PB v Priory Group Ltd  MHLO 74
Damages for unlawful psychiatric detention A Part 36 offer of £11,500 plus legal costs was accepted in this claim brought for unlawful detention and breach of Article 5. The patient had been detained under s5(2) when not an in-patient, and this section had lapsed for nearly seven hours before detention under s2 began.
The case summary below was provided by Matthew Seligman of Campbell-Taylor Solicitors (solicitors for the claimants). Any similar summaries of settled cases would be very welcome.
Keywords: Unlawful Detention – patient – Section 5(2) Mental Health Act 1983 – Public Policy – Article 5 ECHR – restitution of fees – CPR Part 36 – s139 Mental Health Act 1983 – Human Rights Act 1998
The First Claimant was detained at the Priory Hospital (North London) during an outpatient appointment on 30 September, 2016. The detention was initially under s5(2) of the Mental Health Act 1983 (“the Act”). The power under s5(2) of the Act only applies to the detention of in-patients. The heading of Section 5 refers to patients “already in a hospital” and s5(2) itself is expressly limited to “a patient who is an in-patient”. Nevertheless the First Claimant, who had made a morning appointment at the Defendant’s hospital simply to discuss a lower dose of her medication, was told within 15 minutes of the commencement of the appointment that she was being detained under Section 5(2) and could not leave. When she ran out of the room, she was prevented from leaving the facility by hospital staff and was taken upstairs and given a bed. Her husband, the Second Claimant who had attended with her, was required to make an immediate down-payment of £10,626 on his credit card, in respect of the Priory’s daily rate of £834. The patient was then detained at the hospital for the next 17 days, first for 72 hours under Section 5(2), then under no power at all for just under seven hours, and then under Section 2 of the Act (but without any explanation being provided on the Form A2 for not consulting a doctor who knew the patient) until discharged by her Responsible Clinician on 17 October 2016.
When the Hospital later pursued recovery of around £3,000 in outstanding fees, the Claimants consulted solicitors. After a complaint was rejected by the hospital, the Claimants brought proceedings against the Defendant’s Priory Hospital in North London. The First Claimant claimed damages for the whole period of her stay for unlawful detention at common law and contrary to Article 5 ECHR. The human rights claim was predicated on the basis that the Defendant was a public authority for the purposes of Section 6 of the Human Rights Act 1998 when compulsorily detaining patients under the Mental Health Act 1983. The Second Claimant claimed restitution of the fees he had paid on the basis that it would be contrary to public policy to allow a tortfeasor to profit from its wrong.
After High Court proceedings seeking permission under s139 of the Act to bring the claim were compromised, and the claim allowed to proceed, an extension to the period for issuing county court proceedings was agreed. The Defendant made a CPR Part 36 offer of £11,500 plus legal costs on 27 April 2018 which the Claimants accepted on 11 May 2018.
Originally the Claimants' solicitors had valued the claim in the Letter of Claim to the Defendant “at the same rate as you charged our client for remaining forcibly in your hospital, which is £834 per day.” However, the Claimant was advised to accept an award calculated on the basis of a higher level of compensation for a shorter period – the 72-hours of the detention under s5(2) only, plus 6 hours 45 minutes. The reasoning was that, as against the Hospital, there was a litigation risk that the application under s2 that followed might have been held to have appeared to be “duly made” and thus lawful for the purposes of s6(3) of the Act.
Following compromise of the claim, the settlement was notified by the Medical Protection Society to the Compensation Recovery Unit, but it was subsequently accepted by that unit that this settlement did not fall within the scheme. The Hospital has not continued its pursuit of the £3,000 arrears.
Summary by: Matthew Seligman, Campbell-Taylor Solicitors
Claimants' Solicitors: Campbell-Taylor Solicitors, London
Counsel for the Claimant: Chris Buttler, Matrix Chambers
Incident Dates: 30 September, 2016 - 17 October, 2016
Settlement Date: 10 May, 2018