R (Fitzpatrick) v MHRT (2005) CO/2778/2004 - press article
1.Very few cases have so far provided awards of damages for mental health patients under the Human Rights Act 1998. The recent decision of R (on the application of Fitzpatrick) v Mental Health Review Tribunal (CO/2778/82004) where the High Court awarded £4,000 damages to a patient for delay in holding a tribunal hearing may therefore prove instructive.
2.The claimant was a restricted patient under sections 37/41 Mental Health Act 1983 (MHA). He had been granted a deferred conditional discharged by a mental health tribunal (MHRT). However, the MHRT then failed to secure his discharge within a reasonable period.
3.Instead, the Chair of the Tribunal unilaterally varied the conditions attached to his discharge on the recommendation of the consultant in charge of his community care. The variation imposed a treatment plan on the claimant who suffered from a psychopathic disorder. The treatment plan appeared to have been imposed in the face of findings by the MHRT that the claimant was no longer treatable.
4.The claimant refused to submit to the treatment plan and commenced judicial review proceedings for the quashing of the decision to vary the conditional discharge on grounds of natural justice and article 6 of the European Convention of Human Rights. The judicial review claim also included a claim for damages for the delay by the MHRT in directing his discharge from hospital in breach of his rights under Article 5(4) of the European Convention of Human Rights (ECHR).
5.Article 5(4) ECHR states:
- 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.'
6.Section 8 of the Human Rights Act 1998 provides for the court to grant such relief or remedy or make such order, within its powers as it considers just and appropriate.
7. Section 8 (3) states:
- 'No award of damages is to be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court) and the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.'
7.The claimant was successful in his judicial review application with the respondent consenting to a quashing Order. However, the parties were unable to agree a settlement for the damages part of the claim, the respondent taking the view that the claim was worth no more than a nominal compensation award.
8.Subsequently, the claimant appeared before a re- constituted MHRT which heard his application for discharge de novo. It discharged him absolutely having determined that further treatment was unlikely to alleviate or prevent a deterioration of his condition or its symptoms.
9.In his claim for compensation, the claimant argued that there had been a delay in bringing about his discharge of some 14 weeks - this related to the period between the date of his deferred hearing for conditional discharge, a hearing that had been vacated because of the unlawful variation, and the date of the final decision to absolutely discharge him from hospital.
10.He relied on the case of R(on the application of KB and others) v Mental Health Review Tribunal  2 ALL ER 209 to argue that the relevant period for a claim for damages relates to the time when the tribunal ought to have determined the patient's application and the date when it is actually determined - this is referred to as the period of the unlawful delay.
11.In that case, Stanley Burnton LJ held that 'a marked lack of expedition, if unjustified, will point towards a breach of the reasonable time period and quotes the following from Koendjbiharie v Netherlands (1990) 13 EHRR 820 :
- 'On the face of it, a lapse of time of more than 4 months appears incompatible with the notion of speediness.'
12.In the absence of a claim for deprivation of liberty it is necessary for a claimant for human rights compensation to demonstrate that he has suffered frustration and distress 'of such intensity that it would justify an award of compensation for non-pecuniary damage' (per Stanley Burnton LJ in KB, para 73). He must also demonstrate that damages are necessary to achieve 'just satisfaction' and is the only appropriate remedy (Anufrijeva & Anor v London Borough of Southward & OthersB ).
13.The claimant made the following submissions:
- The quashing of the decision to vary the conditions of his discharge did not provide the claimant with an alternative remedy. Instead, he had to submit to a fresh hearing before a new MHRT with all the attendant anxiety.
- There was a high probability that he would have been discharged earlier, and in particular at the deferred hearing had this taken place.
- He had suffered distress and anxiety as a result of the Consultant psychiatrist imposing a treatment plan as a condition of discharge. Upon his refusal to accept the plan the nature of his detention in hospital changed with the loss of certain privileges.
- There had been strong and consistent medical evidence from his registered medical practitioner for at least 12 months that he was no longer treatable and ought to be absolutely discharged from hospital making it more likely than not on a balance of probabilities that he would have been discharged at an earlier tribunal hearing.
14.The claim proceeded by way of written submissions on behalf of the parties in line with the guidance given by Lord Woolf in Anufrijeva for these types of cases (see also the findings of Collins J in Geoffrey Wallace Andrews and Reading Borough Council  EWHC 937 (Admin)Not on Bailii!
15.The matter was disposed of on the papers by Walker J on 6 April 2005 who was satisfied that the claimant had met the relevant legal tests for an appropriate award of damages. He held that the quantum of the award reflected his view that the case had features comparable to the case of JR as set out in the judgement of KB (where an award of £4,000 was made by Stanley Burnton LJ).
Andrew Cave, Hunt and Coombs Solicitors
Deborah Tripley, Fenners Chambers
26 April 2005