Mental Health and the Right to Liberty – Unlawful Detention in Mental Health Facility and the Right to Compensation

TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011)

Summary

The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest relative”, his brother, objected to an application for detention and treatment being made under the Mental Health Act 1983 (UK) (‘MHA’).

The hospital had the authority to detain the appellant under s 6(3), acting on the basis of an apparently duly executed application of an approved mental health professional (AMHP). However M’s brother had previously notified the AMHP of his objection to the application, which nullifies the AMHP’s authority to make such an application under s 11(4). The AMHP’s lack of authority therefore made the application and subsequent detention of the appellant unlawful.

In consequence, the appellant was entitled to compensation for the unlawful deprivation of his liberty by virtue of s 6(1) of the Human Rights Act 1998 (“HRA”) and Article 5 of the European Convention on Human Rights (“ECHR”), which essentially make it unlawful for a public authority to act incompatibly with a Convention right and provide a right to compensation should such a breach occur.

Facts

The appellant, a migrant in the UK began to show signs of mental illness requiring treatment in November 2008. He was admitted to hospital under s 3 of the MHA on 9 December 2008.

The appellant’s brother did not object to the appellant’s initial detention and treatment. However, roughly one month after his admission, he became concerned and proceeded to issue notice, in accordance with MHA provisions, of his intention to require the appellant’s release on 22 January 2009.

On that day, the appellant’s brother informally agreed with the appellant’s treating doctors, that the appellant should remain at the hospital as a voluntary patient.

The appellant began to refuse to take medication considered necessary by one of his treating doctors. Whether this refusal required a new application for involuntarily detention under the Act was contested – one doctor believed such action was necessary while the other did not. To resolve the dispute, the two doctors agreed to have the appellant assessed by two new, independent psychiatrists and to have their assessment form the basis of recommendation to the AMHP.

In the basis of the independent assessments, the AMHP made further application for involuntary detention on 30 January 2009.

At first instance, it was accepted that the appellant’s brother objected to such application being made over the course of a number of telephone conversations with the AMHP. Under s 11(4), authority to make such an application is excluded where objection of the patient’s “nearest relative”, in this case, the appellant’s brother, is conveyed to the AMHP. There was some confusion as to whether his objection had been later withdrawn, however Burton J found that the later comments did not objectively constitute withdrawal of the objection, despite the fact that he believed the AMHP acted in good faith on the belief that this was the effect of their conversation.

On the basis that his brother had not withdrawn his objection to detention, the appellant contended his detention was unlawful. The appellant then claimed compensation under Article 5 of the ECHR for the breach of his right to liberty on the basis that he was unlawfully detained by a public authority in contravention of s 6(1) of the HRA.

Decision

Legality of Detention

Toulson LJ considered the fundamental nature of the right to liberty and noted that the “[it] is… 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,” and that “lawfulness or unlawfulness is an attribute of the conduct which caused the loss of liberty.”

The appellant’s situation corresponds with this scenario: “The AMHP made an unlawful written application to the hospital trust…and acting on the facts stated in the application, as s 6(3) [of the MHA] allows it to do, the hospital trust detained him… the appellant’s detention was unlawful inasmuch that it was brought about directly by the conduct of the AMHP for which she had no lawful justification, notwithstanding that she acted in complete good faith.”

Right to Compensation

Toulson LJ noted that while s 139(1) of the MHA limits the civil liability of the AMHP, hospital and local authority for the unlawful detention of the appellant to “acts done in bad faith or without reasonable care”, “[t]hat section does not stop the AMHP’s conduct from being unlawful…[and the limitation on compensation] is subject to the provisions of the Human Rights Act.”

In summary:

• HRA s 6(1) makes it unlawful for a public authority to act incompatibly with a Convention right;
• The AMHP acted incompatibly with the appellant’s right under ECHR Art 5 – that is, deprived him of his liberty otherwise than in accordance with prescribed law – (Toulson LJ notes specifically that “she acted in violation of the prohibition contained in s 11(4) of the MHA);
• The appellant’s unlawful detention was the direct result of the AMHP’s failure to act in accordance with “the procedure prescribed by law and intended for his protection;”
• EHCR Art 5(5) entitles him to compensation;
• HRA s 8 provides the court with jurisdiction to grant relief “it considers just and appropriate for an act of a public authority which the court finds to be unlawful”;
• HRA s 3 requires s 139(1) of the MHA to be read down to give effect to the appellant’s right to compensation under the ECHR.

The Court allowed the appellant’s appeal, however invited the parties submissions on the precise terms of the order, suggesting that they come to an agreement on damages so as to avoid the costs of further proceedings.

Relevance to the Victorian Charter

As a parallel to UK law, s 21 of the Charter requires any deprivation of the right to liberty to solely “occur on grounds, and in accordance with procedures, established by law”.

The ECHR’s specifically allowed limitation on the right to liberty in the case of ‘unsound mind’, whereas the Charter provides only a general limitation clause in section 7, which requires the balancing of the right with, among other things, the importance, purpose and extent of the limitation; the relationship between the limitation and its purpose; and any less restrictive means available. This is much more vague than the limitation found in the UK legislation, however when read in concert with the Mental Health Act 1986 (Vic), the definition of ‘mental illness’ here in Victoria is very carefully circumscribed.

If, as in the appellant’s case, an involuntary detention were considered unlawful, the Charter would provide a basis to a declaration of unlawfulness as the only remedy available, as 39(3) of the Charter provides that damages are not available for a breach of Charter rights.

The decision is available at: www.bailii.org/ew/cases/EWCA/Civ/2011/4.html

Liz Austin is a volunteer lawyer with the Human Rights Law Resource Centre