In these proceedings the Claimant claims damages for false imprisonment and under the Human Rights Act 1998 (“the HRA”) against the Defendant for its alleged failure to take steps required by the decision of a Mental Health Review Tribunal on 9 July 2001 to direct his conditional discharge conditional on his residence in suitable hostel accommodation. He alleges that the Defendant Council unlawfully failed to take the steps required by that decision which would have secured his release from detention under the Mental Health Act 1983 (“the MHA”): in essence, that the Defendant’s social workers frustrated the decision of the Tribunal.

W’s claims raise questions as to the duty of a local services authority under section 117 of the MHA, the application of the tort of false imprisonment to cases where the release of a detained mental patient is delayed due to the default of a public authority, and the ambit of the protection afforded to such authorities by section 139(1) in the light of the HRA.

It was agreed by the parties that the hearing before me should be restricted to the question of liability, leaving issues as to the amount of any damages to be paid by the Defendant, if not agreed, to be determined by the Court subsequently.

The Claimant is aged 29. He has a long history of mental illness: he first reported hearing voices telling him what to do at aged 10. In April 1994 he was convicted of affray. He stabbed at a woman who lived in the same hostel repeatedly with a knife. He reported that he had heard voices telling him to kill her. He suffered from schizophrenia. The Crown Court made a hospital order under section 37 of the MHA and a restriction order under section 41. In 1996 he was transferred from Arnold Lodge in Leicester to Wathwood Regional Secure Unit in Rotherham. On Christmas Day 1998 he savagely attacked a fellow patient. Dr Mendelson, his RMO, considered that he constituted a grave and immediate danger to the general public, and he was assessed for admission to Rampton Hospital, a high security unit. However, he subsequently and dramatically improved. By January 2000 he was described as remarkably stable and was responsibly using his unescorted community leave. A move to Loversall Hospital in Doncaster for his further rehabilitation was considered, but during a period of leave there he met the victim of the 1998 attack. Although nothing adverse happened, W felt that he could not cope with the proximity of his victim, and the proposed move to Loversall did not take place.

The Defendant was the local social services authority responsible for W under section 117 because he had last lived in its area before his detention. Ms Helen Arnell-Smith (she is now Mrs Richardson) became his caseworker in January 2001.

A care programme approach (“CPA”) meeting was held on 1 March 2001. It was agreed that W should be transferred to Loversall Hospital. Later that month, W’s case was referred to the Mental Health Review Tribunal. In May 2001, Ms Arnell-Smith asked for a further section 117/CPA meeting. A meeting was arranged for 21 June 2001, but was cancelled owing to Dr Mendelson’s unavailability. Ms Arnell-Smith prepared a report dated 2 July 2001, necessarily without the benefit of a meeting between all of the responsible agencies. She stated that there was a general consensus that W no longer required detention in a secure hospital environment. She was of the view that a transfer to local non-secure hospital services was appropriate. She concluded:

Thus the view of Doncaster Social Services was that W’s discharge was inappropriate, and that a move to a non-secure hospital should precede his discharge into the community.

Dr Soliman, a psychiatrist instructed by W’s solicitors, prepared a report for the tribunal dated 4 July 2001. He advised against putting pressure on him to return to Doncaster. He was of the opinion that his conditional discharge was appropriate, and that W should be discharged to a hostel. He said:

The tribunal on 9 July 2001 accepted Dr Soliman’s opinion. They found that W was no longer suffering from a mental condition of the kind specified in section 72(1)(b)(i) of the MHA, were satisfied that it was not necessary for him to receive medical treatment but were not satisfied that it was not appropriate for him to be liable to be recalled. Pursuant to section 73(7), the tribunal imposed the following conditions on his discharge:

The tribunal gave clear reasons for their decision. They stated:

Ms Arnell-Smith was the named social worker for the purposes of the tribunal’s decision. On 16 July 2001, Dr Mendelson wrote to her asking her to make an application for W’s placement to Westfield House Hostel in Rotherham. She replied on 19 July 2001, stating that she was required to produce a current, comprehensive assessment of his needs before pursuing a formal application for placement. She requested a recent psychiatric/medical assessment of W, a risk assessment summary, a recent occupational therapy assessment and a psychological/nurse therapist assessment summary identifying W’s perceived psychological support needs. On the following day, she wrote to the principal social worker at Wathwood asking for her opinion regarding W’s “future needs with specific reference to the suitability of a placement at Westfield House and the availability of appropriate aftercare provision within the Rotherham area”. The principal social worker replied on 6 August 2001. She stated:

Ms Arnell-Smith herself visited Westfield House on 31 July 2001. She attended a clinical team meeting at Wathwood Hospital on 16 August 2001, when the principal social worker practitioner at Wathwood expressed serious reservations as to the suitability of Westfield for W.

Ms Arnell-Smith did not receive all of the reports she had requested in her letter of 19 July 2001. She nonetheless produced a detailed Community Mental Health Team Assessment Document dated 6 September 2001. She concluded:

A CPA review meeting took place on 13 September 2001. Those present included W himself, his mother, Dr Mendelson’s specialist registrar and Dr Soliman. The note of that meeting, produced by Dr Kennedy, Dr Mendelson’s specialist registrar, stated:

Dr Mendelson did not agree with Mrs Johnson’s views. In a letter dated 17 October 2001, he cast doubt on the possibility of W being accepted at Jubilee Gardens and stated:

However, in a letter dated 25 October 2001, the consultant in public health of Doncaster NHS Health Authority stated:

Ms Arnell-Smith produced a risk assessment dated December 2001. In it she stated:

In a letter to Dr Mendelson dated 7 December 2001, Ms Arnell-Smith asked for a further section 117/CPA meeting “at the earliest opportunity”. It seems that the social worker at Wathwood also considered Westfield to be inappropriate for W: see Ms Arnell-Smith’s fax of 11 December 2001 to Dr O’Leary of Loversall Hospital.

Ultimately, W’s case was referred back by his solicitors to the tribunal. Dr O’Leary prepared a report for the tribunal emphasising the need for caution in moving W out of secure facilities. Ms Arnell-Smith also produced a report, dated 29 January 2002. She concluded:

On 6 March 2002, the tribunal effectively varied the terms of W’s conditional discharge by specifying his residence at Westfield House or elsewhere as directed. In their reasons, the tribunal stated:

In consequence, W was formally admitted to Westfield House on 8 March 2001. Regrettably, and possibly in consequence of the suicide of another resident there, his mental state deteriorated, and later in the summer he was readmitted to hospital.

The powers of Mental Health Review Tribunals in relation to restricted patients are set out in sections 72 and 73 of the MHA.

In Johnson v UK (1997) 27 EHRR 296, the European Court of Human Rights held that Article 5 of the European Convention on Human Rights did not require the immediate and unconditional release of a mental patient when the mental disorder that had justified his detention no longer persists. However, the imposition of suitable conditions does not justify unreasonable delay in his release.

Mr Gledhill submitted:

The Defendant had a duty under section 117 to provide a care plan for W in advance of the tribunal hearing of 9 July 2001.

It was in breach of that duty, having failed to arrange any care in the community to be available on W’s conditional discharge.

The Defendant was under a duty to make the arrangements for the after-care services necessary to implement the decision of the tribunal of 9 July 2001 within a reasonable time of that decision.

The Defendant had failed to do so. Instead, it had acted so as to frustrate the decision of the tribunal, by unreasonably objecting to Westfield House and failing to provide the resources necessary (because of the inadequacy of Rotherham’s resources and the inadequacy as perceived by the Defendant of Westfield’s own resources) to permit W to reside there until it was effectively ordered to do so by the second tribunal. It had thus failed to comply with its section 117 duty.

The above breaches of duty by the Defendant prolonged W’s detention. Although lawful under domestic law, his continued detention after the decision of the first tribunal infringed his rights under Article 5 not to be detained when his mental condition did not make his detention necessary and his right to respect for his private and family life under Article 8. The Defendant had committed the tort of false imprisonment and was also liable in damages under section 6 and section 8 of the HRA.

The Defendant was not protected by section 139(1) of the MHA, because it did not apply to judicial review proceedings: Ex parte Waldron [1986] QB 824. Furthermore, properly construed it does not protect an authority whose liability arises from an omission rather than an act.

Mr Weir submitted:

No duty under section 117 arose until the decision of the tribunal of 9 July 2001 to direct W’s conditional discharge.

If any duty arose before the decision of the tribunal, the Defendant had complied with it.

The Defendant was not under an absolute duty to provide after-care: its duty was one to use its best endeavours. It had done so.

The Defendant’s objections to Westfield House were reasonable and genuine, and did not cause it to be in breach of its duty under section 117.

The Defendant had no liability for Ms Arnell-Smith’s exercise of the power conferred on her by the first tribunal’s decision until it was endorsed by her superior.

The Defendant’s refusal prior to the decision of the second tribunal to put in place resources to supplement those of Rotherham and of Westfield House was justified and did not involve a breach of duty under section 117.

It followed that the Defendant had not unlawfully caused the prolongation of W’s detention.

Any responsibility of the Defendant for the continuation of W’s detention at Wathwood Hospital came to an end in September 2001, when Dr Soliman withdrew his approval of Westfield House.

Even if the allegations of W were well-founded, the tort of false imprisonment had no application where there had not been a breach of UK domestic law.

In the circumstances, D had not caused any breach of W’s rights under Article 5 or Article 8.

In any event, D was protected by section 139(1) of the MHA from liability in damages.

An award of damages was not “necessary” within the meaning of section 8(3) of the HRA.

Mr Gledhill candidly admitted that the claim for damages for the domestic tort of false imprisonment was being pursued in addition to the claim for damages under the HRA because of the view expressed by Lord Woolf CJ in Liber Amicorum Slynn that damages under that Act should be “on the low side by comparison with tortious awards”. He also explained that no claim had been made against Wathwood Hospital (or rather its NHS Trust) because it was protected by section 6(2) of the HRA: provisions of primary legislation, namely the MHA, precluded it from releasing W unless and until the pre-conditions to his conditional discharge stipulated by the first tribunal had been met.

The tort of false imprisonment is established on proof of imprisonment without lawful authority. Lawful authority in this context has until now meant lawful authority under English law.

There will be cases where a public authority both commits the tort of false imprisonment and infringes the victim’s Convention right under Article 5. Indeed, most if not all cases of false imprisonment will also involve infringement of Article 5.1. In such cases, the victim will have remedies in tort and under the HRA. But not all infringements of Article 5 involve a breach of domestic law.

The HRA does not expressly or by implication require the extension of this domestic tort to breaches of Article 5.1. To the extent that the HRA expressly provides for remedies for breach of Convention rights, such an extension is unnecessary; to the extent that the remedies provided by that Act are different from those applicable to a domestic tort, it would be inconsistent with the Act to equate a breach of a Convention right with a domestic tort. Section 8(3) of the HRA applies restrictions on the award of damages for breach of Convention rights that are not applicable to domestic torts, and section 8(4) requires the Court, in determining whether to award damages and their amount, to take account of the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. To hold that a detention that infringes Article 5, but is not unlawful under domestic law, constitutes the tort of false imprisonment would circumvent these provisions.

The remedies for breach of Article 5 are those required by Article 5.5 of the Convention (i.e. an enforceable right to compensation) and section 6 and section 8 of the HRA. These remedies will by definition include those necessary to afford just satisfaction to the victim. I do not therefore see that there is any need to widen the scope of the tort of false imprisonment. In my judgment, the domestic tort of false imprisonment is not committed unless the imprisonment is unlawful under our domestic law. W’s detention was never unlawful under our domestic law. It follows that the Defendant did not commit the tort of false imprisonment.

In the circumstances, it is unnecessary for me to consider Mr Gledhill’s premise that damages awarded for unlawful detention in breach of Article 5 will necessarily be less than damages for false imprisonment in a comparable case. The claim for false imprisonment faced the further difficulty, which I do not think Mr Gledhill could overcome, that the tort is one of intention rather than negligence. It was not the Defendant’s intention to detain W and it never itself detained him: W’s case is that the prolongation of his detention was the effect of the Defendant’s negligent failure to perform its section 117 duty.

Section 117(1) and (2) are as follows:

Subsection (1) in terms requires three conditions to be satisfied for the application of the section: the person in question must have been in hospital under one or other of the statutory provisions specified. That condition was satisfied in the case of W: he had been admitted to a hospital pursuant to a hospital order under section 37. The second condition is that he or she ceases to be detained. An order of a tribunal for the immediate unconditional discharge of a patient will satisfy this condition, even if he or she remains in hospital. The third condition is that the patient leaves hospital. It is therefore difficult to see that the legal duty imposed by section 117 can arise before these three conditions are satisfied.

Practical considerations reinforce this literal construction of the section. It would be wasteful of the limited resources of (in this case) a local social services authority for it to have to plan and make arrangements for the after-care of all patients whose applications come before Mental Health Review Tribunals. Most applications are contested, and a relatively small proportion of contested applications succeed. Where there are issues as to whether the discharge, if ordered, should be conditional, and if conditional as to where the patient should be required to reside, the authority would have to anticipate the decision of the tribunal. The authority might have to make arrangements that in the view of its professional staff were inappropriate and, in an extreme case, might involve risk to the patient or to the public. Furthermore, it seems to me to be undesirable for the professional staff of an authority to have to anticipate the decision of a tribunal in a contested case.

The practical considerations to which I have referred in the preceding paragraph are reflected in the revised Code of Practice, issued under section 118 of the MHA, that came into force on 1 April 1999. Paragraph 27.7 is as follows:

The first sentence of paragraph 27.7 of the Code is based on the decision of Otton J in R v Ealing District Health Authority, ex parte Fox [1993] 1 WLR 373. That case concerned a patient whose conditional discharge had been ordered by a tribunal. One of the conditions imposed by the tribunal was the appointment by the health authority of a responsible medical officer to provide psychiatric supervision of the patient in the community. The authority refused to make the appointment. Otton J said, at 385:

It is pertinent to note that the declaration made by Otton J (at page 387) was in narrower, and in my judgment more appropriate, terms:

The decision in Fox was followed by Scott Baker J (as he then was) in R v Mental Health Review Tribunal, ex parte Hall [2000] 1 WLR 1323. It is important to note that that too was a case in which the tribunal had ordered the conditional discharge of the patient, subject to conditions to be satisfied by the local health authority. The authority had failed to make the arrangements which would have satisfied the relevant conditions, and as a result the patient remained in detention in hospital. Scott Baker J expressly rejected the submission that the duty under section 117 only arose on discharge from hospital. He summarised the law at 1335 as follows:

Having regard to the facts of Ex parte Hall and the wording of section 117, the first of those propositions must I think be confined to cases in which the tribunal has decided on the discharge of the patient, and the arrangements to which Scott Baker J referred in that proposition were those specified by the tribunal. The local authority did not appeal against Scott Baker J’s judgment that they were in breach of their duty under section 117. The tribunal appealed to the Court of Appeal. The scope of the duty under section 117 was not directly in issue before the Court of Appeal, but it is noteworthy that Kennedy LJ referred to paragraph 27.7 of the 1999 Code of Practice and stated, at 1353:

Both Ex parte Fox and Ex parte Hall were considered in R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198. That case too concerned the duty of an authority to provide the after-care required by a tribunal decision. At first instance, Burton J held that the duty of the respondent health authority was as set out in the declarations made by Otton J in Ex parte Fox. In the Court of Appeal Lord Phillips MR said:

Thus, while not expressly overruling Ex parte Fox or Ex parte Hall, Lord Phillips MR endorsed as statement of the health authority’s duties in terms of a power and discretion rather than a duty. Neither Buxton nor Sedley LJJ expressly addressed this issue.

In R (IH) v Secretary of State [2002] EWCA Civ 646, [2002] 3 WLR 967 the Court of Appeal referred to the section 117 duty in similar terms:

In my judgment, neither Ex parte Fox nor Ex parte Hall is authority for the proposition that in a contested case a local social services authority is under a duty under section 117 to put in place after-care arrangements before the tribunal’s decision. Neither case concerned the duty owed by an authority before the tribunal makes its decision. The effect of K is that the authority is normally bound before actual discharge to endeavour to put in place the arrangements required by the tribunal as conditions of a conditional discharge, or which the tribunal requires to be satisfied before a deferred discharge takes effect, or which the tribunal (in accordance with the judgment in IH) provisionally decides should be put in place. Similarly, where discharge is not contentious, an authority should if practicable plan after-care before a tribunal hearing in order for it to be able to comply with its section 117 duty on the patient’s discharge. Similar considerations apply where the discharge of a non-restricted patient is anticipated.

In the present case, before the first tribunal hearing the conditional discharge of W was contentious. In my judgment, at that stage the Defendant authority was under no duty under section 117 to make arrangements for his after-care. If it did have any such duty, it was no more than to use the endeavours appropriate in the situation in which the decision that will be made by the tribunal cannot be known. Through Ms Arnell-Smith it fulfilled that duty. She reported on W (I refer to the report of 19 Feb 2001) and attended the CPA meeting of 1 March 2001. At that time, the agreed proposal was for W to transfer to Loversall Hospital. She met the RMO on 10 May, and in her letter proposed a further section 117/CPA meeting before the tribunal hearing that was cancelled due to the RMO’s unavailability. She reported again on 2 July 2001. No more could reasonably have been required. Furthermore, it was only after Dr Soliman reported on 4 July 2001 that the possibility of discharge to a hostel was seriously raised.

The decision of the tribunal of 9 July 2001 required Ms Arnell-Smith to use her professional judgment in deciding whether to approve the accommodation at which W was to reside. She was not required to accept Dr Soliman’s views: her separate approval was required. In K, Sedley LJ said, at 233-4:

Ms Arnell-Smith’s objections to Westfield House were rational and reasoned. She visited it and discussed it with Rotherham social services department. She had reasonable and lawful grounds for her conclusion. There were good reasons for caution, having regard to the seriousness of W’s index offence and his history. Furthermore, because Westfield House was considered inappropriate, the Defendant considered other placements: see the note of the section 117/CPA meeting of 13 September 2001. I see no basis for a finding that in objecting to Westfield she failed to use reasonable professional care, or that she did not use reasonable or best endeavours to arrange an appropriate placement for W. It is significant that when W’s solicitors wrote to the Defendant on 5 November 2001 their assertion was “the weight of opinion supports the move to Westfield”. Furthermore, there is no basis for a finding that she deliberately sought to frustrate the decision of the first tribunal.

Mr Gledhill submitted that in arriving at her decision not to approve Westfield House, Ms Arnell-Smith erred in law in that she failed to have regard to the duty of Doncaster to provide resources (in particular trained and experienced staff) to supplement those that were lacking at Westfield and could not be provided by Rotherham. I do not think that Doncaster could reasonably have been expected to pay for or to install staff in Westfield House itself (and indeed this was never suggested): at most, it could be expected to provide community support. Doncaster’s objections to Westfield House were not confined to the lack of community support: they were concerned at the lack of experience of the staff. In addition, there were difficulties in providing cross-authority assistance, referred to by Ms Arnell-Smith in her risk assessment of December 2001.

Mr Gledhill submitted that the Defendant’s objection to Westfield was rooted in the view that the appropriate placement for W was in a hospital. But this ignores the fact that there are hostels that do have staff with the experience and qualifications that Ms Arnell-Smith thought necessary. None of the other professionals involved made this point at the time.

The resolution of the concerns raised in relation to Westfield House took 8 months: in retrospect, a surprisingly long time. To some extent, this was due to the inevitable delay between W’s solicitors’ application to the tribunal of 3 January 2002 and the hearing on 6 March 2002. It was open to them to have brought the matter back to the tribunal earlier, and I do not think that the Defendant can be liable in damages because it did not do so. Given the number of authorities involved, the investigations necessary (in particular the assessment of Westfield House, and the differences of view of those concerned), some delay was inevitable. The fundamental problem was the lack of hostel accommodation fulfilling the requirements of W as reasonably perceived by the Defendant. Counsel for the Claimant has not been able to identify a failure on the part of the Defendant to seek to progress his discharge or a lack of care or failure to use reasonable or best endeavours. In my judgment, the Defendant complied with its duty under section 117, notwithstanding that the second tribunal resolved the situation by making an order that Ms Arnell-Smith had thought inappropriate.

In K Buxton LJ considered which organ of the state is liable to a victim of an infringement of Article 5.1 in a case such as the present. He considered that where the organs of the state have unreasonably failed to secure the release of a patient, it is the detaining hospital that is liable in damages: see paragraph 49 of his judgment. However, it appears that his attention had not been drawn to the effect of section 6(2) of the HRA, which precludes such liability where by reason of the provisions of primary legislation (specifically, the restrictions in the MHA on the discharge of a patient subject to a restriction order) the hospital could not have acted differently.

Breach by a local health authority of the duty imposed by section 117 does not of itself give rise to a cause of action for damages for breach of statutory duty on the part of the patient concerned: Clunis v Camden and Islington Health Authority [1998] QB 978.

However, an authority whose breach of its duties under section 117 causes the detention (or prolongs the detention) of a patient who would otherwise be discharged will normally cause an infringement of his rights under Article 5.1 of the Convention. Subject to the effect of section 139(1) of the MHA, the authority may be liable to the patient in damages for the infringement of his Convention right by virtue of section 6(1) and section 8 of the HRA, provided he can show that the award of damages is necessary to afford just satisfaction to him. In this connection, it must be borne in mind that the primary remedy of the patient will usually be to bring his application back before the tribunal: c.f. R (IH) v Nottinghamshire Healthcare NHS Trust [2002] EWHC Civ 646 at paragraph 98. But if the authority has acted reasonably and has not acted in breach of its domestic law duties, there is no basis for an award of damages against it. In the present case, for example, it may be that the prolongation of W’s detention was due to a lack of resources, specifically a lack of suitable hostel accommodation in Doncaster and in the areas around it. Such a lack of resources may be attributable to the state under the Convention, but it is not necessarily the responsibility of the Defendant.

In the circumstances of the present case, the claim under Article 8 gives rise to no separate considerations from the claim under Article 5.

If I had held that W’s detention had been prolonged by the Defendant’s breach of its duty under section 117, I should have held that it is not protected by section 139(1) of the MHA. This is not because the present proceedings are proceedings for judicial review. Ex parte Waldron, on which Mr Gledhill relied for the proposition that section 139(1) of the MHA does not apply to judicial review proceedings, was concerned with proceedings for the old order of certiorari and for declarations, not with claims for damages. Ackner LJ said, at 840C:

I should also have been reluctant to accept Mr Gledhill’s submission that section 139(1) does not apply to an omission or failure to act, and is confined to positive acts. I do not think that Parliament intended there to be any such illogical and unmeritorious distinction in the application of that section.

However, I doubt whether liability for the unlawful infringement of the rights of a patient under Article 5.1 is precluded by section 139(1) of the MHA. In such a case, the patient has a Convention right to compensation under Article 5.5. Section 3 of the HRA requires the Court to construe legislation in a way that is compatible with that right. Moreover, Parliament did not have breach of the Convention in mind when it enacted section 139(1) of the MHA. Despite the general words of that section, I should have been disposed to read it down so as not to apply to breaches of Convention rights. The interpretation of general words so as to exclude specific cases that Parliament could not have intended to be included in them is a standard mode of statutory interpretation: see Millett J (as he then was) in Re International Tin Council [1987] 1 Ch 419, 450.

Similarly, if I had concluded that Ms Arnell-Smith had acted unreasonably in refusing to approve Westfield House, or had failed to use her best endeavours, I should have held the Defendant in breach of its section 117 duty. She was at all times acting as the employee of the Defendant and in the course of her employment, albeit that she had a duty imposed on her by the order of the first tribunal in relation to the approval of W’s accommodation.

However, in the light of my above conclusions W’s claim will be dismissed.