Unlawful detention of patients

Simon Lindsay reports on an important decision in the case of TTM –v- LB Hackney (2011)  EWCA Civ 4, which causes pause for thought for any mental health professional involved in detaining patients under the Mental Health Act. The Court of Appeal considered whether an intrinsic defect in an application (whether or not the defect was made in good faith or not) meant that the patient was unlawfully detained from the moment the hospital managers exercised their powers or from when a court ordered the patient’s release.

The background

Under s11 of the Mental Health Act an Approved Mental Health Practitioner (AMHP) can make an application for admission for treatment under s.3 unless the nearest relative of the patient notifies the AMHP or the local authority that he objects to the application being made. Prior to this case an AMHP making the application would only be liable if they acted in bad faith or without reasonable care by virtue of the protection in s.139(2) of the Mental Health Act.

If an application is made and the application papers appear to be in order, the hospital managers would be entitled to accept them and then detain the patient.

But what about the position of the patient where there is a defect in the application papers which means that the statutory requirements for lawful detention have not been met? Does this mean that he is lawfully detained because the AMHP cannot be challenged, having acted in good faith and with reasonable care, and the hospital managers exercised a lawful authority having properly scrutinised the papers and not identified any gross or obvious irregularity? Or does this mean that the patient is unlawfully detained, albeit with every intention to act in his best interests, but has no redress? The Court of Appeal addressed both questions.

The facts

M was detained from 30 January to 11 February 2009 under s.3 after the AMHP mistakenly, but honestly, thought the patient’s brother had agreed to the detention. Acting on the basis of that application the hospital trust detained him. M challenged the lawfulness of his detention.

On 11 February 2009 the court held that M’s detention was unlawful and that M should be released. At that hearing M also issued a claim for judicial review seeking damages for the detention.

On 11 June 2010 M’s claim for judicial review was dismissed. The court held that the AMHP had not complied with the provisions of s.11(4) MHA but that no claim could be made because M was not unlawfully detained until the court overturned the original application. Leave to appeal was given.

The Court of Appeal decision

• The local authority through the AMHP was responsible for ensuring an application for detention was made lawfully.
• The hospital trust was responsible for carrying out the detention on the application. It was in the public interest that a hospital trust should act promptly on receipt of an application that appeared to be in order and it would be impractical for hospital managers to have to check all background facts. They are therefore entitled to rely on an application which appeared to have been completed in accordance with the Act.
• The application that the AMHP had in good faith made was unlawful as there was an intrinsic defect as the patient’s nearest relative had not in fact agreed to the detention.
• M’s detention was unlawful and he was entitled to compensation.
• In the case of a patient detained because of a mistake by an AMHP, the local authority would normally be responsible for compensation payable because of an infringement of the patient’s rights under Article 5 of the European Convention on Human Rights. The protection otherwise afforded by s.139(2) should not detract from this.
• Although the Hospital Managers were the detaining authority, since they were acting on lawful authority information (via the AMHP), they should not be responsible for the compensation.

What does this mean?

This judgement clarifies the law in this area and improves accountability for patients. Patients have a right of redress even if an application is made in good faith and claims for wrongful applications are more likely in the future.

Mental health professionals must carefully follow the detailed provisions and procedures of the Mental Health Act. They may require additional training.

Issues will now arise as between local authorities and NHS Trusts as to where responsibility will lie for patients who are unlawfully detained, particularly where AMHPs are seconded to or employed by NHS Trusts.

Section 75 agreements will need to be checked to clarify what indemnity arrangements might apply. Above all, whichever organisations are responsible for overall management of the implementation of the Act, they will need to be sure that AMHPs get the application right.