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 LEEDS COUNTY COURT
(HIS HONOUR JUDGE GRENFELL)

		Royal Courts of Justice Strand London WC2A 2LL
		Thursday 10 February 2000

1. LADY JUSTICE HALE: This is an application for permission to appeal against the order of His Honour Judge Grenfell in the Leeds County Court on 28 October 1999. He made an order under section 29 of the Mental Health Act 1983 that the functions of the nearest relative under that Act be exercised by City of York Social Services Department rather than by the applicant.
2. The applicant is the eldest son of the patient, Mrs P.S.. She has two younger sons, Jason and Aaron, and a daughter. She has been diagnosed as suffering from paranoid schizophrenia. The history of her contacts with the specialist psychiatric services is set out in two reports from Dr Susan Shaw, the Consultant Psychiatrist at Bootham Park Hospital, York. I take the information simply from the bare bones of that history and not for any of the judgments or opinions contained therein because these may be controversial.
3. Dr Shaw states that Mrs S. was first referred to her in 1986 and again in 1988 and 1991, but was not admitted to hospital. In February 1994 she was compulsorily admitted to hospital under the care of Dr Reilly, at first under section 4 of the Mental Health Act, then under section 2, which is an admission for assessment, and then under section 3, which is an admission for treatment. It was reported that before that she had been sleeping rough and had been assaulted. The diagnosis then was of paranoid schizophrenia. She believed her flat mates had inserted a transmitter into her womb and was turning this on and off to cause her pain. She was discharged in August 1994. Thereafter she was thought to be functioning reasonably well on a small amount of anti-psychotic medication until 1998.
4. Mr S. points out that his perusal of the medical file suggests to him that certain things took place during that admission which, in his view, should not have taken place; first, that his mother was treated by an injection while she was subject to admission under section 2 for assessment rather than treatment, and second that he was not consulted about the section 3 admission although at that stage he was aged 23 and as the nearest relative was so entitled.
5. The matter next came to a head in 1998. Mrs S. was readmitted to hospital on 1 December 1998. Again she was concerned about a device in her abdomen which she believed was operated by the responsible medical officer and nursing staff. Dr Shaw recommended that she be admitted under section 3 but the applicant exercised his right as nearest relative to object. So she was admitted under section 2 and discharged on 18 January 1999. His Honour Judge Grenfell said in his judgment that he was satisfied that the applicant's objections were properly considered to be reasonable at that time. After her discharge she attended outpatients appointments and was visited by a trained psychiatric nurse and an approved social worker, Mr Lodge.
6. In addition to her psychiatric problems Mrs S. also has physical problems. She suffers from thyrotoxicosis and gall bladder disease. Part of the issue in this case is as to the interrelationship between those problems and her psychiatric problems. She was due to have a gall bladder operation on 23 September 1999 at York General Hospital. At 6.10 in the morning of 20 September 1999 she was taken to the Accident and Emergency department at Harrogate District Hospital by police officers who had found her soaking wet, sleeping on a park bench. She told them she had a device in her womb which was torturing her. She left but was then returned to the hospital by them. She was then admitted informally to the psychiatric in-patient unit. She told the staff there that the device had been implanted by doctors in York and that the further she was from York the less pain she was in.
7. She was detained under section 5(2) of the Mental Health Act 1983 at 4.20 in the afternoon of 20 September. Dr Dympna Ryan, the consultant psychiatrist in Harrogate, also signed the recommendation for admission under section 3 that same day. Dr Kramer, Mrs Scully's GP, attended that evening and signed a second medical recommendation. The forms of those recommendations are in the bundle before me, but it is not necessary for me to read them out. They both described her as suffering from mental illness. Dr Kramer describes her as having paranoid schizophrenia; Dr Ryan states that she was deluded and believed she was being irradiated by a scanner in York. Dr Ryan also stated:

"She is responding to her delusion in a bizarre and potentially dangerous manner and refuses to accept informal admission which is necessary for treatment of her longstanding illness."

8. Dr Ryan also said:

"The patient requires urgent specialist nursing care and medical treatment in an inpatient setting. She refuses to consent to this treatment plan and poses a risk to herself if she leaves."

9. An approved social worker, Mrs McClelland, visited the next day, as did the applicant, Mr S.. Mrs McClelland reports that the applicant's view was that his mother had become anxious as she waited for her operation and she would feel better once it was completed. Her belief in the transmitter was triggered and sustained by the pain arising from gallstones and that this would cease when she had the operation. He also told her that previous admissions had not been effective and that they simply managed rather than cured her illness.
10. Mrs McClelland took the view that the criteria for admission under section 3 were met and Mr S.'s objections were unreasonable. Accordingly, on 22 September 1999 an application was made under section 29 of the 1983 Act on the ground set out in section 29(3)(c), that the nearest relative unreasonably objects to the making of an application for admission for treatment.
11. Mr S. makes various observations about those events. They clearly happened at great speed and on a Monday. He points out that this is a very busy time in mental hospitals and he has his reservations, to put it at its lowest, as to whether Dr Ryan had indeed carried out a full assessment of his mother during that day, or whether she had, in effect, relied on the views of Dr Shaw with whom she had been in contact.
12. The application of section 29 came before His Honour Judge Grenfell the following day, on 23 September 1999, when the 72 hours for which Mrs S. could be detained under section 5(2) were due to expire at 4.20 pm. Judge Grenfell heard from Mrs McClelland and Mr S.. He made an interim order under section 29. There is a decision of this court in a case of R v Central London County Court and Managers of Gordon Hospital ex parte Ax London, on 15 March 1999 which held that the county court did have a general power to make interim orders. Presumably, after that, there was a section 3 admission based on those forms. There is nothing before me to indicate that any prior section 2 admission took place.
13. The case came back before His Honour Judge Grenfell on 28 October 1999 when he made a full order. The evidence before him then consisted of reports from Mrs McClelland and Mr Lodge, the recommendation forms from the recommending doctors and reports from Dr Shaw as the responsible medical officer in Bootham Park Hospital. He also had a witness statement from Mr S.. He heard oral evidence from Mrs McClelland, Mr Lodge, Dr Shaw, from Mr S. and from Mrs S.'s younger son, Aaron, a young man of 17, who lives with her.
14. The applicant, Mr S., was by then acting in person and he did not have any medical evidence of his own to call. The learned judge summarised the issues in this way:

"Against the common ground that Mrs S. is suffering from mental illness, namely paranoid schizophrenia, does she need to be detained in hospital for treatment in order to prevent deterioration of her mental health, in other words is there a risk that she will suffer harm in this way if she is not? Alternatively, was Mrs S. merely suffering from real physical pain and a rational anxiety in respect of her forthcoming operation, so that in effect her mental illness was in fact contained in much the same way as it had been for the several months which had elapsed prior to this time, during which she had been living in the community with her younger son, Aaron? Would she in those circumstances not be better off returning home and resuming that life under the supervision of her family and such agencies as the Community Psychiatric Nursing staff?"

15. As I understand the matter, that was indeed the substantive issue. In a nutshell, Mr S. believes that his mother does have genuine physical problems and that her admissions to hospital have not been done and are not doing her any good at all. On any view, she is not at the most severe end of those who are compulsorily admitted to hospital. Mr S. finds it very strange indeed that, having said she needed to be in hospital, the doctors so swiftly were able to give her extended leave of absence, unsupervised, to walk round York.
16. Having summarised the issue, the judge directed himself in accordance with the test laid down by Lord Denning in the case of W v L (mental health patient) [1973] 3 All ER 884 at page 889 that:

"The proper test is to ask what a reasonable woman in her place would do in all the circumstances of the case."

17. The judge also referred to the words of the Lawton LJ in B v B (mental health patient) [1979] 3 All ER 494 at 497 that the county court judge:

"must have some evidence that compulsory admission to hospital and detention for treatment is necessary."

18. The judge decided as a matter of fact:
19. "There can be little doubt that logical concerns on her part about her forthcoming operation exacerbated her mental state to the extent that her mental illness took over causing her to act in the way she did. In my judgment, Mr S.'s belief that this was no more than logical anxiety is wrong."
20. He continued:

"I have no difficulty in accepting Dr Shaw's opinion in its entirety. Moreover, this attack on her opinion is but one indication of the unreasonableness of Mr S.'s objection to this mother's continued detention in hospital."

21. He concluded that, until Mrs S.'s mental health could he treated, it was unlikely that progress would be made in treating her physical ailments. The judge also considered whether someone other than the social services department could act as nearest relative but concluded that she would soon fall out with anyone else appointed, and that Mr Lodge, as approved social worker, had acted throughout as what he described as Mrs S.'s "best interests".
22. Against that history, Mr S. seeks permission to appeal. As far as error of law is concerned, I am unable to detect a material error of law. The learned judge directed himself entirely properly as to the test to be applied under section 29(3)(c). He also took the view that he had to consider the evidence to support the doctor's medical recommendations for admission. He did ask himself the right question.
23. As far as errors of fact are concerned, Mr S. has pointed to numerous ways in which the judge, in his view, and there may be some justification in this, mis-stated the position. The difficulty is that this court is not going to interfere with the fundamental decision of fact unless it is shown to be perverse or obviously in some way wrong or against the evidence. One thing of which Mr S. complains is the judge's statement that it was common ground that Mrs S. was suffering from paranoid schizophrenia, which he does not accept. If there is no medical evidence to the contrary, it is virtually impossible for the judge not to accept the view of the consultant psychiatrists that his mother is suffering from mental illness within the meaning of the Mental Health Act. I note that that view has been shared subsequently by a Mental Health Tribunal.
24. Mr S. is very concerned that the judge had no difficulty in accepting Dr Shaw's opinion in its entirety, despite the errors which he felt could be demonstrated in the medical records (he complains he was not given enough time to look through those records) and despite all the indications that the admission to hospital was not doing his mother any good, and that she would be better off with his brother in her own home. I have great sympathy with the position in which Mr S. found himself. He is entirely right to say that it cannot be, by itself, proof of unreasonableness to object or to challenge what the doctors are saying; but that does not get him the whole way. He does have to show that the conclusion of fact which the judge reached was one that it was not open to him to reach. The fact that all his points were put in cross-examination to Dr Shaw, and that the judge had the benefit of seeing and hearing witnesses, listening to those points and reaching the conclusion that he did, means that it its very difficult for this court to interfere.
25. Mr S. complains that his time for cross examination was cut short. I notice he had the whole afternoon. Admittedly, of course he could have gone on for a great deal longer, but it is clear from what he tells me that he made considerable headway in demonstrating the problems with the records. It is also clear that he was able to put the basic points about which he was concerned in a way which the doctor was able to deal with. That being so, the judge was in possession of the information that enabled him to make a decision.
26. For those reasons, I conclude that an appeal to this court would not stand a realistic chance of success and I cannot give permission to appeal.
27. It does occur to me that this is not the strongest possible case for admission for treatment under section 3; that leaps out of the page. I also understand the problems that the S. family face. I very much hope that those matters will be taken into account by those who are responsible for considering whether or not the admission to hospital should be renewed when it comes up for renewal in March, and, if it is renewed, by a Mental Health Review Tribunal thereafter.
28. However, I have to dismiss the application.
Order: Application dismissed. Copy of transcript to be provided to applicant at public expense.