Mental health – human rights – tribunal – discharge of restricted patient – article 5 of the European Convention
The claimants, seven patients detained under MHA 1983, contended that their right to a speedy determination of the lawfulness of their detention was infringed, contrary to art 5(4) of the European Convention on Human Rights. The claimants complained of long delays in the hearing of their applications for discharge (up to 27 weeks in one case), and of repeated cancellations of their hearings, arguing that such delays could result in the unjustified detention of patients who, if their cases had been considered earlier, would have been discharged.
Rejecting the Secretary of State’s submission that all that could be reasonably done to remedy the situation was being done, the judge held that it was for the State to ensure speedy hearings of detained patient’s applications and the State was obliged to establish such tribunals or courts and provide such resources as would provide speedy hearings. The evidence indicated that the basic responsibility for the delays experienced by patients was that of central government, rather than of the regional chairman or their staff. Normally, the question whether the government allocated sufficient resources to any particular area of State activity was not justiciable as such decisions often involved questions of policy and discretion. In general a court would be ill equipped to determine general questions as to the efficiency of administration, the sufficiency of staffing levels and the adequacy or resources.
The correct approach in cases which raised issues of that kind was first to consider whether the delays were on the face of it, inconsistent with the requirement of a speedy hearing. If they were, the onus was on the State to excuse the delay. It could do that by establishing that the delay had been caused by a sudden and unpredictable increase in the workload of the tribunal, where it had taken effective and sufficient measures to remedy the problem. If the State failed to satisfy that onus, the claimant would establish a breach of his rights under art 5(4). On the facts, in the instant cases, the Secretary of State had not shown that he had taken appropriate action to ensure that tribunals were adequately staffed. The principal cause of cancellations and delays was the shortage of tribunal members, particularly medical members, and the shortage and lack of training of staff. It followed that in respect of all the claims before the court, the claimants’ rights under art 5(4) were infringed as they had not received a speedy hearing as required by that article.
KB & Ors v (1) Mental health review tribunal & anor  EWHC 193 (Admin)
At the hearing to determine the level of damages, the judge identified the following issues:
(1) to what extent the High Court was required to follow the rules applied by the European Court of Human Rights in awarding damages;
(2) given that there had been a breach of the claimants’ right under art 5, were awards of damages obligatory in order to give them ‘just satisfaction’ within the meaning of s8 HRA 1998 or by reason of s9(3) of the Act and art 5(5);
(3) were feelings of frustration or distress occasioned by delay in tribunal hearings recognised by the European Court of Human Rights as justifying awards of damages;
(4) was there power to award exemplary damages in an appropriate case;
(5) should the measure of damages be a ‘European’ measure or a domestic measure;
(6) if a domestic measure was applicable, should awards be modest and lower than in comparable English tort cases;
(7) what was the relevant period in respect of which damages were to be awarded;
(8) could an earlier hearing in respect of any of the claimants have resulted in their release from detention, and if so, were damages for that claimant’s loss of liberty to be assessed on the basis of a loss of a chance, or did the claimant have to prove that he would have been discharged and;
(9) were special principles applicable to mental health cases.
He concluded that:
(1) It was not possible to identify anything other than very general principles from the decisions of the European Court of Human Rights in relation to awards of damages.
(2) An award of damages was not obligatory. Strasbourg jurisprudence established that in appropriate circumstances ‘just satisfaction’ could be achieved by a finding of breach without any award of damages being made.
(3) There was no ‘clear and constant jurisprudence’ of the European Court on the recoverability of damages for distress under art 5(5) in the absence of a deprivation of liberty. There were two principles applied by the court: that damages were not recoverable in that situation, and that damages were recoverable for distress which may be inferred from the facts of the case. Therefore, this court must determine the principles that it was to apply. The court would accept the principle that in some circumstances an award of damages was unnecessary.
(4) The object of an award of damages under art 5(5) was to provide compensation for injury. It followed that there was no power to award exemplary damages, which by definition were not compensatory.
(5) Although the English court should take account of the measure of damages awarded by the European Court, it should be free to depart from it in order to award adequate, but not excessive, compensation.
(6) There was no basis for awarding less under HRA 1998 than would be awarded in respect of a comparable English tort.
(7)The relevant period was the period of unlawful delay.
(8) It would be contrary to the principles established by the European Court to award damages on the basis of a loss of a chance. A claimant had to prove his loss on the balance of probabilities.
(9) There were no special legal considerations applicable only to mental health cases. There were special factual considerations, the principal being the generally vulnerable condition and circumstances of mental patients who were compulsorily detained.
(10) Not every disappointment or feeling of distress constituted compensatable damage.. However, full account had to be taken of the claimants’ vulnerable mental condition. Damages could be awarded to such persons under art (5)5 although in analogous circumstances no award would be made to a healthy person. Even in the case of mentally ill claimants the frustration and distress must be significant.
(11) The court then went on to consider the facts in each case, and awarded all but two of the claimants damages ranging from £750 to £4,000.