PB and JB v Priory Group Ltd [2018] MHLO 74 – May 10, 2018

This was a case for damages for unlawful psychiatric detention and restitution of fees demanded for that ‘service’.

PB found herself compulsorily detained at the Priory Hospital during an outpatients’ appointment in September, 2016.

She was detained under s5(2) Mental Health Act 1983 under a provision that applies ONLY to the detention of in-patients (emergency detention).

The heading of Section 5 refers to patients “already in a hospital” and s5(2) itself is expressly limited to “a patient who is an in-patient”.

PB was at the Defendant’s hospital simply to discuss a lower dose of her medication.

Within 15 minutes of the start of that appointment she was told that she was being detained under Section 5(2) and could not leave.

She ran out of the room and was prevented from leaving the facility by hospital staff and taken upstairs and ‘given’ a bed.

Her husband who was with her was required to make an immediate down-payment of £10,626, in respect of the Priory’s daily rate of £834.

She was detained at the hospital for 17 days.

  • The first 72 hours was purportedly done under Section 5(2).
  • The next phase was done under no power at all for just under seven hours.
  • The last phase was done under Section 2 of the Act (but without any explanation being provided on the Form A2 for not consulting a doctor who knew the patient)

until discharged by her Responsible Clinician on 17 October 2016.

When the Hospital later pursued recovery of around £3,000 in outstanding fees, the couple consulted solicitors who advised a complaint.

After a complaint was rejected by the hospital, the couple brought proceedings against the Defendant’s Priory Hospital in North London. The woman claimed damages for the whole period of her stay for unlawful detention at common law and contrary to Article 5 ECHR.

The human rights claim was predicated on the basis that the Defendant (albeit a private hospital) was a public authority for the purposes of Section 6 of the Human Rights Act 1998 when compulsorily detaining patients under the Mental Health Act 1983.

The man claimed restitution of the fees he had paid on the basis that it would be contrary to public policy to allow a tortfeasor to profit from its wrong.

Procedings seeking permission to bring the claim, as required by s139, were compromised, and the claim was allowed to proceed. An extension to the period for issuing County Court proceedings was agreed. The Defendant made a CPR Part 36 offer of £11,500 plus legal costs on 27 April 2018 which the Claimants accepted on 11 May 2018.

The Claimants’ solicitors had valued the claim in the Letter of Claim to the Defendant “at the same rate as you charged our client for remaining forcibly in your hospital, which is £834 per day.”

However, the Claimant was advised to accept an award calculated on the basis of a higher level of compensation for a shorter period – the 72-hours of the detention under s5(2) only, plus the next 6 hours 45 minutes. The reasoning was that, as against the Hospital, there was a litigation risk that the application under s2 that followed might have been held to have appeared to be “duly made” and thus lawful for the purposes of s6(3) of the Act.

Following compromise of the claim, the settlement was notified by the Medical Protection Society to the Compensation Recovery Unit. This is part of the DWP. If you get damages as a result of clinical negligence the CRU must be notified of the details of your claim by the organisation (or person) paying the compensation (the compensator). The CRU records all welfare benefits you receive as a result of your injuries. If you are awarded compensation then the compensator is liable to repay the DWP for any injury-related benefits you receive to prevent double compensation through the award and the benefits. 

It was subsequently accepted by that unit that this settlement did not fall within the scheme, it not being clinical negligence that was the problem here.

The Hospital did not continue its pursuit of the £3,000 arrears.

[Matthew Seligman of Campbell Taylor Solicitors has provided this summary to a number of sources.]