QUEEN'S BENCH DIVISION
London, WC2A 2LL
Wednesday 7th August 2002
B e f o r e :
| R (on the application of D.R.)
|- and -
|MERSEY CARE NHS TRUST
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS KRISTINA STERN, instructed by Messrs Hill Dickinson, Liverpool,
appeared on behalf of the Defendant.
Crown Copyright ©
Mr Justice Wilson:
SECTION A: INTRODUCTION
SECTION B: THE FACTS
"She suffers from a mental illness namely schizophrenia. She harbours numerous delusional beliefs and has recently expressed suicidal ideas to the nurses who visit her. She has no insight into her illness. She has been reluctant to take medication. She needs to be detained in hospital in order to administer medication and observe her progress by trained staff."
(a) she should attend occupational therapy at the hospital between 9:00 am and 5:00 pm each Friday;
(b) she should attend the ward round at the hospital each Monday morning so that the multi-disciplinary team could monitor her progress, seek to engage with her and review the plan;
(c) subject to (a) and (b), she should continue to have leave of absence from the hospital;
(d) a community psychiatric nurse should visit her at home every fortnight in order, by injection, to administer 60 mgs of Depixol; and
(e) members of the Assertive Outreach Team should visit her at home each Tuesday and Thursday.
"If she were to be discharged in her current mental state, she will stop taking the medication and her condition will rapidly deteriorate."
The doctor did not in terms address the question whether, in the event of discharge, the claimant would voluntarily attend hospital on Fridays and on Monday mornings. But he reported her as having told him as recently as 11 February that she was unhappy to spend even a day at the hospital; and I think that it is proper to infer that, like the nurse (see §15 below), he doubted whether in that event she would do so.
"Everybody involved with [D.R.] recognises that compliance with medication is the issue. [D.R.] has no insight into her illness and I feel masks her symptoms because she is aware we feel they indicate illness.
She has promised to accept the depot injection for two years. I am not convinced she will be able to keep this promise.
It may be wise to keep [D.R.] on s.3 a little longer, as this will ensure that she is treated and perhaps the revolving door cycle can be broken."
" ? Compliance with treatment is an area of concern with [D.R.]. It is felt she would become non-compliant if discharged.
? [D.R.] would not remain as an informal patient on the ward if taken off current section.
? [D.R's] mental health state would deteriorate and she would be a risk to herself/others."
"We are convinced the patient is suffering from a mental disorder which requires treatment. If she were not detained, we doubt her compliance. Given the recent past history and the social worker's evidence about "revolving door", we think a longer period of detention is necessary."
SECTION C: THE LAW
" (a) the patient is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) such treatment is likely to alleviate or prevent a deterioration of his condition; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained;
but in the case of mental illness or severe mental impairment, it shall be an alternative to the condition specified in paragraph (b) above that the patient, if discharged, is unlikely to be able to care for himself, to obtain the care which he needs or to guard himself against serious exploitation."
"The phrase "his mental disorder . . . makes it appropriate for him to receive medical treatment in a hospital" in section 3(2)(a) also leads to the conclusion that the section is concerned with those whose mental condition requires in-patient treatment. Treatment in a hospital does not mean treatment at a hospital, as [leading counsel for the defendants], in effect, contends. If his construction were correct there would be a distinction between the patient who could appropriately be treated at home and the patient who could appropriately be treated at the out-patients' department of a hospital. Such a distinction would be without reason. When it is remembered that the section authorises compulsory detention in a hospital it is at once clear why a distinction should be made between those whom it is appropriate to treat in a hospital, i.e. as in-patients, and those whom it is appropriate to treat otherwise, whether at the out-patient department of the hospital or at home or elsewhere."
At 1109B the judge inevitably reached an identical conclusion about the meaning of s.20(4)(a).
"It is the treatment as a whole which must be calculated to alleviate or prevent a deterioration of the mental disorder from which the patient is suffering. As long as treatment viewed in that way involves treatment as an in-patient the requirements of the section can be met." [my italics].
In his concurring judgment Thorpe L.J. did not use the word "in-patient", save in presenting an argument which he rejected. But at 118A-B and D-E he used words upon which each counsel relies. He said:
"But her home base remained the hospital despite the fact that she slept many more nights out than in and despite the fact that she had a daily leave of absence for 4 hours on each of the 2 days per week when she returned to the hospital. It seems obvious to me that those 2 days of detention each week were an essential ingredient of the treatment …
Her presence in the hospital each Tuesday and Wednesday was an essential part of the treatment package, it could only be provided in the hospital and could only be effectively provided if the appellant continued to be detained." [my italics].
MR JUSTICE WILSON: I here by hand down the judgment in this case and it follows from it that the claim will be dismissed. I have, to my irritation, noticed a tiny error on page 9 of the judgment. I have altered it in certain copies just delivered to the Press. Of course where it says "Section - The Law" it should be "Section C - The Law". I would be grateful if learned counsel could amend their copies as necessary.
MR PATEL: Given the judgment that you have handed down we would ask for our costs of this application. The claimant has the benefit of the funded certificate from the Legal Services Commission. We would, in this unusual case, ask for the costs to be paid by the Legal Services Commission themselves. Can I pass up some correspondence between my solicitors and the Legal Services Commission? At the back of that bundle are the relevant regulations one has to assess in order to decide whether an order should be made.
Can I take you to the letter of 16th April. This is a letter from my solicitors to the Legal Services Commission. I think it might be appropriate if you just read the correspondence right the way through and then I will make the submissions that I intend to make.
MR JUSTICE WILSON: Very well. In the meantime unless you are giving me copies of everything that is relevant, do I need a textbook for this?
MR PATEL: I do not.
MR JUSTICE WILSON: Fine I will read these letters. (pause) Yes, I have read the correspondence. Take me to the regulations, please, Mr Patel?
MR PATEL: They are at the very end. The appropriate one is Regulation 5 which is headed "Costs order against the Commission."
"The following paragraphs apply (...read into the words...) cost protection applies."
Costs protection is set out at Regulation 3. It does apply because the funded client receives help at the court, on this occasion support.
MR JUSTICE WILSON: Costs protection is defined where?
MR PATEL: Regulation 3.
MR JUSTICE WILSON: Costs protection means the protection that the publicly funded party has and is it section 11 of the Act?
MR PATEL: It is the Access to Justice Act 1999.
MR JUSTICE WILSON: Costs protection does apply. She has that protection. We then proceed where?
MR PATEL: So 5(1) applies in full. Then you have 5(2). She says:
"The court may, subject to the following paragraphs, make an order for the payment by the Commission to the non-funded."
You have a discretion. Section 5(3) you can only exercise that discretion if all of the conditions set out below are satisfied. Going through them in order, a section 11(1) costs order is made against the client. That will be made given the judgment that you have given. The non-funded party makes a request.
MR JUSTICE WILSON: What if the amount, if any, which the client is required to pay under that costs order is less than the amount of the full costs. Are you asking me to assess her liability at nil?
MR PATEL: I think her liability is nil in respect of the costs because I do not think she is required to contribute to her costs--
MR JUSTICE WILSON: There is a difference between what she has to contribute to her own costs under her certificate, and what she might be assessed to contribute under section 11 if ordered to pay another party's costs. We are dealing with the second matter here and I am simply asking you whether, having asked me to order her to pay the costs, you are proceeding to ask me to assess her liability at nil?
MR PATEL: I think in her circumstances that must be right.
MR JUSTICE WILSON: I see. Then the amount which she is required to pay would be less than the amount of the full costs and if I go down that route you have satisfied 3(a).
MR PATEL: I have satisfied that subsection, yes.
MR JUSTICE WILSON: Then?
MR PATEL: Subsection (b) we have made a request within three months of the making of a section 1(1). You will see from the correspondence that I have taken you to that implicit in that correspondence is a request that they need to cease public funding--
MR JUSTICE WILSON: Is it a request under regulation 10(2), Mr Patel?
MR PATEL: My Lord, I am afraid I do not have regulation 10(2) in front of me.
MR JUSTICE WILSON: How are you going to get around Regulation 5(3)(c), namely that I have to be satisfied that you suffer severe financial hardship unless the order is made.
MR PATEL: You have to take the view on that. I can give the circumstances of how I would suggest that severe financial hardship would be suffered. You have to take a view on whether or not, in your view, that does constitute severe financial hardship.
MR JUSTICE WILSON: You have a job on to persuade me of that. Have a go, briefly?
MR PATEL: Briefly it is this: the defendant in this case is NHS Trust and you know (inaudible) goes out of the central NHS Fund, in this particular circumstance, because it is not a clinical negligence matter but a judicial review matter. The matter has to come out of the particular NHS Trust budget. Those costs, I am told, amount to some £10,000 in this case. That will be money that would have been spent on clinical care/patient care. In those circumstances, unless you were to ask or order the Legal Services Commission to pay part or all of those costs, the trust would suffer severe financial hardship in that way because they have not been able to use that £10,000 on treatment for care of its patients. That is the way I put it, my Lord.
MR JUSTICE WILSON: It is a good effort, Mr Patel, but it does not amount to severe financial hardship. You would fail on (c) even if you come within (b). I am going to refuse your application for costs against the Commission. You still persist in your application against the claimant?
MR PATEL: I do, yes.
MR JUSTICE WILSON: You ask that that be assessed at nil.
MR PATEL: In those circumstances I would not. I just ask for the Football Pools order which is the usual order. I think it is that the claimant's pay the defendant's costs not to be enforced, subject to an assessment - I think your clerk knows the wording. It is the usual order.
MR JUSTICE WILSON: Is it something like this: any assessment of her liability hereunder not to be undertaken without the leave of the court?
MR PATEL: I think it used to be that. It has become a little bit more refined. It used to be along the lines of the claimant's entitlement or assessment to pay those costs not to be enforced without leave of the court.
MR JUSTICE WILSON: It is now focusing upon the assessment which is necessary.
MR PATEL: I think it is.
MR JUSTICE WILSON: My words did attempt to focus on that. There has to be an assessment of the amount and I am simply saying there should not be an assessment of the amount without the leave of the court.
MR PATEL: I am more than happy to adopt that.
MR JUSTICE WILSON: Before I go over to Miss Sergides on this, I will check with the associate that the wording is appropriate. (pause)
Miss Sergides, you have heard the application it is that your client, although publicly funded, should be the subject of an order to pay the costs but that no assessment of her liability under section 11 be made without the leave of the court.
MISS SERGIDES: I was just going to add that I have something that goes "the determination of the claimant's liability to be postponed" which effectively--
MR JUSTICE WILSON: Postponed until when, Miss Sergides?
MISS SERGIDES: Effectively it is the same thing: until there is an application made with the leave of the court.
MR JUSTICE WILSON: That would amount to the same thing.
MISS SERGIDES: It amounts to the same thing. If I am not mistaken it is the CLS Costs Regulation 2000, which, in addition to that, we seek, that there be a detailed assessment for the purpose of public funding, in any event.
MR JUSTICE WILSON: You do not oppose the order that Mr Patel is seeking?
MISS SERGIDES: In the circumstances, given that the claimant has lost, I believe that in a situation like this the defendant's costs be paid by the claimant, and then the paragraphs thereafter.
MR JUSTICE WILSON: I agree, but I am giving you the opportunity to oppose that.
MISS SERGIDES: In the circumstances I cannot oppose that.
MR JUSTICE WILSON: I think that is realistic. Then I order the claimant to pay the defendant's costs of the claim, notwithstanding that she is publicly funded and I make that embargo in the terms I have already articulated. Very well any other matters? No. Thank you very much.