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Bostridge v Oxleas NHS Foundation Trust, Court of Appeal, 10 February 2015

11 May 2015
The issues

Unlawful detention – Lumba v Secretary of State for the Home Department – damages

The facts
The claimant was a mentally disordered patient, unlawfully detained in hospital for 442 days. The issue before the court was whether the claimant was entitled to substantial damages rather than the nominal damages in fact awarded by the trial judgeudge, in circumstances where he would have been detained lawfully had the defendant NHS trust been aware of the unlawfulness.

The claimant suffered from schizophrenia and was detained under Section 3 of the Mental Health Act in July 2008. In April 2009 the First-tier Tribunal reviewed the claimant’s case and ordered his discharge, but postponed the discharge until 15 April 2009 in order that a community treatment order could be put in place. The order was put in place but was technically flawed because Section 17 A(ii) of the Mental Health Act provided that only a person “liable to be detained in a hospital in pursuance of an application for admission for treatment” could be made subject to a community treatment order. When the claimant was released on 15 April 2009, he was no longer a detained patient so the community treatment order was unlawful and invalid. On 19 August 2009 the trust purported to recall the claimant to hospital under Section 17E(6), relying on the community treatment order. He was detained in hospital. The detention therefore between 19 August 2009 and 3 November 2010, when he was discharged, was unlawful. The trust had accepted liability for the tort of unlawful imprisonment and for acting unlawfully under Section 6 of the Human Rights Act 1998.

The First-tier Tribunal subsequently reviewed the claimant’s case during his detention on 21 January 2010 and 26 May 2010 and decided on both occasions that his condition required continued detention. It was agreed that if the claimant had been detained unlawfully he would have suffered the same unhappiness and distress that he suffered anyway. When the unlawfulness of the detention came to light at a First-tier Tribunal hearing, he was released the same day and then lawfully readmitted and detained under Section 3 of the Mental Health Act.

The judge relied on Lumba v Secretary of State for the Home Department and Cambadzi v Secretary of State for the Home Department and held that there was no basis after Lumba for an argument that irrespective of loss, the infringement of personal liberty, amounting for the tort of false imprisonment, had to be marked by an award greater than nominal damages.

The claimant appealed.

Three issues arose. Firstly – was the judge wrong to hold on the basis of the decided cases that the claimant was only entitled to nominal damages? Secondly – whether, for policy reasons, substantial damages were required on the basis that the decision of the European Court of Human Rights in Wintwerpe v The Netherlands. Thirdly – whether, even if the claimant would have been detained in any event, and that was relevant to the appropriate amount of damages awarded, those damages ought to have been more than nominal to reflect his loss of liberty.

The first issue
The claimant relied on Kuchennister v The Home Office, a decision from 1958, which held that vindicatory damages were appropriate in a case of false imprisonment, even where the claimant could have been lawfully detained. That first instance decision had to be regarded as inconsistent with Lumba, which had clearly laid down that vindicatory damages were not appropriate in a case of this kind.

It was clear that, as the judge had found, the claimant had sustained no loss in this case, because he would have been lawfully detained on 19 August 2009 under Section 3 of the Mental Health Act had the lack of authority to make a community treatment order been drawn to the trust’s attention. That was sufficient to demonstrate that no substantial damages were necessary to put the claimant in the position that he would have been in had the tort relied upon not been committed.

The second issue
In the court’s judgment, the decision of the European Court of Human Rights said nothing about the appropriateness of compensation to be awarded once a finding of false imprisonment had been made.

The third issue
Once it was clear that the claimant sustained no loss, because he would have been lawfully detained in any event, whether or not the breach had occurred, it was hard to see how an award of anything more than nominal damages could be justified, whether as compensator damage or as just satisfaction in respect of a breach of Article 5 of the convention.

Appeal dismissed.

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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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