England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CROWN OFFICE LIST
(MR. JUSTICE TURNER)
Appeal

		Royal Courts of Justice Strand London WC2
		22 November 1995

THE MASTER OF THE ROLLS: This is an appeal against a decision of Turner J, given on 26 October 1995, when he refused an application by the Appellant for an order of habeas corpus. The Appellant is an adult and unmarried and has for some years had the misfortune to suffer from mental ill health. On previous occasions he has been admitted to various hospitals for assessment and treatment, but this appeal concerns the legality of his admission on, and detention after, 10 July 1995.

The appeal appears to raise certain fundamental principles. As we are all well aware, no adult citizen of the United Kingdom is liable to be confined in any institution against his will, save by the authority of law. That is a fundamental constitutional principle, traceable back to chapter 29 of Magna Carta 1297, and before that to chapter 39 of Magna Carta 1215. There are, of course, situations in which the law sanctions detention. The most obvious is in the case of those suspected or convicted of crime. Powers then exist to arrest and detain. But the conditions in which those powers may be exercised are very closely prescribed by statute and the common law. Another instance that springs to mind is that of unlawful immigrants. Again, they may be apprehended and detained but again the powers to detain are very closely prescribed by legislation and subordinate legislation in the field of immigration.

More relevant to this appeal is the instance of mental patients. They present a special problem since they may be liable, as a result of mental illness, to cause injury either to themselves or to others. But the very illness which is the source of the danger may deprive the sufferer of the insight necessary to ensure access to proper medical care, whether the proper medical care consists of assessment or treatment, and if treatment, whether in-patient or out patient treatment.

Powers therefore exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be involuntarily admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute. Action may only be taken if there is clear evidence that the medical condition of a patient justifies such action, and there are detailed rules prescribing the classes of person who may apply to a hospital to admit and detain a mentally disordered person. The legislation recognises that action may be necessary at short notice and also recognises that it will be impracticable for a hospital to investigate the background facts to ensure that all the requirements of the Act are satisfied if they appear to be so. Thus we find in the statute a panoply of powers combined with detailed safeguards for the protection of the patient. The underlying issue in the present appeal is whether those powers were properly exercised and whether the Appellant was lawfully detained. One reminds oneself that the liberty of the subject is at stake in a case of this kind, and that liberty may be violated only to the extent permitted by law and not otherwise.

With that by way of background, I turn to the Mental Health Act 1983. It is convenient to start by reference to section 3(1) in which there is a general provision authorising the admission to hospital of patients and their detention in hospital for the period allowed by the Act "in pursuance of an application made in accordance with this section." Subsection

(2) sets out the grounds upon which such an application may be made and they include in (a) mental illness. Subsection (3) includes a requirement that two registered medical practitioners should recommend admission for treatment, and details are prescribed as to the contents of those recommendations. A registered medical practitioner is defined in section 5 and Schedule I of the Interpretation Act 1978.

Section II of the Act gives further details governing generally the making of such applications and subsection (1) is important: "Subject to the provisions of this section an application for admission..... for treatment.....may be made either by the nearest relative of the patient or by an approved social worker, and every such application shall specify the qualification of the applicant to make the application."

The meaning of "approved social worker" is defined in section 145 of the Act. Section 11(4) is central to this appeal, and I

read that subsection:

"Neither an application for admission for treatment..... shall be made by an approved social worker if the nearest relative of the patient has notified that social worker..... that he objects to the application being made and, without prejudice to the forgoing provision, no such application shall be made by such a social worker except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay."

It is, I think, unnecessary for present purposes to refer to subsection (6). Section 13(1) of the Act defines the duties of approved social workers and provides:

"It shall be the duty of an approved social worker to make an application for admission to hospital.....in respect of a patient within the area of the local social services authority by which that officer is appointed in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him."

In subsection (5) one finds an important reiteration of the need to consult the nearest relative. That subsection provides:

"Nothing in this section shall be construed as authorising or requiring an application to be made by an approved social worker in contravention of the provisions of section 11(4) above, or as restricting the power of an approved social worker to make any application under this Act."

It is in section 26(1) of the Act that one finds the meaning of nearest relative defined. In subsection (1)(c) it is defined to mean the father or mother of the proposed patient, and subsection (3) of that section makes plain that, where both father and mother are alive, then it is the older of the two who is to be treated as the nearest relative. It is unnecessary to go into the provisions relating to cohabitees and children.

Section 29 gives power to the County Court, on application, in effect to override the wishes of the nearest relative. Application may be made by an approved social worker, and one of the grounds upon which the application may be made is that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment in respect of the patient. That section, therefore, provides a necessary remedy in a case where admission is clearly indicated but where the nearest relative objects. Under section 23 the nearest relative has power to discharge the patient from hospital, but that is not an absolute power since it is liable to be, in effect, blocked by an order made by a responsible medical officer under section 25 of the Act.

I then come to section 6 of the Act, which is again very important in the context of this case. It provides:

"(1) An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital within the following period....."

and periods of time are then set out.

"(2) Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subsection (1) above, or, being within that hospital is treated by virtue of section 5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.

(3) Any application for the admission of a patient under this Part of this Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it.

(4) Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this Part of this Act by virtue of which he was liable to be detained in a hospital.....shall cease to have effect."

Plainly that section provides protection for a hospital to which a patient is admitted or in which a patient is detained. Such a hospital is not at risk of liability for false imprisonment if it turns out that the approved social worker does not meet the definition in section 145(1), or if the recommendations which purport to be signed by registered medical practitioners are in truth not signed by such, although appearing to be so. That is obviously good sense. A mental hospital is not obliged to act like a private detective; it can take documents at face value. Provided they appear to conform with the requirements of the statute, the hospital is entitled to act on them.

There is, in section 15(1) of the Act, a power within a limited period, if the application (or any medical recommendation given for the purposes of the application) is found to be in any respect incorrect or defective, with the consent of the managers of the hospital, to amend the application or the recommendation. But there is, as I think, nothing in that section which enables a fundamentally defective application to be retrospectively validated. There are other sections in the Act dealing with leave of absence, return and re-admission, transfer and the duration of the hospital's authority, but it is, I think, unnecessary for present purposes to go into those provisions.

I turn, therefore, to the facts of this case, which can be very briefly summarised. On 10 July 1995 the Appellant was admitted to and detained at Victoria Hospital, Blackpool under section 3 of the 1983 Act. His admission and detention were pursuant to an application for admission for treatment made by Shirley Constance Harris, an approved social worker employed by the Lancashire County Council. On 10 July 1995, the Appellant's nearest relative was his father, and Miss Harris knew that the Appellant's nearest relative was his father. On that very day the Appellant's father objected to an application being made for the admission of the Appellant to hospital, and Miss Harris knew that the father objected to that application. It follows from the fact that the Appellant's father was his nearest relative that his mother was not, and did not have the rights of the nearest relative. That also was something which Miss Harris appreciated.

There is, in an affidavit sworn by Miss Harris on one side and the Appellant's mother on the other, some difference as to what took place between them (and another social worker) on that day. Miss Harris suggests, rightly or wrongly, that the Appellant's mother indicated that his father was willing to delegate his role as nearest relative to her. That may or may not be so, but it makes no difference. If the nearest relative wishes to delegate his or her authority to anyone else, Regulation 14 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 requires that that delegation and authorisation should be in writing. In this case there was no written document by the Appellant's father authorising the mother to act in his place or delegating his role to her, and Miss Harris was very well aware that there was no such written authority.

Nonetheless, in preparing the application for the admission and detention of the Appellant, Miss Harris signed a form in which she said:

"I have consulted Mrs. S-C..... who, to the best of my knowledge and belief is the patient's nearest relative within the meaning of the Act."

That statement, it has to be said, was entirely false. Miss Harris knew that Mrs. S-C, the Appellant's mother, was not his nearest relative within the meaning of the Act. She also left in the form, and therefore validated, a statement to the effect:

"That person [the Appellant's mother] has not notified me or the local social services authority by whom I am appointed that she objects to this application being made."

The learned Judge in his judgment described that statement as disingenuous. The fact is that Mrs. S-C was known not to be the Appellant's nearest relative, and the person who was known to be the nearest relative was known to have objected. The Appellant was admitted, and it is acknowledged that at the time when he was admitted the application had the appearance of having been properly completed by Miss Harris. The hospital managers were not to know that the Appellant's father was the nearest relative and that the mother was not, and they were not in a position to know that the father had objected. The managers of Victoria Hospital, to whom the application was addressed, acted on it and detained the Appellant. Later he was transferred to another hospital at Winwick and, in due course, letters were written on the Appellant's behalf raising in clear terms a challenge as to the lawfulness of his detention. Those letters may be of significance hereafter but are not, in my judgment, of relevance to the present application. I should, however, mention that by the time of the hearing before the Judge the Appellant was on home leave from the hospital at Winwick. Since that time he has been formally re-transferred to the Victoria Hospital although he is currently on home leave from .that hospital.

There are two other matters which I should briefly mention although they are, in my judgment, immaterial. One is that in September of this year the mother, purporting to act as the Appellant's nearest relative, sought his discharge under section 23 - a course which was blocked by the responsible medical officer who exercised his powers under section 25. There was a review hearing by the hospital managers when the Appellant's application for discharge was rejected. Then, at the beginning of this month, there was a hearing before the Mental Health Review Tribunal when the Appellant was released on home leave and re-transferred to the Victoria Hospital. In my judgment those events cannot affect the decision we have to make, save insofar as they may affect the exercise of any discretion, since they all assume an initial lawful detention, and the question is whether the Appellant was lawfully detained in the first place or not.

The argument advanced by Mr. Bonney QC on his behalf can be reduced to a series of refreshingly simple propositions. In essence, his argument is this:

1 The nearest relative of the Appellant objected to his admission and detention.

2 No order was made overriding the right of the nearest relative to object under section 11(4).

3 The application for the admission and detention of the Appellant was made despite the prohibition in section 11(4) of the Act.

4 The application for admission and detention of the Appellant was not therefore in pursuance of an application made in accordance with section 3.

5 There was accordingly no authority to detain the Appellant.

6 Habeas corpus is an appropriate remedy because the Appellant is not seeking to overturn an administrative decision but to show an absence of any jurisdiction to do what was done.

Mr. McKeon of counsel has appeared representing Warrington Community Health Care, which is the body responsible for running the hospital at Winwick. In a sense, although Mr. McKeon's presence has been helpful this morning, he is an irrelevant party to these proceedings since the Appellant has been transferred away from Winwick Hospital. His clients therefore no longer have custody, even indirectly, of the Appellant, although they did when he was at Winwick. The crux of Mr. McKeon's argument is reliance on section 6(3) of the Act to establish that the conduct of his clients was lawful. He submits that they were entitled to rely on an application which appeared to be in order, and that they had no duty to investigate the authority or qualifications of those who presented the application. In that submission he is, in my judgment, quite correct. It is no part of the Appellant's case today that the managers of Winwick Hospital were at fault, at any rate until such time as they became aware that the application had not been duly made. Mr. McKeon relies on authorities which, in his submission, show that the existence of an apparently compliant application precluded any further inquiry by the Court by way of habeas corpus into the lawfulness of the detention. It has, however, as I think, become clear that Mr. McKeon's main anxiety is to preserve his clients' defence against any claim that might be made against them of false imprisonment. For his comfort, I should say that nothing in this judgment should be taken in any way to prejudice any defence of his clients. There is no claim for false imprisonment against them that is before us today and therefore I say nothing about it. I do, however, say his. Even if the managers of Winwick Hospital received an apparently valid application and were entitled to rely on it, those facts cannot, as it would seem to me, turn an unlawful detention into a lawful detention. Those facts simply mean that the Appellant cannot complain of the unlawful detention against the managers of Winwick Hospital.

We have also had the benefit of submissions by Mr. Rabinder Singh representing the Lancashire County Council The Lancashire County Council have at no stage had custody of the Appellant, but they appear pursuant to a direction or invitation of Laws J given, as I assume, because Miss Harris as an approved social worker was at the relevant time employed by the Lancashire County Council. Mr. Singh acknowledges that the detention of the Appellant on 10 July was unlawful, but he questions whether the remedy of habeas corpus is appropriate and urges that discretion is available whether application is made for habeas corpus or judicial review, while realistically acknowledging the very limited ambit of that discretion in practice when the liberty of the subject is at stake. He nonetheless invites the Court to proceed by way of judicial review rather than habeas corpus.

It is, I think, necessary to look at two authorities, the first on the availability of the remedy of habeas corpus. turn, therefore, to Reg. v Secretary of State for the Home Department, Ex parte Muboyayi [1992] QB, 244. In that case a citizen of Zaire had left that country and travelled through Italy and France to the United Kingdom where he applied for leave to enter and sought political asylum. The Secretary of State refused his application for asylum without considering it in detail, directing that he be removed to France for consideration of his application by the French authorities. He was accordingly detained pending removal under the Immigration Act. He complained unsuccessfully to the Secretary of State that his application would not be properly considered in France and, that complaint having been rejected, applied for the issue

of a writ of habeas corpus. The Judge at first instance granted such an order, primarily because the Secretary of State did not give an undertaking that the Applicant would not be removed from the jurisdiction pending the Court's decision. The appeal was allowed, as one sees helpfully summarised in the headnote, on the ground that:

"....since the applicant's challenge lay not to the jurisdiction to detain him under the [Immigration Act] but to the prior administrative decision refusing him entry, his detention could not be impugned unless that underlying decision was itself set aside; that although on the return of a writ of habeas corpus the court would investigate whether objective precedent facts necessary to justify the detention had been established, it would not investigate the propriety of the prior administrative decision, which remained lawful until set aside and fell to be considered on normal principles applicable to administrative law."

The important statement of principle on this subject is to be found in the judgment of Lord Donaldson of Lymington MR at page 254H, where he said:

"Mr. Jay accepts, and it is clear law, that where the power to detain is dependent upon the existence of a particular state of affairs ('a precedent fact') and the existence of that fact is challenged by or on behalf of the person detained, a challenge to the detention may be mounted by means of an application for a writ of habeas corpus under R.S.C., Ord. 54, even if there are alternative procedures available. If authority is required for this proposition, it is to be found in the decision of the House of Lords in Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74, per Lord Wilberforce, at pp.101-102, per Lord Scarman, at page 110, per Lord Bridge, at pp. 122-123 and per Lord Templeman, at p.

128.

"In the present case the right to detain does indeed depend upon a precedent fact or series of facts. They are that (a) the applicant was a person who might be required to submit to examination under paragraph 2 of Schedule 2 to the Act of 1971 and he was detained pending a decision to give or refuse him leave to enter and/or (b) he was a person in respect of whom directions might be given under paragraphs 8 to 14 and he was detained pending the giving of directions and his removal in pursuance of any directions given. However, and this is what distinguishes it from Khawaja's case, the existence of this precedent fact is not challenged. What the applicant alleges is something quite different, namely that, although he was liable to be examined and was examined and although upon the conclusion of that examination he was refused leave to enter and directions were given for his removal, he should not have been refused leave to enter and no question of his removal should have arisen. In other words there was no challenge to jurisdiction, but only to a prior underlying administrative decision. This is a quite different challenge and, unless and until it succeeds, there are no grounds for impugning the legality of his detention.

"Put in another way, in the first category an applicant alleges that the detention is and always was unlawful. In the second category he alleges that it will become unlawful, if and when a court of competent jurisdiction destroys the precedent fact, as contrasted with finding that it never existed. The issue in this appeal is whether a writ of habeas corpus is an appropriate remedy in the latter type of case."

The second passage to which I would refer is to be found in the judgment of Taylor LJ at page 267 where he said: "The primary point raised on this appeal is whether habeas corpus is available to the applicant as the appropriate mode of challenging the Secretary of State's decision not to permit him entry and not to consider his application for asylum. agree with Lord Donaldson of Lymington M.R. and Glidewell L.J. that it is not.

"The applicant was detained pursuant to paragraph 16(2) of Schedule 2 to the Act of 1971. He accepts that he was in fact refused entry. Accordingly there was power to detain him under paragraph 16(2) unless the anterior decision to refuse entry could be successfully attacked. The applicant does not therefore challenge his detention on the grounds of jurisdiction but because he says the Secretary of State should have admitted him to the United Kingdom, considered his application for political asylum and granted it. Mr. Shrimpton contends that the writ of habeas corpus can be used to challenge not merely the vires or jurisdictional authority for detention but the reasons for the anterior decision to refuse entry. He seeks by analogy with Reg. v. Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 to argue that the court can in habeas corpus proceedings examine and determine the precedent facts upon which the decision to detain was based. However, in Khawaja's case the precedent fact to be determined was whether the applicant was an illegal entrant or not. If he had entered the United Kingdom by fraud he was an illegal entrant and lawfully detained. If not, his detention was unlawful. The House of Lords made it clear that what the court could consider, beyond the jurisdiction to detain, was whether an objective fact necessary to justify the detention was established."

Taylor LJ then quoted a long and important passage from the speech of Lord Scarman in Khawaja and continued at page 268B:

"Here, what Mr. Shrimpton wishes to attack by habeas corpus is an administrative decision to refuse entry which involves making a judgment after consideration of a number of circumstances and factors. That is quite different from challenging an objective precedent fact. I would reject this attempt to extend the principle laid down in Khawaja's case to allow habeas corpus to cover the review of administrative decisions which are properly within the wide scope of judicial review as it has developed in recent years. Leave is required to move for judicial review of such administrative decisions so that, in the interests of good administration, cases cannot be brought and fought so as to frustrate administrative action in hopeless circumstances. Whilst I appreciate that ex hypothesi we are concerned here with cases involving liberty of the subject, I do not consider that applications for habeas corpus, which require no leave, can be admitted to attack such administrative decisions provided that other effective means for challenging the basis of the detention are available."

In my judgment, it follows very plainly from those passages, as indeed from the decision as a whole, that the present case is one in which, in principle, an application for habeas corpus is appropriate. There is no attempt being made to overturn any administrative decision. The object is simply to show that there was never jurisdiction to detain the Appellant in the first place, a fact which on agreed evidence appears to be plainly made out.

The second case to which I should refer is a decision of Laws J, Reg. v Managers of South Western Hospital, Ex parte M [1993] QB, 683. The facts of that case, so far as relevant to the present appeal, are that an application was made under section 3 of the 1983 Act by an approved social worker. The applicant's mother was interviewed as the nearest relative although, for reasons that need not be elaborated, she was not the applicant's nearest relative but an uncle was. Some contact was made with the uncle but not in the capacity of nearest relative. Neither the mother nor the uncle objected to the section 3 process and the managers of the hospital accepted an application for admission for treatment under section 3 made in a form filled out by the approved social worker. The applicant sought leave to move for judicial review of the decision of the hospital managers to accept her admission under section 3, and that application failed. The applicant then applied for habeas corpus addressed to the hospital managers and another party.

Having outlined the facts so far as the nearest relative and the role of the nearest relative are concerned, Laws J said at page 700A:

"How do these findings bear on the legality of the applicant's detention, given the terms of section 6? Section 6(1) and (2) confer authority to convey or detain the patient in hospital where the application is 'duly completed in accordance with the provisions of this Part of this Act.' In my judgment that is an objective requirement and means that the application must not only state that the relevant provisions (which include the requirements of section 11(4) have been fulfilled, but also that it be the case that they have actually been fulfilled. Here they were not; section 11(4) was not complied with. It follows in my judgment, that the managers were not authorised to detain the applicant unless they were entitled to act upon Miss Stiller's application by virtue of section 6(3). The contrast between section 6(1) and section 6(3) is of course between the words 'duly completed' and 'appears to be duly made.'

"In my judgment, where an application on its face sets out all the facts which, if true, constitute compliance with the relevant provisions of Part II of the Act (again, including section 11(4)) it is an application which 'appears to be duly made' within section 6(3). If any of the facts thus stated are not true, then although the application appears to be duly made, it is not duly completed for the purposes of section 6(1) and 6(2). Here, Miss Stiller's application did state all the facts which, if true, constituted compliance with the relevant statutory provisions. Accordingly it was an application which appeared to be duly made. It follows that, although the managers were not authorised to detain the patient by section 6(2) standing alone, they were entitled to act upon the application, and thus to detain the patient, by virtue of section 6(3). Accordingly, the applicant's detention is not unlawful."

Speaking for myself, I would accept almost everything in that passage as correct with the exception of the last sentence. The learned Judge goes straight from a finding that the hospital managers were entitled to act upon an apparently valid application to the conclusion that the Applicant's detention was therefore not unlawful. That is, in my judgment, a non sequitur. It is perfectly possible that the hospital managers were entitled to act on an apparently valid application, but that the detention was in fact unlawful. If that were not so the implications would, in my judgment, be horrifying. It would mean that an application which appeared to be in order would render the detention of a citizen lawful even though it was shown or admitted that the approved social worker purporting to make the application was not an approved social worker, that the registered medical practitioners whose recommendations founded the application were not registered medical practitioners or had not signed the recommendations, and that the approved social worker had not consulted the patient's nearest relative or had consulted the patient's nearest relative and that relative had objected. In other words, it would mean that the detention was lawful even though every statutory safeguard built into the procedure was shown to have been ignored or violated. Bearing in mind what is at stake, I find that conclusion wholly unacceptable. I am, for my part, satisfied that on present facts an application for habeas corpus is an appropriate, and possibly even the appropriate, course to pursue. An order to the party having custody of the Appellant would ordinarily follow. There are, however, two procedural difficulties. The first of those is that the authority responsible for the Appellant, the Victoria Hospital in Blackpool and its managers, the Blackpool, Wyre and Fylde Community Health Service NHS Trust, are not before the Court. The Appellant is currently on home leave from that hospital and is liable to be recalled, but notice has only been informally given to the managers and they are not present here today and it is not at all clear that they have full details of the fact that this hearing is taking place.

The second, perhaps lesser, problem is that the ordinary form of a writ of habeas corpus requires a custodian to produce the body of an applicant and show cause justifying the detention. Such an order, if made, would require the Appellant to be taken back into custody and then brought to London, both of which courses are, in my judgment, very undesirable on the present facts. I would therefore propose to adjourn this case until next Thursday 30 November at 10.30 in the morning, and would direct that notice be given to the Blackpool Wyre and Fylde Community Health Service NHS Trust to show cause why the Appellant should not be released. The managers will, of course, have the opportunity to make representations on that occasion and full attention will be given to any argument they may advance as to why the Court should not follow the course it has provisionally indicated. It is, I think, very desirable that the managers should have available a copy of the transcript of this judgment so that they can consider it, and I would ask that a transcript be made available as soon as possible in order that they may have a reasonable opportunity to consider it. In the light of the judgment it may, of course, be that the matter can be resolved without further hearing.

I wish simply to emphasise that if the managers do have arguments to address we shall, of course, hear them and I repeat that nothing that I have said should be taken as prejudicing in any way any defence that either hospital managing authority may have in relation to any civil claim which may at any stage in the future be made. I would also wish to emphasise that nothing in this judgment can in any way restrict the statutory powers which various bodies may have in relation to the Appellant insofar as those powers are not the subject of these proceedings. In other words, if it were the case - and from the fact that the Appellant is on home leave this sounds unlikely - that he was thought to be a danger to himself or the public, then no doubt the responsible authorities would take appropriate action.

LORD JUSTICE NEILL: Two principal arguments have been advanced to support the contention that this application for a writ of habeas corpus should be refused: (1) that the Applicant has been and continues to be lawfully detained by reason of the provisions of section 6(3) of the Mental Health Act 1983, and (2) that the application to challenge the detention of the Applicant should have been brought by way of judicial review proceedings.

I can deal with these arguments very shortly. I should refer first to the terms of section 6(3):

"Any application for the admission of a patient under this Part of this Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application, or any such medical recommendation is made or given, or of any matter of fact or opinion stated in it."

This subsection, the origins of which can be traced back to the Lunacy Act 1890 and beyond, has the effect of providing those who are responsible for a hospital to which a patient is admitted or in which he is detained, with a defence in civil proceedings. The hospital must check the application, but if on careful checking the application appears to be duly made, the hospital can act on it. However, section 6(3) is not intended to prevent, nor can it have the effect of preventing, a court, if satisfied that the original application was not made in accordance with section 3 of the Act, from issuing a writ of habeas corpus or making some other appropriate order. The responsibility for the release then is that of the court. Accordingly, I too must express my respectful disagreement with the conclusion reached by Laws J in R v Managers of South Western Hospital, Ex parte M, [1993] QB 683, at page 697 as to the effect of section 6(3).

I can now turn to the second argument. It was submitted that habeas corpus proceedings were inappropriate in a case where an application had been made under section 3 of the 1983 Act and which appeared to have been "duly made" within the meaning of section 6 (3). If the application was to be challenged, it was said, it should be challenged by proceedings for judicial review when the matter could be fully investigated.

As part of this argument, our attention was drawn to the discretion which is given to the Court in judicial review proceedings to refuse relief even though an applicant has made out a prima facie case. But the answer is that the facts here are plain. The challenge goes to the validity of the application and to the jurisdiction to detain. The application was not made in accordance with section 3.

For the reasons given by the Master of the Rolls the decision in R v Secretary of State for the Home Department, Ex parte Muboyayi [1992] 1 QB 244 is plainly distinguishable. For those reasons, in addition to those given by my Lord, I too agree with the order which my Lord has proposed.

LORD JUSTICE HIRST: I also agree with the order which my Lords propose and I agree with both judgments.

For court below: Appellant to have his costs against Warrington; Warrington to be indemnified by Lancashire County Council against its own costs and those payable to Appellant. Appellant to have costs against both respondents in this court. Legal Aid taxation.