England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE OWEN)

		Royal Courts of Justice Strand, London W2A 2LL
		15th March 1999

LORD JUSTICE STUART-SMITH:

1. Although the Appellant is no longer detained as an involuntary patient, this appeal raises questions of general importance in relation to the role of the nearest relatives and the powers of the County Court to make ex parte and interim orders under s.29 of the Mental Health Act 1983 ('The Act'), which empowers the Court to displace the nearest relative in certain circumstances.
2. The appeal is brought with the leave of Simon Brown LJ and is against a decision of Owen J. made on 13 March 1997 dismissing the Applicant's application for judicial review. At that hearing the judge also refused leave to move for judicial review of two further decisions. That refusal is subject to a renewed application for leave.
3. The applications for judicial review were of the following decisions and orders:

"(1) an ex parte order of the Central London County Court (the first respondent) dated 8 March 1996, and a further order dated 15 March 1996, purporting to displace the Applicant's mother, Mrs Grossman, as the Applicant's nearest relative within the meaning of section 26 of the 1983 Act on an interim basis [the subject of appeal to the Court of Appeal];

(2) a decision by the Managers of the Gordon Hospital (the Second Respondents) dated 22 March 1996, based on the above County Court orders, purporting to admit the Applicant compulsorily to hospital for treatment under section 3 of the Act [the subject of appeal to the Court of Appeal];

(3) a decision by the Second Respondents dated 11 September 1996, purporting to renew the Applicant's detention under that first section 3 admission, under section 20 of the Act [the subject of a renewed application to the Court of Appeal for leave to apply for judicial review]; and

(4) a further decision by the Second Respondents dated 15 August 1996, purporting to admit the Applicant compulsorily to hospital for treatment under section 3 of the Act, on a 'without prejudice' basis [the subject of a renewed application to the Court of Appeal for leave to apply for judicial review]."

4. Mr Pleming QC on behalf of the Appellant challenges the two orders referred to in paragraph 1 on the basis that the County Court has no jurisdiction to make ex parte or interim orders under s.29 of the Act. He also challenges the validity of the decision referred to in paragraph 3(2) on the basis that it is itself dependant upon the validity of the County Court orders. Those two matters are the subject of the appeal. Paragraphs 3(3) and 3(4) are the subject of the renewed application for leave.
5. The factual background can be taken from the judge's summary of the relevant facts:

(a) The Applicant has a long history of schizophrenia with admissions to hospital since September 1985. The Applicant does not accept that he has any mental illness. The general nature of the matter giving concern seems to be his collecting rubbish in his flat which has made the flat and his clothes to smell nauseously and to the great displeasure of his neighbours to at least one of whom the Applicant has made threats of physical violence.

(b) He was born on 27 April 1956 as David Grossman. He has changed his name by deed poll. His mother, Miranda Grossman, is the statutory nearest relative (see s.26 of the Act).

(c) On 5.3.96 an approved social worker applied for emergency admission of the applicant under s.4. Dr John Cohen recommended such an admission stating that David Grossman "ought to be so detained:

"(1) in the interests of the patient's own health or safety, and

(2) with a view to the protection of other persons."

On 6.3.96 Dr Malekniaz recommended such an admission, stating that "the patient ought to be so treated in the interests of the patient's own health or safety" but not specifying the safety of others.

(d) The Applicant was duly admitted to the Gordon Hospital, the managers of which are the Second Respondents.

(e) On 6.3.96 the applicant was regraded from a s.4 (emergency admission) patient to a s.2 (admission for assessment) patient.

(f) On 8.3.96 His Honour Judge Green QC, purporting to act under s.29 on an ex parte application, made an Order purporting to displace Mrs Grossman as the applicant's nearest relative. Although Mrs Grossman had been told that the application was to be made no proper notice of the hearing was given to her. The Judge's Order copied at p56 states that:

"(1) The functions of the nearest relative of the patient, namely David Grossman, also known as 'AX London', be exercised by the applicant City of Westminster pursuant to s.29 of the Mental Health Act 1983 until further order.

(2) This matter be relisted for Friday 15 March at 10.30am to be heard at 26 Park Crescent, London, with a time estimate of 1 hour where consideration shall be given to the continuation of this Order."

The Applicant claims that this Order not being final was ultra vires the County Court. S.29(3)(c) entitles the County Court to displace the nearest relative on the grounds that she "unreasonably objects to the making of an application for admission for treatment......". It was this Ground which was alleged and in Mrs Grossman's absence accepted by the Judge. This is the first Order challenged.

(g) On 12.3.96 purporting to act under s.23 Mrs Grossman, as nearest relative, gave notice to the hospital managers to discharge the applicant from hospital.

(h) On 13.3.96 the hospital refused to discharge the patient accepting that Mrs Grossman was no longer the 'nearest relative'.

(i) On 15.3.96 His Honour Judge Rich QC reconsidered the application to displace Mrs Grossman and did so inter partes. He accepted the s.29(3)(c) ground and made an order continuing Judge Green's Order until 3.4.96. That order read:

"1. The Order of His Hon. Judge Barrie Green QC dated 8 March 1996 do continue until 3.4.96 when application of the applicant City of Westminster shall be further considered inter parties and the application of the respondent dated 4.3.96 (seemingly an error) shall be determined at the said adjourned hearing."

It is argued on behalf of the applicant that this Order, just as the Order of 8 March, was unlawful and made without jurisdiction, because the County Court has no jurisdiction to make ex parte or interim orders but only final orders.

(j) On 22.3.96 on the application of the social services, purporting to act as the nearest relative, and Mrs Grossman not having been consulted, the Applicant was compulsorily admitted to hospital for treatment under s.3. Understandably the hospital managers relied on the County Court orders. The Applicant contends that those orders being void, this admission was unlawful.

(k) On 3.4.96 the County Court hearing was adjourned by consent and on 25.4.96, again by consent, the hearing was adjourned to 14 June 1996.

(l) On 13.6.96 Latham J. granted leave to move for judicial review in respect of the County Court Orders of 8 and 15 March and also in respect of the decision by the Second Respondent dated 22 March to admit for treatment under s.3. Events thereafter are relevant to the renewed application for leave.

(m) On 14.6.96 the County Court hearing was again adjourned by consent.

(n) On 12.7.96 the County Court made a final order displacing Mrs Grossman as the nearest relative. No complaint is made as to this order.

(o) On 15.8.96 the hospital managers purported to admit the applicant under s.3 without prejudice to the contention that the original s.3 admission on 22.3.96 was valid. The applicant contended that this decision was unlawful:

(i) having been made with an ulterior motive and unlawful purpose, namely an attempt to frustrate the challenge to the lawfulness of the Applicant's detention (this ground is no longer persisted in); and

(ii) as a 'without prejudice' order cannot be a valid order.

(p) On 11.9.96 the hospital managers, relying on s.20, purported to renew the original admission under s.3. ie. that of 22.3.96. The Applicant did not formally oppose but this was without prejudice to his argument that the 22.3.96 admission was invalid and accordingly could not be renewed.

(q) On 31.10.96 the Applicant was re-graded to an informal patient. Since then he has left hospital.

6. The relevant powers of the County Court are contained in the County Courts Act 1984 s.38 as substituted by s.3 Courts and Legal Services Act 1990 which provides as follows:

"(1) Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.....

(2) Any order made by a County Court may be

(a) absolute or conditional

(b) final or interlocutory."

This is a perfectly general power, designed to equate the powers of the County Court to those of the High Court. There are limitations in subsection (3) in relation to orders of mandamus, certiorari or prohibition; there is also power to prescribe orders of a particular kind. No such prescription has been made in relation to the Act. Although there are differences in wording between the present provision and that contained in the predecessor acts, namely the County Courts Act 1959 s.74 and the original s.38 of the 1984 Act, they are not material for present purposes.

7. It is accepted by Mr Pleming that the express words of s.38 are wide enough on their face to confer jurisdiction on the County Court, but he submits that when regard is had to the scheme of the Act, it is apparent that Parliament did not contemplate the making of anything but a final order under s.29 and accordingly, especially as the Act is concerned with restricting the liberty of the subject and ought therefore to be given a restricted interpretation, the Court had no jurisdiction to make the orders challenged.
8. It is necessary therefore to examine the statutory framework to be found in the Act. Section 2 enables an application to be made to admit a person to hospital compulsorily for the purpose of assessment, or assessment followed by medical treatment. Such detention is for a maximum of 28 days, but may be extended under the provisions of s.29(4). Section 3 enables an application to be made to admit a person to hospital compulsorily for the purpose of treatment. The duration of the detention in the first instance is for a maximum of 6 months; but it is renewable (s.20(1) & (2)). Section 4 provides machinery for emergency compulsory admission. The application ceases to have effect after 72 hours unless within that time the machinery under s.2 is operated. In this case the procedure under s.4 and s.2 was adopted, and no complaint is made in relation to that.
9. Section 5 is a somewhat complex provision but in essence it enables application for admission under the Act to be made in respect of patients who are already in-patients, for example as voluntary patients or as patients in some other hospital suffering from a physical condition; there is an exception in subsection (6) the effect of which is to exclude a further application in respect of those who are already liable to be detained (which includes those detained) under s.3. The only relevance of this point is that Miss Baxendale QC submits that subsection 6 provides an exception to subsection 1, but there is no exception in respect of interim orders.
10. Section 6 deals with the functions of hospital managers when an application is made to them for compulsory admission and the validity of applications which are apparently correct. I shall have to refer to this in more detail later. Section 11 applies generally to applications for compulsory admission. Such applications can be made by the nearest relative or an approved social worker (s.11(1)). Where the application is made by an approved social worker, the nearest relative must be consulted before or within a reasonable time of the application. Section 11(4) provides:

"Neither an application for admission for treatment (ie. a s.3 admission)......shall be made by an approved social worker if the nearest relative of the patient has notified that social worker or the local social services authority by whom that social worker is appointed, that he objects to the application being made and, without prejudice to the foregoing provision, no such application shall be made by a social worker except after consultation with the person (if any) appearing to be the nearest relative for the patient unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or could involve unreasonable delay."

11. By s.23 the nearest relative can discharge a patient admitted under s.2 and s.3. This, however, is subject to an important qualification contained in s.25, which requires that the nearest relative must give not less than 72 hours notice in writing to the managers of the hospital; if, in that time the responsible medical officer certifies that if discharged the patient would be likely to act in a manner dangerous to other persons or himself, the order for discharge is of no effect.
12. Section 26 lists the persons who are to be treated as a patient's 'nearest relative' in order of priority. There is no dispute that the Applicant's mother is his nearest relative in this case. Section 29 confers jurisdiction on the County Court in certain circumstances to make an order directing that the functions of the nearest relative should be performed by another person, in particular an approved social worker. These circumstances are set out in s.29(3), where there is no nearest relative or the nearest relative is incapable of acting ((a) and (b)); or (c) where the nearest relative unreasonably objects to the making of the application for admission for treatment or (d) where the nearest relative has 'exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital....or is likely to do so'.
13. Section 29(4) lies at the heart of this case and must be set out in full:

"If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended -

(a) in any case, until the application under this section has been finally disposed of; and

(b) if an order is made in pursuance of the application under this section, for a further period of seven days;

and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and "pending" shall be construed accordingly."

14. Section 30 is concerned with discharge and variation of orders under s.29. Subsection 4 provides that a s.29 order shall cease to have affect...... "if the patient was on the date of this order liable to be detained in pursuance of an application for admission for treatment........when he ceases to be so liable."

It is common ground that the expression 'liable to be detained' includes someone who is lawfully detained ( see Reid v Secretary of State for Scotland [1999] 2 WLR 28 per Lord Clyde at p48 E-H). The reference to a patient liable to be detained pursuant to an application for an admission for treatment is a reference to an admission under s.3. Mr Katkowski, who appeared for the First Respondent, points out therefore that a s.29 order can be made in respect of a person who is already a patient admitted pursuant to s.3.

15. It is to be observed that the nearest relative plays an important role in safeguarding the interests of the patient and ensuring that he is not improperly detained. Thus he has the right to make an application for admission for assessment, or for treatment or for reception into guardianship (sections 2, 3, 4 and 7). He has the right to be consulted before, or object to, the making of an application for admission (s.11). He has the right, subject to s.25, to discharge a patient who is liable to be detained (s.23). He can also authorise examination of a patient (s.24), apply to a Mental Health Tribunal (sections 66 and 69) and receive information (sections 132 and 134).
16. The procedure for making an application under s.29 to replace a nearest relative is governed by CCR order 49 rule 12. But the provisions of that rule can have no bearing on the question whether or not the Court has jurisdiction to make interim or only final orders.
17. Mr Pleming QC's submission is that the scheme of the Act does not admit of interim orders under s.29, still less ex parte orders. Put another way, the Act does not contemplate that an application can be made under s.3 or a patient admitted pursuant to such application while the nearest relative objects; the procedure of obtaining an order under s.29 has to be completed and the nearest relative displaced by final order before such application or admission can be made. No difficulty arises he submits, if this is so, because the detention under s.2 is extended under s.29(4) until the displacement procedure is complete and the time for appealing has expired.
18. Mr Pleming submits that his contention is supported by authority. He relies on B(A) v B(L) Mental Health Patient [1980] 1WLR 116. The case arose in relation to the corresponding provisions of the Mental Health Act 1959. Sections 26 and 52 of that Act are the equivalent of s.3 and s.29 respectively of the 1983 Act. Lawton LJ., with whose judgment Megaw and Browne LJJ agreed said at p119:

"As I understand the structure of the Act of 1959 in relation to the compulsory admission and detention for treatment of patients, it is this: once it becomes apparent that a particular person may require compulsory admission to and treatment in hospital, either the mental welfare officer or the nearest relative can consent to the making of an application. When an application is made, that application must comply with the provisions of section 26 of the Act of 1959. But before any question of complying with section 26 arises, the problem of consent has to be dealt with; and where, as in this case, the nearest relative objects, then the county court is empowered to make an order dispensing with the consent of the nearest relative."

And at p.121 he said:

"The object of an application under section 52 is to enable the provisions of section 26 to be brought into operation, and until an application has been dealt with under section 52 the mental welfare officer is not in a position to make an application under section 26."

19. Mr Pleming submits that these passages mean that the application under s.29 (s.52 under the 1959 Act) has to be finally determined before the s.3 application for admission for treatment (s.26 of the 1959 Act) can be embarked upon. But Lawton LJ does not say this, and the point whether or not an interim order could be made was not before the Court; they were not considering the effect of s.74 of the County Court Act 1959 (now s.38 of the 1984 Act). But while the procedure under s.29(4) would have been available in this case, there is no express exclusion of the power conferred by s.38 of the County Courts Act. Parliament must be taken to have enacted the Act in the light of the existing powers of the Court, and simply because machinery exists, which in this type of case could have been followed, it does not necessarily mean that more general powers are excluded.
20. To my mind the strongest argument advanced by Mr Pleming involves a consideration of what would happen if, an interim order under s.29 is made displacing the nearest relative which is followed by an admission under s.3, but on the final determination no order is made and the interim order is discharged. The patient will remain in detention, but the nearest relative can apply to discharge him under s.23. That, however, can be blocked under s.25, although the power to block under s.25 is strictly limited to cases where the patient is likely to be a danger to himself or others. He is not, submits Mr Pleming, in as good a position as if a s.3 admission had never been made, because his nearest relative did not consent, and, ex hypothesis, reasonably did not consent.
21. I see the force of this submission and it seems to me that in a case like the present, where the machinery of s.29(4) can be used, it is undesirable to adopt the course of making an interim order so that a s.3 admission may have to be subsequently unscrambled. But I am not persuaded that in practice it would result in any disadvantage to the patient. If the Court holds that the nearest relative was not unreasonably objecting to the making of an application for admission under s.3 (see s.29(3)(c)) it is likely to be on the ground that other psychiatric evidence shows that it is not necessary. In these circumstances I do not see how a valid objection to the patient's discharge under s.23 could be mounted under s.25. And I do not think that merely because the Act provides machinery for dealing with such a case as this under s.29(4) that ipso facto and without more limits the powers conferred by s.38 of the County Courts Act.
22. Neither counsel suggested that if the Court eventually made no order for displacement, the hospital managers would be bound to release the patient forthwith or after time for appeal has expired, on the ground that the basis of the original application is now shown to be flawed in the absence of the nearest relative's consent. But I think it is arguable that that is the consequence, and failing which a writ of habeas corpus would lie, on the basis that the continued detention is no longer justified. This seems to me to be an additional reason why the s.29 procedure should be completed before an application under s.3 is made, at least where the grounds of the application are s.29(3)(c).
23. It is clear, in my judgment, that s.30(4) does envisage that an application under s.29 can be made concurrently with or subsequent to an application under s.3 for the reasons which I have earlier stated. In particular, an application may need to be made under s.29(3)(d) (where the nearest relative has exercised his power to discharge without regard to the welfare of the patient or the interests of the public or is likely to do so). The blocking power under s.25 may not be applicable (because for example the necessary element of danger is absent). In such circumstances it may well be impossible to make a final order in time to prevent discharge, and an interim order may be necessary. There is nothing in the scheme of the Act which points against the making of an interim order in such a case and I see no reason to cut down the general power conferred by s.38 of the County Courts Act. As a matter of jurisdiction, therefore, it seems to me that if there is power to make an interim order in any case under s.29, ie. where s.29(3)(d) is in question, there must also be power to make it where s.29(3)(c) is under consideration.
24. Accordingly, I have come to the conclusion in agreement with Owen J., that the County Court did have jurisdiction to make the orders of 8 and 15 March 1996. But having said that, it seems to me that unless there are cogent reasons to the contrary, it is preferable that questions under s.29(3)(c) should be finally determined before an application is made under s.3, and the machinery of extension of detention under s.2 afforded by s.29(4) should be used.
25. It follows that the challenge fails both to the County Court orders and the decision of 22 March 1996 by the Second Respondent to admit the Appellant and the appeal must be dismissed. In these circumstances the alternative argument advanced on behalf of the Second Respondent by Miss Baxendale does not strictly fall to be considered. However, since careful submissions have been made to us, and the matter is of some importance to hospital managers, I think it right to express my view as to the validity of that decision, on the hypothesis that, contrary to my view, the County Court had no jurisdiction to make the orders of 8 and 15 March 1996. On this hypothesis Mr Pleming submits that the decision to admit was also invalid and should be quashed, so that the Appellant has no record of a compulsory admission. Miss Baxendale, on the other hand, submits that not only at common law, but under the specific provisions of s.6 of the Act, the Second Respondents were not only entitled but bound to treat the County Court orders as valid and their decision based upon them was also valid and cannot be quashed in judicial review, even if it now transpires, as on this hypothesis it does, that the County Court orders were invalid.
26. The question is not an easy one (see the observations of Lord Browne-Wilkinson in Boddington v British Transport Police [1998] 2 WLR 639 at p655). The starting point is the well-known dictum of Romer LJ in Hadkinson v Hadkinson [1952] p.285:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which as null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.'"

The passage was approved by Lord Diplock in Isaacs v Robertson [1985] AC 97 at p101.

27. Miss Baxendale also relies on the provisions of s.6 of the Act. So far as is relevant this 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.....

(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, ...., 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."

28. In Percy v Hall [1997] QB 924 the plaintiffs had been arrested and charged with breaches of the bye-laws. The magistrates acquitted. On appeal by the Director of Public Prosecutions, the Divisional Court held that the bye-laws were invalid and dismissed the appeal. The plaintiffs subsequently brought actions for wrongful arrest and false imprisonment against the constables who arrested them. The judge held the bye-laws were invalid, but the invalidity did not preclude the constables from pleading lawful justification for making the arrest. On the defendants' appeal to the Court of Appeal, it was held that the bye-laws were valid. But the plaintiffs' cross-appeal was dismissed. In my opinion the part of the judgment dealing with the cross-appeal is part of the ratio of the case and is not merely obiter. At p947 Simon-Brown LJ (with whose judgment Peter Gibson and Schiemann LJJ agreed) said:

"The central question raised here is whether these constables were acting tortiously in arresting the plaintiffs or whether instead they enjoy at common law a defence of lawful justification. This question, as it seems to me, falls to be answered as at the time of the events complained of. At that time these byelaws were apparently valid; they were in law to be presumed valid; in the public interest, moreover, they need to be enforced. It seems to me one thing to accept, as readily I do, that a subsequent declaration as to their invalidity operates retrospectively to entitle a person convicted of their breach to have that conviction set aside; quite another to hold that it transforms what, judged at the time, was to be regarded as the lawful discharge of the constables' duty into what must later be found actionably tortious conduct."

29. Mr Pleming submits that that case was concerned solely with the tortious liability of the constables; the apparent validity of the bye-laws until set aside, afforded a defence to the action of false imprisonment and wrongful arrest, but it did not make the arrest itself lawful, once the bye-laws had been set aside. Not only were they entitled to have their convictions set aside, but they were entitled to a declaration (if they had sought it) that the arrest was unlawful. So in the present case he submits that the Appellant is not only entitled to have the County Court orders set aside, but he is entitled to a declaration that the admission to hospital on 22 March 1996 was invalid and should be quashed; he also submitted that s.6 of the Act takes the Second Respondents no further. He ultimately accepted that the Appellant is unable to sue the Second Respondents for damages for false imprisonment, but that is the extent to which they can rely on the apparent validity of the orders.
30. I do not so read the decision of the Court in Percy v Hall. I accept, as does Miss Baxendale, that on the present hypothesis the Appellant would be entitled to have the County Court orders quashed. He would also have been entitled, if he had applied for it, to a writ of habeas corpus or perhaps, if he had sought such relief in the judicial review proceedings, a declaration that he was entitled to be released, once the County Court orders were pronounced invalid. What he is not entitled to is a declaration that the decision to admit was unlawful. At the time it was not; it can only be quashed if at the time the decision was ultra vires the Second Respondents, and it was not.
31. We have been referred to a number of other authorities on this point. I need mention only two. In Re S-C (Mental Health: Habeas Corpus) [1996] QB 599, the applicant was admitted to hospital for treatment and detained on the authority of an application made by an approved social worker which appeared for the purposes of s.6(3) of the Act to be in compliance with s.3. In fact the father, who was the applicant's nearest relative, had not consented, so that section 11(4) of the Act had not been complied with. On appeal the applicant's application for habeas corpus was granted. Sir Thomas Bingham MR at p611 cited from a judgment of Laws J. in Reg. v Managers of South Western Hospital, Ex parte M. [1993] QB 683 at p700. I need not cite the whole passage but Laws J. said this:

"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 ll 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."

Sir Thomas Bingham continued:

"Speaking for myself, I would accept almost everything in that passage as correct with exception of the last sentence. The 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."

Neill LJ said at p613:

"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 Reg. v Managers of South Western Hospital, Ex parte M. [1993] QB 683, 697, as to the effect of section 6(3)."

32. Both counsel rely on these judgments to support their contentions. This suggests that the phrase used by Laws J. and criticised by the Court of Appeal, is ambiguous. It may mean that the Applicant's continued detention is not unlawful; or it may mean that the original detention was not unlawful, but does not deal with the continued detention once the Court had pronounced the underlying application to be invalid. It seems to me that the Court of Appeal in Re S-C understood it in the first sense, and if that is correct then I respectfully agree. But it seems to me that if Laws J. meant it in the second sense, what he was saying was consistent with authority, namely that the original admission and detention, based as it was on an apparently valid application, was itself valid and lawful until the underlying basis, namely the application, is held by the Court to be invalid. This does not preclude the Court from ordering the patient's release once this determination has been made, but it does not retrospectively render invalid the decision to admit which was valid at the time it was taken. In my judgment there is nothing in Re S-C which is contrary to Miss Baxendale's submission.
33. One other case should be mentioned. R v Governor of Brockhill Prison, ex parte Evans (No.2) [1999] 2 WLR 102. The Applicant was a prisoner at Brockhill Prison; the Governor had calculated her conditional release date in accordance with the law as it was then believed to be. However, the Divisional Court subsequently held that that was wrong and the Applicant should have been released 59 days earlier. The Applicant claimed damages against the Governor for false imprisonment. The first instance judge dismissed the claim on the basis that the Governor was entitled to rely on the previous court decisions in calculating the release date. The majority of the Court of Appeal, Lord Woolf MR and Judge LJ allowed the Applicant's appeal. After endorsing the approach of the Court of Appeal in Percy v Hall, and stating that nothing in the decision of the House of Lords in Boddington's Case affected that decision, the Master of the Rolls at p113 went on to distinguish Percy's case. He said:

"Percy v Hall cannot, however, be applied directly to the facts of this case. The application of the reasoning of the court in Percy v Hall to this case involves applying the reasoning to a different situation. In Percy v Hall the court was concerned as to whether a byelaw although it was invalid could be given recognition, at least to the extent of providing a defence to an action for false arrest. There is respectable, though still controversial, authority for regarding a byelaw, like other executive and administrative decisions, as being valid for some purposes until set aside. There is no similar authority for regarding a decision authoritatively overruled as still for some purposes setting out correctly what is the law. The situation is different from that where a prisoner is convicted and the conviction is subsequently set aside on appeal. Here the conviction is not retrospectively set aside by the higher court for all purposes. It can therefore provide lawful authority for imprisonment prior to it being set aside even though it has been shown to state inaccurately what is the law. That is the position if a court of record passes a sentence which is in excess of what the law allows on a defendant (for example a court only having power to pass nine months, passes a 12-month sentence where the mistake is found out afterwards and the sentence is subsequently quashed and a lawful sentence substituted). The governor will be still entitled to rely on the fact of the sentence passed by the court as providing a justification for the imprisonment. The governor is not required or entitled to assess for himself the validity of the sentence. He is entitled to assume that it is a valid sentence. However here the principle of retrospectivity has never applied, contrary to the position as to changes as to the interpretation of the law."

34. The error in Ex parte Evans was that of the Governor, albeit it was an understandable one; it was not the error of the Court pronouncing sentence. In Boddington's Case Lord Steyn at p662 cited with approval a passage from Dr Forsyth's article, 'The Metaphysic of Nullity - Invalidity, Conceptual Reasoning and the Rule of Law'. The passage is at p159:

"It has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void." (emphasis added).

35. In Ex parte Evans there was no second actor, the action was solely that of the Governor in detaining the applicant for too long due to an error of calculation. In the present case the Second Respondents are second actors relying on the validity of the Court orders and the application; they were not only entitled, but in accordance with their duty, bound to admit the Appellant.
36. Accordingly, in my judgment, even if we had held that the County Court had no jurisdiction to make the orders of 8 and 15 March, I would hold that the decision of the Second Respondent to admit the Appellant on 22 March, which is the only matter challenged in the Form 86A was valid and should not be quashed.
37. It seems to me that in any event the difference between counsel is more theoretical than real. The practical consequences of both the common law rule and s.6(3), as Mr Pleming was eventually constrained to admit, is that no claim for damages for false imprisonment could be maintained against the Second Respondent, even if his submissions on the validity of the County Court orders were correct.
38. Finally, I must deal with two renewed applications for judicial review. The first relates to the Second Respondents' renewal of the Appellant's detention on 11 September 1996 under s.20 of the Act. The argument was that if the original admission was invalid, the renewal was equally invalid. The argument now obviously fails since the original admission was valid and so the renewal was valid.
39. The second relates to the admission on 15 August 1996 which was expressed to be without prejudice to the contention that the earlier admission was valid. Mr Pleming submitted that it was impossible to have a conditional admission, ie. one that was conditional upon a previous admission being held to be invalid. It is unnecessary to decide this point, since the effect of our decision that the admission on 22 March was valid, means that the purported admission on 15 August is simply ineffective and falls away; there is therefore nothing to quash.
40. For these reasons I would dismiss the appeal and refuse leave to move for judicial review.

LORD JUSTICE ROBERT WALKER: I agree

LORD JUSTICE HENRY: I also agree.

Order: Appeal dismissed; no order as to costs;

legal aid taxation of appellant's costs; application

for leave to appeal to the House of Lords refused.