Wrongful Detention Again

While awaiting the outcome of MiG and MeG which I argued before the Court of Appeal as long ago as October 21st, I spotted that another division of the Court of Appeal had decided another deprivation of liberty case meantime: TTM v LB Hackney [2011] EWCA Civ 4. Heard on 14-15 December, judgment was given in TTM on 14 January 2011.

This case is about the lawfulness of applications to detain a patient under section 3 Mental Health Act 1983, when a nearest relative is objecting. The particular problem that arose in it was one of communication. Mr M is Lithuanian and came to the UK with his brother to seek work. In 2008 he became mentally ill, and started harassing women who were strangers. He was admitted to hospital first under section 2 for assessment, and then under section 3.

His brother did not object at first, as he recognised that M needed treatment. Later, he decided he was unhappy about his brother’s detention, and notified the hospital that as nearest relative he required his brother to be released. That led to a meeting at the hospital, after which it was agreed that M should remain there, but on a voluntary basis.

Further problems arose when M refused to take his medication, and his doctors disagreed about whether to section him again. One of his treating doctors, Dr Malik, thought M should be detained, but two others (one of whom was the clinical director) disagreed. The hospital doctors decided that it would be fairer, given that they disagreed with each other, to seek independent psychiatric assessments. They consulted two independent practitioners both of whom had experience in forensic psychiatry. One was from within, the other from outside the trust. Both were section 12 approved. Both assessed M, and both concluded that M needed to be detained, in the interests of his own health and safety and the protection of others. So a social worker made an application based on their opinions, under section 3, and he was detained again.

A further dispute then arose about whether or not the social worker, who made the application, was aware that M’s brother objected to it. This was important, because where a nearest relative is objecting, section 11(4) (a) of the 1983 Act expressly prohibits an application by a social worker. In that scenario, what is meant to happen is that the social worker or “approved mental health professional” must make an application to the County Court under section 29 of the Act, to displace the nearest relative on the basis that he is objecting unreasonably.  Obviously, that is a more cumbersome process, because the court has to be involved.

M’s brother consulted lawyers, and proceedings began. There was an application for habeas corpus before Burton J who heard evidence, and then a trial before Collins J at which M alleged that he had been falsely imprisoned, and also sought permission to bring a civil claim pursuant to section 139(2) of the Act, which requires the court to filter the bringing of civil actions by former patients against institutions and treating professionals by the grant of permission.

Both the local authority which was responsible for the social worker who made the application, and the hospital trust, were parties. Burton J concluded that the brother had not withdrawn his objection to detention, although the social worker had honestly believed that he had, over the course of three telephone conversations. According to Collins J, Burton J found Ms Bailey to be a
thoroughly honest and a convincing and impressive witness. He found in the claimant’s favour because of her honesty in recognising (as indeed her notes tend to confirm) that there had been an objection in the second call. He rejected the brother’s account of a second afternoon call in which he said he had made it clear that he was objecting. But he concluded that, although she honestly believed that the claimant’s brother was agreeing to the sectioning, he in fact had not and she should not have
concluded that he had.

What a sorry state of affairs.

The hospital trust denied any false imprisonment, on the basis that the hospital managers were entitled to rely on the application, even though it had later proved to be defective (indeed, unlawful), having regard to section 6(3) of the Act.  This gives a statutory defence to a hospital which admits a patient to detention on the basis of an application which appears to have been duly made. The hospital blamed the local authority, which was responsible for the social worker. Even the Secretary of State for Health became involved in the proceedings, as an “interested party.” Collins J dismissed M’s claim, but gave leave to appeal on two grounds:

(a) Was M’s detention unlawful ab initio, such that he could claim compensation under Article 5 of the European Convention?

(b) Should the doctors who decided that M deserved detention and on whose opinion the application was based, have had previous acquaintance with him?

Section 12(2) of the Act provides: “(2) Of the medical recommendations given for the purposes of any such application, one shall 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 practicable, be given by a registered medical practitioner who has such previous acquaintance [italics added].”

The Court of Appeal began somewhat grandly by quoting Magna Carta (I kid you not!).  It exonerated the hospital managers, because they could rely on their statutory defence. But it pointed the finger of blame at the hapless social worker, even though she had acted honestly and was (in the words of Toulson LJ who gave the lead judgment)  “clearly conscientious.” It concluded that Article 5 had indeed been breached, and that M was entitled to bring his compensation claim accordingly.

As to his appeal under section 12(2), it dismissed M’s arguments. It was unfortunate that M’s treating doctors disagreed about whether he should be detained. The hospital had acted responsibly by consulting clinicians from outside, who (self-evidently) were not acquainted with M. It had to consider M’s interests and the protection of the public. It sufficed that one of M’s treating doctors who was acquainted with him believed that he should be detained. It was not practicable to expect that the external clinicians, or one of them,  should also have to become acquainted with M before they could give a valid opinion to found an application to admit. Even if there had been a technical breach, in the sense that the strict letter of the law had not been complied with, there had been no breach of the underlying purpose of section 12(2).

Where does this decision leave the law on detention? Clearly, social workers will need to take great care in their contacts with nearest relatives from now on, to be sure that they are not objecting. Perhaps it might be an idea to get such persons to sign a form, to avoid the kind of arguments that arose here. Or perhaps the social worker simply has to be very, very forceful and direct: “Are you objecting?” and get a straight “Yes” or “No” and document it. 

As for M’s compensation, presumably it is not going to be that high: the period of detention for which he was claiming compensation was just under a fortnight.  The costs of the litigation by comparison will make it pale into insignificance.

As for the Court of Appeal’s approach to the interpretation of section 12(2), it seems to have made somewhat heavy weather of this. The word “practicable” has been the subject of judicial consideration in other cases, as a quick trip to the library to consult Words and Phrases Legally Defined demonstrates. Lord Goddard in Lee v Nursery Furnishings Ltd [1945] 1 ALL ER 387 adopted a definition in the OED of “capable of being carried out in action” or “feasible.”

Parker J in Adsett v K & L Steelfounders [1953] 1 All ER 97 at 98 said: “it seems to me that ‘practicable’ must impose a stricter standard than ‘reasonably practicable’”, though he accepted that questions of cost might be eliminated under “practicable.” Here, the hospital doctors were trying to act fairly, by seeking independent expertise in assessing M, who was plainly challenging to assess, as only a minority within the hospital believed that he warranted detention, whilst a majority did not. What if they had let M go, and he had killed or attacked a woman? Think of the public uproar and possible lawsuits that could have ensued.

All in all, it’s a cautionary tale.

© Barbara Hewson