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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Von Brandenburg, R (on the application of) v Tower Hamlets Heal Care NHS Trust & Snazell [2000] EWHC Admin 362 (26 June 2000)
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Cite as: [2000] EWHC Admin 362
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TOWER HAMLETS HEALTH CARE NHS TRUST and SNAZELL Ex Parte VON BRANDENBURG, R v. [2000] EWHC Admin 362 (26th June, 2000)
Case No: CO/1302/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 26th June 2000
THE HON MR JUSTICE BURTON
REGINA |
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TOWER
HAMLETS HEALTH |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
Richard Gordon QC and Paul Bowen(instructed by Scott-Moncrieff, Harbour & Sinclair for the Applicant Count Franz Von Brandenburg a.k.a. Nicholas Hanley)
Nigel Pleming QC and Kristina Stern (instructed by Le Brasseur J Tickle for Tower Hamlets Healthcare NHS Trust the First Respondent)
Stephen Knafler (instructed by Akin Alabi of the London Borough of Tower Hamlets' legal department for David Stuart Snazell the Second Respondent)
As Approved by the Court
Crown Copyright ©
MR JUSTICE BURTON:-
1. The Applicant, Count Franz Karl Wilhelm Von Brandenburg, otherwise known as Nicholas Brendan Hanley, brings this application by way of judicial review of the decision of the First Respondent, The Tower Hamlets Health Care NHS Trust as managers of the Royal London Hospital (St. Clements) to admit him to that hospital for treatment under Sections 3 and 6 of The Mental Health Act 1983 ("MHA") and of the decision of the Second Respondent, David Stuart Snazell, an Approved Social Worker (as so defined within Section 145(1) of MHA) to make an application for such admission. The application raises an important question as to the effect of a decision of a Mental Health Review Tribunal pursuant to Section 72 of MHA for (in this case) deferred discharge of a patient, namely the circumstances in which a further admission to hospital of that patient under MHA is lawful, whether before or after the expiry of the deferred period.
2. The Applicant was for some two years provided with accommodation at a Salvation Army Hostel in the Whitechapel Road, London, E.1. On 9th February 2000 the project manager at that hostel referred the Applicant to HHELP (Health and Social Care for Single Homeless People) and on 15th March there was, at the hostel, a mental health assessment of the Applicant by the Second Respondent and a Dr Oviasu; the Applicant was on that day admitted to St. Clements Hospital by emergency application under Section 4 of MHA (to the lawfulness of which there has been no challenge), on the recommendation of Dr Oviasu and the application of the Second Respondent. On the same day, as a result of a second medical recommendation, given by a Dr Bapna, the Section 4 admission was converted to an admission under Section 2 of MHA, being an admission for a period not exceeding 28 days for assessment (again there is no challenge to the lawfulness of this admission). On the 22nd March the Applicant applied for a tribunal hearing pursuant to Section 66(1)(a) of MHA which was fixed for 31st March. Reports were supplied for the Tribunal by a Dr Roy, the staff grade practitioner working with Dr Bhui, the Applicant's Responsible Medical Officer ("RMO"), and by the Second Respondent, and oral evidence was given by Dr Bhui, all advising against discharge.
3. The Tribunal ordered discharge of the Applicant, with effect from 7th April 2000, i.e. after a period of deferment of 7 days. Its reasons concluded as follows:-
"The Tribunal are satisfied that [there] may be evidence of mental illness, but do not believe that it is of a degree which justifies detention. Moreover, having heard [the Applicant's] own account of the episodes of alleged aggression, we do not consider that his own health or safety requires detention, nor do others need to be protected from him. In the light of our concern, however, that [the Applicant] may continue to suffer from a mental illness, it is appropriate for accommodation in the community to be found for him and a care plan be made including possible medication. The discharge has therefore been delayed to enable this to happen."
4. On 6th April 2000, the Applicant was further detained under Section 3 of MHA. This was based, as is statutorily required, upon two medical recommendations. That from Dr Bhui stated,in the relevant form (Form 11) dated 4th April 2000, as follows:-
"He is over-active, agitated, hostile, has delusional beliefs about conspiracy, Germans, Bengalis - feels persecuted, has a manic mental state, refusing medication, unable to consider treatment plan as he does not think he is ill. Has no insight, has refused medication, refuses any out patient contact - out patient care failed - has no insight into his illness."
5. The second medical recommendation, also in Form 11, dated 6th April 2000, was from Dr Bapna, and read as follows:-
"This man who is agitated, aggressive, with pressure of speech, and does not want to communicate with doctor and social worker. He has grandiose delusions and does not want to stay in hospital. He does not want any medication and is very uncooperative. He has no insight. This agitated, aggressive man who is uncooperative and denying for medication and to stay in hospital. He has no insight. He has no fixed abode. He has psychotic illness with previous history. He does need to stay in hospital for further assessment and treatment."
6. On the basis of those recommendations, the Second Respondent, as the Approved Social Worker, made the application and the Applicant was admitted.
The Statutory Provisions
7. The relevant provisions of MHA have been very helpfully summarised in an attachment to the skeleton argument of counsel for the First Respondent, Nigel Pleming Q.C and Kristina Stern. I am grateful to adopt it in substance for the purposes of this judgment:-
Admission for Assessment
8.(1) An individual can be admitted for assessment under MHA under
either Section 2 or Section 4. The grounds upon which an individual can be so
detained are those set out in Section 2:-
s.2(2)(a) The patient is suffering "from mental disorder in a nature or
degree which warrants the detention of the patient in a hospital for assessment
(or assessment followed by medical treatment) for at least a limited
period;" and
s.2(2)(b) The patient "ought to be so detained in the interests of his own
health or safety or with a view to the protection of other persons."
9.(2) Mental Disorder is defined in Section 1(2) of MHA as:-
"Mental illness, arrested or incomplete development of mind, psychopathic
disorder and any other disorder or disability of mind and "mentally disordered"
shall be construed accordingly."
10.(3) An application under Section 2 must be based upon the written
recommendations of two registered medical practitioners, including a statement
that the conditions set out above are made out (Section 2(3)). It is effective
for a period not exceeding 28 days, beginning with the date upon which the
patient was admitted. A patient shall not be detained after the expiration of
that period, unless before it had expired he has become liable to be detained
by virtue of a subsequent application, order or direction under MHA (Section
2(4)). This is subject to Section 29(4) which enables an extension of this
period under certain circumstances.
11.(4) In the case of a Section 4 admission, i.e. a detention of "urgent
necessity", the application for admission can be made by either an approved
social worker or by the nearest relative of the patient, and must include a
statement that:-
"It is of urgent necessity for the patient to be admitted and detained under
Section 2 above, and the compliance with the provisions of this Part of this
Act relating to applications under that section would involve undesirable
delay" (Section 4(2)).
12.(5) The Section 4 application procedure differs from that in Section 2 in
that:-
(5.1) it is sufficient if it is based upon only one medical recommendation
rather than two, however that medical recommendation must verify the statement
required by Section 4(2); and
(5.2) unless a second medical recommendation required by Section 2 is
received by the managers within 72 hours, the application ceases to have effect
after 72 hours.
Admission for Treatment
13.(6) Applications for compulsory admission for treatment are made
under Section 3 of MHA. The grounds for such an application are:-
"(a) He is suffering from mental illness, severe mental impairment,
psychopathic disorder or mental impairment and his mental disorder is of such 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 by this section." (Section 3(2)).
14.(7) An application under Section 3 must be founded upon written
recommendations in the prescribed form of two medical practitioners, including
a statement that the conditions in sub-section (2) are complied with and
particulars and reasons for the opinions (Section 3(3)).
15.(8) The following are relevant in respect of the written recommendations:
(8.1) if the written recommendations describe the patient as suffering from
more than one of the prescribed forms of mental disorder, the application is of
no effect "unless the patient is described in each of the recommendations as
suffering from the same form of mental disorder whether or not he is also
described in either of these recommendations as suffering from another
form". (Section 11(6)).
(8.2) the recommendations must be based upon a personal examination of the
patient, either together or separately and if the practitioners examined the
patient separately, not more than five days must have elapsed between the days
on which the separate examinations took place (Section 12(1)).
(8.3) one of the recommendations shall be by a practitioner approved by the
Secretary of State, and if that practitioner does not have previous
acquaintance with the patient, the other recommendation shall, if practicable,
be by a practitioner who has such previous acquaintance (Section 12(2)).
16.(9) Section 5(1) provides that there can be an application for the admission
of a patient to a hospital under this part of the Act, notwithstanding that he
is already an in-patient, subject to various provisos.
Formal requirements for applications for admission under ss.2, 3 and
4 .
17.(10) The formal requirement for applications under these Sections are set
out in Sections 11, 12 and 13. So far as relevant to this Application, they
are as follows:-
(10.1) The application may be made either by an approved social worker or by
the nearest relative of the patient (Section 11(1)), and must be addressed to
the managers of the hospital (Section 11(2)).
(10.2) Section 11(4) provides that the nearest relative should be consulted in
relation to an application for admission for treatment ("unless it appears
to the social worker that in the circumstances such consultation is not
reasonably practicable or would involve unreasonable delay"). The
application should not be made if the nearest relative objects. In this case
the Applicant has no such relative.
(10.3) An application must not be made by any person in respect of a patient
unless that person has personally seen the patient within the period of 14 days
ending with the date of the application (Section 11(5)).
(10.4) The approved social worker must interview the patient prior to making
an application for admission and "satisfy himself that detention in hospital
is in all the circumstances of the case the most appropriate way of providing
the care and medical treatment of which the patient stands in need"
(Section 13(2)).
The Social Worker's duty to make application for admission
18.(11) Section 13(1) provides that an approved social worker is under a
duty to make an application for admission to hospital in respect of a
patient within the area of the local social services authority by which he is
appointed "in any case where he is satisfied that such an application ought
to be made and is of the opinion, having regard to any wishes expressed by
relatives of the patient or any other relevant circumstances, that it is
necessary or proper for the application to be made by him".
Admission to Hospital
19(12) An application for the admission of a patient to hospital in accordance
with Section 2, 3 or 4 duly completed in accordance with MHA is sufficient
authority:-
(12.1) for an authorised person to take a patient and convey him to the
hospital within the specified period (Section 6(1)). If the patient is already
in the hospital he is treated as being admitted on the date when the
application is received by the managers (Section 5(1)).
(12.2) for the managers to detain the patient in the hospital in accordance
with the provisions of MHA (Section 6(2)).
20.(13) An application for such admission 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" (Section 6(3)).
21.(14) The effect of admission to hospital under those Sections is that
"any previous application under this Part of this Act by virtue of which he
was liable to be detained in a hospital ... shall cease to have effect"
(Section 6(4)).
Mental Health Review Tribunal
22.(15) A patient or his nearest relative is entitled to apply to such Tribunal
where he has been admitted for assessment (within 14 days: Section 66(2)(a)) or
for treatment (within 6 months: Section 66(2)(b)). In addition the Secretary
of State may refer the case of any patient who is liable to be detained to the
Tribunal (Section 67) and at the expiration of six months after admission the
hospital managers are obliged to refer a patient's case to the Tribunal where
the patient was admitted for treatment and has not exercised his right to apply
to the Tribunal and the Secretary of State has not referred the case to the
Tribunal (Section 68)(1)).
23.(16) The constitution and the procedure of the Tribunals are statutorily
regulated: its powers on an application to it are set out in Section 72 of MHA.
The Tribunal may in any case direct the discharge of a patient liable to
be detained (Section 72(1)) and (Section 72(1)(a)) shall direct the
discharge of a patient liable to be detained under Section 2 if they are
satisfied -
"(i) that he is not then suffering from mental disorder or from mental
disorder of a nature or degree which warrants his detention in a hospital for
assessment (or for assessment followed by a medical treatment) for at least a
limited period; or
(ii) that his detention as aforesaid is not justified in the interests of
his own health and safety or with a view to the protection of other
persons."
There are similar provisions in respect of direction of the discharge of a
patient liable to be detained under Section 3. By Section 72(3) a Tribunal may
direct a deferred discharge.
Ex Parte M
24. A decision on facts almost identical to this case (the only, immaterial,
distinction being that in that case there was a Section 2 detention, followed
by a discharge on a three day deferment pursuant to Section 72, and then a
Section 3 detention within those three days) was made by Laws J. (as he then
was) in R v. Managers of South Western Hospital ex parte M [1993] QB
683. The Respondents invite me to follow Laws J's decision. The Applicant,
for whom Richard Gordon QC and Paul Bowen appear, submit that I need not and
should not do so:-
(i) Mr Gordon submits that the decision in that case, that the admission
notwithstanding the prior discharge by the Tribunal, and without change of
circumstances, was not unlawful, was not its ratio decidendi. He points out
that the application in that case was for a writ of habeas corpus, and Laws J.
concluded that in any event (for reasons there appearing, which were
subsequently disapproved by the Court of Appeal in Re S-C [1996] QB 599,
as clarified in R v. Central London County Court ex parte London [1999]
3 WLR 1) habeas corpus did not run, such that his decision on the merits was
obiter (see 692H).
(ii) further or in the alternative Mr Gordon submits that I am not bound by the
judgment and for the reasons he gives I should not follow it.
25. It may be that strictly Laws J's decision is obiter, but it is quite clear
to me that he gave the fullest possible consideration to the point, which was
thoroughly and, no doubt competently (Mr Gordon himself being Counsel, though
for the opposing party, in that case), argued and, notwithstanding that his
first conclusion was that habeas corpus did not run, I have no doubt that Laws
J. was delivering a real decision in that case, whether or not it should be
strictly regarded as a second ratio. But in any event, as Mr Gordon rightly
points out, I am not bound to follow the decision, albeit that I would in any
event find a decision of any fellow judge in this Court persuasive, and
especially so where it is a judge with Laws J's enormous experience in this
field. Particularly in the light of the submissions of Mr Gordon that matters
have occurred subsequently to the decision of Laws J. which are said either to
falsify or render outdated his reasoning, and as I have had the benefit of the
fullest argument on behalf of the Applicant and the First Respondent, and
indeed in addition from Mr Stephen Knafler on behalf of the Second Respondent,
I have approached this case with an open mind, and with a preparedness to
depart from the decision of Laws J. if such be right, albeit that, as will
appear, inevitably the judgment and reasoning of Laws J. must inevitably be the
starting point, and are of great clarity and persuasiveness. It should be
stated that when the Court of Appeal in Re S-C differed from him in
relation to the point on habeas corpus, no doubt was cast (nor would it in any
event have been relevant for them to consider) on the substantive point which I
am now addressing; and no subsequent case has been reported, or, to the
knowledge of the five Counsel in this case, all very experienced practitioners
in this field, has arisen at all, which has even addressed, much less doubted,
Laws J's judgment (reference was made to it, without disapproval, by Mr David
Pannick QC in the course of his judgment on a different point in Re
Whitbread 5 January 1999 (Crown Office unreported)).
26. It is necessary for me to set out the relevant part of his judgment, in
which he reaches the conclusion that the existence of a Tribunal decision
ordering a deferred discharge of the patient pursuant to Section 72(3) does not
prevent a fresh admission pursuant to Section 3 (or in our case Section 2)
within the deferred period without any change of circumstance. The relevant
passage in 1993 QB 683 is between 693A and 696G:-
"Mr. Buchan pressed me with the submission, on the facts, that Dr. Lawrence,
in recommending detention under section 3, was in effect set in his view
irrespective of the opinion of the tribunal - indeed, he had made it clear to
the tribunal that his intention was to make a section 3 recommendation; that
there cannot have been any change of circumstances between the tribunal
decision and the making of that recommendation, not least since, as Mr Buchan
submitted, it was only on 16 December that the Applicant told Miss Stiller that
she was pretending to take her medication and hiding it under her tongue; and
further that the recommendation of Dr. Muller, the application itself made by
Miss Stiller, and the hospital managers' acceding to it, were all made with the
consequence that the decision of the tribunal was frustrated (though no bad
faith is suggested on the part of any of those involved).
This argument was refined in a number of ways. It was first said that there
was an abuse of the process of the court. I was referred to the decision of
the House of Lords in P. v. Liverpool Daily Post and Echo Newspapers
Plc. [1991] 2 A.C. 370 to the effect that the mental health review tribunal
is a "court" for the purposes of the law of contempt. It was submitted,
undoubtedly correctly as a matter of fact, that the constitution of the
tribunal is such as to render it an expert or specialist body. These points
were made in order to lend force to the proposition that the tribunal's
decisions are to be treated with respect; and I was reminded that the Act of
1983 created a shift in the balance of responsibility for detained mental
patients, so as to give greater power or authority to the tribunal than had
previously been the case.
Non of these considerations, however, in my judgment, can support a
submission that an abuse of the process of the court was perpetrated either by
the approval social worker's application or by the two doctors' recommendations
or by the managers acceding to the application. The fact is that none of these
stages in the statutory procedure involved any step whatever within court
proceedings. As I understand it, the very notion of abuse of the process
involves the fact, or the allegation, that a party has invoked court
procedures, in whatever capacity, and abused them: so it is if a party
manipulates court process in bad faith or for an illegitimate ulterior motive.
Nothing of the kind can possibly apply here. The argument based upon abuse of
the process is misconceived.
Mr Buchan's helpful skeleton argument contained, next, the suggestion that
the section 3 process undertaken in this case was illegitimate because the
issue with which it purported to deal was res judicata. That submission was
rightly abandoned by Mr Buchan, and I need not deal with it further.
It was next said that some form of issue estoppel ran in order to prevent
the section 3 application from being pursued, or, more strictly, to prevent the
decision to detain under section 3 from being made. In my judgment this is
equally misconceived. Even if there were scope for the operation of the
doctrine of issue estoppel in public law - which I conceive there is not, given
the decision of the Divisional Court in Reg. v. Secretary of State for the
Environment, Ex parte Hackney London Borough Council [1983] 1 W.L.R. 524,
save perhaps for the very limited circumstances in which that doctrine may run
in relation to planning decisions in enforcement cases - it is wide of the mark
here: by definition, issue estoppel may only have application in a second set
of proceedings where an issue is said to have been conclusively decided in an
earliest of proceedings. Here, there is no second set of proceedings.
In my judgment, this principal argument canvassed by Mr Buchan must in the
end depend upon the proposition that on the true construction of the Act the
hospital managers have not the power to order or direct a detention under
section 3 if a tribunal has recently decided that the patient be discharged
(whatever the basis of the patient's original detention) and there has been no
change of circumstances since that decision. So regarded, the question becomes
one of pure statutory construction.
Mr. Gordon, for the hospital managers and Dr. Lawrence, submits that the
statute cannot be construed so as to produce such a consequence, not least
since section 13, whose relevant parts I have read, imposes a duty on an
approved social worker to make a section 3 application in the circumstances
which that section specifies; the duty is not abrogated, or qualified, in a
case where there has been a recent tribunal decision directing discharge; if it
were to be abrogated or qualified, section 13 would say so. That being the
case, the hospital managers must be obliged to consider on its merits an
application made by the approval social worker in pursuance of his or her duty,
and the existence of a recent tribunal decision can no more fetter this
obligation than it can the social worker's own express duty under section 13.
It is true (see section 13(5)) that there may be cases in which a section 3
application is made by the discretion, not pursuant to the duty, of the social
worker, but in such a case the social worker's discretion cannot be any more
fettered than can be the performance of his duty where that arises.
These submissions seem to me to be correct. Further, if the intention of the
legislature was as Mr. Buchan suggests, one would expect a clear qualification
to have been imposed within the terms of section 3, or more likely section 6,
on the discretion to admit a patient to hospital pursuant to a section 3
application. Or there might be a provision in section 13, analogous to section
13(5), to show that no application is to be made, even where otherwise it would
be the approved social worker's duty to make it, where its being granted would
conflict with an extant tribunal decision. There are no such provisions in any
of these sections. The statute is careful to specify a rigorous procedure for
the protection of the individual who may be liable to compulsory admission -
not least, the requirement that there be two written medical
recommendations.
I do not think that it can sensibly be suggested that if the intention were
that a patient be not exposed to section 3 where there existed a recent
tribunal decision to discharge and no change of circumstances, that would not
be as clear and express on the fact of the statute as are the other protections
which it affords.
I also consider that Mr. Buchan's submissions would require me to hold that
the legality of a section 3 detention may depend upon criteria which are
subjective and elastic. In his initial skeleton argument he submitted that
some period of time must be allowed to elapse after the tribunal decision, at
least while there is no significant change in the patient's condition and
circumstances, before the full force of section 3 is permitted to have effect.
His skeleton asserted:
`the length of the period will depend upon the individual circumstances of
each case. This an be left to the discretion of the individual doctors and
hospitals concerned, subject to review. There must, however, be a significant
change in the condition or circumstances of the patient before a further
application can be made.'
I cannot think that this is right. Honest and responsible doctors and other
experts will differ upon such questions as the significance of any apparent
change in a patient's condition - even when there has been a change; to make
the legality of a detention depend upon issues of that sort would be to abandon
any claim in this area to a reasonable degree of legal certainty and would,
likely as not, put the experts involved in individual cases in an invidious if
not impossible position. More specifically, there is nothing whatever that I
can find in the statute to suggest that such a state of affairs was an intended
function or aspect of the regime of interlocking controls which the Act
contains.
I was referred to Reg. v Secretary of State for the Home Department, Ex
parte K. [1990] 1 W.L..R. 168 (at first instance) and [1991] Q.B. 270 (in
the Court of Appeal). That case was concerned with a restricted patient who
enjoyed the benefit of an order for conditional discharge made by the tribunal
under section 73(2), which I have not read, but who was recalled by the
Secretary of State exercising his powers under section 42(3). I need not, I
think, go into the detail.
In the course of his judgment at first instance McCullough J. dealt with
a submission for the Applicant put in the form of a forensic question: could it
be lawful for the Secretary of State, a week after a patient has been released
from hospital on conditional discharge by a tribunal, to exercise his power of
recall under section 42(3) in the absence of some fresh development? The judge
said [1990] 1 W.L.R. 168, 181C that the answer was "plainly not." He said, at
p. 182:
"I accept it would be unlawful for the Secretary of State to recall a
restricted patient to hospital when only the previous week or month he had been
conditionally discharged from hospital by direction of a tribunal, unless
meanwhile something has happened which justified the belief that a different
view might now be taken about one of the factors on which his release had
depended."
These observations were not repeated or approved (nor, be it said, disapproved)
in the Court of Appeal, the burden of whose decision was that the purposes of
the relevant part of the statute enabled or required the Secretary o State to
have regard to public safety, and his decision could not be categorised on the
facts as irrational.
I have not read section 42(3)(i); I need only say that (read with section
73(4)) it empowers the Secretary of State to recall to hospital a patient who
has been conditionally discharged by the tribunal under section 73(2) and that
section 73 confers particular functions upon the tribunal in relation to
patients subject to restriction orders under section 41.
There is a plain nexus between the Secretary of State's power under section
42(3) and the tribunal's function under section 73(2); and it may be - I
express no conclusion on the point, which does not arise for decision in the
case - that the legality of an order for recall under section 42(3) depends
upon the Secretary of State's having had regard to the basis of the earlier
tribunal decision so as to avoid any frank inconsistency with it.
However that my be, in my judgment no such reasoning can apply to the
relationship between the section 3 regime and the tribunal's functions under
sections 66 and 72(1). There is no cross-reference between them; and, as I
have indicated, I can see no basis for construing the statute so as to produce
the result that the duty and discretion of the approved social worker to make
the section 3 application, and the function of the managers in considering it,
are to any extent impliedly limited or abrogated by the existence of an earlier
tribunal to discharge under section 72. Theoretically, this may produce an
impasse: the tribunal directs a discharge; the patient is returned to or
retained in hospital under section 3; there is a further application to the
tribunal, which directs a further discharge; there follows a yet further
successful application under section 3; and so on.
In realty this is highly unlikely to happen, given good faith on all hands and
the procedures and safeguards which colour the section 3 process. As Mr Gordon
submitted, the social worker must always conduct a personal interview before
making a section 3 application; there must always be two separate medical
recommendations; and there has to be a decision by the managers pursuant to
section 6. Elementarily, the public law safeguards enshrined in Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223
and Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 apply to all exercises of administrative power by the bodies I have
mentioned. In any event there is no such impasse here.
Mr. Buchan also relied on Reg. v. Nottingham Justices, Ex parte Davies
[1981] Q.B. 38 to support the contention that at least there must be a change
of circumstances if a section 3 detention is to override a recent tribunal
direction to discharge. That case was concerned with the court's approach to
multiple bail applications. I do not think it is of any perceptible assistance
to me.
I would therefore hold that there is no sense in which those concerned in a
section 3 application are at any stage bound by an earlier tribunal decision.
The doctors, social worker, and managers must, under the statute, exercise
their independent judgment, whether or not there is an extant tribunal decision
relating to the patient. They will no doubt wish to have regard to any such
decision, where they know of it, in order to ensure that they have the maximum
information about the facts of the case. But in my judgment, it cannot confine
or restrict their own exercise of the functions which the Act confers on
them."
27. Mr Gordon, now for the Applicant in this case, submits that this conclusion
is wrong, and that it is necessary, before there can be a further admission
under MHA of a patient previously discharged by a tribunal, for there to be
shown to be a change of circumstance as between the date of the tribunal's
decision (he originally said the date of the discharge, but he accepted that
this ignored the possibility of change during the deferred period, which he
allowed would be relevant) and the date of the subsequent assessment by the
doctors and the social worker for the purposes of a further admission. In
short, his submissions as to why Laws J is wrong and/or should be departed from
are as follows:-
(i) The Mental Health Review Tribunal has been set up as a court and/or as an
essential safeguard for the patient, for the purposes of Article 5(4) of the
European Convention of Human Rights (see X v United Kingdom [1981] 4
EHRR 188 and Pickering v Liverpool Post [1991] 2 AC 370 at 381, 417).
Albeit that there was a submission of abuse of process before Laws J, and that
the Liverpool Daily Post case was cited, Mr Gordon submits that there
was no or inadequate attention paid to the importance of the Tribunal, and to
not derogating from or undermining, or "thwarting", it, at any rate by
reference to interference with Human Rights where great care is required (R.
v. Lord Saville Ex parte A [1999] 4 AER 860). He submits that the Tribunal
is rendered toothless if it can be so thwarted, and that the possibility of a
further application to the Tribunal, and a fortiori of the kind of impasse
referred to by Laws J at 696C, is of no comfort, and the anticipated "good
faith on all hands" no answer.
(ii) Mr Gordon submits that it was an important part of Laws J's reasoning that
there was, as he put it at 696b, no "cross reference" between "the
section 3 regime and the tribunal's functions under section 66 and 72(1)"
so that he saw "no basis for construing the statute so as to produce the
result that the duty and discretion of the approved social worker to make the
section 3 application, and the function of the managers in considering it, are
to any extent impliedly admitted or abrogated by the existence of an earlier
tribunal decision to discharge under section 72." Mr Gordon submits that,
if this proposition was ever right, it has now been made wrong by the
conclusions of the House of Lords in Reid v. Secretary of State for
Scotland [1999] 2 WLR 28 (HL), as clarified and further applied in a recent
unreported decision of Latham J, R v London South and Southwest Region
Mental Health Review Tribunal Ex Parte Moyle (Crown Office 21 December
1999). Mr Gordon submits that in particular from the speech of Lord Hope at
40H-41B it is plain that, at least for the purposes of the questions being
considered here, the provisions of section 3 and section 72 are "mirror image",
so that on the basis that an Applicant can be discharged if he is not liable to
be detained, so if he is able to be discharged he is not liable to be detained.
Lord Hope is addressing the provisions of the Scottish Act, which are in all
material respects identical to MHA when he there states
"The issues ........... in considering an application for discharge ... are the
same as those which have to be considered when an application is made .. for
admission. The language is different because in the case of an application to
a hospital it must be shown positively that all the relevant conditions are
satisfied. An application for discharge requires that these issues be
addressed negatively, because it will be enough that one of relevant conditions
for admission to a hospital is not satisfied. But there is a sufficient link
between the language of the two sub-sections to show that the conditions are
the same."
Mr Gordon's submission that the "criteria for discharge are meant to be
matching or mirror images of the admission criteria" was accepted by Latham J
in Moyle (transcript page 17).
(iii) The requirement for a change of circumstance, rejected by Laws J, has, Mr
Gordon submits, been fortified by subsequent authorities. As has been seen
from my citation of Laws J's judgment, he was not persuaded by reference to the
dictum of McCullough J in R v Secretary of State for the Home Department Ex
Parte K [1990] 1 WLR 168, at 182. It is a passage which in any event
refers, as Mr Knafler has pointed out, to a concept somewhat more nebulous than
"change of circumstance", namely "something ... happened which justified the
belief that a different view might now be taken about one of the factors". Mr
Gordon points to the adoption by Lightman J in R v Secretary of State for
the Home Department Ex Parte Harry [1998] 1 WLR 1737 at 1744-5, in relation
to a similar, but not identical, question under MHA, of propositions of the
Court of Appeal per Simon Brown LJ in the immigration field, in R v
Secretary of State for the Home Department Ex Parte Danaei [1988] IAR 84 at
92. The Court of Appeal there accepted that the Secretary of State could "only
reach a different factual conclusion from the Adjudicator", in subsequent
consideration of the position of an applicant for immigration, in limited
circumstances, the relevant area for our purposes being that "fresh material
has since become available to the Secretary of State such as could have
realistically affected the adjudicator's finding". Mr Gordon submits that this
is further support for the proposition that the doctors and social worker and
hospital managers cannot reach a different conclusion from that of an earlier
Tribunal without such "fresh material". Thus, submits Mr Gordon, such
obligation, i.e. not to differ from an earlier Tribunal decision without change
of circumstance, governs successively the subsequent recommendation of the
doctors under Section 2 or 3, and of the authorised social worker under Section
13, and then the decision of the hospital managers under Section 6.
28. The First Respondent supports the conclusions and the reasoning of Laws
J.
(i) Mr Pleming accepts that, so far as the medical recommendations are
concerned, reasons must be given pursuant to statute, e.g. as set out in
Section 3(3) and he accepts that where there is an earlier Tribunal decision
which is known about, that may, whether with or without change of circumstance,
if there be any, form part of the context or background or logic of the
rationality of any subsequent decision. But the requirement for identification
of a change of circumstances creates difficulty particularly where the
Tribunal's "snapshot", as Mr Pleming described it, i.e. its assessment of a
patient as at the date of the hearing, provided, as here, for a period of
deferment before discharge.
(ii) The MHA is submitted to be a complete statutory code, expressly including
several restrictions on admission under Section 3 (e.g. Section 11(4) and
Section 5(6)), but not including as an obstruction or limitation the
circumstance of there being a prior tribunal decision to discharge.
(iii) where the application is made by an approved social worker (and Mr
Pleming points out that it can be made by a nearest relative), there are not
only the substantive and procedural requirements by reference to which his
professional judgment must be exercised, but, where the social worker forms the
view that the criteria are satisfied, he is under a duty by Section 13(1) to
make an application for admission, and the hospital manager is then entitled to
admit, once an application for the admission of a patient to hospital duly
completed in accordance with the provisions of the Act is made to him.
29. Mr Knafler for the Second Respondent similarly supports the reasoning and
conclusions of Laws J. and in addition submits:-
(i) that the protection for the patient is that the social worker cannot act in
bad faith or arbitrarily, and would be doing so if, when he made his
application, he believed that the tribunal would direct that the patient be
discharged.
(ii) his obligation must be clear and comprehensible, such that if he complies
with his obligation under Section 13 he cannot be acting unlawfully. Once
there is injected the "subjective and elastic" question of change of
circumstances, his position is radically affected. Mr Knafler submits that the
requirement that there be a change of circumstances would be both too vague and
too narrow from the perspective of the approved social worker; vague, because
it is not clear what in this context a change of circumstances is, or what
change is to be relevant (Mr Gordon submits in his skeleton that the change of
circumstances must relate to all the discharge criteria in Section 72, not
simply to one of them) and it is quite unclear who is to be the judge of
whether there has in fact been a change: narrow, because there might be other
circumstances in which, notwithstanding the tribunal's decision, the social
worker might bona fide and rationally make a further application.
(iii) Mr Knafler submits that the Applicant's case depends upon reading words
of limitation on circumstances of admission into the statute, beyond the
ordinary principles of statutory construction recently discussed in
Ropaigealach v. Barclays Bank Plc [1999] 4 AER 235(CA) and
Inco Europe Ltd v First Choice Distribution (a firm) [2000] 2 AER
109(HL).
The Other Issues
30. The Applicant submits that if, as he contends, Ex parte M should not
be followed, and there is a requirement for a change of circumstances:-
(i) on the facts of this case, there was no change of circumstances:
(ii) even if there was any such change (a) it has to have been identified at
the time, and it was not (b) its identification has to have been recorded at
the time as part of the reasons then given, and it was not.
Issue is fully joined by both the First and Second Respondents in relation to
these further questions, both as a matter of submission and also as a matter of
evidence, and if it should be necessary they would rely on affidavits and
witness statements and contemporaneous records to establish that there was a
change of circumstance and/or that they concluded there to be so. Indeed it
became clear in the course of argument that in the light of the degree of
challenge to, and in, the affidavits and statements served, there would have to
be consideration of, and very likely an order for, cross-examination. By
virtue of the expiry of the period originally allowed for the hearing of this
application, coupled with the likelihood that an adjournment for
cross-examination would be needed on these additional factual issues, the
parties agreed that I should resolve first the major question as to whether
there was a requirement for a change of circumstance, on the basis that if
Ex parte M is good law, and there is no such requirement, then the
application would fall, and if I found on this first issue in favour of the
Applicant, then there could be further directions for a speedy resolution of
the outstanding issues.
Is there a need for a change of circumstance?
31. After very careful consideration of the submissions of all three parties, I
am satisfied that I prefer, uphold and would follow the reasoning and
conclusion of Laws J, and prefer the submissions of the Respondents, for the
following reasons, which have emerged and become the more clear in the course
of argument.
32.(1) First, the question as to whether the grounds under Sections 2 and 3 of
MHA exist must fall to be assessed as at the date of the medical
recommendations and the application, and not at the date of the Tribunal's
decision. There is no provision in Section 72 (as there is in Section 73,
which deals with the discharge of restricted patients) for conditional
discharge, in which case the question can, and must inevitably, be considered
after the dates of the decision whether any conditions are, or are capable of
being, satisfied (see R. v. Ealing District Health Authority Ex parte
Fox [1993] 3 AER 170, R. v. Mental Health Review Tribunal Ex parte
Hall [1999] 3 AER 132 and my own recent decision in R. v. Camden &
Islington Health Authority Ex parte K (Crown Office 9 June 2000
unreported). But release may be deferred, as it was here, pursuant to Section
72(3), and particularly during that period of deferment it may well be
appropriate, as here and as in Ex parte M, for a medical and/or social
worker's assessment to be carried out on a day-to-day basis. Whereas a
Tribunal has no power to reconsider its decision, even during a deferred period
(R. v. Oxford Regional Mental Health Tribunal Ex parte Secretary of State
for the Home Department [1988] AC 120), the doctors and social workers are
in a position to do so.
33.(2) Secondly, in my judgment where, as here, bias is not (or at any rate not
any longer) pursued, there is no question of a "thwarting" of a decision of a
Tribunal, but rather of the exercise by the professionals of their professional
judgment - and a fortiori so if Ex parte M is correct, for this is what
will have been expected, even by the Tribunal, which would indeed rely on that
continuing supervision and expert open eye on the part of the relevant
professionals. I refer to my conclusion in Ex parte K (transcript para.
22), in which, although in the different circumstances of a conditional
discharge pursuant to Section 73, I took the view that the doctors were
entitled, and indeed obliged, to exercise their own professional judgment, and
were in no way estopped or barred by an earlier Tribunal's decision from
exercising such professional judgment. In any event of course the subsequent
decision and recommendation may be taken by an entirely different doctor and/or
social worker from those who were involved in the earlier Tribunal, such that
no question of thwarting, or even persisting in a prior opinion despite, such
earlier decision would arise, and the application may not be by the same social
worker, or even by any social worker but rather by a nearest relative. In my
judgment the context of the doctors and the social worker approaching their
respective obligations under Sections 2, 3 and 13 is very different from that
of the Secretary of State in exercising a discretion, as he was in Ex parte
K. There then appears to me to be nothing new in the cases of
Danaei and Harry. The professionals are bound to comply with
statutory criteria: the Secretary of State has a broad discretion to exercise.
The Secretary of State must, for example in approaching an immigration
question, have some good reason when making a factual conclusion for differing
from a previous factual conclusion of an adjudicator: but the professionals are
applying their own professional judgment in their giving of an opinion as to a
condition at the time of assessing the patient. Judge LJ puts the position
clearly in St George's Health Care NHS Trust v. S [1998] 3 AER 673 CA at
694H-695B:-
"Under s.13(1) of the Act it is the duty not of the doctors, but of an
approved social worker, to make an application under s.2, where satisfied `that
such an application ought to be made and ... of the opinion ... that it is
necessary or proper for the application to be made.' Moreover the social
worker must be satisfied that `detention in a hospital is in all the
circumstances of the case the most appropriate way of providing the care and
medical treatment of which the patient stands in need' (see s.13(2)). These
provisions make clear that the social worker must exercise her own independent
judgment on the basis of all the available material, including her interview
and assessment of the "patient", and personally make the appropriate decision.
When doing so she is required to take account of the recommendations made by
the medical practitioners. Indeed the application must be "founded" on their
recommendations s.2(3)). The doctors too are required to make their
recommendations on the basis of their best judgment of the relevant facts and,
while eschewing the prohibited reasoning, decide whether the conditions
provided in s.2(2) are satisfied. An application made for an improper or
collateral purpose ... or flawed in the Wednesbury sense ... would be
susceptible to judicial review; so would similarly tainted recommendations by
the medical practitioners."
34.(3) Thirdly, I turn to the two major grounds put forward for the need for
change of circumstances by Mr Gordon, by way of differentiation from, or
supercession of, Ex parte M.
(i) The first is the submission that Sections 72 (discharge) and Sections 2/3
(admission) do indeed match or mirror each other contrary to the apparent view
of Laws J. at 696B-C, and I have referred above to Reid and Moyle
upon which Mr Gordon relies.
But the first answer seems to me to be that the criteria may mirror or
match each other but that does not necessarily mean that the decisions
must mirror or match each other. The decision of the professionals must be
justified at the date when it is given, which is wholly unlikely to be on the
same day. The decision of the professionals must not be irrational, as above
pointed out, and the doctors indeed must give reasons pursuant to statute for
their recommendation, knowing that they will and can be reconsidered at the
next Tribunal, which Tribunal will not be bound by their recommendations, any
more than it will be bound by the decision of a previous Tribunal. The
sanction upon the professionals is not only judicial review, as pointed out by
Judge LJ, but also liability for damages under Section 139 of MHA if they act
"in bad faith or without reasonable care" (s.139(1)). Mr Gordon points
to the case of R. v. Pathfinder NHS Trust Ex parte Wey, a decision of
Kay J. (Crown Office 12 July 1999 unreported) in which (apparently without
citation of Ex parte M, if and insofar as it is to be suggested that Wey
is relevant to a contention that Ex parte M is wrong) Kay J. held that where a
Tribunal had on 20th January 1998 classified the Applicant's
condition, notwithstanding a doctor's evidence, that doctor was not entitled
without change of circumstance ten days later to reclassify the condition
pursuant to Section 16 of MHA. Kay J's conclusion was that where a doctor
disagreed with the conclusion of a Tribunal as to the classification of the
patient's condition, he cannot simply reclassify the patient as suffering from
a different form of mental disorder, without some change in circumstances of a
significant kind (transcript page 6). In my judgment this is a quite different
question, where indeed the doctor may be, as Kay J. put it, simply
"[overruling] the views of the review Tribunal with which he disagreed". As to
the admission and discharge criteria, whereas they may match or be a mirror
image, they are not static, and the "snapshot", as Mr Pleming put it, that will
be taken by a Tribunal on the day of the hearing will not, or may not,
necessarily be the same as the snapshot for the purpose of a subsequent
assessment, whether by the same or different professionals.
Further in any event, as became clear in the course of argument, there will
be circumstances in which the admission and discharge criteria are not
mirror images and do not match. By virtue of Section 72, not only does a
Tribunal have the obligation to direct the discharge of a patient if it
concludes that the relevant criteria for discharge are satisfied, but it
"may in any case direct that the patient be discharged". This seems to
me to introduce an entirely different and complicating factor into Mr Gordon's
submissions, and one which was seemingly not considered by, but fortifies the
conclusion of, Laws J. On the one hand it can be said that professionals who,
after a Tribunal hearing which, on the discretionary basis, ordered discharge
of a patient notwithstanding that the criteria for discharge were not
satisfied, now carry out an assessment and, on the basis of their satisfaction
that the criteria for admission are satisfied, readmit, are "thwarting" the
decision of the Tribunal, nevertheless the test in that case cannot possibly be
one of change of circumstance. The professionals must exercise their judgment
(in good faith and subject to liability under Section 139) as they see it in
accordance with Sections 2/3 at the date of assessment, and one thing that is
clear about the statutory criteria is that what they do not have to
consider in such a case is whether, given that the admission criteria are
satisfied, and that the Tribunal did not conclude that the discharge
criteria were satisfied but nevertheless discharged the patient, there has been
some change in circumstance sufficient to justify differing from such earlier
discretionary decision by the Tribunal. This seems to me to emphasise
that the professionals must carry out their duty in accordance with the statute
at the date of their assessment, without complicating factors, and certainly
although it may well be that, particularly if they are the same professionals
as were involved in the earlier hearing, they will bear in mind the background
history, as the Code of Practice under Section 118 of MHA at paragraph 2.5
would indicate they should do, they cannot be in the business of looking over
their shoulder at the previous Tribunal. Indeed, there may be a real situation
of urgency, when, irrespective of whether they know about the earlier Tribunal
(which they may not), an urgent assessment of what the patient's condition is
at the time must be carried out. Mr Gordon suggested that the answer could
then be an emergency admission under Section 4, which does not require the same
kind of giving of reasons (see Section 4(2) and (3)). But of course the giving
of reasons is not the point. On Mr Gordon's case, even if the professionals
are to be excused from giving reasons, they must have as part of their
reasons the professional conclusion that there has been a change of
circumstance, and thus this would apply even in an emergency situation. If
there is a requirement for change of circumstance from a previous decision to
be read into the statute, as Mr Gordon submits, then it must be clear, and
cannot itself be incapable of definition, or subject to unspecified or
unparticularised exceptions. The fact that there would or could or should be
no call for consideration of change of circumstances either where the earlier
Tribunal decision is a discretionary discharge, or where the instant
professional assessment is required to be done as a matter of urgency, both
undermines the justification for the case for change of circumstance, and in
any event, as I have pointed out, undermines or minimises or renders irrelevant
the argument about matching and mirror image.
(ii) The other basis upon which Mr Gordon submits that change of circumstance
is necessary, and that Laws J's conclusions should not now be accepted or have
been overtaken, relates to the suggested lack of safeguards for the patient.
This was in fact fully considered by Laws J, when he referred to the
theoretical possibility of an impasse (696C-E). The Human Rights Act is not
yet implemented, but, in these months that lead up to its implementation, far
greater attention is being paid to the European Convention of Human Rights
perhaps than was the case in 1993, experienced in that field as Laws J. was.
Mr Gordon refers to the description by Kay J. of a tribunal which can simply be
overruled by a doctor's reclassification under Section 16 in Wey as
being toothless. I am however, wholly unpersuaded that Laws J. was wrong and
by Mr Gordon's submissions. There are at least three very important safeguards
for the patient, which in no way renders him remediless and without protection
in a human rights context.
First, he has the protection that for there to be a further admission under
Sections 2 and/or 3 (or even, though it is temporally more limited, under
Section 4) there is required to be independent professional judgment applied.
So far as the word "independent" is concerned, this of course primarily refers
to the necessity for good faith professional opinion, but even if a doctor who
has been responsible for the patient's treatment might himself be regarded as
in some way other than independent, there is the necessary provision for a
second medical practitioner, and either the approved social worker or the
nearest relative, and all the professionals, quite apart from their own ethical
guidelines, are subject to suit pursuant to Section 139.
Secondly, there is the right of the patient immediately thereafter to seek a
further Tribunal hearing (and it is noteworthy that in this case the
Applicant's first Tribunal hearing took place within 16 days of his admission).
Professionals will thus have to justify themselves, and do so in the light of
the previous Tribunal decision, before a further Tribunal hearing, which
Tribunal will have the power itself to allow or adduce further independent
medical evidence.
Thirdly and most importantly, although there is what Laws J. called the
theoretical possibility of an impasse, the sanction and the protection for the
patient is of course the availability of judicial review, not only of the
decisions of the professionals (as pointed out by Judge LJ above) but also in
respect of any irrational decision of a subsequent Tribunal.
35.(4) Lastly, I come to the difficulties that would be created by a
requirement for change of circumstances. Of course this must only be one of
the factors, and if the patient were left without protection, as I am satisfied
he is not, then these considerations would become less material, but they are
nevertheless significant as adding to all the other reasons set out above to
emphasise the importance that the statutory procedure, and the facilitation of
the proper exercise of the professional obligations which make it work, must
not be put at risk:-
(a) It would introduce the concept of "change of circumstances", which does not
appear in the statute, and which would have to apply as much to the nearest
relative as to the approved social worker and doctors and hospital managers.
(b) There are, as both Mr Pleming and Mr Knafler have pointed out, considerable
uncertainties as to the definition and ambit of such a concept; Laws J.
referred to this at 694H. Quite apart from the practical problems canvassed by
Mr Knafler, on behalf of the Second Respondent but, implicitly, all similar
social workers, one has only to refer to the Applicant's own submissions in
paragraph 23 of the initial skeleton argument. Consistent with the Applicant's
assertion that what the professionals would be doing would not be exercising
their own judgment afresh on assessment but "[refusing] to comply with
conditions of discharge" paragraph 23 reads:-
"It is accepted that certain changes of circumstances will justify a
refusal to comply ... the change of circumstances must relate to
all the discharge criteria, not simply one of them. If, as
in this case, the Tribunal were satisfied that both the `appropriateness' and
`safety' criteria for discharge were fulfilled, there must be a change of
circumstances in relation to both those criteria to justify a subsequent
readmission, bearing in mind the patient need only establish one of those
criteria to secure his discharge in the first place".
(c) The question arises as to who is to adjudicate on the existence or
non-existence of a change of circumstances. Just as the statute requires the
professionals only to be assessing as at the date of assessment, so the
Tribunal's obligation is only to reach a conclusion as at the date of the
hearing. Presumably this would lead to a proliferation of judicial review
applications to assess the question of change of circumstance.
(d) The professionals carrying out the assessment may not have any or any
sufficient knowledge to enable them to reach a conclusion on change of
circumstance. I have already referred to the Code of Practice introduced under
Section 118 of MHA "for the guidance of registered medical practitioners,
managers ... and approved social workers", and paragraph 2.5 provides as
part of that guidance that "all those assessing for possible admission under
the Act should ensure that ... they take all relevant factors into
account". Laws LJ at 696G made it clear that the professionals, while
exercising their independent judgment, whether or not there is an extant
Tribunal decision relating to the patient will "wish to have regard to any
such decision, where they know of it, in order to ensure that they have the
maximum information about the facts of the case," but he, as I, concluded
that such could not confine or restrict their own exercise of the functions
which the Act confers on them. The professionals may not be the same doctors
or social workers or hospital managers as were previously involved, they may
not even know of the Tribunal decision, or if they know of it they may not know
the basis upon which any Tribunal decision was given.
(e) As Mr Knafler canvassed, change of circumstances may not in any event be a
helpful concept (and as I have pointed out is not identical with the form of
words used by McCullough J. in Ex parte K). There was canvassed in
argument before me as to whether, if a particular form of behaviour or
expression was said by doctors to be present or typical or occasional on the
part of the patient, and yet this was not apparent to the Tribunal at the
hearing or in any examination prior to the hearing, which then discharged the
patient, it would be sufficient if that behaviour or expression then, exactly
as advised and forecast by the professionals but discounted by the Tribunal,
occurred on the following day (and this assumes that the reasoning of the
Tribunal was patent). Would "told you so" be a sufficient change of
circumstance? A better answer is it seems to me, as it seemed to Laws J, that
the question must always be whether the statutory criteria are satisfied on the
day of the assessment, in the bona fide and non-negligent opinion of those in
whom the statutory procedure is vested. I have already referred to the
particular problem of a change of circumstance in the case of a discretionary
discharge or in the case of urgency.
(f) Mr Gordon suggested that the way for the professionals to stick to their
guns or to challenge the decision of the Tribunal to discharge, as he would
describe it, is for the hospital authority to challenge what it regarded as an
unreasonable decision to discharge by a Tribunal by way of judicial review. It
seems to me to be an unsatisfactory and indeed unworkable proposition. If the
professionals form the view that the patient has been wrongly discharged then
if there is some period of deferment of that discharge it may be possible for a
health authority to issue judicial review and seek injunctive relief to prevent
discharge: if however there is no deferment, or too short a period to allow for
that course, then I agree with Mr Pleming that it would seem unlikely that the
Court would, on the basis of a challenge to a discharge of a patient who had
now been released, be prepared to assume (even if it otherwise had)
jurisdiction to make an order for the return of that patient to detention (not
to speak of detention and treatment): nor would the Secretary of State have
power pursuant to Section 67 of MHA to refer such a discharged patient back to
a Tribunal, because he would no longer be "liable to be detained". The
right course must plainly be that if professionals, whether the same or other
professionals, consider that the patient should be admitted, notwithstanding
the earlier discharge by the Tribunal, then provided the statutory criteria can
be satisfied, an order under Sections 2, 3 or 4 can and should be made.
36. This application for judicial review has been directed only against the
First Respondent, effectively the hospital managers, and the Second Respondent
social worker, and the doctors have not been joined as parties. But, as did
Laws J, I have, with the benefit of submissions from Counsel, considered the
position of them all. Nevertheless the primary decision must relate to those
Respondents who have been joined. The submissions which Mr Gordon made, in his
then capacity as Counsel for the hospital managers, as recorded by Laws J. at
694C and 696D-E read as persuasively now as they did then, and notwithstanding
his persuasive submissions now on behalf of the Applicant I see no reason to
differ from them. Despite my willingness to reconsider the decision of Laws J,
I am quite clear that it is right, for the reasons I have given, and, subject
to my reconsideration of the question arising out of Reid, for the
reasons he gave. Doctors performing their obligations in respect of Sections
2, 3 and 4, the social worker if appropriate in respect of his obligations
under Section 13, and then the hospital managers, having satisfied themselves
as to the performance by the professionals of their duty, are not required to
inject any further question of being satisfied that there has been change of
circumstances since a previous Tribunal. I would content myself with agreeing
with the words of Laws J. at 696F-G and "hold that there is no sense in
which those concerned in a section 3 application are at any stage bound by an
earlier Tribunal decision. The doctors, social worker, and managers must,
under the statute, exercise their independent judgment, whether or not there is
an extant Tribunal decision relating to the patient."
37. The Application is therefore dismissed.
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