Mental health law briefing 232 – Unlawful detention compensation for ASW error

Settlement of the previously reported case of TW v Enfield Borough Council[1] has recently been reported[2] to have been for £27,000.

Background to the claim

TW was detained under the Mental Health Act for 77 days following an application by the (then) ASW without consulting her nearest relative on the basis that that was not reasonably practicable. The social worker took that view because of the patient’s previous allegations against the nearest relative and previous request for confidentiality.

The Court of Appeal ultimately gave the patient leave to pursue compensation proceedings on the basis that the approach to what is reasonably practicable in such circumstances meant a consideration not just of what was physically possible, but also what might be the result of the proposed action. In this particular case, the social worker had an obligation to consider both the patient’s rights under Article 5 (i.e not to be detained unless following a procedure in accordance with law) and the patient’s right to a private life under Article 8.

Comment

Following the Bostridge case[3] the number of unlawful detention claims has significantly decreased. However, where a patient has been unlawfully detained, compensation may still be payable. The courts had previously advised against trying to assess this by reference to a daily rate, and the TW settlement therefore simply provides a further illustration of the sort of sums that may be appropriate rather than an empirical £350 per day rate.

Andrew Parsons
Partner
T.
020 7227 7282
E. andrew.parsons@rlb-law.com

Footnotes
[1] (2014) EWCA Civ 362
[1] Mental Health Law online 20.6.2016
[1] Bostridge v Oxleas NHSFT (2014) EWCA Civ 1005


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.

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