R (TTM) v The London Borough of Hackney and East London NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Toulson |
| Judgment Date | 14 January 2011 |
| Neutral Citation | [2011] EWCA Civ 4 |
| Docket Number | Case No: C1/2010/1658 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 January 2011 |
[2011] EWCA Civ 4
Mr Justice Collins
Before: the President of the Queen's Bench Division
Lord Justice Toulson
and
Lord Justice Jackson
Case No: C1/2010/1658
C0/1221/2009
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
Mr Richard Gordon QC and Ms Amy Street (instructed by Messrs Steel & Shamash) for the Appellant
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
Lord Justice Toulson :
Introduction
This appeal raises issues concerning the law of trespass to the person, the Mental Health Act 1983 and the European Convention on Human Rights.
The appellant, M, was detained at Homerton Hospital between 30 January and 11 February 2009. The hospital is managed by the second respondent ("the hospital trust"). M's detention followed the acceptance by the hospital trust of an application for his admission under s3 of the Act. The application was completed by an Approved Mental Health Professional ("AMHP"), for whose conduct the first respondent ("the local authority") accepts responsibility whether or not it is as a matter of strict law vicariously responsible.
M challenged the lawfulness of his detention by applying for a writ of habeas corpus against the hospital trust. The local authority was joined in the proceedings as an interested party. After a two day hearing, on 11 February 2009 Burton J gave judgment for M and ordered that:
"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."
On the first day of the hearing M also issued a claim for judicial review against the local authority and the hospital trust, seeking damages for his detention or, if it were held that his claim for compensation was barred by the terms of the Act, a declaration of incompatibility with Article 5 of the Convention. In view of the contingent claim for a declaration of incompatibility, the third respondent ("the Health Secretary") was therefore joined as an interested party.
After an oral hearing, on 11 June 2010 Collins J dismissed M's claim for judicial review. He held that M's detention during the period up to Burton J's order was not unlawful as a matter of domestic law and that there was no incompatibility between domestic law and Article 5 of the European Convention. He gave leave to appeal on limited grounds.
Section 3 provides:
"(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."
The Act contains detailed provisions about who may make an application under s3(2) and the procedures which are to be followed.
Under s11 an application for admission for treatment may be made by an AMHP, subject to certain exceptions. One of the exceptions, provided by s11(4)(a), is that an AMHP may not make such an application in respect of a patient if the nearest relative of the patient has notified the AMHP, or the local authority on whose behalf the AMHP is acting, that he objects to the application being made. In such a case there is a different and more complex method for making an application for the patient's admission for treatment.
Section 6(3) is important in the present case, but I should set out the whole section because of an argument based on comparison of the language used in the different subsections. The section provides:
"(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."
The "necessary medical recommendations" for admission under s3 are defined in s3(3). Section 12 contains further provisions about who may make them. Section 12(2) states that:
"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…"
Section 139 is important. It provides:
"(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."
Article 5 of the European Convention provides:
"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...
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