England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th March 2003

Lord Justice Pill:

1. This is an appeal against the decision of Forbes J on 9 December 2002 to refuse the applications of Mr Frederick Tagoe-Thompson ("the appellant") for a writ of habeas corpus and for judicial review. The Court grants permission to appeal against the refusal of the application for judicial review.
2. The appellant is detained by Central and North West London NHS Trust ("the respondents") at Park Royal Centre for Mental Health, an application for admission for treatment having been made under section 3 of the Mental Health Act 1983 ("the 1983 Act"). The initial detention is accepted to have been lawful but it is submitted that on 8 October 2002 a decision was taken which, under section 23 of the 1983 Act, had the effect of discharging the appellant from detention with the result that his subsequent detention was unlawful.
3. Section 23(1) of the 1983 Act provides, as amended and insofar as is material:

"(1) A patient who is for the time being liable to be detained … under this Part of this Act shall cease to be so liable … if an order in writing discharging him from detention … (in this Act referred to as 'an order for discharge') is made in accordance with this section.

(2) An order for discharge may be made in respect of a patient-

(a) where the patient is liable to be detained in hospital in pursuance of an application for admission for assessment or for treatment by the responsible medical officer, by the managers … .

(4) The powers conferred by this section on any authority, trust or body of persons may be exercised … by any three or more members of that authority, trust or body which has been authorised by them in that behalf or by three or more members of a committee of sub-committee of that authority, trust or body which has been authorised by them in that behalf.

(5) The reference in subsection (4) above to the members of an authority, trust or body-

…

(b) In the case of a National Health Service Trust or a committee or sub-committee of such a trust, is a reference only to the chairman of the trust and such directors or (in the case of a committee or sub-committee) members as are not also employees of the Trust."

By virtue of the interpretation section in the Act (section 145), the "managers" means, in relation to a hospital vested in a National Health Service Trust, the trust.

4. The issue is whether the appellant having requested a review of his detention, three duly appointed members may, under section 23(4), make an order for discharge by majority vote or whether all three members must concur in the decision. Does the subsection merely provide a quorum which then operates by a majority of its members or does it require three affirmative votes for release? While the figure of three is stated only to be a minimum, it is contended on behalf of the appellant that it is always three members, and no more, who are appointed and is accepted on behalf of the respondents that three is the number in the vast majority of cases.
5. On 3 July 2002, the appellant had been admitted to and detained in hospital following an application under section 3 of the 1983 Act, which section appears in Part II of the Act under the heading "Compulsory admission to hospital and guardianship". The section 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 a 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 and 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."

Subsection (3) provides that an application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners.

6. Following his detention, the appellant entered the category of patient contemplated in section 23. Three members, as the word member is defined in section 23(4), were appointed to decide whether an order for his discharge should be made. It is common ground that they were eligible for appointment because they were members of a "committee or sub-committee" within the meaning of the sub-section.
7. The appellant suffers from paranoid schizophrenia and the members considered a report from the appellant's responsible medical officer ("RMO"), Dr C Henrich, and other reports. The medical report referred to the patient's blatant refusal to comply with medication and to the criteria set our in section 3(2) of the Act as justifying admission for treatment. The members' decision was recorded on a printed form and stated that "the patient shall not be discharged from Section". The reasons for decision were stated to be:

"Having considered the medical evidence regarding whether the patient continues to suffer from a mental disorder of a nature and degree that required medical treatment in hospital and whether it is necessary for his own health and safety or the protection of others that such treatment is received and considering whether there is a continued lack of insight such that for the time being treatment can only be provided if he continues to be detained, the panel were unable to decide unanimously that the patient did not meet the criteria for continued detention and that therefore the appeal is rejected."

8. By letter dated 12 November 2002 the appellant's solicitors notified a proposed claim for judicial review contending that "if the majority fell in favour of the claimant's discharge from liability to detention, the [trust] is expected to discharge the claimant from liability to detention forthwith". On behalf of the respondents, it was submitted in a letter dated 2 November 2002 that "the failure of the panel to reach a unanimous decision, in view of the fact they were only three members on the panel, frustrated the exercise of that [section 23(4)] power.
9. On 28 November 2002, permission to apply for judicial review was granted and expedition ordered. On the following day, the respondents convened a meeting of four members who unanimously decided not to make an order for discharge but it is not claimed on behalf of the respondents that the subsequent decision can of itself save the earlier one.
10. The judge held:

"In my view it is clear from the words of section 23(4) of the 1983 Act that, before the powers conferred by that section can be exercised by those members who have been authorised by the hospital to exercise any such powers, there must be three or members who are prepared to exercise the power in question. In my opinion that is the clear meaning of the words of section 23(4)."

11. It was sought, belatedly, on behalf of the respondents, to take the point that, on its true construction, the decision as recorded in the Trust's form was a unanimous decision against discharge. Reliance is placed on the fact that all three members signed a statement to that effect and ticked the appropriate boxes on the proforma. The majority had deferred to the minority member. The point was not taken before the judge, was not taken in the letter of 22 November and I would not permit it to be taken now, though it is a possible view of what the members intended to convey in the form as a whole. I approach the case on the basis that, but for the construction of section 23(4) adopted by the trust, the appellant would have been discharged.
12. No point has been taken by the appellant on the burden of proof to be applied by members in this case, it being for them to be positively satisfied that the criteria justifying detention in hospital for treatment continue to exist (H v MHRT North and East London Region [2002] QB 1). The burden of proof to be applied by those appointed is a different issue from the issue between unanimous and majority decisions.
13. Section 20(1) of the 1983 Act provides that detention under Part II of the 1983 Act shall be for a period not exceeding six months, but makes provision for the authority for the detention to be renewed. Section 20 also imposes duties upon the RMO within the six month period. Section 23(2) provides that an order for discharge may be made by the RMO, by the managers or by the nearest relative of the patient, in the last case subject to the restrictions imposed in section 25. Application for discharge may also be made to a Mental Health Review Tribunal ("MHRT") under section 66 of the Act. That is a further right to obtain a review. MHRT's are constituted under section 65 and Schedule 2 of the Act.
14. Section 118 of the Act requires the Secretary of State to prepare, and from time to time revise, a code of practice in relation to, amongst other things, the admission of patients to hospital under the Act. The code is to be laid before Parliament (subsection (4)) and is subject to the negative resolution procedure. The current code, dated March 1999, gives guidance about the appointment of the committee or sub-committee contemplated in section 23(4). It refers, in paragraph 22.10, to the power of the RMO to discharge a patient under section 23. Paragraph 23.2 of the Code provides for the conduct of reviews under section 23 of the Act and states that the review "must satisfy the fundamental legal requirements of fairness, reasonableness and lawfulness". No complaint is made about the conduct of the review in this case save that that the wrong legal test was allegedly applied as to whether unanimity was required. Mr Gledhill, for the appellant, both commenced and concluded his submissions by stating that the only point was on the construction of section 23(4). It is provided, under the heading "Review panels" at paragraph 23.3 that:

"The Trust or Hospital Authority retains the final responsibility for the proper performance of the Hospital Managers' duties in considering whether or not patients should be discharged. To reflect this the review panel should, if possible, include a non-executive member of the Board. The panel must have at least three members. The Board must ensure that all those appointed to this role are properly informed and experienced and receive suitable training … ."

We are told that none of the three members in this case was a non-executive member of the Board.

15. In that statutory context, Mr Gledhill submitted that the power to discharge is exercisable under section 23(4) by a majority of any three or more members sitting together. The subsection sets a quorum and, though not expressed, there is a necessary implication that majority voting is possible within that quorum. In Grindley v Barker (1798) 1 Bos. & Pul. 875, Eyre CJ stated, at p 879:

"… I think it is now pretty well established, that where a number of persons are entrusted with powers not of mere private confidence, but in some respect of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole."

Eyre CJ did keep open the possibility that on the construction of a particular statute it might appear that every one of the persons assembled must concur.

16. In Picea Holdings Ltd v London Rent Assessment Panel [1971] 2 QB 216, the Divisional Court, Lord Parker CJ presiding, considered whether a rent assessment committee constituted under the Rent Act 1968 could act by a majority in determining a fair rent. Lord Parker referred to the judgment of North J in Atkinson v Brown [1963] NZLR 755 where reference was made to the second part of what North J described as a "general principle as stated by Eyre CJ in Grindley". North J stated, at p 766:

"The question then that requires to be answered is whether this well established rule of law has been controlled either by something expressed in this statute or by something to be collected from the nature of the power and the duty to be performed under it."

17. Lord Parker CJ considered that the rent assessment committee came within the general principle and added, at p 224, that "the question then is whether the legislation has nevertheless provided expressly or impliedly in the present case that that general principle is not to apply". It was held that there was no ground for departing from the general principle stated in Grindley.
18. Mr Gledhill referred to the concurring judgment of Priestly JA in the Court of Appeal of New South Wales in Bruce v Cole & Ors [1998] NSWLR 163, where the principle in Grindley is stated to be "an established common law rule". Mr Gledhill submitted that if Parliament's intention had been to avoid the rule, an expression such as "with the agreement of any three or more members" would have been used in section 23(4).
19. Counsel referred to Article 5 of the European Human Rights Convention which secures "the right to liberty and security of person". He referred to the decision of the ECHR in Winterwerp v Netherlands [1979] 2 EHRR 387 at paragraph 45:

"However the domestic law must itself be in conformity with the Convention, including the general principles expressed or implied therein. The notion underlying the term in question is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary."

Referring to Winterwerp and other cases, the ECHR stated in Bizzotto v Greece (15 November 1996), paragraph 31, that any deprivation of liberty "should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness".

20. Counsel accepted, and rightly accepted in my view, that the construction favoured by the judge in this case does not involve a breach of Article 5. Article 5.1(e) permits the lawful detention of persons of unsound mind if "in accordance with a procedure prescribed by law". Provided the correct burden of proof is applied by each of the members, a lawful procedure is provided whether that procedure requires three members to support release or whether they can act by a majority. Mr Gledhill also accepted, and rightly accepted, that the requirements of Article 5.4 are met by providing a right of access to the MHRT.
21. It was, however, submitted that considerations of equality, fairness and convenience can and should be used in favour of the construction of section 23(4) he advocates. Mr Gledhill referred to the speech of Lord Shaw in Shannon Realties v Ville de St Michael [1924] AC 185 at 192:

"Where the words of a statute are clear, they must, of course, be followed, but in their Lordships' opinion where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative to be rejected which will introduce uncertainty, friction or confusion into the working of the system."

It was submitted that a procedure which permits continued detention when only a minority of members oppose release leads to inequality, uncertainty, delay and inconvenience and may be arbitrary. I can give little weight to these submissions in the context of this issue. A procedure requiring unanimity is not arbitrary and is no less certain than one permitting a majority. It may be unequal in the sense of making it more difficult to obtain release, and may delay release, but once it is accepted that unanimity is not inherently unlawful I fail to see the force of the submission. It has force only if one starts with the assumption that the statutory intention was to make release easier and quicker. The statutory intention must first be determined, however.

22. Mr Gledhill also referred to the provisions of Rule 23(1) of the Mental Health Tribunal Rules 1983, made by the Lord Chancellor under section 65 of the 1983 Act, that "any decision of the majority of members of a tribunal shall be the decision of the tribunal …". That does not assist on the present issue, however, not only because express provision is made but because section 65(3) provides that the "jurisdiction" of an MHRT "may be exercised by any three or more of its members" (as distinct from "powers" in section 23(4)). In that context, the Grindley principle has more force. MHRT's are formally constituted, as provided in Schedule 2 of the Act, and the members who are to constitute a particular tribunal include a legal member, a medical member and a member who in neither legal nor medical. The tribunal is altogether different from the three or more individuals exercising powers under section 23(4)
23. The principle that judicial and quasi-judicial bodies generally operate by majority vote is a useful and convenient one but the particular words and the particular statutory context must be considered. The presumption should not be a strong one when the specific and somewhat sensitive question of the exercise of powers under the Mental Health Act is considered. In my judgment, the wording of section 23(4) favours the view that, for an order for discharge to be made, at least three members must be prepared to express their support for that course. Three members are appointed to conduct a review by virtue of their membership of a sub-committee but it is as individuals that they exercise the power. The subsection does not create jurisdiction in or confer power on a panel or tribunal; it requires a decision in favour of release by each of three people.
24. In my judgment the context supports that view:

(i) While the liberty of the subject is always an important consideration, this statutory procedure is also concerned with the welfare of the subject in whose case section 3 powers have been exercised and his welfare may require detention in hospital. The possibility of the patient damaging his own health or endangering his life is a relevant consideration. In many cases, including this one, it is on the facts an important factor. In Witold Litwa v Poland (2001) 33 EHRR 53 the ECHR, having referred to the categories of individuals mentioned in Article 5.1 of the Convention stated, at paragraph 60,:

"It is therefore legitimate to conclude from this context that a predominate reason why the Convention allows the persons mentioned in paragraph 1(e) of Article 5 to be deprived of their liberty is not only that they are dangerous for public safety but also that their own interests may necessitate their detention."

(ii) The RMO has a central place in the operation of procedures under the 1983 Act. The RMO can himself order discharge (section 23(2)) and the exercise of the section 23(4) power will only arise when discharge is not supported by the RMO. He has important functions under the Act including, for example under section 50. It is not in the least surprising that, in circumstances in which the members are laymen, may not be directors of the trust and whose expertise may be limited, a finding that the affirmative view of at least three of them is required to override the opinion of the RMO and authorise release.

(iii) Other sections of the Act impose a direct duty upon individuals to express an opinion. Sections 2(3), 3(3) and 37(2) all require affirmative views to be expressed by two registered medical practitioners. This is a context in which each of those party to a decision can be expected to have to concur in it. The requirement that at least three members should be prepared to authorise release is consistent with the level of safeguard which appears throughout the Act (see, for example, provisions as to second opinions in Part IV).

(iv) The decision of those appointed to conduct a review is not a once-for-all decision about detention. The code of practice contemplates successive reviews and the procedure as a whole contemplates only comparatively short periods of detention in hospital without review. A patient also has the right to have the decision of the managers reviewed by an MHRT. Safeguards for the patient are in place.

25. In my judgment it follows from the scheme of the Act, as well as the wording of section 23(4), that the reference to three is not only for the creation of a quorum. It is a requirement that each of three members shall support the order for discharge.
26. I accept that an anomaly may be created, on the judge's construction, if seven members are appointed. There may be three persons in favour of release as required by the statute but a majority against. It is unlikely that such a situation was contemplated by the draftsman, given the task to be performed, and I am satisfied that it does not arise in practice. I am not attracted by the submission of Mr Weisselberg, for the respondents, that the three votes for discharge being outnumbered by the four against it means that the will of the trust is against discharge. The individuals are appointed to discharge a duty and their authority to act is complete . I find somewhat more persuasive the submission that there should be implied into the subsection a requirement that the "three or more" shall not be a minority of those appointed.
27. Save to say that the potential, on the judge's construction, for this apparent anomaly far from persuades me that Mr Gledhill's construction is the correct one, I would not resolve this issue. It would not be sensible to appoint seven people to conduct a review and it is very unlikely that the situation would arise.
28. For the reasons I have given, I consider the detention following the decision of 8 October 2002 to have been lawful and I would dismiss the appeal and refuse the application for a writ of habeas corpus.

Lord Justice Laws:

29. I have found the correct answer in this appeal to be more elusive than has my Lord Pill LJ, whose judgment I have had the advantage of reading in draft, and whose account of the facts, the statutory material, and the relevant learning I gratefully adopt. At first I had difficulty in seeing that the presumption in favour of majority decision to which the common law gives rise (Grindley v Barker (1798) 1 Bos. & Pul. 875, 879) was displaced by the statutory language of the Mental Health Act 1983; and it seemed to me that the putative requirement that not less than three members must be satisfied if there was to be a discharge (compared with only one if there was to be no discharge) at least sat uncomfortably with the balance of private right and public interest which is a recurrent theme of the jurisprudence of the European Convention on Human Rights. However on reflection I am satisfied that the judge below was right. I am influenced in particular by the pivotal position of the RMO, and I agree with my Lord (paragraph 24(ii)) that it is unsurprising that in a case where he judges that the patient should remain detained not less than three appointees under s.23(4) must agree if the RMO is to be overruled. That seems to me entirely consonant with the statutory scheme of things.
30. As for the Convention, my Lord has noted (paragraph 20) that Mr Gledhill for the appellant accepts that the construction favoured by the judge involves no violation of Article 5, and that the requirements of Article 5.4 are met by the patient's right of access to the MHRT. That, I am clear, is right. It seems to me that the role of the RMO is relevant in this context also; the statutory steer which the judge's construction gives towards upholding the RMO's view is counterbalanced by the protection of the patient's interest in his liberty which is provided for by the MHRT. Thus read as a whole – and that is always important – the Act achieves, as regards the provisions relevant to this appeal, precisely the kind of balance so often emphasised in Strasbourg.
31. Lastly, as regards the supposed anomaly where seven members sit, I think it important to have in mind that discharge under the section is discharge by the managers – the trust (s.23(2)); if three members prevailed over four, that would not in my view constitute "an exercise of "[t]he powers conferred by this section…" (s.23(4)).
32. For these reasons, in addition to those given by my Lord, I too would dismiss this appeal.

Lady Justice Arden:

33. I agree with Pill and Laws LJJ that the judge was correct in concluding that under section 23(4) of the Mental Health Act 1983 the requirement for a minimum of three members to exercise the power of discharge was not a quorum requirement. If it were a quorum requirement, then, so the appellant's argument runs, it would be sufficient if only one member actually agreed to the exercise of this power. I reach the conclusion that section 23(4) does not constitute a quorum requirement as a matter of the ordinary meaning of section 23(4). The powers conferred by that provision must be "exercised" on behalf of the managers by three persons. This cannot be said to have been done if only one member actually wishes to exercise the power.
34. A further reason why in my judgment section 23(4) does not constitute a quorum requirement is that parliament has made separate provision for quorums at meetings of members of the trust or of any sub-committee. The starting point is section 5 of the National Health Service and Community Care Act 1990. Section 5(5) states that every NHS trust "shall be a body corporate having a board of directors consisting of a chairman appointed by the Secretary of State and … executive and non-executive directors …". Section 5(7) of the 1990 Act confers power on the Secretary of State by regulations to make general provision with respect to qualifications for appointments to the board of an NHS trust, the maximum and minimum numbers of directors, the proceedings of the trust and the appointment, constitution and exercise of function by committees and sub-committees of the trust. The Secretary of State has made regulations under section 5(7). The principal regulations are the National Health Service Trusts (Membership and Procedure) Regulations 1990 (SI 1990/2024). These regulations provide that the maximum number of directors of an approved Mental Health NHS Trust, excluding the chairman, and that no such trust shall have more than seven non-executive directors, excluding the chairman, or seven executive directors. So far as I can see, there is no provision for a minimum number of directors.
35. Schedule 1 to the regulations contains rules as to meetings and proceedings of the Trust and its committees. Paragraph 3(3) of that schedule provides that every question at a meeting should be determined by a majority of votes of the directors present and voting. Paragraph 3(5) provides for the quorum at meetings of an NHS trust: it provides that one third of the whole number of directors must be present including at least one executive director and one non-executive director. Regulation 19(3) provides that an NHS trust may make standing orders relating to the quorum, proceedings and place of meetings of a committee or sub-committee. Given that these regulations make provision for the quorum at meetings of the trust and its committees and sub-committees, it seems to me unlikely that that function is also fulfilled by section 23(4) of the 1983 Act.
36. It follows from my interpretation of section 23(4) of the 1983 Act that, where the panel consists of only three people, all three persons must be in favour of exercising the power of discharge. Where the panel consists of five people, three people will in fact constitute a majority. I agree that the circumstances requiring a panel of more than three must be very exceptional but statute does not exclude that possibility.
37. The question has arisen whether unanimity or a majority is required by section 23(4), so that if the number of persons on the panel is say seven or nine, there must be four or five persons respectively in favour of exercising power, or where three persons alone are sufficient. The latter answer has been termed an anomaly in submissions. On the resolution of this question, it is significant that Section 23(4) contemplates that possibility that the number of those approving the exercise of the power may be more than three: it uses the expression "three or more". The power in question is that of the managers: see section 23(2) and (4) and contrast sections 2(3), 3(3) and 37(2) of the 1983 Act. The panel must be authorised by the trust (section 23(4)). In my judgment, the answer to the question posed depends on the persons to whom the authority is given. The trust might set up a committee or sub-committee to exercise powers of discharge under section 23. If it does so, then the proceedings of that committee will, subject to section 23, be governed by the standing orders provided for in the Regulations. Usually such standing orders would provide for matters to be decided by a majority vote (which would be more than three members) but there is nothing in principle to stop the trust including in those standing orders a provision that when the committee or sub-committee is considering whether to exercise the power of discharge under section 23(4), such power may be exercised by any three members of the committee or sub-committee. In that event, if more than five members sat, the result would be that the power could be exercised on the vote of three even if the remainder of the panel constituting the majority were against its exercise. (Special provision should in any event be made in the standing orders to reflect section 23(5) but the provisions of that subsection would override the standing orders if no such special provision was made.) Alternatively, the trust might delegate the power of discharge to particular members of its own body. Under section 23(4) they would not constitute a committee or sub-committee of the trust. They would hold the authority as individual delegates of the managers but the rule in Grindley v Barker (1798) 1 Bos & Pul, 875, 879 would still apply. I do not consider that the context or language of section 23 is sufficient (where the panel consists of more than five members) to oust the general rule established by this case that where a number is exercising powers of public nature, it need not, in the absence of contrary provision, be unanimous and may act by a majority.
38. Thus, in my judgment, the answer to the "anomaly" (as its has been called in submissions) depends on the application of section 23(4) in the light of the constitutional arrangements of the trust invoked in the case of the exercise of the powers of discharge conferred by that section. Moreover, I do not consider that the constitutional arrangements which I have described in the preceding paragraph could be regarded as creating arbitrary barriers to release to detention contrary to article 5(1)(c) of the European Convention on Human Rights: provisions for quorum and simple majorities are the normal incidents of a corporate body and the requirement for the majority to consist of a minimum of three members is justified for the reasons given by Pill LJ.
39. Accordingly, I too would dismiss this appeal.
Order: appeal dismissed with costs; decision on application for permission to appeal to the House of Lords to be notified in writing.