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
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(Mr Justice Owen)

		Royal Courts of Justice Strand London WC2
		Tuesday, 9th May 2000

1. LORD JUSTICE OTTON: There are before us two matters: first, an application for an extension of time and, second, an appeal in respect of an application for the issue of a writ of habeas corpus. As to the first matter, I consider that the solicitors in this case behaved in a dilatory manner and one which cannot be overlooked. The decision was given on 29th October. The notice of appeal should have been served by 26th November. It was not served until 22nd February 2000. Various explanations have been put forward as to how this delay occurred. There was some difficulty with the Legal Aid Board. There was some difficulty, it is said, with the court officials, but it is clear that the solicitors did not give the matter the attention that it required, bearing in mind that the limitation period had expired and that they left the matter to a trainee solicitor who probably got into a muddle, with the rather surprising result that the matter was at one stage in the Chancery Division.
2. However, for my part, deplorable as that state of affairs is, I am persuaded that, as this is a matter which concerns the liberty of the subject and one where the appellant is himself suffering from a mental disorder within the Mental Health Act, the court should exercise its discretion in his favour and to allow the application.
3. The appeal
4. The claimant is detained pursuant to section 3 of the Mental Health Act 1983. He wishes to be released. He applied for a writ of habeas corpus ad subjiciendum. On 29th October Owen J dismissed the application. He now appeals and applies to this court for such a writ.
5. The background can be stated briefly. The claimant has been diagnosed as suffering from a psychiatric condition, namely a paranoid schizophrenic illness, symptoms of which are only partially alleviated by medication. He is "mentally disordered" within section 1 of the Act. He is without insight into his condition. His everyday life is adversely affected by alcohol dependency. He is the despair of his family who, apart from his daughter L., have abandoned hope of being able to help him. His allocated social work is James Millington of the Community Mental Health Team of the London Borough of Barnet. On 11th February 1999 Mr. Millington completed an application under section 3 of the Act for the admission of the claimant to hospital. He had previously consulted the younger daughter, L., as the nearest relative rather than the elder son, D.. It is that action on his part which goes to the heart of this appeal.
6. The statutory framework can be stated equally briefly. Part II of the Act is concerned with the compulsory admission of persons to hospital. Section 11(1) provides:

"Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application 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 who makes the application.

(4) No (application for admission for treatment)... shall be made by an approved 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."

7. In this case the only possible candidates for "nearest relative" are the appellant's two children, D. and L.. Section 26 concerns the expression "relative" and "nearest relative". Subsection (1) defines the persons who qualify as relatives, including, under subparagraph (b): "son or daughter". Under subparagraph (3) 'nearest relative' means the person first described in subsection (1) and the elder or eldest relative described. Thus, all things being equal, D., being the eldest son, would be the nearest relative. However, section 26(4) provides:

"Subject to the provisions of this section and to the following provisions of this Part of the Act, where the patient ordinarily resides with or is cared for by one or more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily resided with or was cared for by one or more of his relatives) his nearest relative shall be determined -

(a) by giving preference to that relative or those relatives over the other or others; and

(b) as between two or more such relatives, in accordance with subsection (3) above."

8. When this matter came before Owen J he found against the applicant, and in the course of his judgment he said as follows:

"The discrete question raised by this application is whether Mr Millington complied with section 11(4) of the Act. There appear to be two subsidiary questions:

(A) What effect do the words 'appearing to be' have?

And

(B) Was Mr Dewen cared for by L. so as to make her his nearest relative?

It will be convenient to deal with those two questions in reverse order.

There is no statutory definition of 'caring for'. It seems to be common ground that neither Parliamentary debates nor the statutory history give any apparent help to construction. The applicant contends that 'cared for' has as its natural meaning a substantial regular and sustained contact which, he argues, involves more than weekly visits and minor financial assistance. He argues that the phrase has to be construed in a way consistent with 'resides with', presumably as an example of the eiusdem generis rule. Although I do not understand the mechanics or result of such interpretation, I can see no necessity textually, logically or in any other way for such a construction. I accept that in contemplating the possibility that more than one relative might reside with or give care to a patient, there is also contemplated less than full-time exclusive care and possibly much less. I also accept that 'ordinarily' qualifies both 'resides with' and 'cares for'".

9. He then referred to authority and later he said this:

"'Caring for' certainly indicates something more than merely helping. In my judgment, it implies taking some substantial responsibility for the wellbeing of a person; as it seems to me L. did exactly this. In my judgment in circumstances such as those here the social worker should ask the simple question - does the relative ordinarily care for the patient?It is clear that she did care for him, not full-time although no doubt she was always available which may be an element of caring. In my judgment Mr Millington was entitled to find as he did. D.D.'s subsequent appreciation seems to confirm this."

10. Mr. Gledhill, in a spirited argument, contends that the judge fell into error and, according to his argument, so did Mr. James Millington, the approved social worker. He contends that the question is the meaning of "ordinarily cared for". It is not defined within the statute. There is nothing in the Bill or the White Paper which explains this provision. He points out that in the Carers (Recognition and Services) Act 1995 under section 1(1)(b) a carer is defined as someone who provides "a substantial amount of care on a regular basis". He submits that that is a statutory definition of care and one which we should import into this Act where a similar word is used. He submits that simple lack of interest by the statutory "nearest relative" does not mean that a more interested relative becomes the nearest relative unless the county court makes an order substituting a nearest relative under section 29 of the Act, or the nearest relative agrees to stand aside or gives a written delegation to another. As neither of these two situations arose the nearest relative, on a correct interpretation of section 26(4) and subsections (1) and (3), point inexorably to D. as the elder son to be the nearest relative.
11. He further submits that the argument that L. provided some care does not bring her within the category of nearest relative. The care that she gave was minimal and certainly fell short of the threshold where she could be regarded in law as a carer. Bearing in mind the definition, she did not give substantial, regular and sustained care. Accordingly, she could not, on a proper interpretation of section 11(4) and the other legislation, constitute a carer in law. He further contends that the judge was in error when he said:

"I can see no necessity texturally, logically or in any other way for such a construction."

12. Given that section 26(4)(b) are to be the nearest relative, the failure to interpret "cares for" in a way consistent with the amount of care and contact implicit in "resides with" would mean that a non-sensical result could follow. He gave an illustration of how that could come about. For my part, I did not find that a helpful assertion on this question of construction.
13. Mr Gledhill relied upon a passage in the judgment of McCullough J in R v Liverpool City Council, ex parte F (LAG Bulletin, January 1998), but we have a transcript from the Court of Appeal library. In particular, he relies upon the passage at page 18 where the judge, having considered section 26(4), said as follows:

"In my judgment the quality of regularity is equally important when considering, for the purposes of section 26(4), whether there has been a change in the identity of the person who is to be regarded as caring for the patient. In such a case it will be necessary to take into account the duration, continuity and quality of the care afforded by the relative under consideration as having assumed the role hitherto played by the patient's parent(s) and also the intention of the patient himself."

14. It is to be noted that that passage arises out of a situation where there was an alleged change in the identity of the person who was to be regarded as caring for the patient. However, Mr. Gledhill is correct, in my judgment, in pointing to the phrase "duration, continuity and quality of the care afforded by the relative under consideration." Mr. Gledhill's argument continues that L.D. on this analysis was not the nearest relative, nor was she the person appearing to be the nearest relative within the language of section 11(4). The social worker's view as to whether she was or not was clearly made in good faith and involved his reaching a decision on law as to whether section 26(4) applied to the facts. He points out that the admission was only valid if the person who in law is the nearest relative was consulted and consented. If the wrong person was consulted or the consent obtained from the wrong person, the court must bring the admission to an end and the order committing the person under section 3 must be rescinded. In that last assertion he is clearly correct. He bases that on the decision of this court, presided over by Sir Thomas Bingham MR, in the case of Re S-C [1996] QB 599.
15. I have considered that argument with the greatest of care. It has a certain attraction about it. But I am unable to accede to Mr. Gledhill's submissions. First, as a matter of construction, and in this I differ from Owen J, I do not accept that the word "ordinarily" qualifies "resident" and "cared for" in section 11(4). If this had been the intention of the draftsman he would have omitted the word "is" between the words "or" and "cared for". Moreover, the concept of "ordinarily resident" is well established in English jurisprudence. In any event, in the context of this section I doubt whether if "ordinarily" were placed before to qualify "cared for" this adds anything to Mr Gledhill's argument or in any way affects the outcome of this case. Second, the words "care for" are not defined in the Act. However, they are clear and everyday words set in a context where the approved social worker has to act in a pragmatic and common sense manner in a situation which is fraught with emotion and difficulty. In my view, the words do not call for or require the qualification or elaboration contended for to give them their common and everyday meaning and effect. In my judgment, Owen J was correct in declining to supplement the language of the section. L. could qualify as a carer, provided her services were more than minimal, even though they fell short of the long term care which was the expression used by Mr. Gledhill in argument to cover and include the definition in the other Act to which reference has been made.
16. The question which this court has to consider is not, in deciding whether the application for determination for treatment was validly made, whether Mr. Millington, the approved social worker, consulted with the person who was legally correct as the "nearest relative", but whether L.D. appeared to him to be that relative. That, to my mind, is a correct analysis of section 11(4). This section and subsection has to be construed strictly. It involves the liberty or loss of liberty of a person, particularly a person under a mental disorder. It imposes no duty of reasonable inquiry on Mr. Millington in relation to deciding who is the nearest relative. I accept Mr. Foster's argument on behalf of the respondent that such an imposition would, in the circumstances in which most decisions have to be made, be an intolerable one. It is not surprising that Parliament did not impose it. In support of that contention, he referred to the decision of Whitbread v Kingston and District NHS Trust 1998 39 BMLR 94, and in particular a passage at page 101-102. Accordingly, as I assess the situation, the court cannot and should not inquire into the reasonableness of Mr Millington's decision, only into the honesty of his assertion that it appeared that L.D. was the nearest relative. His honesty has not been impugned.
17. We have to ask the following question: Was his decision, in concluding that L. was the nearest relative, plainly wrong? Mr. Gledhill cannot contend other than that she supplied some care. He rather disparagingly put it that she paid one bill and did some laundry. That is not the position as it appeared to the approved social worker. In his statement at paragraph 8 he said as follows:

"My understanding is that during her contacts with her father, L.D. provided a wide range of help for him. She assisted him in managing and sorting out his finances. To my knowledge this is a difficult task as Mr D. holds fixed paranoid beliefs about the debts others owe him and his handling of his finances is frequently chaotic owing to his alcohol abuse. Mr D. is convinced that he should not have to pay water rates and refuses to do so. In order to protect her father from conflict with the authorities over this matter, L.D. has paid this bill consistently out of her own pocket.

L.D. routinely checked whether her father was eating appropriately or whether he had sufficient food in his kitchen and she would cook or provide food when necessary. For several months prior to his admission to hospital in February 1999, Mr D. experienced incontinence of faeces and urine both during the day and night. He relied on L.D. to take away and clean his soiled clothing and bed clothes. It is my belief that these services to her father constituted substantial care for him. If it is relevant to consider what a residential care setting would have provided in this situation, it is not my experience that a residential care home would regularly meet the needs L.D. was prepared to undertake."

18. That seems to me to be a common sense approach on the part of the approved social worker and an approach which was totally justified in the circumstances of what must be a harrowing and difficult case, not only for the patient himself but his relatives and, one might add, the approved social worker, who has been given statutory responsibility towards him. There was more than sufficient evidence to pass the "cared for" test, wherever one sets the threshold of services amounting to "cared for". In other words, the services were not merely minimal. They were services which were substantial and sustained. On that evidence the approved social worker could safely and reasonably conclude that, for all intents and purposes, L. was the nearest relative because she cared for her father. In those circumstances, I consider this application for a writ of habeas corpus to be misconceived. The appeal must be dismissed.
19. However, before leaving the matter one disturbing feature must be pointed out. In the course of argument, Mr. Gledhill acknowledged that, if the son D. had been asked whether to consent to the application which the approved social worker was about to make, he would have given his consent to the application in exactly the same way as his sister had done. Thus, if we were to grant this appeal and to issue a writ of habeas corpus, in all possibility the approved social worker, in the interests of the patient, would probably make a similar application, naming D. as the nearest relative, in which case the outcome would be the same. This is a misconceived application and one which, even if successful, would have led to more waste of precious and finite resources.
20. MR JUSTICE HOOPER: I agree.
Order: Appeal dismissed; order nisi against legal aid fund with nil contribution; detailed legal aid assessment.