QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of KB, MK, JR, GM, PD, TB and B||Claimants|
|- and -|
|(1) MENTAL HEALTH REVIEW TRIBUNAL|
|- and -|
|(2) SECRETARY OF STATE FOR HEALTH||Defendants|
Paul Bowen (instructed by Scott-Moncrieff, Harbour & Sinclair) for B
Philip Sales and Elisabeth Laing (instructed by the Office of the Solicitor to the Department of Health and the Department for Work and Pensions) for the Secretary of State.
The Mental Health Review Tribunal did not appear and was not represented.
Hearing dates: 2, 3, 4 and 5 December 2002
Crown Copyright ©
Mr Justice Stanley Burnton:
The relevant provisions of the HRA
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining whether to award damages, or the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(6) In this section—
"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1)."
"In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention."
Counsel for the Claimants accepted that "act" in section 9(3) includes omission, that the Mental Health Review Tribunal is a judicial body for these purposes, and that none of the acts or omissions of the tribunals in the present cases was done otherwise than in good faith,. The present claims all arise from acts or omissions of the tribunal. Article 5.5 is therefore central to their claims.
"Article 5 – Right to liberty and security
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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
5.4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5.5 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."
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
Article 13 has not been incorporated into English law by the HRA.
"If the Court (i.e., the European Court of Human Rights) finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
Article 41 is not one of the Articles listed in section 1 of the HRA, doubtless because it is inapplicable directly to a national court. "Reparation" in this context means restitution for injury: the French text is: "… si le droit interne de la Haute Partie contractante ne permet d'effacer qu'imparfaitement les conséquences de cette violation …" It is common ground that the European Court of Human Rights applies Article 41 in cases in which national law allows no reparation at all, as well as where national reparation is only partial. There is no formal definition of "just satisfaction", but it is clear from the jurisprudence of the European Court that a finding of the infringement of a Convention right can, in certain circumstances, constitute just satisfaction. One of the principal questions before me is: what are those circumstances, and are they found in any of the cases before me?
The issues of principle in summary
(a) To what extent must the High Court follow the rules applied by the European Court of Human Rights in awarding damages?
(b) Given there has been a breach of the Claimants' rights under Article 5, are awards of damages obligatory in order to give them "just satisfaction" within the meaning of section 8 or by reason of section 9(3) and Article 5.5?
(c) Are feelings of frustration and distress occasioned by delay in tribunal hearings recognised by the European Court as justifying awards of damages?
(d) Is there power to award exemplary damages in an appropriate case?
(e) Should the measure of damages be a European measure or should an English and Welsh domestic measure should be applied?
(f) If a domestic measure of damages is applicable, should awards be modest and lower than in comparable English tort cases (to the extent to which sensible comparisons are available).
(g) What is the relevant period in respect of which damages are to be awarded?
(h) Where there is a real possibility that a hearing within the time required by Article 5.4 would have resulted in a discharge of a Claimant from detention, and damages are claimed for loss of liberty, are damages to be assessed on the basis of loss of a chance, or must the Claimant establish on a balance of probabilities that he would have been discharged?
(i) Apart from any considered under the above heads, are there any special principles applicable to mental health cases?
(a) An award of damages is compulsory: a declaration that a claimant has been the victim of a violation of his rights under Article 5.4 can never be an adequate remedy.
(b) The award of damages should be substantial.
(c) Exemplary damages may be awarded, and should be in the case of B.
(d) The period in respect of which damages should be awarded is (in order of preference) the period between the detention of the claimant and the date of the tribunal's decision, or the period between the making of the application to the tribunal and its decision, or from the date required by rule 31 (relating to patients detained under section 2) or by rule 29(cc) of the Mental Health Review Tribunal Rules (in the case of a restricted patient who has been recalled following a conditional discharge) or the period from the date 8 weeks after the making of the application to the date of the tribunal's decision.
"Turning to possible principles, the first principle could well be that if there is any other appropriate remedy in addition to damages, that other remedy should usually be granted initially and damages should only be granted if and to the extent that an additional award of damages is necessary to afford just satisfaction. This principle appears to accord with the approach envisaged by section 8 itself. In many cases what will be primarily required is an order which will result in the decision being taken again or an injunction to restrain the unlawful conduct or a declaration to establish the unlawfulness of that conduct. There should be no automatic right to compensation.
The second principle may be that the court should not award exemplary or aggravated damages. This does not mean there should be no award for anxiety, distress, injured feelings or other forms of non-pecuniary loss.
The third principle may be that an award should be of no greater sum than that necessary to achieve just satisfaction. If a public authority is required to take a decision again it may be necessary to adjourn the question of damages until it is known what the new decision is. If, for example, a retrial is necessary of a criminal offence the decision as to whether to make an award of damages could well depend on the outcome of the retrial.
The fourth principle may be that quantum of the award should be moderate. Certainly, the award should not exceed analogous awards made in the case of tortious claims and normally they should be on the low side by comparison to tortious awards.
The fifth principle may be that the court should restrict the award to compensating the victim for what has happened so far as the unlawful conduct exceeds what could lawfully happen. If for example there is a complaint of a failure under Article 6 to provide a public hearing within a reasonable time, the compensation will be limited so that it only applies to the period which exceeds what is reasonable.
The sixth principle is likely to be that any failure of the claimant to take action promptly to remedy or avoid the situation of which complaint is made will reduce the amount of damages payable.
The seventh principle is that there is no reason to distinguish between pecuniary and non-pecuniary loss. What matters is that the loss complained of should be real loss clearly caused by conduct which is contrary to the Act and not whether it is pecuniary loss.
The eighth principle is that our domestic rules as to costs will probably cover any costs or expenses incurred by the complainant."
The relevance of the jurisprudence of the European Court
"Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence."
"Therefore, at least where the normal rules of domestic law are consistent with the results which would be reached by the Strasbourg Court, and with the terms of the HRA, the obligation of the domestic courts to have regard to Strasbourg "principles" should lead to little difficulty in practice and should leave the domestic courts reasonably free to follow their existing practices as to the evidence, calculation and the measure of damages in individual cases."
"40. The Court recalls that it is well established that the principle underlying the provision of just satisfaction for a breach of Article 6 is that the applicant should as far as possible be put in the position he would have enjoyed had the proceedings complied with the Convention's requirements (Piersack v. Belgium (Article 50) judgment of 26 October 1984, Series A no. 85, § 12). The Court will award monetary compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found (see the authorities cited in paragraph 43 below), since the State cannot be required to pay damages in respect of losses for which it is not responsible."
While this statement related to breach of Article 6, there is no doubt that the same principle applies to breach of Article 5.
"It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the ECHR privately states: 'We have no principles'. Another judge responds, 'We have principles, we just do not apply them'. (Dinah Shelton, Remedies in International Human Rights Law (OUP 1999 p.1, cited in the Law Commission Report 266 Damages under the Human Rights Act 1998 para. 3.12)."
See too paragraph 3.13 of the Law Commission's Report, and Scorey and Eicke, Human Rights Damages (2002) at A2-002. The Law Commission Report provides a very helpful summary of the jurisprudence of the European Court and the inconsistencies between its judgments.
Is an award of damages compulsory?
"36. The applicant alleged a violation of Article 5 § 5, according to which:
'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'
In his opinion, the sole provision of Netherlands law which he could have relied on in order to obtain compensation, Article 1401 of the Civil Code, only applied where damage could be shown. In this case, the existence of damage would have been almost impossible to prove because it could not be affirmed with absolute certainty that proceedings conducted in conformity with Article 5 of the Convention would have led to the desired result.
37. Unlike the Commission, the Government did not subscribe to this view. They considered that the right to compensation guaranteed in paragraph 5 of Article 5 was restricted to persons who had sustained damage, whether pecuniary or non-pecuniary, on account of the violation of another of the paragraphs of the Article; this was clear, in particular, from the use of the word 'victim'. Article 1401 of the Civil Code was therefore fully consistent with the Convention.
38. In the Court's view, paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. It does not prohibit the Contracting States from making the award of compensation dependent upon the ability of the person concerned to show damage resulting from the breach. In the context of Article 5 § 5, as for that of Article 25 (see, inter alia, the Huvig judgment of 24 April 1990, Series A no. 176-B, pp. 56-57, § 35), the status of 'victim' may exist even where there is no damage, but there can be no question of 'compensation' where there is no pecuniary or non-pecuniary damage to compensate.
More generally, the evidence provided to the Court does not lead to the conclusion that an action based on Article 1401 of the Netherlands Civil Code would have failed to satisfy the requirements of Article 5 § 5 of the Convention. This finding is without prejudice to the Court's competence under article 50 in the matter of awarding compensation by way of just satisfaction (see the Brogan and Others judgment of 29 November 1988, Series A no. 145-B, p. 35, § 67)."
"74. The applicant claimed US$15,000 in respect of the violations of Article 5 of the Convention and US$5,000 in respect of the alleged violation of Article 13.
75. The Government submitted that the claims were excessive and referred to the Assenov and Others judgment where the Court awarded approximately the equivalent of US$3,500. The Government insisted that the standard of living and the average income in Bulgaria where a District Court Judge earns the equivalent of about US$140 per month, should be borne in mind. The Delegate of the Commission considered that the finding of a violation could not constitute sufficient just satisfaction and invited the Court to award an equitable amount.
76. The Court recalls that in certain cases which concerned violations of Article 5(3) and (4) it has granted claims for relatively small amounts in respect of non-pecuniary damage. However, in more recent cases concerning violations of either or both paragraphs 3 and 4 of Article 5, the Court has declined to accept such claims. In some of these judgments the Court noted that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Article 5(3) and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered.
In the present case the Court see no reason to depart from the above case law. The Court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention. As to the alleged frustration suffered by her on account of the absence of adequate procedural guarantees during her detention, the Court finds that in the particular circumstances of the case the finding of a violation is sufficient."
"The Court does not rule out that the applicants may have suffered some non-pecuniary injury as a result of the breaches of Article 5."
Thus this judgment is authority for the proposition that there may be just satisfaction even though there may be uncompensated injury.
"91. As regards the claim for the alleged damage suffered as a result of the violation of art 5(4) of the Convention, the Court recalls that in certain cases which concerned violations of art 5(3) and (4) it has made modest awards in respect of non-pecuniary damage (see Van Droogenbroeck v Belgium (art 50)  ECHR 7906/77 at para 13, and De Jong, Baljet and Van den Brink v Netherlands  ECHR 8805/79 at para 65). However, in more recent cases, it has declined to make any such award (see Pauwels v Belgium  ECHR 10208/82 at para 46; Brogan and Others v UK (art 50)  ECHR 11209/84 at para 9; Huber v Switzerland  ECHR 12794/87 at para 46; Toth v Austria  ECHR 11894/85 at para 91; Kampanis v Greece at  ECHR 17977/91 at para 66; Hood v UK  ECHR 27267/95 at paras 84-87; and Nikolova v Bulgaria  ECHR 31195/96 at para 76; Niedbala v Poland  ECHR 27915/95 at para 89). In certain of these judgments, for instance in the cases of Hood, Huber, Niedbala v Poland  ECHR 27915/95 and Nikolova v Bulgaria  ECHR 31195/96 the Court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of art 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered.
92. In the present case, the Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of art 5(4) of the Convention had been respected in his case. Consequently, the Court considers that the non-pecuniary damage claimed is adequately compensated by the finding of a violation of this provision."
"This passage seems to confirm that the Court will not make awards of damages to reflect the mere fact of a violation. Indeed, it suggests that, in the current practice of the Court, at least under Article 5, awards for non-pecuniary loss of any kind are likely to be the exception, not the rule.
But the Commission correctly added:
However, even in the short period since Nikolova the Court's practice not been wholly consistent, and it is possible that this issue will be subject to further consideration by the Court."
"43. In all the circumstances, and in accordance with its normal practice, in civil and criminal cases, as regards violations of Article 6 § 1 caused by failures of objective or structural independence and impartiality, the Court does not consider it appropriate to award monetary compensation to the applicant in respect of loss of procedural opportunity or any distress, loss or damage allegedly flowing from the outcome of the domestic proceedings. …."
While this statement provides support for Mr Sales' submission that the Court does not award damages for loss of procedural opportunity, it is of no assistance on the issue whether in cases such as the present damages should be awarded for distress. The Court was careful to limit the scope of its statement to breaches of Article 6.1 caused by "failures of objective or structural independence and impartiality". The Government had expressly distinguished such cases from cases in which the complaint was of delay in proceedings:
The Government suggested that the cases in which the Court had awarded compensation for undue length of proceedings could be distinguished from cases such as the applicant's by reason of the exacerbation of stress suffered by parties to litigation which continues for an unreasonably long period, together with the need to provide a financial disincentive to States tempted to under-fund their domestic legal systems."
This reference is perhaps made more pertinent by the fact that Mr Sales was the author of the UK Government's submissions to the Court.
"42. In the Court's view, the applicant must have suffered some non-pecuniary injury. The fact that she was not heard by the Cantonal Court Judge could have led to a feeling of frustration, to which was added the fear of being sent back to the hospital during the delay resulting from the failure to take the relevant decision 'speedily'.
Making an equitable assessment in accordance with Article 50, the Court awards the applicant, in respect of all the heads of claim, the overall amount of Fl. 15,000 proposed by the Government."
In that case, however, the Court awarded the very sum offered by the Netherlands Government.
"It seems difficult to accept the proposition that the finding by the Court of a breach of the substantive provisions of the Convention, whilst constituting a condition for the application of Article 50 [now Article 41], can at the same time be the consequence in law following from that same proposition."
See too the critique of this "hapless formula" and the failure of the Court to support it with reasons in the dissenting judgment of Judge Bonello in TW v Malta: Aquilina v Malta (2000) 29 EHRR 185:
"I consider it wholly inadequate and unacceptable that a Court of Justice should satisfy the victim of a breach of fundamental rights with a mere handout of legal idiom…"
A European measure of damages or a UK measure?
"164. The Court notes that it conducts its assessment of what an applicant is entitled to by way of just satisfaction in accordance with the principles laid down in its own case law under Article 50 and not by reference to the principles or scales of assessment used by domestic courts. The applicants accept this to be the case. The Court does not consider it necessary therefore to answer the Government's objections to the admissibility of its supplementary submissions.
In any event, the Court cannot speculate as to the outcome of the domestic proceedings had the applicants' statement of claim not been struck out. It considers nevertheless that the applicants were denied the opportunity to obtain a ruling on the merits of their claim for damages against the police. Deciding on an equitable basis it awards each of the applicants the sum of £10,000."
This passage is relied upon by the Secretary of State in support of the submission that this court should apply a European measure of damages. Parenthetically, it is inconsistent with his submission that there should be no award of damages for loss of opportunity.
"44. The applicant claimed that he should be compensated for the loss of liberty resulting from the failure to introduce a proper system of review, and also for the absence of any enforceable right to compensation in the domestic courts. He submitted that domestic scales of compensation relative to unlawful detention should apply, otherwise the Government would profit from the breach of Article 5(5). He claimed that this should be calculated either from the first recommended date of release given by the Parole Board – as of August 1996 – or from the second recommendation for release on 14 February 1997, and amounted to £50,000 or £25,000 respectively.
45. The Government disputed that domestic scales were applicable in this context and referred to the Court's approach in previous cases in reaching its own assessment of the proper level of just satisfaction.
46. The Court observes that in this case the Parole Board twice recommended the applicant's release, setting a provisional release date for August 1996 and following an oral hearing on 7 February 1997. It also notes the length of time – 10 years – during which the applicant did not receive a review by a body complying with the requirements of Article 5(4) of the Convention. In these circumstances, it considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the findings of violations. It does not, however, consider that the domestic scales of compensation applicable to unlawful detention apply in the present case where there has been no equivalent finding of unlawfulness. Making an assessment on an equitable basis, it awards £1,500 for non-pecuniary damage."
"(2) This inconsistency is exacerbated by the fact that the quantum of awards made by the European Court of Human Rights undoubtedly take into account the Contracting State in which the recipient is domiciled. An award of a certain amount to a victim in one Contracting State may be an insignificant amount to a victim in a more affluent, alternatively, inflation plagued Contracting State and yet a small fortune to a victim in a poorer and less developed Contracting State. A certain uplift may therefore have to be applied to victims in certain Contracting States to give them any real value in the United Kingdom."
However, no authority is cited for this statement.
The general level of damages
"As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards."
"In awarding £2,000 Collins J. pointed out that there is singularly little help to be obtained from the authorities as to the correct amount to award in these circumstances. It is accepted by the appellant that this is not a case for an award of aggravated or exemplary damages. Nor are we concerned with special damages. The judge accepted a submission on behalf of the governor that there can be two elements to an award of damages for false imprisonment; the first being compensation for loss of liberty and the second being the damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty. In this case the second element is absent.The judge was referred to two cases: Lunt v. Liverpool City Justices (unreported), 5 March 1991; Court of Appeal (Civil Division) Transcript No. 158 of 1991 and Thompson v. Commissioner of Police of the Metropolis  QB 498. In the former case the Court of Appeal increased an award of £13,500 to £25,000 for a period of 42 days' false imprisonment in respect of an alleged default in the payment of rates. While there is nothing significant about the circumstances in which the appellant lost his liberty in that case, the facts are very different from here. In Lunt's case the court was concerned with someone of good reputation and none of the imprisonment was justified. The experience was described by Bingham L.J. as "horrific" to a person of previous good character. The situation is also different from those considered by this court in Thompson's case. As a result of the period she was lawfully imprisoned, the appellant would have already made the necessary adjustments to serving a prison sentence. She was someone who had been properly sentenced to a term of two years' imprisonment for serious criminal offending and, until the court gave its decision in Reg. v. Secretary of State for the Home Department, Ex parte Naughton  1 WLR 118, she had no reason to think that she was not perfectly properly incarcerated. Collins J. declined to propose an amount for each extra day imprisoned. He considered that a global approach was correct. He was right in doing so. Mr. Emmerson none the less pointed out that the sum of £2,000 was the "equivalent of less than £35 per day" and was even lower than the daily figure contended for by the governor. He suggested that, as a guide for other cases, it would be useful for the court to indicate a daily or weekly amount so as to provide a guide for the many other cases which will also result from the Divisional Court's and our decisions in this case. We accept that an award of £2,000 is well below the appropriate figure for 59 extra days of imprisonment. We increase the award to £5,000. This is a global figure. We recognise that it is possible to work out a daily, weekly or monthly figure from this amount for the approximately two months' extra imprisonment of this case but we discourage such an exercise. No two cases are the same. The shorter the period the larger can be the pro rata rate. The longer the period the lower the pro rata rate. The length of sentence lawfully imposed is clearly similarly significant. The fact that the appellant was prepared to risk postponing her release date by committing disciplinary offences while in prison is also relevant."
The House of Lords (reported at  2 AC 19) declined to interfere with the Court of Appeal's decision on damages.
Loss of opportunity and loss of a chance
"recalls that it will not speculate as to what might have occurred had there been no breach of the procedural guarantees of Article 6 of the Convention unless it finds special features in the case amounting to a 'real loss of opportunity'."
It is not clear what does amount to a "real loss of opportunity".
The relevant period
Special principles in mental health cases
"It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage." (Emphasis added.)
A similar approach may be seen in Wassink at paragraph 41 of the judgment of the Court. Under English law, disappointment, distress and feelings of frustration are not normally free-standing heads of damages: the law applies an overtly restrictive approach, even to the extent of excluding many claims for nervous shock or distress caused by a lack of care: see Frost v Chief Constable of South Yorkshire  2 AC 455; see too Calvely v Chief Constable of Merseyside  AC 1228. Distress and disappointment are part of everyday life, and do not necessarily lead to claims for damages. Convention rights are important basic rights, and it is doubtless arguable that damages for their breach may be awarded for injuries that would not be recognised as deserving of compensation in other areas. It is nonetheless significant that Lord Woolf CJ's opinion was that damages for their breach should be lower than damages for tort, rather than higher. There is a risk of creating anomalies between damages recoverable for breach of Convention rights and those for other civil wrongs. The Court should be reluctant to do so.
The evidence: (a) general
(a) relevant hospital records;
(b) medical reports prepared for the hospital or for tribunal hearings;
(c) witness statements of the Claimants;
(d) written expert psychiatric reports prepared for the purposes of the claims for damages; and
(e) in some cases, the testimony of the expert psychiatrists.
In none of the cases before me was there any testimony, or indeed any witness statement, from the Claimant's RMO. This was a significant omission. A tribunal hearing serves as a check on the RMO. If the RMO is of the opinion that the patient should be discharged, he will normally discharge him without the need for a tribunal hearing. In general, a hearing is required only where the patient disputes the opinion of his RMO. In some cases, such as that of PD, the Claimant was discharged by his RMO before an effective tribunal hearing took place. It was contended that if there had been an earlier hearing, he would have been discharged at its earlier date. In effect, this contention disputes the opinion of the RMO: it suggests that he should have discharged PD at an earlier date. While the testimony of the RMO and his cross-examination may not be a precondition of a finding that there would have been an earlier release if there had been an earlier tribunal hearing, it seems to me that the court should be cautious before making such a finding in the absence of the RMO's evidence.
(a) At paragraph 21 of her statement, Margaret Burn (senior official at the Department of Health) stated that they accepted that cases had not been heard as quickly as patients wished and "We regret the distress and inconvenience that those patients have suffered."
(b) At paragraph 10 of his statement, Michael Christie (MHRT London North and East Regional Chair) stated "The frequency with which the Tribunal hearings are cancelled at the last moment in my region is a matter of great concern to me. I regret the obvious distress this causes to patients."
(c) In a letter to Mr Christie, Dr Peter Carter, the Chief Executive of the Brent, Kensington & Chelsea and Westminster Trust wrote of patients whose Tribunals were cancelled: "It is having an adverse effect upon the care provided by this Trust, as well as the confidence of the Trust's clients in the appeals process."
(d) In a letter to the Gordon Hospital, Mr Christie wrote: "Of course, it is the patients who suffer most and become distressed when there are cancellations. This is regrettable, particularly when they have an entitlement to a hearing of their application."
(e) In a letter to a patient's solicitor, Dr Needham-Bennett, Consultant Forensic Psychiatrist of the South London and Maudsley Trust, wrote of late cancellations of Tribunals, "Whilst this can be wasteful of professionals' time, it does have a marked detrimental effect on the patient's state of mind. Clearly a tribunal can be a highly stressful process for the patients and much of the anxiety they experience is in anticipation of the tribunal. For it to be cancelled at the last moment leaves them feeling upset, cheated and resentful."
The individual cases: (1) PD
94. PD was detained under section 2 on 18 October 2001. His application was received by the North London Tribunal on 19 October. A hearing was fixed for Friday 26 October. It was cancelled because it was not possible to secure a full panel. The case was relisted for 5 November; this hearing was also cancelled, again owing to the unavailability of a panel. It was relisted, ignoring the suggestion of 9 November, for 12 November. That hearing too was cancelled for lack of a panel. A hearing was then fixed for 19 November, over 4 weeks after receipt of the application, and over 3 weeks in excess of the time permitted by rule 31. PD was discharged by his RMO on 16 November 2001, 4 weeks after his detention.
"I am very concerned about this. Not only is Mr D not receiving his Tribunal hearing, but the effect of the constant arranging and rearranging of the hearings is stressful to him. It is also not conducive to a trusting and helpful professional relationship between lawyer and client, since information conveyed turns out to be misleading to the client. This stress and confusion would be bad enough for any client but is especially important when the client is thought to have mental problems."
I read the last two sentences as a general description of the effect of repeated re-arrangement of tribunal hearings, rather than a description of the effect in PD's case specifically. The evidence does not justify a finding that the RMO should have discharged PD at an earlier date, or that a tribunal hearing if held at an earlier date would have directed his discharge, and the claim for loss of opportunity was not pursued. There is no evidence of injury to his health resulting from the delay in the hearing of his application, and no specific evidence of distress or frustration. Nonetheless, such a long delay, and the repeated cancellations of hearings, must have been upsetting, and caused uncertainty as to his position. A modest award of damages is necessary in order to give just satisfaction, in the sum of £1,000.
96. By way of background KB was first detained on 8 September 2000. He immediately applied to the Tribunal for review of his detention. Judicial review proceedings were issued in order to obtain a hearing, which ultimately took place on 21 December 2000, 15 weeks after his application. His detention was continued.
97. He again applied to the South London Tribunal on 29 March 2001. On 8 April 2001 a hearing was fixed for 22 May 2001, just short of 8 weeks from the receipt of his application. At the time the Tribunal was operating an 8-week target period for hearings. The date of 22 May was regarded as provisional, and those concerned were normally given a period of 7 days to object to it, after which the Tribunal would confirm the date in writing. Due to an oversight, the Tribunal staff failed to confirm the date. On 23 April the Tribunal received an objection from the RMO stating that she and her Registrar would be on holiday on the 22 May. It was the practice to refer to the Chairman any application for an adjournment that would result in a hearing beyond the 8-week target. The staff cancelled the provisional date for the hearing without referring to her. On 10 May, 2½ weeks after the receipt of the RMO's letter, a new date of 30 May 2001 was proposed by the Tribunal office. On 15 May, a further objection was received from the RMO, who had a full out-patient clinic scheduled for that date. On 18 May the Chairman authorised a change of date, to 5 June. The Claimant's solicitors then requested an earlier date, because the Claimant was due to be on leave, under section 17, on the new date. The Chairman felt obliged to reject their request, because there were no panels available at the Claimant's hospital at an earlier date (although there were several panels sitting at other venues). The hearing therefore ultimately took place on 5 June. KB was not discharged.
98. The period between the receipt of the application and the first date fixed for the hearing reflected Tribunal practice before the decision of the Court of Appeal in C. Given adequate availability of Tribunal members and staff, on the evidence before me, there is no reason why an earlier hearing could not have been held. The period between application and effective hearing was 9 weeks 5 days. I find, and indeed Ms Kane effectively accepts, that the failure to send out the letter confirming the first hearing date was due to the lack of sufficient staff and the lack of adequate training. The RMO's objections to the 22 and 30 May were understandable, and it is difficult to fault the staff for accepting them. However, in the context of an application by a section 3 patient, 2½ weeks is an excessive time between receipt of an objection to a date and the fixing of a new date. That delay is likely to postpone a substitute date, and in this case was bound to postpone it beyond the 8 week target.
"… the delay … in my moving into a community environment caused me significant agitation and distress and I believe affected my mental health. Further this was the second time that my right of appeal against a period of detention had been treated with apparent total disregard of my rights and well being and this causes (sic) me to feel despondent and worthless."
There is, however, no medical evidence that the delay caused injury to KB's mental health. Given that KB's witness statement was made so long after the event, I think it right to treat his statement with a degree of caution. In addition, the postponement of his transfer to a community environment seems to me not to be something to be taken into account in assessing damages. It was an adventitious consequence of the fixing of the date of the hearing; a postponement of the hearing date might also have avoided interfering with that transfer.
"100. LB was initially detained under s 2. On 8 June 2001 her detention was continued under section 3. Her application was received by the North London Tribunal on 13 June 2001. The hearing was initially fixed for 12 July 2001, just over 4 weeks later. On 11 July, that hearing was cancelled because no medical member could be found. By letter dated 13 July LB's solicitors were informed that the hearing would take place on 8 August. That hearing was cancelled by telephone on 7 August, again because no medical member could be found. By letter dated 9 August 2001 LB's solicitors were informed that the hearing would be on 30 August, just over 11 weeks after the date of her application. On 10 August 2001, 8 weeks after her application, LB's RMO discharged her.
101. LB was deprived of an independent review of her detention. The evidence indicates that with adequate tribunals LB's detention would have been reviewed some 4 weeks after her application. …"
"We will need to look at where she will be living in the longer term, but at present she still requires monitoring of medication and change of medication within a hospital setting. Thus, she needs to be kept in hospital, with interests to (sic) her own self and her vulnerability. If discharged I believe that it will be difficult to maintain a coherent care plan and her health would deteriorate."
The approved social worker's report dated 2 July 2001 also referred to problems of accommodation in the community, and to her objection to returning to live with her stepfather. I was told by Mr Gledhill, on instructions, that when she was subsequently discharged she in fact went to live with her stepfather.
"Upon hearing (on 11 July 2001) that my Tribunal had been cancelled, I was very distressed and upset. I did not like it on the ward and I did not want to be there. I felt like I was in prison even though I had done nothing wrong, and I felt that the Tribunal was my only way of getting out. When it was cancelled I felt extremely frustrated and very tearful. I also feel that the cancellation of the Tribunal did not help my mental state as I believed that I may have been discharged at the Tribunal, but then had my hopes dashed when I was told that the Tribunal was cancelled."
However, the medical notes seem to me to be inconsistent with her recollection. The evidence does not show precisely when she was informed of the cancellation of the July hearing. The notes show that she was anxious and agitated in mood in the early part of the morning of 11 July, but that afternoon (by when she might have been informed of the cancelled hearing) she was "Much more settled and pleasant". Next morning, she was up at 6.00 a.m. and was "pleasant". Later notes on 12 July read:
"(LB) has been more settled this morning. Tribunal was cancelled / postponed, new date to be arranged. (LB) has been out into town with her mother remains settled."
"Went out for a walk, acknowledged feeling calmer generally."
As soon as I found out (on 7 August 2001) that my second Tribunal hearing had been cancelled I felt extremely low. I felt extremely frustrated at the cancellation as I knew that there was little I could do, I even thought that I could possibly be detained for a lot longer. I was very tearful and felt very vulnerable because I thought I would be taken off Section at the Tribunal the following day. Additionally, I felt nothing but despair as my Solicitor had informed me that I had a very strong case for being taken off Section 3 at the Tribunal.
"Sylvia Jeffries contacted ward. Wednesday's (tomorrow) tribunal has been cancelled. Mother informed as no telephone number for (LB), she will pass message on."
The note for 8 August reads:
"Seen Dr …
Back from 1 week leave
Good self care
Cooperative good eye contact
Eating + sleeping well
No abnormal beliefs
(Patient) is on leave until Friday. To attend Friday's ward round with stepfather."
The note for 10 August reads:
"Ward round with stepfather – doing well. (Patient) discharged from section."
"102. GM was detained under section 3 on 24 November 2000. His detention was renewed on 23 May 2001 until 23 November 2001. His application for the review of his detention was received by the North London Tribunal on 15 June 2001. By letter dated 25 June 2001, the Tribunal informed GM's solicitors that the hearing of his application would be on 16 July. On 13 July (the Friday before the Monday of the hearing), his solicitors were informed by telephone that the hearing was cancelled due to the lack of a medical member. On 25 July, his solicitors were informed by telephone that the hearing would be on 6 August. On 3 August (again, the Friday before the Monday of the hearing), the hearing was cancelled again for lack of a full panel. The next date fixed was 4 September. It too was cancelled, this time on the previous day, due to the lack of a full panel. GM's solicitors complained by letter dated 5 September 2001 that it was already 13 weeks since his application had been presented. Another hearing was fixed for 27 September. It too was cancelled due to the lack of a medical member: the medical member scheduled to hear the application was engaged in a case concerning a restricted patient that overran, and no substitute was available. A hearing was fixed for 18 October 2001; it took place and GM was discharged with effect from 15 November 2001 to permit aftercare arrangements to be put in place. The time between application and hearing was almost 19 weeks."
"I waited 4 months before I went to Tribunal. On each occasion I prepared for the Tribunal I was upset and annoyed every time it was cancelled and I felt cheated that I hadn't had my tribunal. … I knew that the tribunal was my only chance of getting discharged."
"Our current behavioural strategy on the ward is to try and dissuade GM from abusing his Section 17 leave. This proves very difficult, mainly because GM's behaviour is strongly influenced by the people he meets as well as by his craving for alcohol and drugs."
His diagnosis during the period relevant to his claim was bi-polar affective disorder.
"104. JR was detained under section 3 on 12 April 2001. His application to the North London Tribunal was received on 4 May 2001. The hearing was fixed for 6 June. It was cancelled on 5 June to accommodate a s 2 hearing for which the medical member was required. On 11 June 2001, JR's solicitors were informed that a hearing would take place on 11 July. This hearing took place, but as a result of the last-minute receipt of a new report by the RMO, JR's counsel applied for and was granted an adjournment to enable his independent psychiatrist to consider it. The Tribunal adjourned the hearing to 15 August 2001, and gave directions, including one that "Case to proceed on 15/8/01". However, that hearing was cancelled on 14 August. The Tribunal records indicate that the reason was that the medical member was required for a section 2 hearing. The explanation given to JR's solicitors was different, and indicates that his hearing was overlooked. On 15 August, his solicitors sent a letter before action to the Tribunal requesting a hearing by 22 August. A hearing was fixed for 6 September. It was cancelled on 5 September owing to the lack of a full panel, probably by reason of the unavailability of a medical member. Another hearing was arranged, for 21 September. It too was cancelled owing to the lack of a full panel, again probably because of the unavailability of a medical member. A hearing was arranged for 8 October 2001. It was effective. JR was not discharged.
105. Over 22 weeks had elapsed from the Tribunal's receipt of JR's application to the date of his effective hearing. If one leaves out of account the whole of the adjournment requested on 11 July (and I am not sure that it is appropriate to do so), the period was over 18 weeks. The basic reason was the lack of panel members. This was exacerbated by the need to accommodate section 2 hearings in circumstances where there was no panel able to take those cases without cancelling section 3 cases, and by the apparent failure to give appropriate priority to JR's case once there had been excessive delay and a cancelled hearing."
"7. When I was told of the cancellation of the third tribunal I felt let down. I was becoming more and more depressed in the hospital environment. I did not feel angry, it was more a feeling of hopelessness. The only outlet where I could get my arguments across was to the nursing staff in the Kestrel Ward office. They could not offer me the help that I wanted. The whole situation became desperate. My relationship with the nursing staff deteriorated significantly at this stage."
"JR still shows signs of thought disorder and is vulnerable to exploitation. He is accepting medication at present but is ambivalent about how he wants to receive this. He will need assertive follow-up in the community but I am in agreement with the team that he is not ready for discharge at present."
In August 2001, Dr Hill again examined JR; he noted an improvement in his condition and stated that he did not believe that he should be liable to detention. Trial leaves had passed without incident. However, the tribunal on 8 October 2001 preferred the contrary opinion of his new RMO, Dr Salih.
"… the prolonged frustration with the Tribunal process is likely to have affected (JR) adversely, not only as evidenced by his withdrawal after the news of the cancellation but the frequent periods of anticipation of the Tribunal that never came were a further strain upon him."
"There is therefore evidence of a considerable change in his attitudes in behaviour which nursing staff (for the only time recorded in the notes) attribute to the cancellation of an MHRT."
Dr Higgins considered that there was no evidence of a similar reaction to the other cancellations. He thought that the cancellations had not damaged JR's mental health.
(a) 6 June 2001
Dr Hill and Dr Higgins agreed that he would not have been discharged. The chances of his being discharged were remote.
(b) 15 August 2001
Dr Hill thought that JR would have been released if a tribunal hearing had taken place. In the joint report of Drs Hill and Higgins, Dr Higgins stated:
"As I understand it the question for me to answer is not whether I would have discharged him but the likelihood of an MHRT discharging him on 15 August 2001. The Tribunal would have had Dr Hills clear account of the involvement in JR's condition, the extensive unescorted leave with staff and his supportive family, his recently started unescorted leave, compliance with medication and no management problems. But on the other hand, there was continuing psychosis, the circumstances of the index behaviour remained uncertain, Dr Khatan was expressing 'considerable concern' about this, unescorted leave had just started and the clinical team was against discharge. It may be that the RMO and clinical team were being over cautious and that Dr Hill's supportive and optimistic views were correct to the extent that he has no doubt that the MHRT should have rescinded his section. But the factors I have indicated above would surely have also weighted notably in the judgement, even when the benefit of the doubt has to be given to the patient. The evidence was far from being all the one way and there must have been room for substantial doubt. I therefore think that the likelihood of JR being discharges on 15/08/2001 was 50%."
In evidence before me, however, Dr Higgins retreated from this view. He said that if he had been JR's RMO he would not have discharged him in August 2001, and would have argued on the cautious side, though he would not have been surprised if the tribunal thought him over-cautious.
(c) 6 September 2001
In the joint report, Dr Hill opined that the chance of discharge would have been less than in August, though still substantial. He referred to JR having been upset by the previous cancellation; he had been more disturbed and was probably drinking alcohol. Dr Higgins, on the other hand, thought that the chances of release were greater than on 15 August, perhaps 60 to 65 per cent. He stated:
"JR had been having unescorted leave since 09/08/2001, for almost two months. This had been generally going well but there had been a number of instances of late return and probable drinking. However these things happen regularly with patients on leave and none of the episodes were major or indicated increased risk and they have, I feel, to be seen against a background of slow progress. His mental state and behaviour was slightly less stable but there were no ideas which might have led to a repeat of the index incident.
On the other hand his clinical team was still taking a cautious view and were not supportive of discharge. Further work does not seem to have been done on 'offence related' work and the issue seems to have been fading in the light of generally favourable experience of JR."
(d) 21 September 2001
Dr Higgins stated, in the joint report:
"JR continued much as before. However he had been distressed and withdrawn following the cancellation of the MHRT on 6/09/2001 and had been upset by the events of 11/09/2001. His clinical team had remained cautious, magnified by the transfer of 'senior medical responsibility and further medical involvement' from RMO Dr Posse to Dr Salih, who was not a consultant. Besides this being a misunderstanding of RMO responsibility, the introduction of a new senior doctor would, no doubt, have introduced greater caution until this new doctor had experience of JR.
So, there is again a combination of continuing progress with episodes of short lived deterioration of mental state and continuing, if not increased, caution on behalf of his clinical team.
All of this would have caused an MHRT to weigh matters carefully. I feel that the increasing favourable features would just outweigh the unfavourable ones. My estimate of the likelihood of discharge remains roughly the same, perhaps 70%."
"His mother was on holiday and her request that JR should be allowed to holiday with her was refused. While she was away JR visited the parental home with a girlfriend and wishing to prolong the evening he says that he phoned the ward and was told that it would be all right to stay out longer. His sister appeared at the house and felt that he should not be there and got in touch with the hospital. He has always resented his sister's bossiness and lack of sympathy towards him. The ward said that he had not been given permission to stay longer and he returned feeling very let down by the nurse to whom he said that he had spoken and angry with his sister for interfering. His Section 17 leave was cancelled which compounded his distress and feeling of injustice."
Dr Hill continued:
"(JR) was very upset by the events of 1st October and the loss of his leave. There were angry words about the nursing staff and his sister and he became generally more disturbed. The MHRT stated that as it could not establish the facts about the telephone request for the extension of leave that it would disregard the episode in its determination. He had nonetheless become more disturbed because of the episode and it is likely that his more disturbed state just before the MHRT influenced the decision. The Tribunal could not know that it proved to be a very transient disturbance."
"The actual incident on 1/10/2001 and its consequences must surely have come into the calculations of the MHRT, despite its assurance that it could not make a decision on the facts of what actually took place. This together with the deterioration of JR's mental state, his performance at the interview and the obviously cautious views expressed by Dr Salih, must have played a part in its decision not to discharge JR."
"119. MK was detained under s 37. In September  she had set fire to a flat. She was arrested and charged with arson with intent to endanger life. She was found to be unfit to plead.
120. She applied to the South London Tribunal for the review of her detention on 11 June 2001. On 4 July, her solicitors were informed that her application would be heard on 2 August. On 1 August, the hearing was cancelled. A new hearing date was fixed, for 22 August. Her claim for judicial review was filed on 8 August 2001, seeking among other relief an order that a hearing be held within a reasonable time. The hearing date was moved forward to 17 August 2001, and her case was heard on that date. MK was discharged. 9 weeks and 4 days had elapsed since the date of her application.
121. Between 23 and 26 July 2001, 7 section 2 applications had been made to the South London Tribunal, all of which had to be heard within 7 days. The Regional Chairman had to cancel the 3 section 3 hearings due to take place on 2 August at the hospital where MK was detained so that the section 2 hearings could take place within the statutory time limit. The Chairman understandably and reasonably thought that she had no choice but to cancel MK's and the other section 3 hearings. While such cancellations can occur without any infringement of Article 5.4, I read the Chairman's statement in this case as attributing the cancellation of MK's (and the other 2) hearings to a lack of sufficient tribunal members. Furthermore, the original period between application and first fixed hearing was 7½ weeks; and the period between cancellation and effective hearing over 2 weeks. MK's right to a speedy hearing was infringed."
"110. TB is a restricted patient, detained under sections 37 and 41. His application for the review of his detention was made on 11 July 2001. There was then a standard target of 20 weeks for a restricted application. A provisional hearing date was fixed for 30 October 2001. On 29 October his solicitors were warned that the hearing might not go ahead, and the cancellation of the hearing was confirmed on the morning of 30 October itself. On 12 November, a new date, of 12 December, was given by the Tribunal. On 13 December, this was changed to 18 December. On 17 December, TB's solicitors were informed by the Tribunal that no panel was available for the following day. Judicial review proceedings were begun on 8 January 2002, at which date no new date for the hearing of his application had been arranged. Six months had passed since he had made his application. A hearing was arranged for 16 January 2002, and was effective, and the Regional Chairman acted as chairman of the panel. However, at the hearing TB's counsel asked and was given leave to withdraw his application on the basis of a change in his circumstances: his RMO had changed and he had been put on new medication.
111. The hearing fixed for 30 October was cancelled because of the lack of a legal member for the tribunal. The legal member due to participate in TB's hearing was engaged in a part-heard case, and no other legal member could be found. No legal member could be found for 12 December, and subsequently no medical member for 18 December, by reason of the very limited number of medical members who are available to sit in Kent (where TB was detained). A legal member who might have been available sat on a section 2 case, which was given priority to TB's. The eventual effective hearing took place 27 weeks after the date of the application, as against the 12 to 14 weeks that is, according to Mary Kane, 'the earliest realistic time that a restricted case can be heard'. The effective cause of the delay was the shortage of medical and legal members for the tribunal. TB's application did not receive a speedy hearing as required by Article 5.4, and his right to such a hearing was infringed."
"It is impossible, on the evidence that has been produced, to analyse in any detail the fault for the delay. Clearly the Claimant's solicitors needed time to instruct an expert and it is well known that suitable experts may not be available to produce a report within a reasonably short period of time. What is clear in my judgment is that with proper hands-on management by the tribunal after the receipt of the Secretary of State's application to adjourn the eventual hearing should have taken place a great deal earlier than it did."