Thursday, 31 December 2009

When you got nothing ...

... You got nothing to lose. So sang Bob Dylan, but is that always the case?

Is it possible that someone in detention retains a measure of freedom, even after his liberty has been taken away? A recent decision of the Court of Appeal suggests that he does, at least if he is a prisoner (Iqbal v Prison Officers Association, 2009).

But hasn’t the court already told us that in the case of mental health patients, the reverse is true?

Mr Iqbal is serving a 15-year prison sentence. In August 2007, when he was at HMP Wealstun, there was a one-day strike by prison officers. All prisoners were locked in their cells by order of the governor and as a result, Mr Iqbal lost the five hours he would have spent at work or in the gym. He claimed that he had been falsely imprisoned by the prison officers, but he lost his case in the Court of Appeal.

The governor could not be liable to Mr Iqbal, because the Prison Act 1952 says that a prisoner may be lawfully confined by the governor. If a prisoner enjoys no ‘residual liberty’, that would, of course, have been a further reason for rejecting Mr Iqbal’s claim, but it did not figure here.

The Court of Appeal felt that there was such a thing as residual liberty. One of judges said, “even if [he is] lawfully within a prison by order of a court, a prisoner enjoys the liberty not to be further restrained by unauthorised action whether by fellow inmates or prison officers”.

But that idea seems inconsistent with the decision in the Munjaz case, which, of course, concerned a patient detained in a high secure hospital under the Mental Health Act 1983 (MHA). He was placed in seclusion for days on end and claimed that he had seen a doctor too infrequently (Munjaz v Mersey Care NHS Trust, 2003). The case turned upon the MHA Code of Practice and whether its requirements were fully met, but the Court of Appeal and the House of Lords also found that for detained patients, residual liberty – or what was called “prison within a prison” – did not exist.

Iqbal clearly has resonance in mental health cases, for under the MHA, the managers of a hospital enjoy powers similar to those endowed upon the governor of a prison: a valid detention application enables a patient to be detained, but also to be re-taken if he absconds, treated against his will and, following Munjaz, placed in seclusion (MHA, section 6(3)). In most cases, that authority will cover the hospital managers and those that do their bidding, but it won’t apply in other circumstances.

The cases of Iqbal and Munjaz are different, not least because the first was about a prisoner and the second about a patient, and also because they were decided according to substantially different authorities. Yet each concerned a man who said he retained some freedom, even after his liberty was lawfully taken away. It may be, therefore, that in entertaining the notion of residual liberty, the Court of Appeal has placed itself at odds not only with its earlier self, but also with the House of Lords.

And yet, the decision in this case goes to the heart of mental health care: it implies that in the right circumstances, a detained patient may challenge the decision to seclude him. No such challenge will lie against the principal detainers, of course: like the Prison Act in Iqbal, the Mental Health Act makes sure of that. But a claim might succeed where one patient locks another in a cupboard, or even where a formal decision to seclude a detained patient is inconsistent with established hospital policy.

(Bob Dylan, Like a Rolling Stone, copyright ©1965; renewed 1993 Special Rider Music)

Does the coroner owe you money?

It is becoming less common for coroners to make a charge for the documents they provide in connection with an inquest. Some do still charge - for copy post mortem reports, for example, and witness statements - and where they do, it’s usually under regulations introduced in 2002. But those regulations don’t just help coroners.

It is usually The Coroners' Records (Fees for Copies) Rules 2002 that coroners invoke when they send out their invoices. Rule 3 says, "The fee payable to coroners or other persons for furnishing photocopies of inquisitions, depositions or other documents in their custody relating to an inquest shall be £1.10 for each page" (emphasis added). Clearly, a coroner can charge for whatever he provides that relates to an inquest, but the reference to ‘other persons’, and to documents ‘other’ than inquisitions and depositions, suggests that this cuts both ways.

It is now common for NHS trusts, social services authorities and the like to be required to provide documents to the coroner. Usually, of course, that is done without demur and, crucially, without charge. Where, however, the coroner declines to reciprocate, or where he gives far less than he receives, public bodies might have something to gain by issuing invoices of their own.

Clearly, a coroner has ways of seeking documents that have been withheld. He might, for example, issue a summons for their production. It is sometimes possible, however, to have such a summons set aside, and the more so if the reason documents haven’t yet been provided is simply because the coroner hasn’t sent his cheque.

Because of the 2002 regulations, there would appear to be nothing to prevent an invoice being issued for copy documents that have already been disclosed to a coroner. If those documents represent five years-worth of medical records, say, the financial gain could be considerable. There might also be deterioration in relationships, of course, and that too will have to be taken into account. But there might also be a change in attitude: faced with the prospect of having to pay for everything they receive, some coroners might be a little more careful about what they demand.

Monday, 14 December 2009

Some mental health claims will now be easier to defend, and correspondingly harder to bring

Where he says he is the victim of acts performed under the Mental Health Act, anyone wanting to claim damages will now face a more difficult task. That is the result of an interlocutory decision in Johnston v The Chief Constable of Merseyside Police [2009] EWHC 2969 (QB), which concerned a proposed claim by a man who had been apprehended by the police.

In January 2006, Mr Johnston, who has a history of mental health problems, was at a property on Merseyside. An occupier of the property became concerned about his behaviour and summoned an ambulance. In accordance with usual practice, the police attended as well. Mr Johnston acknowledged that he had needed medical help, but said he had not wanted the police to be called.

On the basis of the witness statements and other evidence, there is a profound conflict between the parties as to what happened next. It appears to be common ground, however, that Mr Johnston was sprayed with CS gas and sustained severe blistering to the skin on his face, left ear and chest. He was detained, put in handcuffs and taken to hospital, but he was not subsequently charged with any criminal offence.

Mr Johnston alleges that these acts amounted to false imprisonment and assault. The Chief Constable, however, claims they were covered by section 136 of the Mental Health Act 1983 (MHA), which applies where someone who appears to be suffering from mental disorder is found in a public place, and permits a constable to take that person to a place of safety. Under section 139(2), no claim concerning the use of MHA powers may proceed without the permission of the High Court. The Chief Constable argued that Mr Johnston should be denied such permission.

The leading authority on permission claims of this kind is still Winch v Jones [1986] 1 QB 296, in which Sir John Donaldson, MR said, “The issue is whether, on material evidence immediately available to the court, […] [the claim] deserves the fuller investigation which will be possible if [it] is allowed to proceed.” Subsequently, the House of Lords said that by this test, “the threshold for obtaining leave under section 139(2) has been set at a very unexacting level […] an applicant with an arguable case will be granted leave.” (Seal v Chief Constable of South Wales Police [2007] UKHL 31, per Lord Bingham at [20])

For the Chief Constable, it was argued that, 25 years on, the Winch v Jones test should be tightened. It was noted that the Civil Procedure Rules now provide, amongst other things, that summary judgment may be given where a claimant “has no real prospect” of success (rule 24.2(a)(i)).

Notwithstanding the changes wrought by the CPR, the judge, Mr Justice Coulson said “it would be wrong to modify in any significant way” the Winch v Jones test. (See [12]) He went on, however, to permit himself one modification, noting that it would be “absurd” for a court to grant permission under section 139 where, had it asked itself the “CPR Part 24 question”, it would have concluded that the proposed claim had no real prospect of success. (See [13]) For that reason, the judge said the CPR question should indeed be asked upon any claim under the MHA. (See [14])

In fact, Coulson J concluded that the Mr Johnston’s proposed claim did have a real prospect of success, and he therefore granted the necessary permission under section 139. (The proceedings also included a limitation point, which, again, was decided in the claimant’s favour.)

It isn’t every potential defendant whose position will be strengthened by this decision. For esoteric, historical reasons, no permission has ever been required for proceedings concerning the acts or omissions of the Secretary of State or the NHS under the MHA. (MHA, section 139(4)) Where a claim relates to the use of section 136, however, or to the initial decision to detain a patient in hospital, this case will make a difference.

The Winch v Jones test for permission under section 139 has not been displaced. In fact, it is now considerably tighter, with a potential claimant having to show that his case is not merely arguable, but that it has a real chance of success. That is a palpable change, whose effect might well be to forestall claims that would otherwise have proceeded all the way to trial. And plainly, therefore, the change is a good deal more ‘significant’ than the judge was prepared to allow in Mr Johnson’s case.