(1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were.
TTM v LB Hackney  EWCA Civ 4 - Court of Appeal
For more details of the facts, see 'Related Judgments' below.
The Appellant was initially detained at Homerton Hospital in November, 2008 under s2 MHA 1983 and then, with his Nearest Relative’s approval, under s3 at the beginning of December, 2008. However, by 19 January 2009 the Nearest Relative, concerned with the lack of progress, had decided to exercise his right to discharge the Appellant, which took effect on 22 January, 2009. After a short period of further detention under s5(2), in relation to which a damages claim was subsequently compromised, the patient was discharged by the hospital on 23 January 2009. But a week later, on 30 January 2009 a new application for detention under s3 was made by an Approved Mental Health Professional on behalf of the London Borough of Hackney, in the face of the Nearest Relative’s continuing objection. habeas corpus proceedings were then brought the following week, and the patient was finally discharged by order of the Court on 11 February 2009.
Nevertheless, at that point, a series of obstacles remained in the way of the patient’s damages claim for unlawful detention. Section 139 prevented a claim against the local authority unless it could be shown that the application for detention had been made at least 'without reasonable care', and then only if the Court granted permission for the claim to be brought. In any event, the local authority's position was that it was not, in law, responsible for its social worker’s actions. As against the detainor, the hospital relied on its immunity under s6(3). Further the Secretary of State argued that these provisions did not, as a whole, make MHA 1983 incompatible with the patient’s enforceable right to compensation where Article 5 of the European Convention of Human Rights ('ECHR') had been breached (see Article 5(5) ECHR). As a result the Appellant could not claim damages for his detention, even though he had been granted a writ of habeas corpus in respect of it.
At first instance, Collins J ruled that most of these hurdles were lawful, with the exception that s145(1AC) of MHA 1983 operated to make the local authority responsible for its social worker. On all other points the claim failed and, additionally, Collins J ruled that although a writ of habeas corpus had been granted, the Appellant's detention did not become unlawful until that moment. Collins J also held that for these reasons, s6(3) MHA 1983 and the absence of any Court order to the contrary in effect 'healed' the procedural defects in the original application, and made it lawful up until the grant of habeas corpus. As a result, at no point until then had Article 5 been breached. Collins J also ruled that the application for detention, although mistaken, was not negligent, and he refused permission under s139(2) for the claim to proceed on that basis as well. He did, however, grant limited permission to appeal.
The Court of Appeal allowed the appeal against the local authority. In ruling on the seven grounds identified in the headnote above, it followed the reasoning in Re S-C (Mental Patient: Habeas Corpus)  QB 599 to the effect that it would be a 'horrifying' result if s6(3) operated as a healing provision, and doubted dicta to the contrary in R v Central London County Court, ex parte London  QB 1260. The procedural breaches by the social worker in making the application in the face of an objection from the patient’s nearest relative, which was contrary to s11(4), meant that the detention was unlawful both at common law and under Article 5 from the outset. Article 5(5) therefore gave the Appellant an enforceable right to compensation, and permission for the claim to proceed under s139(2) MHA 1983 ought to have been granted (and in that context, s139(1) should be 'read down' under s3 Human Rights Act 1998 so as to give effect to the Appellant's Article 5(5) rights).
The Court of Appeal also held that the local authority could be liable to meet a claim for false imprisonment, albeit the hospital and not it had actually detained the patient, on the basis that it had 'directly caused' the detention, and followed Davidson v Chief Constable of North Wales (1994) 2 All ER 597 in this regard.
The Appellant's subsidiary argument, against the hospital, that the application for treatment was bad for another reason – in that it had been supported by two medical recommendations from doctors who did not have previous acquaintance with the patient, contrary to s12(2) – failed, on the basis that 'practicability' in this context was to be construed with some elasticity, following R (E) v Bristol City Council  EWHC 74 (Admin). Here, the disagreement amongst those treating the Appellant as to whether or not he was actually 'sectionable' justified going outside the team, to seek an opinion from two doctors without previous acquaintance of the patient.
Appeal allowed as against the First Respondent, the London Borough of Hackney.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Admission for treatment — Compulsory detention — Application for admission and detention approved in good faith by social worker — Application apparently valid but made by two practitioners not known to patient — Patient detained in pursuance of application — Whether application made in accordance with statute — Whether patient lawfully detained — Whether entitled to compensation — Whether statutory restrictions on right to compensation compatible with Convention right to liberty — Whether to be read down — Mental Health Act 1983, ss 6(3), 139(1) — Human Rights Act 1998, s 3, Sch 1, Pt I, art 5
A hospital trust was entitled to rely upon an application for the admission for treatment of a patient under the Mental Health Act 1983 which appeared to comply with section 6(3) of the Act as being a lawfully made application pursuant to the provisions of the Act. Where such an application, completed by an approved mental health professional (AMHP), had failed to comply with those provisions, the failure rendered the patient’s detention unlawful and imposed the responsibility for the unlawful detention upon the AMHP. The statutory defence in section 139(1), which relieved the AMHP from civil liability unless he or she had acted in bad faith or without reasonable care, would be read down by virtue of section 3 of the Human Rights Act 1998 so as to permit a claim by the detained person for compensation from the AHMP.
The Court of Appeal so held allowing in part the appeal of the claimant, TTM (by his litigation friend TM), from the decision of Collins Jon 11 June 2010 to dismiss the claimant’s claim for judicial review against the defendants, Hackney London Borough Council and East London NHS Foundation Trust, seeking damages for his detention or, if it were held that his claim for compensation was barred by the terms of the Mental Health Act 1983, a declaration of incompatability with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant’s claims were for unlawful detention and/or trespass to the person, negligence, breach of statutory duty under section 11(4) of the 1983 Act and breach of duty under section 6 of the Human Rights Act 1998 coupled with article 5 of the Convention. The Secretary of State for Health was joined as an interested party. On 11 February 2009 Burton J had granted the claimant’s application for a writ of habeas corpus on the grounds that his detention under the 1983 Act was unlawful. The application for the claimant’s admission had been completed by an AMHP for whose conduct the local authority accepted responsibility.
TOULSON LJ referred to Chapter 29 of Magna Carta 1297 and said that the right to freedom enshrined therein was a fundamental constitutional right. Cases had from time to time arisen where a claimant had been detained by a third person in consequence of something said or done without justification by the defendant; see Davidson v Chief Constable of North Wales  2 All ER 597. The principle was therefore recognised at common law that there may be false imprisonment by A, although it was B who took the person into custody and B acted lawfully, provided that A directly caused B’s act and that A’s act was done without lawful justification. The hospital trust had acted lawfully in detaining the claimant by virtue of section 6(3) of the Mental Health Act 1983. Section 6(3) was intended to enable hospital managers, possibly at short notice, to admit for treatment someone who they had reasonable cause to believe was in immediate need of such admission for health and safety of himself or for the protection of the public. With that end in view, Parliament had considered it reasonable for hospital managers to be able to rely on an application which appeared to have been completed in accordance with the requirements of the Act. It followed that hospital managers had a defence, under section 119, against any claim which might otherwise have been made against them for acting upon an invalid application. However, it did not follow from the fact that hospital managers detained the claimant in the lawful exercise of their power under section 6(3) that he had not been wrongfully deprived of his liberty by the unlawful conduct of the AMHP who had made an unlawful written application for the claimant’s admission. On ordinary principles of common law, the claimant’s detention was unlawful inasmuch that it had been brought about directly by the conduct of the AMHP for which she had had no lawful justification, notwithstanding that she had acted in complete good faith. His Lordship referred to R v Managers of South Western Hospital, Ex p M  QB 683Not on Bailii, In re S-C (Mental Patient: Habeas Corpus)and R v Central London County Court, Ex p London .. In In re S-C Sir Thomas Bingham MR, at p 603, had reached three conclusions directly relevant in the present case: (1) the hospital managers had acted lawfully by reason of section 6(3); but (2) that fact did not clothe the conduct of the AMHP with lawfulness; and (3), S-C’s detention had been unlawful throughout. He had spoken of section 6(3) not turning an unlawful detention into a lawful detention, and he had referred to it as plain on the agreed evidence that there had never been jurisdiction to detain S-C in the first place. His Lordship had no doubt about the correctness of this reasoning. The claimant had been deprived of his liberty as a direct consequence of the AMHP’s unlawful act in applying for his admission in breach of section 11(4). The only matter which protected the local authority from liability for false imprisonment was the statutory defence provided by section 139(1). That subsection did not stop the AMHP’s conduct from being unlawful. What section 139(1) did was to limit the civil liability of the AMHP (and the local authority) for the AMHP’s unlawful act to cases where the act was done in bad faith or without reasonable care. The restriction was, however, subject to the provisions of the Human Rights Act 1998. This was a case of detention by the state under a statutory scheme involving two agents of the state between whom the scheme provided for an internal division of responsibility. It could not be right, because of the division of responsibility, to regard the resulting state detention as consistent with article 5, when the fundamental cause of the detention was an application made in contravention of the Act. On the main issue, the judge ought to have held that the claimant had been unlawfully detained, both as a matter of domestic law and within article 5, by reason of the AMHP’s contravention of section 11(4), and he should have given the claimant leave under section 139(2) to pursue a claim for compensation against the local authority.
JACKSON LJ and SIR ANTHONY MAY P agreed.
CA: Sir Anthony May P, Toulson, Jackson LJJ : 14 January 2011
Appearances: Richard Gordon QC and Amy Street (instructed by Steel & Shamash) for the claimant; Neil Garnham QC and Sydney Chawatama (instructed by Capsticks Solicitors LLP) for the second defendant; Alex Ruck Keene (instructed by Solicitor, Hackney London Borough Council ) for the first defendant; Jason Coppel ( instructed by Solicitor, Department of Health) for the Secretary of State.
Reported by: Carolyn Toulmin, Barrister
Appellant: Mr Richard Gordon QC and Ms. Amy Street (instructed by Steel & Shamash)
First Respondent: Alex Ruck Keene (instructed by the London Borough of Hackney)
Second Respondent: Mr Neil Garnham QC and Mr Sydney Chawatama (instructed by Capsticks LLP)
Third Respondent: Mr Jason Coppel (instructed by the Office of the Solicitor for the Secretary of State for Health)
M v Hackney London Borough Council and others
;  WLR (D) 2; (2011) Times, 17 February