Identifying wrongful detention and what to do about it

A common problem for mental health managers who have uncovered a procedural irregularity in a patient’s detention is in working out whether this means that the patient should be discharged and/or compensated. This article considers the current legal position and three recent cases on the subject:

• TTM –v- LB Hackney [2011] EWCA Civ 4
• LBN –v- Borland and MHT for Scotland (2011)ScotSC 9/5/11
• Walumba Lumba –v- SSHD [2011] UKSC 12

In the TTM case, a secondary issue arose as to whether the application to detain was vitiated because the doctors who made the medical recommendations had no previous experience of the patient.

Section 3(3) of the Mental Health Act provides that

An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners.

Section 12(2) requires that

Of the medical recommendations… one should be given by a practitioner approved… 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.

In other words, one of the two doctors must be s.12 approved but if he or she does not know the patient the doctor making the other recommendation should have such knowledge, if that is practical. In the TTM case, the medical recommendations originally obtained satisfied this requirement, but one of them did not support the application. That meant that the application would fail, potentially putting the patient and public at risk as the patient could not be detained. One option was to take the recommendation of the supportive doctor and find another who would toe the line and support the application. The treating team opted to get fresh recommendations from two different doctors but neither had previous acquaintance with the patient.

The fact was that the treating team thought that two fresh assessments would be more in the patient’s best interests. The Court accepted this, appearing to stretch the meaning of ‘practical’ to include the best interests of the patient. As the Court said, “the word “practical” must have sufficient elasticity to accommodate these considerations, consistently with the intention of Parliament”.

If the intention of Parliament is to provide a framework which provided care for the patient, protection for the public and safeguards against abuse of the human rights of the patient, the issue of what is practical gains wider significance. It would embrace within the meaning of practical the purposes of securing the aims of the legislation rather than just the patient’s right to freedom. This is a purposive, rather than a strictly legalistic approach to the interpretation of this part of the Act.

A similar approach was taken in Scotland in the recent case of LBN. Here, the application process required medical recommendations to be filed with the application to detain within 14 days of being made. They were filed late by about 15 hours. The relevant part of the Scottish legislation is framed in similar terms to that of s.12(2) of the Mental Health Act which applies in England and Wales. The Scottish statute requires that any application “shall be accompanied by the relevant medical recommendations” (s.63(2)(b) of the Mental Health (Care and Treatment) Act 2003).

The recommendations were needed for an application to a Tribunal and, in spite of the delay in filing them, they were available in time for the hearing that follows as a matter of procedure. The question for the Court was whether the delay in filing vitiated the application, rendering the subsequent detention unlawful. The Court decided that it did not, noting that:

“It is inconceivable that the intention of Parliament was that such a course would be frustrated by the failure to observe a time limit by some 15 hours in a situation where there has clearly been no prejudice to the [patient]”.

Another way of putting this is whether the word ‘shall’ as used in both pieces of legislation has mandatory or directory status. If the latter, a failure to observe procedural requirements will not always vitiate the application. Alternatively, the Courts might consider whether the requirements of the legislation have been substantially performed and then, if so, whether any prejudice has resulted. In the case of R –v- Soneji, Lord Carswell said:

“A minor and insubstantial deviation from the requirements will not make the resulting proceedings invalid. What will constitute substantial performance will depend on the facts in each case, and it will always be necessary to consider whether any prejudice or injustice has been done.” (R –v- Soneji [2005] 3 WLR)

This is reflected in the TTM judgment where it was noted that

“There is a tendency for the Courts to express their conclusions by reference to the imputed intention of the legislature. The result of this is that there was no breach of the underlying purpose of s.12(2), even if there was a failure to comply with the letter of the law”.

For professionals involved in managing patients these decisions may help in some respects but they do not necessarily make it any easier to establish whether an application is invalid such as to warrant discharge, possible resection or compensation. Even if the principle of LBN were to be applicable in England and Wales, how would it apply? For example, what would the effect be if a barring order is filed by an Approved Clinician instead of by the Responsible Clinician, or if it is filed 6 hours outside the 72 hour limit?

In so far as any principles can be elicited, where a mistake is made in an application to detain, the first step should be to consider s.15 of the Mental Health Act. Minor errors such as typos, misspellings or mistakes of fact can be rectified within 14 days of the application being received by the Managers. So if a doctor puts the wrong date on a recommendation, thereby making it appear that more than 5 days have elapsed between the two recommendations needed, this can be corrected. If in fact more than 5 days have elapsed, the mistake cannot be corrected.

Beyond 14 days or when there is an error of procedure such as where more than 5 days have elapsed between the medical recommendations, the following facts may warrant consideration:

1. Is there a breach of procedural requirements going to jurisdiction?
   In other words, does the mistake made mean that powers cannot be lawfully exercised? For example, if an AMHP does not consult the Nearest Relative prior to applying to detain the patient, this would not confer power on the Hospital Managers to detain the patient.
2. If not going to jurisdiction, is there a breach of a procedural requirement in the exercise of jurisdiction? In addressing this part, Managers should consider also:

- What is the underlying purpose of the statutory provision?
- What is the prejudice to the patient?
- What will be the expense to the public or hardship to third parties if the application is invalidated?

None of this will make it easier for Managers to decide whether an application is invalid. In the current economic climate, the prospect of having to obtain legal advice in such cases may be understandably daunting for NHS Trusts; the possibility of facing legal challenge is even worse.

Perhaps the only comfort here is the likelihood that even if a patient is found to be unlawfully detained, if he needed to be detained and treated, the compensation will be negligible. In the Walumba case involving unlawful detention of illegal immigrants, the Supreme Court held that the policy leading to the detentions was unlawful but, had it been properly applied, the detentions would have been needed anyway. In the leading judgment, Lord Dyson said of the detainees:

“In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.”

There is a general rule that Courts will not allow claims which are solely for nominal damages. This would prevent a claim for compensation, but before then the patient may seek a declaration of unlawful detention. If successful, this could lead to an award of legal costs against the NHS Trust holding the patient, even where compensation is not payable. This expense can be avoided by early recognition of errors in applications, by informing the patient and by rectifying the problem as soon as possible. Obviously, where a patient is unlawfully detained but should not have been detained at all, the compensation will be substantial.

The purpose of the Mental Health Act is to ensure that care is provided to patients and that the public is protected. Within that context, patients’ rights should be protected, but not absolutely, nor necessarily as a priority. Failing to dot each ‘i’ or cross each ‘t’ on an application does not make a detention unlawful.