19.121R (B) v Camden LBC [2005] EWHC 1366 (Admin), (2005) 8 CCLR 422
Local authorities were entitled to carry out preparatory steps but were not under a duty to monitor patients to consider the exercise of this discretion. They came under a duty to exercise reasonable endeavours to make arrangements for after-care services when a tribunal has provisionally determined that a conditional discharge is appropriate. They are entitled to explore funding issue. In this case, the authority’s ineffective action had not been causative of B’s continued detention but, even if it had done, B would not have been entitled to damages under Article 5 ECHR
Facts: the MHRT directed B’s conditional discharge on the 11 September 2003. Camden had not been involved in that hearing and it took it until around June 2004 to make the necessary arrangements. B sued for damages for delayed provision under section 117 of the MHA 1983, contending that the delay had violated his rights under Articles 5 and 8 ECHR.
Judgment: Stanley Burnton J held that although Camden had a power to undertake preparatory steps, section 117 of the MHA 1983 did not impose a duty on Camden to monitor B, prior to the MHRT hearing, to see whether it ought to undertake preparatory steps; Camden could expect to be notified, where appropriate. Camden did come under a duty to make reasonable endeavours to put after-care arrangements in place, once the tribunal had decided that, in principle, a conditional discharge was appropriate. However, it had been entitled to defer making provision whilst it explored the availability of funding from elsewhere for some of the provision. B could not show that any delay caused by ineffectual action by Camden had resulted in additional detention as other conditions of his discharge, also, had not been met. In any event, damages under Article 5 ECHR did not flow from any failure to make arrangements under section 117, even where that caused prolonged detention because the hospital detaining B could not have acted differently in national law, other than by continuing to detain B:
91. In W, the Court of Appeal considered the question whether a social services authority which is in breach of its duty under section 117 prolonged the detention of a patient in hospital was liable to the patient for having caused a breach of his rights under Article 5. At [68] and [69], Scott Baker LJ said:
‘68. Mr Jay submits that even if there was a breach of Article 5 on the facts Mr Gordon is shooting at the wrong target in seeking to recover damages from the Respondent. He submits that the hospital detaining W could not have acted differently under domestic law. It is not logical, he argues to be unable to proceed against the detaining authority and yet recover damages against a third party. The true remedy against a section 117 body is judicial review and not damages. He further submits that the Martin v Watson does not extend to false imprisonment: see Davidson v Chief Constable of Wales and another [1994] 2 All ER 597. Just as the claimant in that case was imprisoned without a remedy, so it would be with W.69. I can see the force of these arguments. I do not think that W is able to identify the respondent as a public authority liable for his detention under Article 5. But I do not think the case ever gets as far as this because in my view the respondent did nothing to cause the unlawful detention of W. It neither knowingly tried to nullify the decision of the tribunal nor failed to use its best endeavours to implement the conditions it had directed.’
Neither of the other members of the Court of Appeal specifically referred to this issue, but they both agreed with the judgment of Scott Baker LJ. The statement of the Scott Baker LJ was self-evidently obiter, and Mr Bowen submitted that I should not follow it. I consider that I should do so, not only because it was the considered opinion of the Court of Appeal but also because of the earlier consistent decision of Crane J in R (A) v Secretary of State for the Home Department [2003] 1 WLR 330, and the dictum of Buxton LJ K at [49].
92. Furthermore, in the present case, B was never detained in circumstances in which the Winterwerp requirements (helpfully summarised in H in the Court of Appeal at [29]) were not satisfied. The judgments of Simon Brown LJ and Laws LJ in Cawser v Home Secretary [2003] EWCA Civ 1522, [2004] 1 PLR 166 are inconsistent with the proposition that Camden’s breach of its duties under section 117 involves liability for an infringement of Article 5.
93. It follows that, even if Camden had been in breach of its duties to B under section 117 or section 47, and that breach had prolonged his detention under the Mental Health Act 1983, Camden would not have been liable to damages under sections 6 and 8 of the Human Rights Act 1998.