Finding a cure for compensation issues

Lucy Scott-Moncrieff looks at how the Mental Health Act can affect human rights and levels of compensation

On 23 April 2002, judgment was given in the case of KB & Others v Mental Health Review Tribunal ([2002] EWHC 639 (Admin)) that delays in listing mental health review tribunals for patients detained under the Mental Health Act could result in a breach of the patients' right to a speedy hearing after detention, under article 5 of the European Convention on Human Rights.

A further hearing was listed to consider whether the claimants were entitled to compensation, and if so the principles that should be followed in determining the level of compensation.

The judgment for this part of the case was delivered on 13 February 2003 ([2003] EWHC 193 (Admin)).

The claimants (including the claimant in the linked case of B) had had their hearings delayed in a variety of different circumstances.

One had been detained under section 2 (up to 28 days for assessment).

Four were detained under section 3 (up to six months for treatment).

And three were placed on section 37 hospital orders following conviction in the Crown Court.

Two of these three were restricted patients, one of whom was back in hospital having been conditionally discharged into the community, convicted of a further offence, imprisoned and then recalled to hospital at the end of his prison sentence.

In some cases, the tribunal delays had breached statutory time limits and in other cases the delays had simply breached the target time limits that the Mental Health Review Tribunal set itself.

The length of the delays varied from a few weeks to longer than six months, and some of the claimants had their hearings rescheduled several times.

Some of the claimants were discharged when their cases were finally heard, and others were not.

Out of this welter of facts and circumstances, some principles emerged:

- Breach of article 5 does not automatically entitle a claimant to financial compensation.- The level of distress caused by the breach of human rights is a significant factor in considering whether financial compensation should be given and, if so, how much it should be.- Where compensation is awarded, it should reflect the levels of compensation for comparable torts under English law.- The likelihood of receiving a discharge if the case had been heard earlier is something that can be taken into account when assessing the level of compensation, but only if a claimant can prove, on the balance of probabilities, that a discharge would have taken place.

Of the eight claimants (including B), two received no financial compensation and the others received compensation ranging from 750 to 4,000.

It is no coincidence that the claimants' circumstances were so varied.

Their cases typified the delays and difficulties that were endemic in an under-funded and under-resourced tribunal system.

Mental health lawyers all over the country followed the cases with interest, as they all had clients who were, or had been, in similar situations.

What we did not have was any experience in applying for compensation under the Human Rights Act, so when the judgment on compensation was handed down, we had to try and work out how best to deal with the compensation claims that would need to be brought.

There were several procedural and practical problems:

- Everyone was starting from a position of inexperience; - The levels of compensation on offer would not, generally speaking, justify public funding for a contested hearing;- The Department of Health solicitors were not equipped to deal with a large number of claims being made at the same time, where the deadlines were very close;- Solicitors had to balance the need for speed with the need to examine the relevant medical records and assess the likelihood of compensation being awarded.

The Law Society decided to liaise with practitioners to establish a system to deal with these cases; it then notified all members of the Mental Health Review Tribunal panel of this system.

Compensation claims under the Human Rights Act are governed by the provisions of sections 7-9.

The time limit for bringing proceedings is 12 months, and for the purposes of the delay cases, the 12 months starts to run on the day that the client finally has a substantive tribunal hearing, or on the day that the client is discharged, if he has been discharged before a hearing takes place.

Following discussion, the Department of Health solicitors agreed that if a patient's solicitor wrote within the 12-month period to advise that a claim would, or might, be made - and negotiations regarding that claim continued beyond the 12-month time limit - they would support any application made by the claimant's solicitor to issue proceedings out of time.

A letter to this effect was sent out to all members of the panel, enclosing a note on the judgment and a draft letter to send to the Office for the Solicitor for the Department of Health.

(Copies of these can be obtained from the Law Society by e-mailing ashmita.shah@lawsociety.org.uk.)

Subsequently, an alert solicitor pointed out that agreement by the Department of Health solicitors to making an application out of time did not guarantee that the court would accept the application.

A letter was sent to Master Turner at the Administrative Court, setting out the situation and asking for guidance.

He wrote back saying: 'If the parties are happy with this arrangement whereby the initial letter is treated as the first milestone in this litigation, then I have no objection to this procedure being followed...

If all these claims where necessary are issued out of the central office, I can ensure that they are eventually assigned to Master Fontaine.

The claimants' solicitors should mark the claims "section 7 HRA".'

It should be possible to do all the work in a straightforward case under Legal Help.

As a result of the co-operation of the Department of Health solicitors and the Administrative Court, it will not be necessary to issue protective proceedings if the negotiations are not completed within the 12-month time limit, so long as the initial letter has been received by the Department of Health solicitors within that time.

The Human Rights Act has been helpful to patients detained under the Mental Health Act.

There have been ten declarations of incompatibility since the Act was implemented, and the Mental Health Act 1983 has been the focus of three of them.

There have also been numerous judicial reviews where practice and procedures have been found to be in breach of the ECHR.

There are likely to be other cases where mental health practitioners will wish to seek compensation for their clients as a result of successful test case judicial reviews.

Lucy Scott-Moncrieff is a partner at London-based Scott-Moncrieff Harbour & Sinclair and member of the Law Society's mental health panel