IN THE SUPREME COURT OF JUDICATURE		LTA 98/6128/4
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE RICHARDS)
								Royal Courts of Justice
								Strand
								London WC2A 2LL

	Thursday 30 July 1998     
								
	B e f o r e:

	THE MASTER OF THE ROLLS
	(LORD WOOLF)
	LORD JUSTICE HOBHOUSE
	LORD JUSTICE THORPE
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	MELANIE BARKER
	Plaintiff/Appellant
	- v -

	BARKING HAVERING & BRENTWOOD COMMUNITY HEALTHCARE NHS TRUST
	(Warley Hospital)
	DR JASON TAYLOR
	Defendants/Respondents
	- - - - - - 
	(Transcript of the Handed Down Judgment of
	Smith Bernal Reporting Limited, 180 Fleet Street,
 	London EC4A 2HD
	Tel: 0171 421 4040
	Official Shorthand Writers to the Court)
	- - - - - - 
MR K GLEDHILL (Instructed by Messrs Glabraith Branley, London, N12 9QD) appeared on behalf of the Appellant

MR J GRACE QC and MR H LLOYD (Instructed by Messrs Scrivenger Seabrook, Cambridge, PE19 1AJ) appeared on behalf of the Respondent
	- - - - - - 
	J U D G M E N T
	(As approved by the Court)
	- - - - - - 
	©Crown Copyright

	Thursday 30 July 1998

	JUDGMENT

LORD WOOLF, MR:  On 11 May 1998 Mr Justice Richards dismissed Miss Barker’s applications for habeas corpus and judicial review in relation to her continued detention at the Warley Hospital under the provisions of the Mental Health Act 1983.  This judgment deals with her appeal against the judge’s decision on both her applications.  The merits of her application for habeas corpus and judicial review are the same.  However leave is required to appeal to this court from a decision on an application for judicial review but not from a decision on an application for habeas corpus.  In the circumstances we give her leave to appeal against the decision on her application for judicial review and deal with the substance which is the  subject  of both appeals.

Miss Barker wants to challenge the renewal of her detention under the Mental Health Act 1983.  Mr Kris Gledhill repeats his submissions which he made on her behalf before the judge.  Mr John Grace QC appears on behalf of the Health Trust responsible for the Warley Hospital where she was detained and on behalf of Dr Jason Taylor a Consultant Psychiatrist at that hospital who has been the appellant’s responsible medical officer for the purposes of the Act from time to time since 1994. 

The appeal raises points of importance as to the general approach which should be adopted  as to the interpretation of the Act.  It also raises questions as to what is the procedure which should be adopted in order to test the issues which the appellant seeks to have determined in her favour.  Should they be raised on an application for habeas corpus or an application for judicial review or are both procedures appropriate?  If they can be raised on either, then can the choice of procedure affect the outcome?

The Facts
The evidence which is before this Court and was before the judge is limited.  The appellant’s medical history is contained in an affidavit of Dr Taylor prepared for these proceedings and a report prepared by him in January 1998 for a hearing before a Mental Health Review Tribunal.  The evidence indicates that the appellant has a long history of personality problems and she has repeatedly been  admitted to hospital because she was in an amphetamine induced psychotic state.  On 28 May 1997 she was again admitted to Warley Hospital suffering from a drug-induced psychosis after she had set fire to her home causing extensive damage.  From the 3 June 1997 on an application of an approved social worker supported by the recommendation of two medical officers, one of whom was Dr Taylor, she was formally detained under section 3 of the Act for treatment of what was said to be a psychopathic disorder.  The authority for detention under section 3 expires after six months unless it is continued under section 20 of the Act. Her detention was therefore due to expire at the latest on 2 December 1997.  From 21 October 1997 she was granted a succession of weekly periods of leave by Dr Taylor under the Act.  The periods of leave allowed her to be away from the hospital from Thursday to Monday.  In addition she was allowed to be away from her ward for a number of hours each day.  On 11 November 1997 Dr Taylor completed Form 30 under section 20 of the Act in order to continue her detention.  The form states that in his opinion the appellant is suffering from:
	" Psychopathic disorder and [her] mental disorder is of a nature or degree which makes it appropriate for [her] to receive medical treatment in a hospital and such treatment is likely to alleviate or prevent a deterioration of [her] condition."

Form 30 also states that Dr Taylor is of the opinion that it is necessary :
	"(i)	in the interest of the patient’s own health
	(ii)	in the interests of the patient’s own safety
	(iii) with a view to the protection of other persons
	
	that this patient should receive treatment and it cannot be provided unless [she] continues to be detained under the Act, for the following reasons:
	
	She remains at high risk of relapse of drug induced psychosis.  She will need a 24 hour staffed residential unit on discharge from hospital.  She requires further inpatient care and would not comply on an informal basis."

On 9 December 1997, Dr Taylor completed a certificate of consent to treatment in which he certified that the appellant understood the effects of the medication she was receiving and consented to the treatment.  It was on 10 December that the managers of the hospital sent a letter to the appellant indicating that they had considered the reports relating to the renewal of her detention and had decided not to discharge her.  On 30 December 1997, her leave was made seven days a week to be renewed weekly.  

After she had been granted leave to make her application for judicial review and her application for habeas corpus had been adjourned on 17 March 1998, on 23 March 1998 she took amphetamines and returned to hospital suffering from a drug-induced psychosis and was then reclassified as suffering from mental illness as well as a psychopathic disorder.  At the end of May 1998 she inflicted serious injuries upon herself and since that time she has remained as an inpatient of the hospital.  

Mr Gledhill accepts that at the present time, if an application was to be made to detain her under section 3 of the Act, it would not be possible to show that the order was without lawful foundation. He disputes that this was the position on 11 November 1997, when Doctor Taylor completed Form 30, and on 2 December 1997, when the section 3 order was due to come to an end if not renewed. However even if Mr Gledhill is correct in his submissions, in reality, there is no question of the appellant being released. From the practical point of view the significance to her of the outcome of this appeal is the difference in the length of the period which can elapse before the authority for her detention has to be renewed (6 months in the first instance and 12 months thereafter) and when the question of her release can be referred to a Mental Health Review Tribunal.

In his affidavit, Dr Taylor, in addition to confirming the correctness of the statements contained in Form 30 of 11 November 1997, states that the appellant consented to her treatment by medication throughout, she underwent screening of her urine for illicit drugs, and she attended as an inpatient occupational therapy service and an art therapy group.  He indicates that she was involved in a “care programme approach” which involved seeking to reintroduce her into the community gradually under supervision, given the potential risks she represented to the community and the long term nature of her condition.  He states that he considers she requires this treatment until such time as he is satisfied that she is able to return to live in the community with the degree of support which he considers she requires to avoid damage to her own health and to protect the safety of other persons.  

The Statutory Framework
In order to determine whether the appellant is lawfully detained, the respondents have first to establish that she was lawfully detained under section 3 of the Act on 3 June 1997. Section 3 provides :
	"(1)	A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

	(2)	An application for admission for treatment may be made in respect of a patient on the grounds that -

	(a)	he 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)	in the case of psychopathic disorder or mental impairment, 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 it cannot be provided unless he is detained under this section.

	(3)	An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include -

	(a)	such particulars as may be prescribed on the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (b) of that subsection; and

	(b)	a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate."

In the appellant’s case she was suffering from psychopathic disorder and so the treatment had to meet the requirement of section 3(2)(b) that it was “likely to alleviate or prevent a deterioration” of her condition.  In addition it was a requirement that the treatment was necessary and that it could not be provided unless the appellant was detained under the section.  It is not disputed that in June 1997 those requirements of section 3 were met. 

Section 17 gives the responsible medical officer wide powers to grant a patient leave from the hospital.  The leave can be for a specified or indefinite period and it is subject to the responsible medical officer being able to revoke the leave if, it is necessary to do so “in the interests of the patient’s health or safety or for the protection of other persons”.  However a patient cannot be recalled if “he has ceased to be liable to be detained under this Part of this Act”.

It is on section 20 that most of the argument on this appeal has focused.  Section 20(1) places the limit on the period of detention for those admitted to hospital under section 3 to “a period not exceeding six months beginning with the day on which he was so admitted .... unless the authority for his detention .... is renewed under this section”.

Section 20(2) provides that the initial renewal shall be for a further period of six months and subsequent renewals are to be for a further period of a year.

The manner in which a renewal is achieved and the conditions which have to be complied with are set out in section 20(3) and (4).  These provisions are important and are in the following terms:

	"(3)	Within the period of two months ending on the day on which a patient who is liable to be detained in pursuance of an application for admission for treatment would cease under this section to be so liable in default of the renewal of the authority for his detention, it shall be the duty of the responsible medical officer -

	(a)	to examine the patient; and

	(b)	if it appears to him that the conditions set out in subsection (4) below are satisfied, to furnish to the managers of the hospital where the patient is detained a report to that effect in the prescribed form; and where such a report is furnished in respect of a patient the managers shall, unless they discharge the patient, cause him to be informed. (emphasis added)
	
	(4)	The conditions referred to in subsection (3) above are that - 

	(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. (emphasis added)”

Section 20(8) is also relevant to the argument advanced on behalf of the appellant.  It provides:
	"(8)	Where a report is duly furnished under subsection (3) ... above, the authority for the detention ... of the patient shall be thereby renewed for the period prescribed in that case by subsection (2) above."

In setting out the  provisions of section 20 I have omitted the references to patients placed under guardianship which is also dealt with by the section but which are not directly relevant.
Section 23 contains the powers of the responsible medical officer, the managers of the hospital, or the nearest relative of the patient to discharge the patient.

Section 145 contains a wide definition of medical treatment which is in the following terms :

	"includes nursing, and also includes care, habilitation and rehabilitation under medical supervision."

The only other section of the Act to which I should refer at this stage is section 58.  Section 58 is relevant because of the certificate of consent to treatment which Dr Taylor completed on 9 December 1997 on which Mr Gledhill relies.  The consent has a formal role under the Act.  A patient cannot be given any form of treatment to which that section applies unless he has consented to that treatment and this is certified in writing or a second opinion is obtained from another medical practitioner.  

THE ARGUMENT FOR THE APPELLANT
 In very clear and concise submissions Mr Gledhill explains why he contends that on the facts which I have set out Dr Taylor was not in a position to lawfully continue the appellant’s detention. He accepts that the critical dates  for judging the issues are when Dr Taylor furnished his report and the date on which the previous detention would if not renewed expire. As the managers have the power to discharge and are required to inform the patient of a report  it might have been expected that the renewal was dependent on the patient being informed or at least considered by the managers, but that is not the position. This was made clear by this court in R v Managers  of Warlingham Park Hospital, ex parte B (1994) 22 BMLR 1.

Mr Gledhill contends that on the proper interpretation of the Act  Dr Taylor could not properly come to the conclusion that the appellant fulfilled the criteria  set out in section 20.  He submits that the appellant was spending more and more time away from the hospital and her ward.  By  2 December she was spending 5 days away from the hospital and she was soon to spend the whole week away. She was compliant with medication (as demonstrated by the certificate of consent signed by Dr Taylor) and she was only going back to the hospital for a brief assessment.  Mr Gledhill submits  that section 20(4) “mirrors” section 3 and under section 3 a patient cannot be detained purely for assessment. If this is the situation there has to be an admission for assessment under section 2.  Assessment is not treatment. Section 20 (4) cannot be used if it is not necessary for the patient to be treated as an inpatient for the reasons set out in the section 20. He submits that as the Act affects the liberty of the subject its terms must be construed in favour of the subject . He relies strongly on the judgment of McCullough J. in R v Hallstrom, ex p W, R v Gardner, ex p. L [1986]  QB 1090.

In Hallstrom both W and L had a long history of medical treatment for mental illness, but they would not accept the medication which their doctors considered they needed voluntarily. W was therefore detained by the doctors implementing the provisions of section 3 and L’s detention was renewed by the doctors under section 20. In both cases the action was challenged on the basis they were not liable to be detained. It is important to note that in both cases it was accepted that they did not require treatment as inpatients and the real reason for the doctors’ action was L and W’s refusal to take the medication, which could have been taken as outpatients  if they had taken it voluntarily.  On the facts the decision of McCullough J. that their detention was unlawful is perfectly justified. However McCullough J. in a very careful judgment  analysed the interaction between sections 3, 17 and 20 and it is his reasoning when doing this which gives rise to difficulty.

The judge contrasts the use in the sections of the words “detained” in a hospital and “liable to be detained” in a hospital.  He also compares sections 26, 39 and 43 of the Mental Health Act 1959, which is the Act which preceded the 1983 Act, with sections 3,17 and 20 of the Act 1983 and he states:

	"Each term appears many times in the Act. In a very few places it may be that the less apt term has been used but, reading the Act as a whole, the distinction between them and their meaning are clear and, unless there are strong indications to the contrary, Parliament must be taken to have been deliberate in its choice of the one term rather than the other."
	(at p.1101)	

So far as his analysis causes McCullough J. to come to the conclusion that section 3 “only covers those whose mental condition is believed to require a period of inpatient treatment” I have no reason to quarrel with his reasoning.  The overnight admission of W was not the inpatient treatment which justifies section 3 being invoked.  It is his reasoning as to the interpretation of section 20 which I regard as being wrong and as leading to results which cannot  have been intended by Parliament.  McCullough J having noted that section 43 of the 1959 Act referred only to “liable to be detained” came to the conclusion that as Parliament changed “liable to be detained” to “detained” in section 20 (3) (b) and 4(c) that Parliament must have intended the word detained “to mean  what it said” in section 20 (3) (b) and 4(c).  He added bearing in mind the fact that section 20  “is a provision which infringes the liberty of the subject” and it becomes virtually impossible to construe  “detained in any other sense” (1108D\G) .

McCullough J’s judgment has now been applied for many years by the medical profession. They have accepted that a patient on leave under section 17 cannot have his detention renewed under section 20.  Consequently care is taken to ensure that a patient is not on leave when the renewal process takes place.  The need to rearrange leave is an inconvenience but nothing more than an unnecessary inconvenience. More serious is the indirect consequence that Mr Gledhill contends follows from McCullough J’s reasoning.  Mr Gledhill’s argument depends on looking not at the appellants treatment as a whole,  that is both at what happens in hospital and when she is on leave, but only that part of the treatment of the appellant when she is “detained” as an inpatient.  The treatment when she is detained  he categorises as being no more than “assessment” which would not be sufficient for section 3 and therefore should not be sufficient for section 20 which mirrors section 3. 

If Mr Gledhill’s approach is right it creates considerable difficulties in treating the many patients like the appellant who should be treated partly as an inpatient and partly as an outpatient as described by Dr. Taylor in the case of the appellant. In such cases the activities which take place as part of the inpatient treatment may all individually be capable of being performed without the treatment taking place in the hospital, yet for the treatment as a whole to be successful there will often need to be an inpatient element to the treatment which means it is  in fact “appropriate for him to receive medical treatment in a hospital” and  “that it cannot be provided unless he continues to be detained”. The requirement that  the patient has to return to hospital and be monitored and is liable to be recalled and from time to time is  subjected to the discipline of being treated in hospital as an inpatient under direct supervision with urine and other tests is an essential part of the treatments.  They enable the patient to attempt the process of rehabilitation in the wider community which would be more precarious otherwise.  This appears to be just the type of treatment contemplated by the second half of the definition of treatment contained in section 145 of the Act. As the Code of Practice states in paragraph 20.1, leave “can be an important part of  a patient’s treatment plan.”

The approach of Mr Gledhill conflicts with that of Hoffmann LJ as to the meaning of “treatment” in R v Croydon Health Authority [1995] Fam. 133.  Hoffmann LJ was not considering outpatient treatment but he rejected an “atomistic” approach to what is treatment by looking at treatment as a whole (at p.138/9).  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 inpatient the requirements of the section can be met.

Reading McCullough J’s judgment as a whole I am by no means sure that he was intending to say anything inconsistent with the approach to treatment indicated above being adopted. However whether he intended to do so is perhaps of little significance since I am satisfied that his interpretation of section 20 is flawed. Mr Grace in a supplemental skeleton argument traces the background to 1983 Act. He refers to the White Paper, “Reform of Mental Health Legislation”  (Cmnd 8405), the intervening Act of 1982 and his investigation of the lengthy Parliamentary debates in Hansard and he can find nothing which throws light on the reason for the change of language of the legislation since 1959 Act. His researches provide no support for McCullough J’s interpretation. 

Mrs Justice Hale in “Mental Health Law” suggests the change in language may be a draftsman’s slip. On my reading of the 1959 Act “liable to be detained” is used both to cover a person who is detained and a person who would be detained if he were not on leave. The opening words of section 20(3) require the responsible medical officer to examine those who are “liable to be detained”. This literally applies to those on leave but it must also refer to those who are “detained”. It is to the managers of the hospital where the “patient is detained” that the report is to be furnished. However I do not find it inappropriate to describe the hospital of a patient who is on leave in this way. As Mr Grace submits the detention does not have to be continuous, as section 17 makes clear, but even when on leave the patient still has a hospital at which he is detained when not on leave. Equally he will for the purpose of section 20(4) continue to be detained whether when the report is furnished he is in hospital or liable to be required to return to hospital.

No help is therefore available to Mr Gledhill from McCullough J’s judgment. The same is true as to the distinction which he seeks to draw between assessment and treatment. The fact that assessment by itself cannot amount to treatment for section 3 does not mean that assessment cannot be a legitimate treatment under sections 3 and 20. Often assessment or monitoring of progress will be an important part of treatment. This will certainly be the case where as here there is an evolving programme of treatment.

Having clarified the legal position the question as to whether Dr Taylor was entitled to furnish the  report on 11 November 1997 continuing the appellant’s detention can only be answered in the affirmative.

THE APPROPRIATE PROCEDURE AND REMEDY
The appellant cannot be criticised for making applications both for habeas corpus and judicial review. However that this should be thought necessary can cause inconvenience to the parties and the court and extra expense to the parties. The procedural reforms to Order 53 RSC which streamlined the procedure on an application for judicial review were not accompanied by reforms to the procedure on an application for the writ of habeas corpus. There are probably two reasons for the unwillingness of reformers to tackle habeas corpus. The first is the relative rarity, until recently, of reliance on habeas corpus,  a position which is likely to change in the event of the European Human Rights Convention becoming part of our domestic law. The second is the veneration which is paid to habeas corpus because of its historic role in protecting the liberty of the subject. This is a  veneration which is probably no longer justified in view of the ability of judicial review to provide a remedy equally expeditiously whenever the liberty of the subject is threatened. (See “Should  we Abolish the Writ of Habeas Corpus?” Le Sueur [1992] Public Law 13 but c.f. “In Defence of Habeas Corpus” [1993] Shrimpton Public Law 24.)

On the surface the differences between the two procedures is total. There are different prescribed forms for initiating the applications(86, 86A for judicial review and 89 for habeas corpus). There is no leave stage or discretionary bars and no requirement of leave to appeal in the case of habeas corpus. Furthermore the grant of habeas corpus is said to be as of right so unlike the prerogative orders available on judicial review its grant is said not to be discretionary (see Sharpe, The Law of Habeas Corpus, 2nd Edn. (1989)  p.58/59).  However in reality the differences are less significant. The evidence will invariably be the same whether the application is for judicial review or habeas corpus, there is usually a two stage procedure on an application for habeas corpus (Order 54 r.1 and 2) and at the first stage if the application is without merit it will be dismissed. If it has merit it will usually be adjourned for an inter partes hearing and as in both cases there is power to grant interim relief the result will be very much the same though in fact the variety of interim powers on an application for judicial review are greater than on an application for habeas corpus. On judicial review there is little scope for delay or discretion to play any part if the applicant is being wrongfully detained and the application for judicial review will be expedited if the liberty of the subject is at stake. While there is the unrestricted right of appeal in the case of habeas corpus, the Court of Appeal is now developing its case flow management so that an obviously unmeritorious appeal will be struck out summarily so there will increasingly be less advantage in being able to avoid the filter of leave. 

It is sometimes thought that habeas corpus has advantages over judicial review because of the difference in the burden of proof. However in practice I suggest this has no practical consequence.  It is always for the custodian to show there is some justification for detention.  What is important is the nature of the issue.   On the other hand judicial review has undoubtedly advantages over habeas corpus because of the range of remedies which are available. If a person who has been wrongly detained is released prior to an order for habeas corpus  then technically that means there is no relief which the court can grant while in the case of judicial review it can grant an injunction and in appropriate case damages.

I would apply without limitation the words of Lord Wilberforce in R v Home Secretary, Ex p Khawaja [1984] 1 AC 74 at p.99:

	"These  remedies of judicial review and habeas corpus are, of course, historically quite distinct and procedurally are governed by different statutory rules, but I do not think that in the present context it is necessary to give them distinct consideration.  In practice, many applicants seek both remedies.  The court considers both any detention which may be in force and the order for removal: the one is normally ancillary to the other.  I do not think that it would be appropriate unless unavoidable to make a distinction between the two remedies and I propose to deal with both under a common principle.  Each of the present cases appears, in fact, to be of judicial review."

The reason why in this case I indicated that the appellant could not be criticised for making the two applications and appeals, although it in fact resulted in a case which did not justify any special priority being granted priority and caused extra expense, is the judgment of Sir Thomas Bingham MR in the case of In re S-C (Mental Patient) Habeas Corpus [1996] QB 599.  That was a case in which there was an application which resulted in the detention of a patient under section 3 of the Act which was defective because the social worker who made the application showed the mother of the patient as the consenting nearest relative in the application when in fact the father was the nearest relative and did not consent.  In that situation an attempt was made to defeat an application for habeas corpus by suggesting that the application should have been made by judicial review and therefore could not be by habeas corpus relying on section 6 of the Act. Section 6 provides that a duly completed application is “sufficient authority” for conveying a patient to hospital and detaining the patient. The suggestion received short shrift from a court consisting in addition to the Master of the Rolls, Neill and Hirst LJJ. As the Master of the Rolls said “It is perfectly possible that the hospital managers were entitled to act on an apparently valid application but the detention was in fact unlawful”(at p.612 C). As Neill LJ said (at p.613) section 6 provided a defence in civil proceedings.  It did not affect the right to an order of habeas corpus. With this I entirely agree. However the Master of the Rolls added (at p612 E)  “I am for my part, satisfied that on the present facts an application for habeas corpus is an appropriate, and possibly even the appropriate, course to pursue.” 

From the report of the argument in the report  it is clear that the Master of the Rolls did not have his attention drawn to the ramifications which follow if there has to be an application for habeas corpus.  For example, this  could result in a duplication of proceedings.  I would respectfully disagree with the suggestion  that “possibly” an application for habeas corpus was  the only  procedure which was appropriate.  While accepting that in that case that habeas corpus was an appropriate procedure I would suggest that judicial review was equally appropriate and would even have advantages over habeas corpus.  I would discourage applications for habeas corpus unless it is clear that no other relief will be required.

This case is more obviously an appropriate candidate for judicial review proceedings than In re S-C.  In the judgments in the case of In re S-C the court considered the distinction between cases where what is in issue is whether some precedent fact going to jurisdiction is in issue such as R v Secretary for State for the Home Department, ex p Khawaja [1984] A.C.74 when an application for habeas corpus is appropriate and cases where what is in issue is the propriety of some prior administrative act. In the latter situation, as the court appears to .accept in S-C, there is authority for saying that habeas corpus is not the appropriate procedure in the judgments of this court in R v Secretary of State for the Home Department, ex p. Muboyayi [1992] QB 244  The distinction between the two categories of situations is not always easy to distinguish and that is another reason why it is preferable to usually to proceed by way of judicial review.

In support of the use of  habeas corpus here Mr Gledhill also relies on the case of R v Board of Control ex p Rutty [1956] 2 QB 109. In this case it was held that habeas corpus is available when there is no evidence to justify the decision to detain. In Rutty the decision was judicial not administrative and it has been the subject of criticism (Sharpe, The Law of Habeas Corpus 2nd edn (1989) p.32-34).  Nonetheless it does provide support for Mr Gledhill and I would not go far as Mr Grace and say this is a case where habeas corpus cannot  be used.  This is a case  where judicial review is the more satisfactory procedure  and judicial review should be used in similar situations in the future. If it is there would be no justification for also making an application for habeas  corpus.

I hope in the future it will be possible to make an order of habeas corpus on an application for judicial review. Until this is possible if both applications are made again every effort should be made to harmonise the proceedings. The same affidavits should  be used for both sets of proceedings. At any interlocutory and the final hearing both sets of proceedings should be before the court. In the event of an appeal the same notice of appeal will suffice.

In these circumstances being in agreement with the judgment of  Richards J,  I would dismiss this appeal.

LORD JUSTICE HOBHOUSE:  I agree that these appeals should be dismissed for the reasons which have been given by the Master of the Rolls.

If our decision upon the substantial question had been in favour of Miss Barker, the appropriate remedy upon the facts of this case would clearly have been a declaration pursuant to her application for judicial review.  I venture to doubt whether it was at any material time appropriate for her to seek relief by way of an application for a writ of Habeas Corpus.  I would like to endorse the need for further consideration and guidance to be given to when an application for the writ or for judicial review is appropriate.  Whilst it is of the greatest constitutional importance that the availability of the right to apply for the writ should in no way be undermined, it may be thought that the present procedural confusion and overlap is undesirable and requires reconsideration and clarification.  The present case has not in my judgment provided us with an adequate opportunity definitively to undertake that task; meanwhile I support all that the Master of the Rolls has said on this subject in the concluding part of his judgment.

LORD JUSTICE THORPE:  I have had the advantage of reading in draft the judgment of my Lord, the Master of the Rolls, with which I am in complete agreement.

In my opinion it is important that any construction of section 20 of the Mental Health Act should be as far as possible compatible with section 17.  Medical treatment as defined by section 145 includes rehabilitation under medical supervision.  Obviously a statutory power to grant leave of absence under section 17 is an important power where the appropriate treatment for the patient is rehabilitation under medical supervision.  Mr Gledhill stresses that the conditions expressed in section 20(4) are cumulative so that the section’s application is limited to those patients requiring such in-patient treatment as cannot be provided unless the patient continues to be detained.  However I see no necessity to adopt the narrow construction for which he contends.  

On 2nd December 1997 the primary treatment thought appropriate for Miss Barker was rehabilitation under medical supervision.  The endeavour to rehabilitate was dependant upon her regular consumption of the prescribed drugs and her abstinence from the illicit drugs which in the past had proved her undoing.  The stepping stones to the goal of rehabilitation were weekly leaves of absence under section 17, gradually extended in duration so long as there were no setbacks.  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 four hours on each of the two days per week when she returned to the hospital.  It seems obvious to me that those two days of detention each week were an essential ingredient of the treatment.  If it were to succeed structure and discipline were important ingredients. Indeed once those elements were reduced to minimal levels the treatment soon failed.  Furthermore those periods of weekly detention were crucial to allow Dr Taylor to assess Miss Barker’s state of mental and psychological well-being and to monitor her progress.  Mr Gledhill’s submission that medical treatment cannot be construed to include general monitoring or urinalysis is in my opinion plainly wrong.  How can there be medical supervision of the rehabilitation without monitoring and without the resident medical officer having the power to carry out physical tests, such as urinalysis, to ascertain the patients behaviour when not subject to direct detention?

I found equally unconvincing the submission that Warley Hospital was no more than a dormitory to Miss Barker during her 48 hours of weekly detention.  The fact that she did not receive any specific or additional treatment during those 48 hours does not justify the submission that she was receiving no treatment during those 48 hours.  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 Miss Barker continued to be detained.  She was throughout, and her disorder made it appropriate for her to be, a detained patient enjoying generous weekly leaves of absence to put her possible rehabilitation to the test.  Were Mr Gledhill’s submissions accepted it would be extremely difficult for the responsible medical officer to provide the treatment of rehabilitation under medical supervision without forfeiting essential ingredients namely structure, discipline, and monitoring.

	Order:  Appeal dismissed.  Section 18 costs order nisi of respondent's costs.  Legal Aid Taxation of appellant's costs.  Leave to appeal to the House of Lords refused.