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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2013 – 03971

BETWEEN

CHERYL MILLER

Claimant

AND

THE NORTH WEST REGIONAL HEALTH AUTHORITY

JASMINE PASCALL

SANDRA JONES

VERNA ST. ROSE GREAVES

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendants

BEFORE THE HONOURABLE MADAM JUSTICE JONES

Appearances:

Mr. S. Marcus, S.C., Mr. F. Hinds and Ms. D. James instructed by Mrs. M.

Hinds for the Claimant.

Mr . D. Maharaj instructed by Ms. K. Bharath for the First Defendant.

Mr. R. Rajcoomar and Ms. C. Modeste for the Second and Third Defendants.

Mr. Russell Martineau, S.C., Mr. D. Khan and Ms. C. Modeste instructed by

Mrs. K. Mohammed-Carter and Mr. J. Forrester for the Fifth Defendant.

JUDGMENT

1. On 21st March 2012 Cheryl Miller was sitting at her desk, at work at the

Ministry of Gender, Youth and Child Affairs situated on the 21st floor of Tower D

International Waterfront Centre, No.1 Wrightson Road, Port of Spain, when she was

approached by employees of the Northwest Regional Health Authority. After some

conversation with them Miller was escorted out of the building into the public street

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and taken in an ambulance to the St. Ann’s Psychiatric Hospital, a psychiatric hospital

operated by the Northwest Regional Health Authority.

2. The St. Ann’s Psychiatric Hospital is an institution commonly referred to

in Trinidad and Tobago as ‘the mental hospital’ or ‘the mad house’. In this judgment I

shall refer to it as ‘the mental hospital’. Miller was admitted to the mental hospital

and detained for 17 days. She was released pursuant to an order of the High Court

obtained in habeas corpus proceedings brought by her against the director of the

mental hospital.

3. By this action, instituted on 25th

November 2013 against the Northwest

Regional Health Authority (“the Health Authority”), the Minister, the Permanent

Secretary and the Deputy Permanent Secretary of the Ministry of Gender, Youth and

Child Affairs (“the Ministry”) and the Attorney General of Trinidad and Tobago, as

Defendants, Miller has brought proceedings in false imprisonment, assault and battery

and breach of statutory duty. She seeks both exemplary and aggravated damages. The

Fourth Defendant, the Minister, was not served with the claim or the statement of case

as a result the case has not proceeded against her.

4. Miller alleges that the Heath Authority by its employees, for whom it is

vicariously liable, unlawfully arrested and detained her. With respect to the other

Defendants Miller alleges that they are equally liable for her arrest and detention as

the Second and Third Defendants requested and authorized her removal from the

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Ministry. The Fifth Defendant is sued by virtue of the State Liability and Proceedings

Act1.

5. As justification for the action of its employees the Health Authority relies

on section 15 of the Mental Health Act (“the Act”). The other Defendants aver that as

a result of Miller’s behaviour they had cause to seek the assistance of the Ministry of

Health whose employees at all times exercised their independent judgment in

adopting the course of action followed.

6. Much of the evidence of the Second to Fifth Defendants was directed

towards the behaviour of Miller at work from October 2011. As well there has been

produced, by both the Health Authority and Miller, medical evidence on Miller’s

mental health at the time. Suffice it to say that these opinions have been conflicting.

Given the issues for my determination it is not my role nor do I propose to come to

any conclusion in this regard. In my opinion the case as pleaded does not require any

in depth consideration of Miller’s mental health. Miller’s mental health is not at issue

here. The crux of this case is whether the detention by employees of the Health

Authority was lawful and whether, if unlawful, all or any of the Defendants are liable.

7. In similar fashion many allegations of misbehavior or inappropriate

conduct, both at home and at work, have been leveled against Miller. These

allegations are, in the main, disputed by Miller and her witnesses. While I am required

by the issues for my determination to acknowledge the allegations I am not required

1 Chap 8:02 S.19 (2)

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to nor will I determine their validity or invalidity. It is enough that they have been

made.

8. The issues for my determination accordingly are:

1. Was the action of the Health Authority’s employees in taking

Miller into custody and to the mental hospital for admission

authorized by section 15(1) of the Mental Health Act?

2. If not, was Miller’s apprehension and subsequent detention at

the mental hospital lawful and, if so, who is liable for such

detention?

3. If the detention was unlawful are damages, inclusive of

exemplary and aggravated, payable to Miller and, if so, in

what amount.

Were the actions of the Health Authority’s employees authorized by section 15 of

the Mental Health Act

9. Section 15(1) of the Mental Health Act2 (“the Act”) states:

“A person found wandering at large on a highway or in any

public place and who by reason of his appearance, conduct or

conversation, a mental health officer has reason to believe is

mentally ill and in need of care and treatment in a psychiatric

hospital or ward may be taken into custody and conveyed to

2 Chap. 28:02

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such hospital or ward for admission for observation in

accordance with this section.”

10. The words of the section are clear and unambiguous. The words

‘wandering at large’ refer equally to a person found on a highway or in a public place.

The section therefore permits a mental health officer to take into custody and convey

to a psychiatric hospital for admission for observation a person found wandering at

large either (a) on a highway or (b) in any public place and whom by reason of

appearance, conduct or conversation the mental health officer has reason to believe is

mentally ill and in need of care and treatment in a psychiatric hospital or ward.

11. The burden of proving that every element contained in the section applies

to the facts of this case lies on the Health Authority. It is not for the Claimant to

disprove that the section applies. On the facts of this case therefore the Health

Authority must establish that Miller was found wandering at large in a public place

and by virtue of her appearance, conduct or conversation its mental health officer had

reason to believe that she was mentally ill and in need of care and treatment in a

psychiatric hospital or ward.

12. While accepting that Miller was at her desk in her cubicle at the Ministry’s

office at the time of her arrest the Health Authority pleads that its mental health

officer, Koreen Jackson-Huggins, sought and obtained advice from the Ministry’s

legal adviser that it was a public place.

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13. The observations leading to Jackson-Huggins arriving at the conclusions

that Miller was mentally ill and in need of care and treatment at the psychiatric

hospital are pleaded by the Health Authority to be:

(i) conduct: Miller had a large black umbrella opened on her

desk which seemed to be blocking her out from the view of

everyone; she also had on earphones from which emanated

loud music;

(ii) appearance: Miller appeared a bit untidy and her clothes

seemed soiled, hair was unkempt;

(iii) conversation: Miller said in response to an enquiry as to the

nature of her problem: “everyone here, everyone here is

against me, it goes on everyday, everybody doing me things,

they even coming by the window.”

14. According to the plea as a result of these observations, coupled by the fact

that Miller was on the 21st floor, Jackson-Huggins “became alarmed because if the

Claimant was seeing people speaking to her on the 21st floor in her professional

assessment of the situation it was possible that the Claimant may have taken some

drastic action which may have caused harm to herself or her co-workers.” This is the

case presented by the Health Authority as giving its employees the right to take Miller

into custody pursuant to the section.

15. Leaving aside for the moment the words: “wandering at large” and

concentrating on the meaning of a public place. At trial much of the conversation, and

some of the evidence, centered on whether or not the Ministry’s office was a public

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place. The Act defines a public place as “any place to which the public has access

with or without payment”. The key element here therefore is access by the public.

The evidence in this regard is limited. The only evidence on this issue given by the

Health Authority in its witness statements is that advice was given to them by the

Ministry’s legal advisor.

16. According to the witness statement of Jackson-Huggins she approached

the Deputy Permanent Secretary and the legal adviser for the Ministry: “I informed

them that this was a challenging situation since I am authorised to move persons from

a Public Place only. The legal adviser stated that this was a Public Place.” Under

cross- examination Jackson-Huggins admits that she had doubts on whether it was a

public place. According to her however she relied on the opinion of the Ministry’s

legal adviser.

17. Her evidence is more or less confirmed by the other witness for the Health

Authority, Jessica Forteau-Vanderpool, a psychiatric social worker. Forteau-

Vanderpool uses the word ‘delicate’ rather that ‘challenging’ in her witness statement

but her evidence is the same: Jackson-Huggins was advised by the legal adviser to the

Ministry that it was a public place. In cross-examination however Forteau-

Vanderpool states that, unlike Jackson-Huggins, she had no doubts that it was a public

place.

18. According to Forteau-Vanderpool she knew it was a public place “because

the public has access to that place, they don't pay money, they can go in, they can

walk in freely and that's what we did, we walked in freely, a security guard did not

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stop us: nobody asked us where we were going so we knew it was a public place.”

Nicha Cardinez, the Ministry’s legal adviser, admits that upon the enquiry being made

by Jackson-Huggins she told her that it was a government ministry and therefore in

her view it was a public place. She provides no further reason for this opinion.

19. The only other evidence with respect to this issue is obtained from

evidence of other witnesses not specifically directed to this point. The undisputed

evidence is that Miller was employed as an accounting assistant in the Ministry’s

accounting department. She sat at a desk in a cubicle about 15 feet away from the

conference room. Access to her cubicle was through a corridor with cubicles on either

side. As with the other cubicles in the immediate area the cubicle was enclosed by

wall which although it did not go right up to the ceiling provided some measure of

privacy while sitting at the desk.

20. According to the evidence obtained by the cross examination of Pauline

Agbontaen, the internal auditor employed by the Ministry, the nature of the work

performed in the accounting and auditing departments was highly technical and

highly confidential. With respect to a complaint made about Miller she says about the

work performed by members of the accounting unit: “so you can't go anywhere in the

building you are restricted to the accounting unit.” This evidence suggests to me that

given the fact that the operations of the accounting department are highly confidential

access to the accounting department is limited.

21. To my mind in addressing whether the Ministry was a public place or not

the Health Ministry was answering the wrong question. Miller was apprehended at her

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desk in her cubicle at the offices of the Ministry. The real question to be answered is

whether that space, that is, her desk in her cubicle was a public place. To succeed in

establishing the applicability of section 15 to the situation that presented itself

therefore the Health Ministry must establish that Miller’s cubicle was a public place

within the meaning of the Act.

22. I am satisfied that there is no evidence upon which I can come to the

conclusion that Miller’s cubicle at the Ministry’s offices was a public place. It was in

the accounting department in an area surrounded by other cubicles occupied by other

employees of the Ministry. It was a work area. Since the work of the accounting

department was highly confidential it would seem to me to be hardly likely that this

would be an area to which the public would have access.

23. In these circumstances it is not strictly necessary for me to deal with the

Health Ministry’s need to prove that Miller was wandering at large. It seems to me to

be sufficient to say that the evidence was that she was found seated at her desk. It is

clear therefore that Miller was not wandering-at large or at all. While sitting at her

desk Miller was wandering nowhere. However the position taken by Jackson-Huggins

in this regard is, in my opinion, so preposterous that to my mind it evidences the

length that this witness was prepared to go to justify her actions, affects her credibility

and more importantly the judgment that the section requires her to exercise and puts

into question whether she was acting in good faith at the time.

24. Jackson-Huggins’ evidence is that she is a registered mental health nurse.

In 2003 she pursued a community mental health nursing programme. In June 2005

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she was appointed acting mental health officer and then, in 2010, mental health

officer with the Health Authority. She admits to 7 years experience in the post.

According to Jackson-Huggins she was of the opinion that Miller was wandering at a

large while sitting at her desk in the cubicle because “wandering also means illogical

speech”. This evidence just has to be stated to confirm how ludicrous it is. Even more

frightening is the fact that this is from an official to whom the legislation has given

the power to curtail the liberty of a citizen.

25. A brief word on the other matters required by the section to be considered

by the mental health officer. Jackson-Huggins in her witness statement confirms the

observations pleaded in the defence as causing her to come to the conclusion that

Miller needed to be taken to a psychiatric hospital for admission for observation.

The first thing to be noted is that there is nothing in the observations made by this

witness, even if true, that in my opinion would have given Jackson-Huggins a reason

to come to this conclusion.

26. Jackson –Huggins’ evidence is that she arrived at this conclusion from a

response made by Miller to Jackson-Huggins’ enquiry as to what was the matter.

According to Jackson-Huggins Miller said: “everyone here, everyone here is against

me, it goes on every day, everybody doing me things, they even coming by the

window”. Jackson-Huggins goes on to say that as a result of what was told to her by

Miller she became alarmed because if Miller was seeing people speaking to her at the

21st floor window Miller may have taken some drastic action which may have caused

harm to her or her co-workers.

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27. In my opinion the statement made by Miller does not by any stretch of the

imagination allow this conclusion. Even if it did it is clear that the conclusion arrived

at by Jackson-Huggins was not that Miller was mentally ill and in need of care and

treatment at the mental hospital but rather that she may have been a danger to herself

and to her co-workers.

28. Further even when combined with the fact of Miller’s appearance, the

open umbrella on her desk and the headphones with loud music emanating, even if I

accept that evidence, while it may suggest some eccentricity it does not in my opinion

provide a reason to conclude that Miller was a danger to herself or to her co-workers

as concluded by the officer. Far less that she was suffering from mental illness and

was in need of care and treatment at a psychiatric hospital or ward. Nowhere in her

evidence, in chief or in cross-examination, does Jackson-Huggins at anytime say that

she considered or believed Miller to be mentally ill.

29. Under cross-examination Forteau-Vanderpool for the first time gives

evidence of additional statements by Miller other than those alluded to in the defence

or contained in the witness statements of either Jackson-Huggins or herself which

may have had some relevance to a consideration of Miller’s mental health at the time.

Given the fact that this was raised for the first time in cross-examination and is

inconsistent with the case as pleaded and the contents of both her and Jackson-

Huggins’ witness statements and Jackson-Huggins’ evidence under cross-

examination, I do not accept this evidence.

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30. I find that this evidence is untrue and given in a deliberate attempt to

bolster the case made out for taking Miller to the mental hospital. In any event in

accordance with the defence and Jackson-Huggins’ evidence these conversations,

even if they occurred, were not instrumental in Jackson-Huggins’ determinations.

31. On the evidence I am satisfied that the Health Ministry has not discharged

the burden on it to establish the applicability of section 15 of the Act to the situation

that their employees found at the Ministry on that date. Indeed on the facts placed

before me I am satisfied that at the time of her apprehension Miller had not been

found wandering at large nor was she in a public place. Nor am I of the view that the

observations relied on by Jackson-Huggins were sufficient to give her reason to

believe, nor did she believe, that Miller was mentally ill and in need of care and

treatment at the mental hospital. There was no justification for the apprehension of

Miller or her conveyance to the mental hospital for admission for observation. These

acts were therefore not in accordance with the section and unlawful.

Was Miller’s subsequent detention at the mental hospital lawful

32. On the facts there is no dispute that Miller was presented at the mental

hospital for admission pursuant to section 15 (1) of the Act. The evidence of the two

medical doctors employed by the Health Authority, Dr. Shavili, the admitting doctor,

and Dr. Ramtahal, the senior medical officer, is that the procedure to be followed for

admission under section 15 is that the mental health officer fills out the relevant

application form which is passed to the admitting doctor. The admitting doctor then

considers the application form, assesses the person and determines whether or not that

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person is to be admitted for observation. At this stage the Act only permits admission

for observation.

33. In the instant case Jackson-Huggins filled out the relevant application

form headed: ‘Admission by a Mental Health Officer for a person found wandering

at large.’ The form requires the mental health officer to show compliance with the

section. The mental health officer is required by the form to: particularise where the

patient was found; identify the reason the officer came to the belief that the patient is

mentally ill and in need of observation, that is, whether by reason of appearance,

conduct or conversation; and state the basis of the officer forming that opinion. The

purpose of the form is clearly to allow the admitting doctor to be satisfied that there

has been compliance with section 15(1).

34. In the form as completed Jackson-Huggins indicates that Miller was found

wandering at large in/at/on her desk at the Ministry of Gender, Youth and Child

Development. The words ‘her desk at the Ministry of Gender, Youth and Child

Development’ is in Jackson-Huggins’ handwriting. She fails to delete any of the

words ‘in/at/on’. The form also states that Jackson-Huggins had reason to believe that

Miller was mentally ill or in need of observation at the psychiatric hospital or

psychiatric ward and she had formed this opinion on the basis of: (i) facts observed by

her: unkempt, soiled clothing, speech illogical at times; and (ii) facts communicated

to her by others: disrupting her colleagues, speaking loudly, displaying aggressive

behavior, pounding the desk stomping her feet and accusing the colleagues of doing

her wrong. Jackson-Huggins states the source of the latter information to be Ms.

Cardinez (legal adviser at the Ministry).

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35. On the evidence before me it is clear that the information given by

Jackson-Huggins on the form was incorrect in three particulars: (a) Miller had not

been found wandering at large in a public place (b) Jackson-Huggins did not arrive at

an opinion that Miller was mentally ill; and (c) the opinion arrived at by Jackson-

Huggins, which she was required to arrive at prior to apprehension, was based on

information communicated to her by Ms. Cardinez after the arrest.

36. In this latter regard the evidence in chief from Jackson-Huggins is that the

only conversation she had with Cardinez at the Ministry was with respect to the

Ministry being a public place. In cross-examination Jackson-Huggins admits that she

received some of the information placed on the form from Cardinez but she does not

state when. According to Cardinez, however, she spoke to either Jackson-Huggins or

Forteau-Vanderpool on the telephone about half an hour after Miller had been

escorted by them out of the Ministry. Cardinez says that the information given by her

to Jackson-Huggins at that time had been given to her by the Permanent Secretary.

The information is the same information contained in the form and ascribed to

Cardinez. The inescapable conclusion therefore is that this information was given to

Jackson-Huggins after the arrest.

37. According to Dr. Shavili, in accordance with the usual procedure, she

considered the application form and after assessing Miller came to a provisional

diagnosis that she was suffering from paranoid schizophrenia. According to Dr.

Shavili she then called Dr. Ramtahal and requested Miller’s admission. Under cross-

examination Dr. Shavili admits that she checked the form but says that she was

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satisfied that all the requirements of the Act had been fulfilled. Based on what was

told him by Dr. Shavili Dr. Ramtahal agreed to have Miller admitted.

38. The nurses’ notes of the 21st and 22

nd March, tendered into evidence by the

Health Authority, indicate that medication was prescribed on admission to the ward

and administered to Miller on 22nd

March. According to Dr. Ramtahal on the morning

of 23rd

March 2012 during his ward rounds, accompanied by two other doctors and a

psychiatric social worker, Miller was interviewed. Dr. Ramtahal states that at the end

of the interview and after reviewing the admission documents he confirmed Dr.

Shavili’s preliminary assessment of paranoid schizophrenia. According to Dr.

Ramtahal on that date a decision was taken to change Miller’s admissions status from

a mental health officer’s recommendation to Miller being deemed medically

recommended.

39. As I understand Dr. Ramtahal’s evidence under cross-examination it is that

even though a mental health officer applies under section 15 to have a patient

admitted a doctor must legally deem the patient medically recommended within a

particular time frame in order for that patient to remain in the hospital. According to

Dr. Ramtahal if this is not done it would be an illegal status. This change of status is

confirmed by the nurses’ notes for that day. Thereafter it would seem Miller’s

detention at the mental hospital continued as a medically recommended patient until

she was released pursuant to the habeas corpus proceedings.

40. As we have seen section 15(1) of the Act permits a person described in

that section to be admitted to a psychiatric hospital or ward but only for observation.

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Section 15 (2) to (5) sets out the procedure to be followed upon a person being taken

into custody and conveyed to a psychiatric hospital pursuant to section 15 (1).

“ (2) the Psychiatric Hospital Director or a duly authorised

medical officer may, on the application of a mental

health officer, admit to a psychiatric hospital or ward a

person conveyed thereto pursuant to subsection (1);

(3) the Psychiatric Hospital Director or a duly authorised

medical officer shall, as soon as practicable after the

patient has been admitted, make or cause to be made on

the patient such examination as he may consider

necessary for determining whether or not the person is in

need of care and treatment.

(4) A person who has been admitted to a psychiatric hospital

or ward under subsection (2) shall not be kept therein for

more than 72 hours unless on examination the

Psychiatric Hospital Director or the duly authorised

medical officer is satisfied that the person is in need of

further care and treatment.

(5) where the Psychiatric Hospital Director is satisfied that a

person to whom subsection (4) applies is in need of

further care and treatment in a psychiatric hospital or

ward the person shall be deemed to be a medically

recommended patient and all the provisions of this Act

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relating to a medically recommended patient shall apply

to such a person.”

41. Section 15 therefore requires that, once the preconditions in section 15(1)

have been complied with, the person taken into custody be admitted into the hospital

for observation. As soon as is practicable and certainly within 72 hours the patient is

required to be examined by a medical officer to determine whether that patient is in

need of further care and treatment. Thereafter if the Psychiatric Hospital Director is

satisfied that the patient is in need of further care and treatment at the hospital then

the patient shall be deemed to be medically recommended patient and the hospital is

entitled to treat the patient as such.

42. In my opinion it is clear therefore that a person detained under section 15

can only be admitted to the mental hospital (a) for observation and (b) for not longer

than 72 hours. The detention can only continue if the patient is within that period

examined and deemed to be a medically recommended patient. Although no issue was

made of this the evidence is that Miller was prescribed medication during the period

after her admission and before the change of her status to a medically recommended

patient. This to my mind does not accord with the requirement of the Act that the

admission be for observation only.

43. From their evidence both Drs. Ramtahal and Shivili had access to, and

considered, Miller’s admission documents including the admission form filled out by

Jackson-Huggins. While the inclusion of the facts communicated by Cardinez may

have led both Doctors to believe that there was sufficient reason for Jackson-Huggins

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to believe that Miller was mentally ill and in need of care and treatment; and, while

the fact that she was found at the Ministry may have led the doctors to believe, albeit

incorrectly, that Miller was found at a public place, the fact that the form stated that

Miller was found in/at/on her desk clearly could not have satisfied the requirement of

section 15 that Miller be ‘found wandering at large’. In fact that sentence just did not

make sense.

44. In those circumstances in my opinion the application form clearly

indicated a failure to comply with section 15(1) of the Act and I am satisfied that this

ought to have been recognized by both doctors. In the circumstances not only was

Miller’s apprehension contrary to the Act but in determining whether to admit her as a

patient and continue her detention Drs. Shavili and Ramtahal ought to have

recognized this illegality. The fact that both of doctors diagnosed Miller as having

paranoid schizophrenia and may have been of the opinion that Miller needed further

care and attention was to my mind irrelevant to the legality of her status at the mental

hospital3.

45. In the case of Re S.-C.(Mental Patient: Habeas Corpus)4 there was no

dispute that the applicant suffered from mental ill health and had done so for a

number of years prior to the specific detention that was the subject of the challenge.

In that case the hospital authority was protected by a section in the Act5 that permitted

them to act upon an application that appeared to be duly made. While however

appearing to be duly made in reality the application was not made in accordance with

the relevant legislation.

3 R v Hallstrom and another, ex pate W(No.2) Rv Gardner and another, ex parte L[1986]2 All E.R. 308; 4 [1996] Q.B. 599 5 section 6(3) of the Mental Health Act 1983

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46. On the application for a writ of Habeas Corpus, in treating with the effect

of section 6(3), Bingham M.R. was of the opinion that the protection afforded by the

section did not affect the illegality of the detention it “simply meant that the applicant

cannot complain then of the unlawful detention against the managers of Winwick

Hospital.”6

47. In the instant case the Health Authority does not have the protection of a

similar section. In any event in my opinion it was obvious from the application form

filled out by Jackson-Huggins that the arrest was not in accordance with section 15 of

the Act. In the instant case the actions of the doctors in admitting Miller in the face of

that application form was clearly wrong and rendered Miller’s subsequent detention

unlawful. In this case.

48. According to Toulson LJ in M v Hackney London BC7:

“the correct starting point is to examine the nature of the

conduct and whether it conformed with the safeguards for the

patient's liberty prescribed by Parliament, which it did not. The

next question is whether the conduct was the direct cause of the

claimant's loss of liberty, which it was.”

49. Miller’s detention was contrary to section 15(1). Her detention was

therefore illegal. That illegal status could not have been made legal by the purported

conversion to a medically recommended patient in accordance with section 15 (5).

Miller’s detention was therefore initially unlawful and remained so until her release.

6 at page 608 D 7 [2011] 3 All E.R. 529 at 546d-e

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50. This was not a situation where the doctors had the power to admit Miller

independently of the section. Their ability to admit and treat Miller was at all times

pursuant to section 15 of the Act. In the circumstances and on the evidence before me

I am satisfied that the actions of the employees of the Health Authority, including

Drs. Shavili and Ramtahal, in taking Miller into custody on 21st April, admitting her

as a patient of the mental hospital and subsequently detaining her until 6th

April was

contrary to section 15 of the Act and illegal.

Who is liable for Miller’s detention

51. Miller submits that both the Health Authority and the Second to Fifth

Defendants are liable for her illegal detention.

(a) the Heath Authority

52. The Health Authority relies on sections 15(7) and 49 of the Act to avoid

liability. Section 15(7) states:

“ A person shall not be liable to any suit or action in respect of

any act done pursuant to the provisions of this section if he acted

in good faith and on reasonable grounds.”

Section 49 of the Act, in similar but not exact terms, provides:

“No person is liable to any suit or action in respect of any done

under lawful direction and authority pursuant to the provisions

of this Act or Regulations unless it can be shown to the

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satisfaction of the Court that the person acted without good faith

or reasonable care.”

53. Both sections address the need for persons having duties and

responsibilities under the Act to perform these duties and responsibilities with some

measure of comfort and protection and without fear of unjustifiable prosecution. The

sections however do not provide the same type of indemnity neither do they provide a

blanket immunity from suit.

54. Section 15(7) specifically addresses actions taken pursuant to section 15.

It provides that the person taking action under the section shall not be liable where

their actions were done in good faith and on reasonable grounds. The onus is on the

person seeking the indemnity to prove both good faith and reasonable grounds.

55. Section 49 on the other hand, while of more general applicability,

addresses actions taken in accordance with the Act or the Regulations under the

direction of another person. It therefore protects persons following what would seem

to be lawful orders or directions under the Act or Regulations. Here it is the person

seeking to establish liability who has to satisfy the court that the action taken under

the direction was done without good faith and reasonable care. So that for example if

Miller sought to place liability on one of the attendants who assisted Jackson-Huggins

in her arrest section 49 would apply and Miller would have to satisfy me that the

attendant acted without good faith or reasonable care.

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56. On the facts of this case none of the main actors on the Health Authority’s

stage can take the benefit of section 49. To obtain the benefit of section 15(7)

therefore the Health Authority must establish that (i) Jackson-Huggins, acted in good

faith and on reasonable grounds in taking Miller into custody and conveying her to

the hospital for admission; and (ii) Drs. Shavili and Ramtahal acted in good faith and

had reasonable grounds for admitting Miller and treating with Miller pursuant to

section 15.

57. With respect to Jackson-Huggins I am satisfied that her actions were

neither in good faith nor on reasonable grounds. Setting aside for the moment her

determination that it was a public place it is clear that there were no grounds

reasonable or not for Jackson-Huggins to have come to the conclusion that Miller was

found wandering at large while sitting at her desk in her cubicle in the Ministry.

While her conclusion that the Ministry was a public place may have been made in

good faith on the basis of the advice given by Cardinez. This opinion was only in

respect of the larger Ministry. I am not satisfied that the decision that Miller’s desk in

her cubicle in the Ministry was a public place was made on reasonable grounds.

58. Neither, for the reasons indicated earlier, did she have any reasonable

grounds for the belief that, according to the section, triggers her right to arrest Miller.

In my opinion this alone takes Jackson-Huggins out of the ambit of section 15(7). I

am satisfied that Jackson-Huggins also lacked good faith. Evidence of this comes

from the position taken by her on the requirement that Miller be found wandering at

large and from the contents of the application form. With respect to the requirement

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that Miller be found wandering at large it is clear to me that Jackson-Huggins knew

that the situation that she found at the Ministry did not meet that requirement.

59. The application form completed by Jackson-Huggins gives the reader the

impression that the section has been complied with and that at the time of her decision

Jackson-Huggins had come to the belief that Miller was mentally ill. From Jackson-

Huggins’ evidence we know that this was not true. Perhaps even more fundamental to

the lack of good faith on her part was that in the application form she gives as the

basis of her opinion, an opinion which she ought to have had at the time of the arrest,

her observations as well as the facts communicated to her by Cardinez. These were

facts communicated to her after the arrest.

60. As a mental health officer with 7 years experience who professes to be

well acquainted with the Act these could not have been innocent mistakes. Indeed

according to her, under cross-examination, the Act is what guides all her actions and

is what she follows to execute her duty as a mental health officer. The only duties

imposed on a mental health officer by the Act are duties pursuant to section 15. It

would seem to me that in these circumstances the failure of Jackson-Huggins to

comply with the only provisions of the Act applicable to her can only be indicative of

a lack of good faith on her part.

61. This prompts the question why would she do this. There is some

suggestion that Jackson-Huggins was directed by her supervisor to go to the Ministry

and take Miller to the psychiatric hospital for assessment. In her witness statement

Jackson-Huggins states that she received a call from her supervisor, Ms. Carol

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Callender informing her that there was a situation at the Ministry that urgently needed

to be addressed. According to Jackson-Huggins:

“She told me that there was an employee at the Ministry who

needed to be taken to the St. Ann’s Hospital to be assessed.”

62. In cross-examination however Jackson-Huggins put paid to any thought

that this could have been a direction which may have offered her some protection

under section 49 by, first, her insistence under cross-examination that she did not

consider this to be a direction to her on how to perform her duty and, second, her

assertion that the decision was hers and only hers to make. In the circumstances

Jackson-Huggins does not come within the ambit of section 49 of the Act.

63. I am of the same opinion with respect to Drs. Shivili and Ramtahal. While

there is, in my opinion, nothing to suggest a lack of good faith on their part I am

satisfied that given the contents of the application to admit Miller pursuant to section

15; their decisions to admit her and Ramtahal’s decision to convert her status to that

of a medically recommended patient, in the face of the application form which stated

that she was found wandering at large in/at/on her desk at the Ministry of Gender

Youth and Child Development, were not founded on reasonable grounds.

64. While in admitting Miller Dr. Shavili acted pursuant to Dr. Ramtahal’s

direction it is clear that this direction was given pursuant to advice in this regard given

to Dr. Ramtahal by Dr. Shavili. I am satisfied therefore that in this regard by not

recognizing the defect in the arrest shown on the application form Dr. Shavili herself

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acted without reasonable care and has lost any of the protection that may have been

afforded her by section 49.

65. In the circumstances neither sections 15(7) nor 49 apply to the actions of

Jackson-Huggins, and Drs. Shavili and Ramtahal so as to provide them with any

indemnity for their actions. Accordingly the Health Authority is vicariously liable for

their actions and for the arrest and detention of Miller.

(b) The 2nd

3rd

and 5th

Defendants

66. The Fifth Defendant's liability is dependent on my finding that the Second

and Third Defendants, Pascal and Jones, actively promoted and caused Miller’s

detention. The test here is as stated by Bingham M.R. in Davidson v Chief Constable

of North Wales 8is whether the conduct:

“went beyond laying information before police officers for them

to take such action as they thought fit and amounted to some

direction, or procuring, or direct request or direct encouragement

that they should act by way of arresting these defendants.9”

67. Miller therefore must satisfy me that the role of the Second and Third

Defendants went beyond just requesting assistance or making a report and leaving the

assessment of the situation and consequent decision as to the procedure to adopt to the

persons employed by the Health Authority. She must show active participation or a

direction given by these Defendants for actions pursuant to section 15 (1) of the Act

8 [1994] 2 All E.R. 597 9 page 604 letter h

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to be taken. This is a difficult evidential burden for Miller to discharge. On the facts

Miller will have to show, in effect, some complicity between the employees of the

Health Authority and these Defendants.

68. It is clear that, whether they were founded in reality or were simply

malicious, reports were made to both Jones and Pascal in their capacity as Permanent

Secretary and Deputy Permanent Secretary of the Ministry by other members of staff.

The issue here is not whether these complaints were true but whether they were made.

I am satisfied, if only by virtue of their consistency, these reports were sufficiently

credible to require further action by Jones and Pascal. Indeed Pascal gives evidence of

having herself made certain observations supportive of the reports. Miller herself

accepts that reports were being made against her by certain members of staff.

69. According to the evidence of Jones and Pascal their approach was to the

Ministry of Health and not the Health Authority. According to Jones this was because

they were merely seeking assistance for Miller and their Ministry did not have an

Employee Assistance Programme provider. Under cross-examination, she says,

having previously worked in the Ministry of Health she was aware that other

Ministries would call to the Ministry of Health for assistance. According to her that

Ministry would then contact the Chief Medical Officer for some advice and a

determination would be made there.

70. Jones says that she requested Pascal to make the necessary approach.

Pascal confirms the discussion between herself and Jones and the decision made. She

says that she called the Ministry of Health for assistance in whatever it was they felt

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competent to give. Under cross-examination she says she spoke to a Ms. Rouse and

described Miller's behavior. She was informed that a mental health officer would

contact her.

71. Thereafter Jackson-Huggins called her and they spoke. She said that she

told Jackson-Huggins that Miller was behaving in an erratic manner. She also admits

that upon inquiry from Jackson-Huggins she told her that Miller was known

psychiatric patient. This was not true. Under cross-examination she admits that she

had not checked accuracy of the information but had been told this by other members

of staff. Although highly irresponsible, particularly for someone holding the post of

Deputy Permanent Secretary, in my opinion irresponsibility alone does not, in these

circumstances, found liability.

72. Pascal admits to pointing out Miller to the employees of the Health

Authority. Both she and Jones admit to standing by and seeing the employees of the

Health Authority accompany Miller out of the Ministry’s offices. The only evidence

led on Miller’s behalf which may possibly go towards a greater involvement of Pascal

in the presence of the employees from the Health Authority than Pascal is willing to

admit is that of another Ministry employee Pamela Ramdial-Lutchman. According to

that witness she was informed by Pascal, prior to the employees of the Health

Ministry attending the Ministry, that persons from St. Ann’s Mental Hospital would

be arriving to take Miller and that she was not to say anything.

73. Even if this was so and even bearing in mind that Pascal admits that it was

she who made all the arrangements, first with the Ministry of Health and then with

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Jackson-Huggins, and admits to telling Jackson-Huggins that Miller was a known

psychiatric outpatient I am not satisfied that this was sufficient to infer that Pascal did

anything more than give information which Jackson-Huggins may have used to

determine that Miller ought to have been taken to the mental hospital. There is no

evidence of any direct approach by either Jones of Pascal to the Health Authority

prior to the arrest. Neither is there any evidence of their participation in any of the

decisions made to involve the Health Authority or to have Miller removed from the

Ministry’s offices.

74. It is clear that in their capacity as Permanent Secretary and Deputy

Permanent Secretary these Defendants had a situation to deal with in the Ministry.

That they may have dealt with the situation differently and avoided these drastic

consequences suggests to me poor judgment on their part. It certainly does not in my

opinion support a finding of culpability in the events that subsequently occurred. In

the absence of any evidence of complicity in the decision to detain Miller by these

Defendants the fact that they fell down in their responsibility to Miller is not at issue

here.

75. Miller herself provides no evidence of complicity between these defendants

and the employees of the Health Ministry. From her evidence Miller’s complaint

seems more to be that these Defendants stood by and permitted strangers from the

Health Authority to come into the Ministry and remove her than that there was some

direction, procuring, direct request or direct encouragement to the employees of the

Health Authority that they should take Miller into custody and detain her at the

mental hospital.

Page 29 of 34

76. Unfortunately, while the failure of Jones and Pascal to prevent Miller’s

apprehension is regrettable and to an extent irresponsible and while an intervention by

either of these Defendants could have prevented the situation that arose, in the

absence of any evidence of any further involvement by them, in my opinion, they

cannot be held responsible for the decision to send a mental health officer to the

Ministry nor the decision to apply section 15 to the situation. The advice that the

Ministry was a public place did not come from any of these Defendants nor, in my

opinion, can they be found liable for any negligent or wrong advice given by the

Ministry’s legal adviser.

77. In the circumstances I am satisfied that there is no evidence from which I

can infer that Jones was complicit in the arrest and detention of Miller. Although it is

clear from the evidence that Pascal was a little more involved my conclusion on her

participation is the same.

78. On the evidence before me therefore I am satisfied that liability for the

arrest and subsequent detention of Miller falls squarely on the shoulders of the Health

Authority. I am satisfied that the actions of the employees of the Health Authority and

their decisions to take Miller into custody and thereafter admit and detain her pursuant

to section 15 of the Act was not made in good faith, or on reasonable grounds or with

reasonable care. The immunity provided by sections 15 (7) and 49 of the Act does not

apply to them and therefore cannot be relied on by the Health Authority in this case.

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Damages

79. Miller seeks damages, including exemplary and aggravated, for false

imprisonment and assault and battery. I am satisfied that whatever damages she may

be entitled for assault and battery have been subsumed in her entitlement for damages

for false imprisonment.

80. The evidence of Miller and her witnesses as to the manner of her removal

from the Ministry’s offices does not accord with the evidence led by or on behalf of

any of the Defendants. While the evidence of Miller’s witnesses are contradictory in

certain minor details they all confirm that Miller was taken from the Ministry against

her will. I accept their evidence. In the main the contradictions were to the clothes

worn by the employees of the Health Ministry and the number of employees seen by

them on that date. Given the admissions by the Health Authority as to the presence of

four employees, two men and two women, at the Ministry on that date, in my opinion,

these contradictions are of no moment.

81. I find as a fact that Miller was escorted out of the Ministry’s offices by

Jackson-Huggins, Forteau-Vanderpool and two male attendants. Miller did not go

voluntarily. This evidence is to my mind confirmed by Jackson-Huggins’ admission

that she held her hand and the undisputed evidence that Miller herself did not secure

her belongings but rather this was done by a co-worker Lisa Simmons.

82. I accept Miller’s evidence of feeling greatly embarrassed by being taken

into the custody of the Health Authorities’ employees in the presence of her co-

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workers. I accept her evidence of her treatment while at the mental hospital. With

respect to her evidence that visits to her were limited I interpret this to mean visits

outside of visiting hours. Her evidence has, in the main, not been contradicted by

other evidence nor was it seriously challenged in cross-examination.

83. During her detention she was prescribed and administered medication

orally and by injection. This medication included modecate a long acting psychotic

drug. She says, and I accept her evidence, that the injections made her tongue heavy

and uncomfortable and “like she was totally out of this world”. She says she felt the

effects of the medication even after her discharge from the mental hospital. While in

the hospital she felt depressed and cried regularly. She suffered daily from intrusions

to her privacy by other patients and members of staff.

84. Upon her discharge she speaks of persons staring at her and pointing her

out in the street. Her sister confirms this and speaks of people “steupsing” at Miller in

the street. Articles in the newspapers and calypsos were written about her. From her

evidence under cross-examination it is clear that this was and continues to be an

extremely traumatic experience for Miller.

85. Miller seeks special damages in the sum of $310,000.00 representing

money paid on her behalf for legal representation in the habeas corpus proceedings.

She annexes to her statement of case a copy of a receipt in this regard. This fact has

not been denied by any of the Defendants, and more importantly the Health Authority,

in accordance with Part 10.5 of the Civil Proceedings Rules 1998 as amended. In the

circumstances following the decision of Mendonca J.A. in the case of MI5

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Investigations Limited v Centurion Protective Agency Ltd10

I am entitled to treat this

fact as undisputed.

86. The Defendants submit that because there was no order for costs made on

the habeas corpus proceedings Miller should not recover the monies expended on

legal fees to obtain her release from her illegal detention. I do not agree. The question

of the costs on the habeas corpus application was in that Judge’s discretion. There is

no indication why the discretion was exercised in that manner. I find that her legal

costs are an expense incurred by Miller or on her behalf as a direct result of her

detention and is recoverable by her. She is therefore entitled to recover the sum of

$310,000 as special damages.

87. On the evidence before me I am satisfied that Miller would have been

greatly humiliated and embarrassed by the manner of her arrest in the presence of her

co-workers and in particular in the presence of those with whom she had a running

dispute. This was further compounded by her being taken onto the public street and

placed into an ambulance and even further aggravated by the widespread publicity

that her apprehension and detention at the mental hospital attracted. The fact that

calypsos were composed and sung about her meant that the circumstances and manner

of her detention were kept in the public eye thereby increasing and intensifying her

humiliation and embarrassment.

88. I find that this is a fitting case for both exemplary and aggravated

damages. I do not agree with the Health Authority that the case of Bostridge v Oxleas

10 CA Civ 244 of 2008

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NHS Foundation Trust11

applies to this situation. In that case there was evidence that

the appellant would have been detained lawfully in any event had the unlawfulness of

his detention been brought to the attention of the defendant. This is not the position in

the instant case. In my opinion it is clear that on the facts Miller could not have been

admitted under any of the other methods provided for by the Act for admission to the

mental hospital. In this case I am satisfied that Miller suffered a loss for which she is

entitled to compensatory damages. Nominal damages will not suffice in this case.

89. The Claimant has referred me to various cases within this jurisdiction with

respect to the quantum of damages. While I have taken these into consideration I have

found no cases in our jurisdiction with similar facts. The closest case to this case is

the case of Maharaj v the Attorney General12

. In that case the Claimant who had been

incarcerated at a psychiatric hospital for many years was ordered by a psychiatric

hospital tribunal to be released. He was not released until some 29 days afterwards by

way of writ of habeas corpus. Maharaj was awarded $280,000 in general damages

which included aggravated damages and the sum of $50,000 as exemplary damages.

90. Although the period of detention in Maharaj’s case was longer than the

period of detention in Miller's case I consider the damage suffered by Miller to be

much greater, more traumatic and longer lasting. Miller was not and had never been

admitted to a psychiatric hospital before this occasion. She was not a known

psychiatric patient. She protested her treatment at the hands of the health authorities

employees throughout her detention. She was prescribed drugs that had a long-lasting

effect on her.

11 [2015]EWCA Civ.79 12 CV 2009-1832

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91. In addition the circumstances of her being taken into custody and detained,

unlike Maharaj’s case, was humiliating and public. Her mental suffering, affront to

her dignity and damage to her reputation has continued long after the incarceration

ended. The incarceration had and continues to have a traumatic effect on her. Some

three years after the event she has clearly not recovered from its effects.

92. I am of the opinion that the sum of $450,000.00 represents a reasonable

sum to be awarded to her in general damages. This sum includes an element of

aggravated damages. Miller is also entitled to an award in exemplary damages it

would seem to me that the sum of $75,000.00 is an adequate sum to express my

condemnation of the treatment of Miller at the hands of the employees of the Health

Authority.

93. Accordingly there will be judgment for the Claimant against the First

Defendant in the sum of $835,000.00 of which the sum of $310,000.00 represents her

special damages, $450,000.00 her general damages and $75,000.00 exemplary

damages.

Dated this 1st day of June, 2015.

Judith Jones

Judge