provided for an internal division of responsibility. It could not be right, because of the division of responsibility, to regard the resulting state detention as consistent with article 5, when the fundamental cause of the detention was an application made in contravention of the Act. On the main issue, the judge ought to have held that the claimant had been unlawfully detained, both as a matter of domestic law and within article 5, by reason of the AMHP’s contravention of section 11(4), and he should have given the claimant leave under section 139(2) to pursue a claim for compensation against the local authority.

JACKSON LJ and SIR ANTHONY MAY P agreed.

===Other===
CA: Sir Anthony May P, Toulson, Jackson LJJ : 14 January 2011

Appearances: Richard Gordon QC and Amy Street (instructed by Steel & Shamash) for the claimant; Neil Garnham QC and Sydney Chawatama (instructed by Capsticks Solicitors LLP) for the second defendant; Alex Ruck Keene (instructed by Solicitor, Hackney London Borough Council ) for the first defendant; Jason Coppel ( instructed by Solicitor, Department of Health) for the Secretary of State.

Reported by: Carolyn Toulmin, Barrister

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