Mental health law briefing 215 – Damages in unlawful detention claims
Court of Appeal: Bostridge v Oxleas NHS Foundation Trust 
The Court of Appeal has recently confirmed the position regarding damages in unlawful detention cases, namely that where the Claimant can establish no loss, only nominal damages will be payable.
The Claimant was detained unlawfully for a period of 442 days, which arose as a result of a purported attempt to institute a Community Treatment Order after the expiry of the section 3 under which he was previously treated. He was subsequently recalled under the defective Community Treatment Order, giving rise to the 442 day detention without lawful authority. It was accepted by all however that, but for the technical error in granting the Community Treatment Order, the patient would have been treated and detained under exactly the same circumstances in any event.
As a result, the Court of Appeal held that the Court of first instance was correct in finding that only nominal damages were payable, and it is only in situations where real loss can be established (ie, the patient would not have been detained in those circumstances or at all), where damages can accrue.
Whilst this decision does not materially change the previous position regarding the award of damages in cases such as this, it does provide helpful clarification. What the decision does not do however, is degrade the importance of ensuring that those detained are treated under lawful authority, as the reputational issues, in particular the potential for such cases to erode public confidence in what is otherwise an excellent service, can prove much more costly.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.