Judgment has recently been given in the case of Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 55. This case has wide-ranging consequences for mental health trusts and other bodies who detain patients for their own benefit and that of society.
The Claimant, a mentally disordered patient, appealed against a County Court judgment that he was only entitled to nominal damages in a situation where he had been unlawfully detained in hospital for 442 days.
The Defendant Trust admitted that there was a 442 day period of unlawful detention because he had been detained following revocation of a Community Treatment Order (CTO) which was technically flawed.
However, it was accepted by the Claimant that he could, and would, have been admitted and detained over the same period using Section 3 of the Mental Health Act 1983 ("MHA") if it had not been for this technical breach. His detention had been confirmed by two tribunals during the relevant period and accordingly, his treatment would have been exactly the same. The Defendant Trust served independent psychiatric evidence supporting this and this evidence was accepted by the Claimant and the Judge.
At appeal the Claimant argued that damages should be more than nominal to reflect that his detention by the Trust was without any statutory authority or jurisdiction. It was argued that this was the key difference to previous cases of false imprisonment where nominal damages were awarded. In this case, it was argued by the Claimant that the Trust did not itself have such a power to detain the Claimant in its own right, and was also reliant upon the actions of individuals external to the Trust, namely approved mental health professionals or the nearest relative (as defined under the MHA). The Trust contended that it did not matter that it did not itself have the power to detain, and the only issue was whether the appellant would have been detained in any event by whatever means.
The Court of Appeal rejected the appeal. There was unanimous agreement that in cases such as this where the Claimant sustained no loss, nothing more than nominal damages should be paid. There was no distinction between situations where the power to detain was held by the defendant and those where third parties would have affected the detention. There was no justification for damages being more than nominal, either to reflect the loss of liberty or the loss of the procedural and substantive protections afforded by a lawful detention.
This decision upholds the position, which had been set out by the Supreme Court in an immigration context (Lumba v. Secretary of State for the Home Department (2011) UKSC 12, 1 AC 245) that when assessing the tort of false imprisonment, the courts should seek to put the Claimant in the position he would have been in had the tort not been committed. This had never been tested at the Court of Appeal in a mental health context. In a case such as this where the detention would have been the same, even if the tort had not been committed, then there is no compensatable loss.
It is now firmly established that, as long as a Trust (or other body) is acting in the patient's best interests and he/she would have been detained in any event, usual compensatory principles apply. If the patient has suffered no loss the patient will be entitled to a declaration and no more than an award of nominal damages.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
