19.98R (KB and others) v Mental Health Review Tribunal [2003] EWHC 193 (Admin), (2003) 6 CCLR 96
Damages were awarded for delayed discharge hearings, in breach of Article 5(4) ECHR (i) where the patient would probably have been discharged at an earlier hearing and/or (ii) for distress caused by the delay
Facts: the claimants were detained mental patients. The court had earlier held that delays in determining their applications for discharge had been incompatible with Article 5 ECHR.
1R (KB and others) v Mental Health Review Tribunal [2002] EWHC 639 (Admin), (2002) 5 CCLR 458. It now assessed their claims for damages.
Judgment: Stanley Burnton J held that it would be contrary to the case-law of the ECtHR to award damages for the loss of a chance of a favourable decision: it was necessary for a claimant to prove that, on the balance of probabilities, they would have been discharged (notwithstanding the opposition of the hospitals and the generally low success rate in such cases). Nonetheless, damages could be awarded for distress caused by the delay:
73. Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: ‘of such intensity that it would in itself justify an award of compensation for non-pecuniary damage’. In my judgment, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes.