England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Thursday 21st December 2000

1. MR JUSTICE SCOTT BAKER: The single issue raised in this application is whether the Mental Health Review Tribunal ("the tribunal") is in breach of Article 5(4) of the European Convention of Human Rights ("ECHR"), which provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention should be decided speedily by a court and his release ordered if the detention is not lawful."

2. The claimant, to whom I shall refer as C, was detained under section 3 of the Mental Health Act 1983 ("the 1983 Act") on 16th October 2000. He immediately applied to the tribunal for discharge and in accordance with current practice his case was listed for hearing eight weeks later, on 11th December. His submission is that eight weeks is too long a period and is contrary to Article 5(4), which requires the lawfulness of his decision to be decided speedily. Two weeks, argues Mr Simblet, who has appeared on his behalf, would have been more appropriate.
3. C's original admission was to South Western Hospital but on 10th November 2000 he was transferred to Cane Hill Hospital. On 22nd November his case was relisted for hearing on 1st December 2000. However, on 24th November he was discharged and returned home.
4. The first question is whether I should entertain the application at all because, on one view, it is academic following C's discharge from hospital. Both sides have urged me nevertheless to decide the application because the point is one of importance that affects many other cases. It is a tribunal's routine practice to list hearings in section 3 cases eight weeks after the application for discharge. Is this lawful or does it offend Article 5(4)?
5. It is also said that C is likely to be detained again sometime in the future and that he has an interest in the decision to that extent. My attention has been drawn to the observations of Lord Steyn in R. The Secretary of State Home Department ex parte S [1999] 1 AC 450 at 456G and I have decided in the circumstances to hear the application.

The facts

6. C has for a number of years been suffering from schizophrenia, which is known to be a relapsing illness. As well as having been out of hospital for lengthy periods, and at times in hospital on a voluntary basis, he has previously been detained under the 1983 Act.
7. On 15th October 2000 police were called to Lambeth Council offices where he was causing a disturbance. He was taken to the police station and interviewed by Dr Boocock and a social worker. C's wife was contacted and asked if she would consent to his admission to hospital for treatment, but she refused. C was admitted compulsorily under section 4 of the Mental Health Act 1983.
8. On 16th October an application was made to the County Court for C's wife to be displaced as nearest relative. An interim order was made by a district judge. On the same day, although already in hospital, C was admitted for treatment under section 3 of the Act and, as I have said, he applied to the defendant for discharge.
9. On 17th October C's wife learned of the order displacing her and two days later applied for judicial review challenging the legality of that order, which should not have been made by a district judge. On 20th October permission was refused on the county court arranging an inter partes hearing. That took place on 23rd October when the judge confirmed C's wife's replacement on an interim basis. On 26th October C's solicitors notified the tribunal of their interest and requested a hearing in advance of the usual eight weeks; but this was not granted.
10. On 1st November a letter before claim was sent. Then on 10th November C was transferred to Cane Hill Hospital. On 21st November the interim order replacing his wife as the nearest relative was discharged and on the same day the date of the tribunal hearing was moved to 1st December to accommodate C's new responsible medical officer ("RMO"). On 24th November Cane Hill staff told C's wife of the intention to move him back to South Western Hospital. She then successfully applied for his discharge from detention.

Legal framework

11. The 1983 Act consolidates legislation since the Mental Health Act 1959. The 1959 Act followed a Royal Commission report. The creation of the Mental Health Review Tribunal arose following a recommendation by the Royal Commission that in future compulsory admission could be secured without prior judicial authority and that a review tribunal be established

"... to consider the patient's medical condition at the time when it considers his application and to decide whether the type of care which has been provided by the use of compulsory powers is the most appropriate to his present needs, or whether any alternative form of care might now be more appropriate or whether he could now be discharged from care altogether."

12. Before the 1959 Act a patient could only be compulsorily detained in hospital if certified under the Lunacy Act 1890. Certification was by a magistrate. Section 3 of the 1983 Act permits a patient to be admitted to hospital for treatment and detained there for "the period allowed", which section 20(1) states is a period not exceeding six months.
13. Section 2 of the 1983 Act, with which this case is not directly concerned, permits the admission and detention of a patient in hospital for assessment for a period of up to 28 days. Before an admission can be affected under section 3 certain steps must be taken:

1.An application has to be made either by the patient's nearest relative or by an approved social worker (section 11(1)). If made by an approved social worker the application may only be made in the circumstance set out in section 13.

2. Written recommendations are required from two registered medical practitioners (section 3(3)), whose examinations are to comply with the requirements of section 12(1) and one of whom is approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder (section 12(2)).

14. It must be emphasised that the written recommendations by a doctor is not a rubber-stamping exercise. The examination must have been carried out in the immediate past, and the recommendation must include a statement that the conditions in section 3(2) are complied with, giving reasons. There is evidence it is the experience of tribunals that practitioners take their responsibilities in this regard extremely seriously.

3. If the application for admission is to be made by an approved social worker the social worker must consult with the nearest relative; and, if the nearest relative objects, the application may not be made (section 11(4)) unless the social worker obtains an order in the county court on the grounds set out in section 29(3). The judge has to determine whether the nearest relative is unreasonably objecting to admission or has exercised the right of discharge inappropriately in the past.

15. Thus it can be seen that the law requires a stringent procedure to be followed before a patient can ever be admitted to hospital under section 3.
16. This case is not concerned with the legality of admission but with what happens thereafter in the case of a lawfully admitted patient. Should there be a detention following any failure to comply with one or more of the statutory safeguards, then habeas corpus would lie; or alternatively judicial review, which covers much the same territory these days; see Lord Woolf MR in R. v Barking Havering and Brentwood Community Health Care NHS Trusts [1999] 1 FLR 106 at 114.
17. Where the admission procedure has been duly completed in accordance with the Act, that is sufficient to authorise the conveyance of the patient to hospital and detention there (section 6). The fact that C was already in hospital is irrelevant (section 6(4)).
18. The Mental Health Review Tribunal subsists by virtue of section 65 of the 1983 Act. There is one tribunal for each region.

After admission

19. I turn next to the position after admission. A patient admitted to hospital compulsorily, either under section 2 or section 3 of the 1983 Act, has a right to request a tribunal hearing (see section 66(1)). In C's case that right runs for six months, beginning with the day on which he is admitted (see section 62(2)(b)); that is because he was admitted under section 3 for treatment. Had he been admitted under section 2 for assessment the period would have been 14 days rather than six months. In the absence of any request within six months, the case would have been referred to the tribunal anyway by the managers of the hospital (section 68(1)).
20. Once the patient has been detained the issue is whether his continuing detention is justified by his condition. The mental disorder has to be of a kind or degree warranting compulsory confinement. The validity of the continued confinement depends on its persistence; see Winterwerp v. Netherlands [1979] 2 EHRR 287. The issue for the tribunal is not the condition of the patient at the time of detention but his condition at the time of the hearing. Often medication or other treatment will have stabilised, or improved the patient's condition after his admission. The RMO has a continuing duty to consider whether the conditions remain satisfied. In fact many patients admitted under section 3 are discharged by the RMO without reference to the hospital managers, because in the RMO's opinion the patient is no longer suffering from a mental disorder necessitating detention for treatment. This could happen because the disorder goes into remission, or as a result of treatment, or otherwise, or the patient's circumstances change, or a combination of these things.
21. In preparing for a tribunal hearing the psychiatrists, nursing team and RMO have to consider explicitly and in writing whether the conditions for detention are met. Again, if in doing so they come to the conclusion that the patient has improved to the point where continued detention is no longer necessary, discharge is authorised. The role of the nearest relative is also of importance, Consent to the admission by the nearest relative can be reversed at any time during the detention. The nearest relative has the right to order the discharge of a patient under section 23(1)(a) of the Act subject to not being replaced under section 29 by a court order. There are restrictions in the circumstances in which discharge can be required by the nearest relative; see for example section 25.
22. But generally, unless the patient is considered to be a danger to himself or others, the nearest relative can require a discharge to occur. Accordingly, even if the other conditions for detention under section 3 are satisfied, if the nearest relative wishes, and if the patient is not dangerous, the nearest relative can secure the discharge of the patient. It is thus only if the nearest relative has exercised, or is likely unreasonably to exercise, the power to discharge that the county court will order him to be displaced.
23. Accordingly, submits Mr Forsdick for the defendant, there are built-in safeguards against unjustified continued detention. These are:

1.the continuing duty of the RMO to see that the patient is only detained so long as the conditions for detention are met;

2.the evaluation of the situation by those involved in preparing reports for the tribunal;

3.the power of discharge vested in the nearest relative.

24. But these safeguards only go so far, and it is obviously desirable that the tribunal which conducts a review of the detention should do so sooner rather than later, not only to comply with Article 5(4) but also as a matter of commonsense. It lies at the heart of Mr Forsdick's submissions that the question whether Article 5(4) has been complied with and the hearing fixed speedily before the tribunal is a question that has to be looked at in the context of practical reality and what is involved in section 3 detention.
25. I fully accept Mr Simblet's point that administrative convenience plays no part in deciding this question. It would be irrelevant, were it to be the case, that there was a heavy backlog of tribunal cases or difficulty in constituting a tribunal. Fortunately it is not suggested that there are any problems of that kind. On the other hand, it is relevant to consider how long is reasonably required, for example to prepare the necessary medical reports and other material to put before the tribunal.
26. Mr Forsdick points to the circumstances of section 3 admissions. These occur when they are necessary for the health or safety of the patient, or for the protection of other persons (section 3(2)(c)) and where compulsory detention is necessary to ensure that treatment can be provided. Section 3 admissions are therefore the last resort.
27. I note from the evidence that patients who are admitted to mental hospitals against their will are almost by definition persons who deny that they need to be detained and often refuse to accept that they suffer from any type of disorder. Patients are usually not new cases unknown to the mental health or psychiatric services, ie those who would be likely to be admitted for assessment under section 2. So patients admitted under section 3 are those who are known to the mental health services and who are refusing the treatment which is necessary for their own health and safety or the safety of others. Their admission is made at a time of crisis in their mental health.
28. It is in my judgment important to distinguish between section 3, with which this case is concerned, and section 2, with which it is not. Admission under section 2 is for the purpose of assessment, whereas section 3 is for treatment. Considerations of time-scale are likely to be different. Treatment involves ongoing management of the patient whereas assessment involves finding out what is wrong. I am not attracted by Mr Simblet's argument that the short time-scale of seven days for fixing a tribunal hearing in section 2 cases (see rule 31 of the Mental Health Review Tribunal Rules 1983) is relevant. The situations are entirely different.
29. The doctors who authorised C's detention and the RMO at the hospital to which he was admitted must have been satisfied that his admissions for treatment was required and that it was not appropriate to admit him under section 2 for assessment. In cases where a person is not known to the mental health services and who does not have a history of mental health problems, section 2 would be used first.
30. Section 2 is designed to allow short-term detention for assessment. The detention is limited to 28 days as against six months for treatment with a section 3 admission. This, in my view, explains why appeals are heard in section 2 cases within a very short period, ie seven days, under rule 31 of the Mental Health Review Tribunal Rules. It is relevant and possible in section 2 cases to operate within a short time-scale because (i) the permitted detention period is short; (ii) the nearest relative has no right to prevent detention, only to be consulted; (iii) the patient is unlikely to be known to other mental health services or to have undergone a recent assessment; (iv) the doctors do not have to consider whether the requirements of section 3 are satisfied.
31. As Tucker J put it in R. v. Wilson ex parte Williamson [1996] C.O.D. 42 detention under section 2 is

"... of short duration for a limited purpose, namely assessment of the patient's condition with a view to ascertaining whether [it is a case which] would respond to treatment and [consequently] whether an application under section 3 would be appropriate."

32. For any right of appeal to be effective in a section 2 case it has to be heard extremely quickly; otherwise the 28-day detention period will have expired and the appeal will be pointless.
33. The position is very different in section 3 cases where the patient will be well-known to the mental health services and have had a recent assessment, and/or being subject to an informal assessment before being detained, and/or previously been detained under section 2 and moved to section 3.
34. The Mental Health Review Tribunal Rules 1983 as amended are made under the enabling power of section 78 of the Mental Health Act 1983. They control applications to mental health review tribunals and the proceedings of those tribunals. I mention specifically the following rules.
35. Rule 6: The responsible authority - for present purposes, the manager of the detaining hospital - shall send a statement to the tribunal containing prescribed information as soon as possible and in any event within three weeks of the application. The statement is required to contain certain specified information. This includes - see part B of Schedule 1 - an up to date medical report prepared for the tribunal, including the relevant medical history and a full report of the patient's medical condition. Other background reports are also required. It is of note that production of these reports within three weeks is qualified in the rules by reasonable practicability.
36. Rule 9: The tribunal has a limited power of postponement if it is in the interests of the patient.
37. Rule 11: The medical member of the tribunal must examine the patient sometime before the hearing.
38. Rule 13: The tribunal has power to give directions to ensure the speedy and just determination of the application.
39. Rule 16: There is a general power for the tribunal to adjourn and before adjourning it can give such directions as it thinks fit for ensuring the prompt consideration of the application at an adjourned hearing.
40. Rule 20: At least 14 days' notice is required of the time, date and place fixed for the hearing.
41. I make the follows observations about these rules. I have read them all but refer only to a limited number. They provide a detailed scheme which is part of the context in which the issue of the Article 5(4) point must be considered. As a scheme they give the impression of importing some urgency into the whole process. They also illustrate the various steps that need to be taken before a determination of the application can be made. It is, I think, of note that rule 13 refers to the speedy and just determination of the application. Speed without justice is nothing in the context of a section 3 tribunal application.
42. What is required is speed and justice. What this involves, in my judgment, is getting all the relevant material before the tribunal as quickly as possible. Put another way, undue haste is not a requirement of Article 5(4). As the foreword to the annual report of the Mental Health Review Tribunals for England and Wales, 1995, put it:

"The principal concern of the Mental Health Review Tribunal is to provide a speedy, fair and effective means by which detained patients may challenge the need for restrictions that have been imposed upon them."

43. It is critical that the tribunal has relevant information and people before it when it makes its decision; then it can make a considered judgment.
44. There is no doubt that the Mental Health Review Tribunal constitutes a court within the meaning of Article 5(4); see X v United Kingdom [1981] 4 EHRR 188. The sole question is whether the provision of a hearing within eight weeks meets the requirement in the Article of "shall be decided speedily".
45. Mr Simblet makes a number of general propositions of law, which broadly I accept. Deprivation of liberty is a fundamental matter; it has to be justified. Article 5(4) gives a claimant the positive right to have the lawfulness of his detention decided speedily. One of the important purposes of review under Article 5(4) is to remove arbitrariness. There is a greater need for the detention to be susceptible to review speedily when a detained person is first challenging the propriety of his detention than at a second or subsequent challenge some time into his detention. Administrative failings on the part of the state, as opposed to requests for adjournments by the claimant's representatives, may result in a breach of Article 5(4).
46. I have been referred to a number of decisions of the ECHR. In no case has a "not more than eight weeks" time limit for hearing appeals of mental health detentions for the purpose of providing treatment been held to breach Article 5(4). It is true that in E v. Norway [1994] 17 EHRR 30 a delay of eight weeks was held to be unlawful. But it was a wholly different kind of case; first, the patient was not psychotic at the relevant time; second, his detention was not for treatment as a mental patient; third, he was not detained in a mental institution for treatment - he was detained in prison under preventative measures; and, fourth, his detention was imposed in response to a criminal offence and not for his own protection or safety under the mental health legislation.
47. It is in my judgment unnecessary to explore in detail the various judgments to which I have been referred; all are dealing with plainly different situations from that of the present case. The following general points can, I think, be gleaned from the cases. 1. The court recognises the need for detailed investigations and time for the preparation of reports.

2. The word "speedily" in Article 5(4) must be construed against the background circumstances of the type of case under consideration - here a detention under section 3 of the Mental Health Act 1983.

3. Mental health detention presents its own special difficulties.

48. Mr Forsdick accepts that the obligation to decide speedily on the lawfulness of detention applies both to the procedural and substantive aspects of the case; see Winterwerp. So it is not sufficient that all the procedural safeguards have been complied with. There must also be an opportunity for the substantive justification for the detention to be considered. The essence of all procedural safeguards plus the remedy of habeas corpus means that the Mental Health Review Tribunal will ordinarily be concerned with the substantive justification for a continuing detention rather than its procedural validity. So the tribunal will be looking at medical issues. This is likely to involve detailed investigations and sometimes conflicting evidence. Without the result of such investigations the tribunal may make a decision on the wrong basis, possibly with unjust and disastrous results. A balance has to be achieved between putting the best information before the tribunal and having the hearing take place speedily. Time is also relevant from the viewpoint of the doctors, having established treatment and a medication regime and needing to see if it is effective.
49. In my judgment the need for time for detailed evidence to be obtained is reflected in rule 6 of the MHRT Rules, which allows up to three weeks for preparation of the statement by a responsible authority. The provision of evidence on which the tribunal can sensibly proceed may be a substantial task. It is to be noted that the statement should provide medical evidence (see Schedule 1 to the Regulations) "in so far as it is reasonably practicable to provide it". It is pointed out in the defendant's evidence that evidence will often not be in the form of lengthy formal reports because there is inadequate time for such reports to be prepared.
50. I entirely accept that one cannot look at the regulations (and in particular the time limits within them) and conclude that eight weeks is therefore a necessary and appropriate period to fit with them, and that eight weeks accordingly satisfies Article 5(4). That would be to put the cart before the horse. The regulations are required to be Article 5(4) compliant and in my judgment they are.
51. On the other hand, a close look at the regulations does give some idea as to the steps that are necessary to achieve an effective tribunal hearing and prima facie the time that is needed to achieve them. The point illustrated by the present case is that the patient may not remain in the same hospital and consequently there may be a change of RMO. C moved to Cane Hill and the medical evidence was late. It is not clear why but a change of this kind is bound to make it more rather than less difficult to prepare a case for the tribunal.
52. Once detained the patient has a right of application under section 66 of the 1983 Act, but he only has one such right in any six-month period. Consequently, if he is not released he cannot apply again for another six months. It is not suggested that this contravenes the Convention. It is therefore particularly important in a patient's interests that all the material evidence is put before the tribunal. It is also in point that after receipt reports have to be widely circulated to interested parties, read and absorbed and, if necessary, responded to; representatives have to be booked and briefed; disclosure may be required and there may be further directions; the tribunal itself may require further information.
53. The main plank of Mr Simblet's case was that section 3 cases should be dealt with on the same time-scale as section 2 cases. But the circumstances seem to me to be entirely different. Then he said that the section 3 patient should be in no worse a position than a recalled patient to whom rule 29C(c) of the rules applies. Such a patient has a right to hearing within five to eight weeks of recall. Such a patient, argues Mr Simblet, will have been discharged from a hospital order with restrictions on a conditional basis. A section 3 patient, when previously in the community, will have been subject to no such restrictions. Why should a patient with no prior judicial scrutiny of his detention be worse off than a restricted patient? But again, it seems to me, this regulation is dealing with an entirely different type of situation where a patient has been made the subject of a hospital order with restriction under sections 37 and 41 of the 1983 Act.

Conclusion

54. Article 5(4) covers a variety of different situations where a person is deprived of his liberty by arrest or detention. The purpose of the provision is to ensure that the lawfulness of the detention is tested with all due expedition in the appropriate court or tribunal. How quickly that should be depends on the nature of the situation with which one is concerned. The article must be applied in context.
55. Here the context is section 3 of the Mental Health Act 1983, detention in a mental hospital for treatment: the tribunal must be furnished with the necessary information to reach a speedy and just conclusion. In my judgment fixing a hearing date no later than eight weeks from the date of the patient's application, which is the current practice up and down the country, meets that requirement. Furthermore, it is entirely consistent with the ECHR authorities to which I have been referred.
56. In my judgment there is no breach of Article 5(4) either on the facts of this case or under the current practice of mental health review tribunals.
57. I am sorry you have been given short notice of the delivery of this. But in view of the circumstances to which it is relevant I thought it was better to deliver it this term rather than next.
58. MS PATRY (for MR FORSDICK): Thank you very much. My Lord, the respondent in this case is not making an application for costs.
59. MR SIMBLET: My Lord, I have two applications. The first is for detailed assessment of the claimant's costs.
60. MR JUSTICE SCOTT BAKER: You can have that.
61. MR SIMBLET: Thank you, my Lord. The second application is for permission to appeal. My Lord I know that your Lordship has given a careful judgment and I cannot currently say that there is -- I may be able to say there is a real prospect of success, but whether or not I can, in my submission this is a matter where there is some other compelling reason for the grant of permission, because this is a situation of general and common application. Your Lordship will have seen the statistics that were handed up about the number of patients. In my submission, this falls within the suggestion in the practice direction that permission ought to be granted where the court considers that in the public interest there is an issue of law that requires clarification.
62. MR JUSTICE SCOTT BAKER: I should be interested to hear what the other side has to say on this because my provisional view is that I have come to a clear conclusion and therefore, although it is or was an issue of importance, there is a limit to how many cases, where the trial judge thinks the answer is clear, should be burdened on the Court of Appeal. It may be that the right course is to leave the Court of Appeal to decide whether it thinks it ought to look at this matter. But I will obviously be guided considerably by the view of the other side, because they have got not just this case, which incidentally will be even more academic by the time it ----
63. MR SIMBLET: My Lord, as was pointed out when your Lordship agreed to hear it, one of the points of principle, and one of the bases upon which the parties agreed that it was appropriate for your Lordship to hear this case, was that, if you are explaining about delay, the very time that it takes to get the case on may in fact mean that there is always going to be a delay and always it is going to be academic, or it is going to put the court in a position, where, although we are grateful to your Lordship for giving this judgment this term -- in other cases it may put the court in the position where it has to take a more pressured and less considered judgment of the situation than might be the case if the court had the luxury of time, as it were, to get it right. I am not saying your Lordship has not got it right, but you see the point I make.
64. MR JUSTICE SCOTT BAKER: Yes, I do.
65. MR SIMBLET: So in my submission, the fact that the case will be even more academic is on one level even more of a reason to grant leave on this case, because it means that the Court of Appeal, when they deal with a case such as this, will not be hamstrung into having to make a quick decision. So in my submission, particularly under the second ground, that would be a greater reason for granting permission in a case where the patient has already been released than otherwise.
66. Your Lordship will recall saying in argument that this was the first pure human rights case that your Lordship had heard; it is the first case of its type; it is completely novel in terms of the direct application of Article 5(4) as far as I can find in any case since October. Therefore, in my submission, it is a case on which a judgment of the Court of Appeal is likely to appropriate and not just confined to psychiatric detention, but may also seek to lay down some guidance in other situations.
67. MR JUSTICE SCOTT BAKER: There are dangers in saying things about other situations.
68. MR SIMBLET: In my submission this is a case in which there is a public interest dimension to the case and therefore it is an appropriate use of the Court of Appeal's resources. In my submission, notwithstanding the conclusion that your Lordship has come to, there is a real prospect of success in the sense that another judge may take a different view of both the empirical application of the Strasbourg case law, but also the principles by which the mental health review tribunal's policy should fall to be judged.
69. MS PATRY: The first point that I would like to make is that, as your Lordship has indicated, it is very dangerous to make comparisons, or to say that maybe other tribunals will be affected by this decision. The second point is that it has never been denied that this is a point of general importance; however, as has been indicated, a very clear and careful judgment has been given today and as such I ask you to refuse this application and ask the claimant to trouble the Court of Appeal if they seek permission.
70. MR SIMBLET: The other point is that one of the things that is referred to in your Lordship's judgment is the presence, at both the admission stage and the discharge stage, of the role of the nearest relative. In this particular case the nearest relative did not have any role because the nearest relative had been displaced, albeit on an interim basis, which was subsequently not confirmed. That, in my submission, is something that may affect the prospects of success before the Court of Appeal, because it is one of the bases upon which the defendant resisted the application and which your Lordship has imported into the judgment.
71. The other point I am sure your Lordship is aware of is the general thrust of the practice direction. This is a first appeal rather than a second appeal, so the practice direction is different; and of course it is a matter that affects directly the liberty of the subject; it is difficult to think of something more fundamental. This is not an appeal about costs or an appeal about some perhaps less important matter, nor is it a matter where the law has changed. This is a case, in my submission, which is going to throw up other difficulties and it may be that in fact it suits the defendant -- I know it is not their position before your Lordship, but it may be that a resolution from the Court of Appeal either in this case or in another is going to arise at some point.
72. MR JUSTICE SCOTT BAKER: If the answer is clear, as I feel it is in this case, it may be that other cases will not follow it because other claimants will not get legal aid because the authorities are not persuaded there is really a point.
73. MR SIMBLET: In my submission that is even more reason for permission to be granted; that comes back to the point of it being of general application. The point clearly is of general importance. Without making any admissions as to my ability, it may be that on a rehearing a different result is achieved and, in my submission, it is a matter of importance and significance such that the Court of Appeal is likely to be interested in the case on the permission test.
74. The other matter that is not addressed in your Lordship's judgment, in my submission, is the fact that one of the things that the person who is detained is complaining about is his liability to treatment as well as his liability to detention. I know your Lordship has addressed it, as it were, against me on one level, but it is not simply a matter of deprivation of liberty; it is also a matter of challenging the basis for being there at all, challenging the purpose. Anyway I have made my application.
75. MR JUSTICE SCOTT BAKER: You could not have made it more forcefully. For the reasons that I have already indicated during the course of the argument, I am not going to give you leave to appeal. It seems to me that this is a situation where it is more appropriate that the Court of Appeal should decide if they want to entertain this case.
76. MR SIMBLET: My Lord, thank you.
77. MR JUSTICE SCOTT BAKER: I am extremely grateful to everybody for the helpful arguments that have been put forward.
78. MR SIMBLET: My Lord, I am obliged.