CTO’s and a dreadful case of unlawful imprisonment

Mistakes in law can come back to haunt you, even many years later.

A recent Court of Appeal  judgment on 10^th February 2015 ([2015] EWCA Civ 79) considered a request for compensation for unlawful imprisonment arising as a result of illegally imposing, then revoking, a Community Treatment Order which went as far back as 2009.

This related to a man called Lee Bostridge. He was lawfully detained under Sec.3 MHA in July 2008. In April 2009 a mental health tribunal reviewed his case and ordered his discharge, suggesting in the process that he should be discharged on a CTO.

But by so doing, the tribunal had committed an error in law. A CTO can only be imposed on a person who is "liable to be detained in a hospital in pursuance of an application for admission for treatment", but as the tribunal in their judgment no longer considered that that applied to Mr Bostridge, the subsequent CTO was by definition unlawful. (In essence, anyone on a CTO continues to be subject to detention under Sec.3, and when a CTO is revoked, the underlying Sec.3 detention comes back into force.)

After Mr Bostridge was discharged on this erroneous CTO in April 2009, he remained in the community until August, at which point his Responsible Clinician recalled him to hospital, under his powers of recall, and then revoked the CTO.

Despite having had two tribunals during this period of detention, it was not until 3^rd November 2010, when he attended another mental health tribunal, that it was realised that his initial discharge on a CTO back in 2009 was unlawful, and that he had therefore been unlawfully imprisoned for a grand total of 442 days!

As soon as this was discovered, Mr Bostridge was immediately released. However, I don’t think he can have enjoyed much time out of hospital, as he was assessed and lawfully detained under Sec.3 on the same day. This period of (lawful) detention lasted until 13^th September 2011.

Mr Bostridge received compensation for the 442 days that he was illegally deprived of his liberty. However, he appealed to the higher court on the basis that he ought to be entitled to a greater, and perhaps exemplary, compensation payment.

The Court of Appeal disagreed with the less than fortunate Mr Bostridge, concluding that “had the appellant been detained lawfully, he would have suffered the same unhappiness and distress that he suffered anyway”. He had therefore suffered no significant loss, and was not therefore entitled to any more than a nominal payment.

This sort of mistake was not unknown in the period following the introduction of CTO’s, which came into force as a result of the amendments to the MHA 1983 in the MHA 2007.

As well as having the power to discharge patients from detention under the MHA (generally Sec.2 & Sec.3), tribunals are allowed to make suggestions as to the disposal and aftercare of a detained patient and frequently do.

The tribunal regulations state that tribunals must discharge if certain things are concluded. One of these is if the tribunal is “not satisfied that the patient is then suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment”.

Since Mr Bostridge’s tribunal had come to this conclusion, even though they were merely trying to be helpful in guiding the hospital towards a decision to use a CTO, the consequence of their decision was to make it illegal for the hospital to follow their suggestion.

Isn’t the law a wonderful thing?