ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Justice Collins
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE JACKSON
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|LONDON BOROUGH OF HACKNEY
EAST LONDON NHS FOUNDATION TRUST
SECRETARY OF STATE FOR HEALTH
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Mr Neil Garnham QC and Mr Sydney Chawatama (instructed by Capsticks Solicitors LLP) for the East London NHS Foundation Trust
Mr Alex Ruck Keene (instructed by London Borough of Hackney Legal Department) for the London Borough of Hackney
Mr Jason Coppel (instructed by the Solicitor to the Department of Health) for the Secretary of State for Health
Hearing dates: 14 - 15 December 2010
Crown Copyright ©
Lord Justice Toulson :
"3. The claimant's application for a writ of habeas corpus ad subjiciendum shall be granted, his detention being unlawful.
4. The defendant shall release the claimant from detention at the Homerton Hospital pursuant to the purported order under section 3 of the Mental Health Act 1983 (as amended) dated 30 January 2009 forthwith."
Mental Health Act 1983
"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that –
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.
(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include-
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d) of the that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4) In this Act, references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which is appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case."
"(1) An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of the Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital at any time within the following period, that is to say –
(a) in the case of an application other than an emergency application, the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application;
(b) in case of an emergency application, the period of 24 hours beginning at the time when the patient was examined by the practitioner giving the medical recommendation which is referred to in section 4(3) above, or at the time when the application is made, whichever is the earlier.
(2) Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subsection (1) above, or being within that hospital, is treated by virtue of section 5 above as if he had been admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.
(3) Any application for the admission of a patient under this Part of the Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it
(4) Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this Part of this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect."
"Of the medical recommendations given for the purposes of any such application, one should be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practical, be given by a registered medical practitioner who has such previous acquaintance…"
"(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act,…unless the act was done in bad faith or without reasonable care.
(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court…
(4) This section does not apply to proceedings against the Secretary of State or against a Strategic Health Authority, Local Health Board, Special Health Authority or Primary Care Trust or against a National Health Service Trust established under the National Health Service Act 2006 or the National Health Service (Wales) 2006 or NHS Foundation Trust or against the Department of Justice in Northern Ireland."
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention…of persons of unsound mind…
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
Habeas corpus proceedings
Judicial review proceedings
1. M's detention was lawful because the hospital trust was authorised to detain him under s6(3), since the application for M's admission appeared to be duly made. The hospital trust was accordingly entitled to rely upon the matters stated in it (including that M's brother, as his nearest relative, did not object to the application).
2. By analogy with cases of unlawful bye-laws or unlawful court orders, M's detention was to be regarded as lawful under domestic law until such time as the court declared the decision making process to have been defective and ordered that the detention should cease.
3. In the circumstances of this case, the AMHP's decision to found the application on the medical assessments of two psychiatrists who had come fresh to it did not involve a breach of s12(2).
4. Leave to sue the local authority for negligence or breach of statutory duty should be refused, because there was no realistic prospect in the light of Burton J's judgment of M persuading a court that the AMHP had acted in bad faith or without reasonable care. Section 139 therefore precluded any liability on the part of the local authority.
5. Because M's detention was lawful as a matter of domestic law until the judgment and order of Burton J, there was no breach of article 5 and no incompatibility between domestic law and the convention.
"(1) 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
(2) whether in the circumstances there was a breach of s12(2) of the Mental Health Act 1983."
The rival contentions
1. The judge should have held that M's detention was unlawful. The purpose of s6(3) was to exonerate the hospital trust from liability for acting upon an unlawful application made by the AMHP, but it did not make M's resulting detention lawful. The parallel which the judge drew with invalid bye-laws or court orders was inapposite.
2. The judge misapplied s12(2). He ought to have found that it was "practicable" for the AMHP to have obtained an assessment from a practitioner who had previous acquaintance with M, and therefore that the AMHP acted in breach of s12(2). Further, the application did not show that it was impracticable to have obtained an assessment from a practitioner who had previous acquaintance with M, and therefore s6(3) did not entitle the hospital trust to act on it.
3. The judge was wrong to refuse M leave under s139(2) to sue the local authority.
4. The judge was wrong in his approach to article 5. Even if he was right to hold that M's detention was lawful under domestic law, he should have held that the provisions of the Act in s6(3) and s139(2) led to incompatibility with the requirements of article 5, unless read down so as to avoid such incompatibility. He should therefore have read down one or other or both of those provisions, so as to avoid M being left without any right to compensation, or, failing that, he should have made a declaration of incompatibility.
1. The successful habeas corpus application established that the application for M's admission to hospital was unlawful, because his nearest relative did not consent to it, and accordingly his detention pursuant to the application was unlawful.
2. The effect of s6(3) was to protect the hospital trust from the consequences of acting on an unlawful application. It did not make M's detention lawful.
3. Compliance with s12(2) was not a condition precedent to the application of s6(3) but, in any event, the judge was right in his interpretation of s12 and in his conclusion on the facts of the case.
4. M's detention was in breach of article 5 because it was not a lawful detention.
5. The party responsible for the breach of article 5 was the local authority and not the hospital trust. The hospital trust acted properly in accordance with a procedure prescribed by law; the local authority acted in breach of the law.
6. Section 139(1) can and should be read down so as not to apply where its effect would otherwise conflict with article 5.
Was M's detention unlawful by reason of the AMHP's breach of s11(4) of the Mental Health Act?
"No freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land."
"went beyond laying information before police officers for them to take such action as they thought fit and amounted to some direction, or procuring, or direct request, or direct encouragement that they should act by way of arresting these defendants."
"[Mental patients] present a special problem since they may be liable, as a result of mental illness, to cause injury either to themselves or to others. But the very illness which is the source of the danger may deprive the sufferer of the insight necessary to ensure access to proper medical care, whether the proper medical care consists of assessment or treatment, and if treatment, whether in-patient or out-patient treatment.
Powers therefore exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be involuntarily admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute. Action may only be taken if there is clear evidence that the medical condition of a patient justifies such action, and there are detailed rules prescribing the classes of person who may apply to a hospital to admit and detain a mentally disordered person. The legislation recognises that action may be necessary at short notice and also recognises that it will be impracticable for a hospital to investigate the background facts to ensure that all the requirements of the Act are satisfied if they appear to be so. Thus we find in the statute a panoply of powers combined with detailed safeguards for the protection of the patient. "
"The judge goes straight from a finding that the hospital managers were entitled to act upon an apparently valid application to the conclusion that the applicant's detention was therefore not unlawful. That is, in my judgment, a non sequitur. It is perfectly possible that the hospital managers were entitled to act on an apparently valid application, but that the detention was in fact unlawful. If that were not so the implications would, in my judgment, be horrifying. It would mean that an application which appeared to be in order would render the detention of a citizen lawful even though it was shown or admitted that the approved social worker purporting to make the application was not an approved social worker, that the registered medical practitioners whose recommendations founded the application were not registered medical practitioners or had not signed the recommendations, and that the approved social worker had not consulted the patient's nearest relative or had consulted the patient's nearest relative and that relative had objected. In other words, it would mean that the detention was lawful even though every statutory safeguard built into the procedure was shown to have been ignored or violated."
"It seems to me that the Court of Appeal in Re S-C  QB 599 understood it in the first sense, and if that is correct then I respectfully agree. But it seems to me that if Laws J meant it in the second sense, what he was saying was consistent with authority, namely that the original admission and detention, based as it was on an apparently valid application, was itself valid and lawful until the underlying basis, namely the application, is held by the court to be invalid. This does not preclude the court from ordering the patient's release once this determination has been made, but it does not retrospectively render invalid the decision to admit which was valid at the time it was taken."
"it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void."
Human Rights Act 1998 and Article 5 of the European Convention
1. Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. The AMHP acted in a way which was incompatible with his right under article 5 (set out in paragraph 12 above) not to be deprived of his liberty except in accordance with a procedure prescribed by law. In applying for M's involuntary admission to hospital the AMHP did not act in a manner prescribed by law; on the contrary, she acted in violation of the prohibition contained in s11(4) of the Mental Health Act.
3. M's deprivation of his liberty was the direct consequence of the AMHP's failure to comply with the procedure prescribed by law and intended for his protection.
4. Article 5(5) entitles him to compensation.
5. Section 8 of the Human Rights Act provides that the court may grant such relief or remedy within its powers as it considers just and appropriate for an act of a public authority which the court finds to be unlawful. In determining whether to award damages, or the amount of an award, s8(4) requires the court to take into account the principles applied by the European Court of Human Rights in relation to awarding compensation for a violation of the Convention.
6. Section 139(1) of the Mental Health Act must, if possible, be read down by reason of s3 of the Human Rights Act so as to give effect to his Convention right to compensation.
7. If that is not possible, a declaration of incompatibility must be made under s4 of the Human Rights Act.
1. The AMHP was not to be regarded as having acted in a way which was incompatible with a Convention right unless there was a breach of article 5 for which the AMHP was responsible.
2. There was no breach of article 5 because M's detention was in accordance with a procedure prescribed by law with adequate clarity and was not arbitrary.
3. Accordingly, M did not have an enforceable right to compensation under article 5(5), since he was not a "victim of arrest or detention in contravention of the provisions of this Article".
Section 12(2) of the Mental Health Act
"unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous experience."
"In Bennett J's view, with which I entirely agree, practicality should be approached on the basis that the patient's interests are to be considered. A judgment has to be made, but it must always be borne in mind that one of the doctors who is concerned with recommending compulsory admission should have had previous acquaintance with the patient. Thus only if it is considered on reasonable grounds to be appropriate in given circumstances for doctors who have not had previous acquaintance to decide whether to recommend admission should such a course be adopted."
"In the circumstances of this case, it was known that there was a division of opinion among the doctors who had acquaintance with the claimant. The weakness of [counsel for M's] argument can be shown by her recognition that she could not have complained of a breach of s12(2) if one of the doctors chosen had been Dr Malik. Equally it might not have been in the interests of the claimant if one who held a contrary view was chosen since he might in reality need treatment which he would not receive as a voluntary patient. Thus I think that the decision to use two professionals who came afresh and who, of course, had access to all the hospital notes and could question nurses and other doctors was reasonable and a proper exercise of judgment of what was in the claimant's best interests. Thus there was no breach of s12(2).
"although language like "mandatory," "directory," "void," "voidable," "nullity," and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition."
"Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the act or regulations and the degree and seriousness of the non-compliance."
"…the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity."
"The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in the Montreal Street Railway case  AC 170 underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the empanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice."
Alleged negligence of the AMHP
Lord Justice Jackson:
The President of the Queen's Bench Division: