The Civil Division of the Court of Appeal handed down judgment in the case of TTM v London Borough of Hackney and Others [2011] EWCA Civ 4 on 14th January 2011.

The appellant, M, had been detained at Homerton Hospital under section 3 of the Mental Health Act 1983 (MHA) between 30 January and 11 February 2009, on the application of an approved mental health professional (AMHP) for whom the hospital had accepted responsibility. M challenged the lawfulness of his detention and after a two-day habeas corpus hearing Burton J ordered that M be released from the hospital. There had been a breach of section 11(4) of the MHA, as although the AMHP had honestly believed that M’s brother had agreed to his sectioning it was not reasonable for him to believe that that was the case.

M had also issued a claim for judicial review against the local authority and hospital trust seeking damages for his detention or if this was barred by the MHA, a declaration of incompatibility between domestic law and Article 5 of the European Convention on Human Rights, as enshrined in the Human Rights Act 1998 (HRA), guaranteeing the right to liberty and security of person. Mr. Justice Collins of the High Court dismissed the claim for judicial review on 11 June but gave leave to appeal on limited grounds.

M argued before the Court of Appeal that his detention was unlawful on two grounds: that his brother had objected to the application; and that the doctor who provided the medical assessment had prior acquaintance with M and thus the application failed to conform with section 12(2) of the MHA. He claimed for unlawful detention, trespass to the person, negligence, breach of statutory under the MHA and breach of duty under section 6 of the HRA.

The Court of Appeal allowed the appeal, in part. Giving the lead judgment, Lord Justice Toulson overruled Collins J, holding that M was unlawfully detained both as a matter of domestic and European law, and he was thus entitled to compensation. He held that while the hospital managers detained the Appellant in lawful exercise of their power under section 6(3) of the MHA, he was wrongfully deprived of his liberty by the unlawful conduct of the social worker who had made the application for admission. While he had considerable sympathy with the local authority’s position, “[i]t cannot 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.” Thus, and following Sir Thomas Bingham in Re SC (Mental Patient: Habeas Corpus) [1996] QB 599, the fact that the hospital trust’s actions were lawful did not cure the underlying unlawfulness. According to Lord Justice Toulson, “[t]here 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”.

Further, while section 139(1) of the MHA limited the civil liability for the AMHP’s unlawful act to cases where the act was done in bad faith or without reasonable care, this was subject to the provisions of the HRA, and M should have been given leave to pursue a claim for compensation against the respondents.