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Lebrooy v Hammersmith & Fulham London Borough Council & Others, High Court, 27th April 2006

29 September 2006
The issues

Defamation – Mental Health Act 1983 – Liability of health professionals for statements made in the course of treating a person subject to the Mental Health Act 1983.

The facts

The Claimant brought five separate claims against health and social care professionals who had been involved in his treatment following his admission into hospital under the Mental Health Act 1983 Section 2. He alleged that he had been defamed in his medical notes which he said were grossly false and were made in a cavalier fashion and in respect of which the Defendants had refused either to withdraw them or to apologise.

In his Particulars of Claim he did not allege malice, though in the Hearing before the Judge he stated that he had further allegations of express malice to make but on being invited to particularise them failed or declined to do so. The Defendants brought Applications to dismiss the claims on the basis that the Particulars of Claim disclose no reasonable ground for bringing the claim or for Summary Judgment on the ground that the claims had no real prospect of success. And further that since the proceedings had been commenced without the leave of the High Court that they were in any event a nullity.

The decision

The basis of the claims appeared to be the passing on to other professionals of information by Mental Health Act approved Social Workers relating to the Claimant’s mental health. In each case the individual allegedly disclosing the information and the person receiving it were involved in the provision of health or social care.

Section 139 of the Mental Health Act 1983 provided that leave of the High Court would be required. The Claimant had argued that Section 139 applied only to those who had been detained under the Act. It had been established however in Pountney v Griffiths that the Section extended to any act provided it had been carried out in purported pursuance of the Act and that its scope was not limited to acts done or purported to be done in pursuance of functions specifically provided for in the terms of the Act itself.

The test to be applied as to whether leave should be given was considered by the Court of Appeal in Winch v Jones. There the Court commented that the Section was intended to strike a balance between the legitimate interests of an Applicant to be allowed to seek the Court’s adjudication on any claim which was not frivolous, vexatious or an abuse of principal and the equally legitimate interests of the Respondents to such Applications not to be subjected to the risk of being harassed by baseless claims by those who had been treated under the Acts.

The issue for the Court in deciding whether to grant leave was not whether a prima facie case had been established by the Applicant but whether, on the material available to the Court, the complaint appeared to be such that it deserved fuller investigation.

In dealing with this test it was necessary to consider the Defendant’s submission that none of the claims had any reasonable prospect of success.

Statements made by health and social care professionals acting in the course of their duties necessarily attracted qualified privilege. It was therefore necessary for the Claimant to establish malice if he was to succeed. None of his pleadings alleged malice and on being invited to particularise malice before the Judge the Claimant failed to do so. For this reason the claims had no reasonable prospect of success and the Court would ordinarily strike them out under CPR 24 on that basis. However, since for the purposes of Section 139 the complaints were such that they did not merit fuller investigation and it would be neither proportionate nor in the interest of justice to permit them to proceed further, the claims would be struck out on the basis that they were a nullity since no leave had been obtained from the High Court.

The Defendants had applied for a Civil Restraint Order. The threshold criteria for the making of such an Order was that a party had persistently issued claims or made Applications that were totally without merit. The Claimant here had issued a number of claims. His conduct to date however could not be properly be categorised as “persistent”.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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