England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		Friday, 11th August 2000

JUDGMENT
1. MR JUSTICE HIDDEN: The decision sought to be impugned by this application for judicial review is the order of the Uxbridge County Court made on 27th August 1999 under section 29 of the Mental Health Act 1983. Permission was granted by Tucker J on 21st December 1999 and the hearing was adjourned by Newman J on 13th April 2000 for the respondent to attend or, alternatively, for an amicus to be appointed.
2. The factual background starts with the admission of the applicant on 30th July 1999 to Hillingdon Hospital for assessment under section 2 of the Mental Health Act 1983. That authority was due to expire on 27th August 1999 by which time he had been transferred to Ealing Hospital. By mid-August 1999 the applicant's clinicians had decided that he required further detention in hospital and had accordingly made preparation for an application for his detention under section 3 of the Mental Health Act. As required by that Act, Miss Mulkerins, the applicant's nearest relative, was asked whether she objected to his detention and replied that she did object. At this, Steve Picking, an approved social worker employed by the London Borough of Hillingdon, the relevant local authority, made an application to the Uxbridge County Court to substitute the local authority for Miss Mulkerins as the applicant's nearest relative so that the application for his detention under section 3 of the Mental Health Act could proceed.
3. On 27th of August 1999 the local authority gave Miss Milkerins notice of their intention to make an application to the court for her displacement that day but did not serve documents in support of the application on her. Later the same day the authority attended at court although Miss Mulkerins had told them that she was unable to attend. The court made an ex parte order in the following terms:

"1. The Applicant be appointed as the nearest relation of the patient A.B. in place of the Respondent.

2. The Respondent have permission to apply to the Court after giving notice to the Applicant, to vary or discharge this order."

4. Accordingly, the managers of the Hammersmith/Ealing and Fulham NHS Trust accepted an application for the applicant's detention in hospital under section 3 of the Mental Health Act in reliance on that order in that the consent of the nearest relative was no longer required. The applicant has in fact remained detained in hospital since then until 22nd February when his discharge was ordered after an application to the Mental Health Review Tribunal held on 8th February. He had in the interim been transferred to the Cygnet Unit in Blackheath.
5. Section 11(4) of the Mental Health Act provides that an application for the detention of a patient for treatment in hospital under section 3 may not be made if the nearest relative objects to the making of the application. Section 29 of the Mental Health Act provides that the county court may direct that the functions of the nearest relative of a patient be exercised by an approved social worker employed by a local authority. CCR 49 R12 sets out the procedure to be followed on the making of an application under section 29.
6. Miss Morris submits that the county court acted ultra vires and in a way in which no reasonable court should in making the final order ex parte on two hours' notice to the applicant's nearest relative and without service of the documents on the applicant's nearest relative. She submits that it was a final order and not an interim order. She also submits that the respondents by their actions deprived the applicant of a fair hearing of the objections to his detention in hospital in breach of article 6 of the European Convention of Human Rights.
7. She also submits that the nearest relative is a creature of section 26 of the Act with a number of specific rights and responsibilities (see R v Central London county court and Another ex parte London [1999] 3 AER 991 at 997 paragraph 15. Pre-eminent amongst those rights is the right to object to the making of an application for detention of a patient in hospital. See section 11(4):

"Neither an application for admission for treatment nor a guardianship application shall be made by an approved social worker if the nearest relative of the patient has notified that Social Worker... that he objects to that application being made..."

8. If, despite the nearest relative's objection, the authority wishes to proceed with an application for the detention of a patient, an approved social worker may apply to substitute the nearest relative with the local authority so that the nearest relative cannot bar an application for detention. It is enacted by section 29 that:

"(1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercised by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient's nearest relative and is willing to do so.

(2) An order under this section may be made on the application of-- ...

(c) an approved social worker;

but in relation to an application made by such a social worker, subsection (1) above shall have effect as if for the words 'the applicant' there were substituted the words 'the local social services authority'."

9. Under section 29(4) if an application is made for the substitution before the expiry of a section 2 period of detention, then the usual 28-day period of detention will be extended until the section 29 application for displacement has been finally determined. In a case where this statutory provision can be used, an interim order shall not be made unless there are cogent reasons for doing so (see ex parte London page 998 paragraphs 21-24).
10. Miss Morris submits that where the failure to make use of this statutory provision is entirely due to the default of the local authority applicant, as in this case, it should not be entitled then to obtain an ex parte interim order rather than preserving the statutory rights of the patient to the nearest relative. Miss Morris submits that once the nearest relative has been displaced by a court order, he has no right to apply for any discharge or variation of the order. She submits that section 30 makes detailed provisions for the discharge and variation of orders made under section 29 and it is clear that there is no possibility of any application being made by a displaced nearest relative for discharge or variation. The court would therefore, Miss Morris submits, be acting outside its statutory powers in purporting to grant to a nearest relative the right to apply to vary or discharge a section 29 order.
11. Even if a section 29 order is subsequently discharged it will not affect the validity of anything previously done in pursuance of the order (see section 30(5)). Therefore, even if a period of section 3 detention has been authorised in reliance on an interim order that is subsequently not continued, the patient will remain lawfully detained. A nearest relative who shows at a final hearing that his objection to the making of an application for detention is not unreasonable, will, nevertheless, be deprived of his statutory right to bar the making of an application for detention.
12. Miss Morris submits that Order 49 Rule 12(3) CCR provides that a patient may not be a party to any application under section 29 where it says:

"Where an application is made under section 29 for an order that the functions of the nearest relative shall be exercisable by some other person...

(b) the court may order that any person, not being the patient, shall be made a respondent."

13. Miss Morris submits that once an order has been made under section 29, the patient loses his right to apply to the Mental Health Review Tribunal. Section 66(1)(h) provides that where an order is made under section 29 in respect of a patient who subsequently becomes liable to be detained under the Act, only the nearest relative who has been displaced and not the patient himself has a right to apply to the Mental Health Tribunal for a review of his detention. Thus, the effect of the order under challenge in this case was to deprive the patient of any means of a review of his detention whether by way of the county court or of the tribunal although there had been no hearing of the merits of his detention whatsoever. She submits that the making of the order was a breach of the applicant's rights under Article 5(4) and 6 ECHR. The threshold of reasonableness of the making of an order in such cases is raised (see R v Lord Saville and Others ex parte A and others [1999] COD 436).
14. In ex parte London the county court made an order that the functions of the nearest relative be exercised by the City of Westminster until further order and that the matter be re-listed for a later date when consideration should be given to the continuation of the order. The Court of Appeal held that such an order was within the county court's jurisdiction because under section 38(2) County Courts Act 1984 it was provided that:

"... any order made by a county court may be -

(a) absolute or conditional

(b) final or interlocutory."

15. Thus the court was empowered to make interim section 29 orders.
16. Miss Morris submits that despite that authority there is nothing which can help the order in this case because there is nothing in the body of the order to suggest it was an interim order, for instance, there was no return date nor directions. The purported grant of a liberty to apply to the nearest relative to vary or discharge the order was in itself ultra vires. Further, where the ground of a liberty to apply was outside the court's powers, it could not take effect to turn a final order into a lawful interim order and even if the purported grant of a liberty to apply was lawful, it was not in itself sufficient to turn the order made into an interim order. The grant of liberty is not the sine qua non of an interim order; it frequently accompanies the making of final orders.
17. Miss Morris submits that the order made by the county court was or took effect as a final order and was made ex parte without any proper notice and did not fall within the band of orders approved by the Court of Appeal in ex parte London. The effect of the order was to deprive the applicant of any review of his detention under section 3, whether by way of a full hearing of the application under section 39 or by way of an application to the Mental Health Review Tribunal. Such an order should be subject to the most abject scrutiny where it deprives a patient of his right to liberty either at common law or under the ECHR.
18. As to the applicant's discharge from hospital, Miss Morris submits that the making of a declaration should not be academic since it would assist the applicant in the making of a claim for damages for false imprisonment, it is in the public interest that the statutory provision governing the detention of patients should be enforced in respect of the will of Parliament, and if other local authorities and/or courts interpret ex parte London as authority for the proposition that an ex parte final order under section 29 is lawful, then there is a significant threat to the rights of patients under the Act.
19. Mr Singh, who appears for the court's assistance as an amicus curiae, submits that the order made in this case was interlocutory rather than final and conditional rather than absolute. He submits that the applicant's construction of the order gives precedence to form over substance. The order was in substance a temporary order, although it was not for a specified period like the order in R v Central London County Court Ex parte London [1999] QB 1260. It was perfectly possible to conceive of an order that was interlocutory but whose duration was open-ended rather than limited to a specified period. For example, a court would typically grant an injunction until trial or further order.
20. The applicant's construction of the order would have the unnecessary and undesirable effects of depriving the applicant of his right to apply to a Mental Health Review Tribunal under section 66 of the 1983 Act and at the same time of depriving the nearest relative of the right of access to a court to determine whether an order made in her absence should in fact have been made. Mr Singh submits that the court should be slow to reach the conclusion that an order had those effects unless compelled to do so. The powers of the county court to make orders are very broadly defined in section 38(1) and (2) of the County Courts Act 1984 as amended. The language of those provisions is broad enough to encompass the kind of order made in the present case.
21. Mr Singh's second submission is that the 1983 Act does not set out a complete code governing the making of orders displacing the nearest relative of a patient. That follows from the Court of Appeal's decision in ex parte London where it was held that an interim order (even an ex parte one) could be made under section 38 of the 1984 Act even though there is no reference to such orders in the 1983 Act (see pages 1272-1273 and paragraphs 19 and 23-24 of the judgment of Stuart Smith LJ with which the other members agreed). If the 1983 Act is not a complete code, then the premise which underlies the applicant's submission that the grant of permission to apply which was given to the nearest relative would necessarily be ultra vires section 30 of the 1983 Act is incorrect.
22. Mr Singh invites the court to reconcile the provisions of the two Acts if it is possible. Mr Singh submits the way in which they can be reconciled is that if, but only if, an order is made which is truly final and absolute with no permission built into it to apply to vary or discharge it in the normal way, then section 30 of the 1983 Act becomes applicable and sets out the only circumstances in which an application to vary or discharge can be made.
23. Mr Singh submits that such an approach would be consistent with the regime prescribed by the Civil Procedure Rules 1988 which apply to the proceedings in question. Those rules apply subject to the provisions in the schedules to them (see paragraph 50.1(2)). Although schedule 2 includes an amended version of Order 49 Rule 12 of the County Court Rules, there is nothing in that rule which is inconsistent with the general provisions of part 23 of the Civil Procedure Rules.
24. Paragraph 23 entitles a person against whom an order is made without notice to apply to set aside or vary it (see paragraph 23.10(1)). It also requires the order to contain a statement of the right to make an application to set aside or vary it (see paragraph 23.9 (3)). There is also a power in the court to re-list an application where an order had been made in the absence of a respondent either at the application of that person or of the court's own motion (see paragraph 23.11 (2)).
25. Although the regime in the Civil Procedure Rules cannot render intra vires an act which is on its proper analysis ultra vires the primary legislation, the court should be slow to conclude that a practice which is consistent with the general regime in the Civil Procedure Rules is ultra vires the 1983 Act unless it is compelled to do so.
26. Mr Singh submits that there is nothing in the 1983 Act which necessarily requires that result.
27. Mr Singh's third submission is that all the county court was doing in this case was taking the sensible precaution of preserving the right of the respondent before it to apply to the court because she was not present at court and the order was a matter of urgency. This was consistent with the human rights of the patient and of the nearest relative rather than contrary to them.
28. The county court's order reflects a due sense of proportion and if intra vires should not be regarded as irrational even on the heightened basis recommended for human rights cases in R v Lord Saville ex parte A [1999] 4 AER 860 especially at page 872 paragraph 37. The approach taken by the county court balances the various rights of those concerned rather than making a final and absolute order which did not give the nearest relative any opportunity to make representations.
29. I am satisfied that, despite Miss Morris's careful submissions, Mr Singh is correct in each of his three submissions. The order made was a temporary order which was both interlocutory and conditional and was not for a specified period. That was its true effect and in my view the court should be slow to arrive at a conclusion in construction of the order which deprived the nearest relative of the right of access to a court to determine whether the order made in her absence should in fact have been made. Sections 38(1) and (2) of the County Courts Act 1984 as amended are broad enough to encompass the order made in the present case.
30. Further, I find that since the 1983 Act is not a complete code then the submission that the granting of permission to apply would necessarily be ultra vires section 30 of the 1983 Act is an incorrect one. The provisions of the Mental Health Act 1983 and the County Courts Act 1984 I find can be reconciled in the way submitted by Mr Singh. I consider the court should be slow to conclude that a practice consistent with the general regime in the Civil Procedure Rules was ultra vires the 1983 Act unless compelled to do so and I find that there is nothing in the 1983 Act which necessarily requires that result.
31. As to Mr Singh's third submission I hold that the county court's order reflects a due sense of proportion and is intra vires and ought not to be regarded by this court as irrational even on the heightened basis set out in ex parte A. The county court's approach I find to have balanced the various rights of those concerned and therefore to have upheld the human rights of the applicant and his nearest relative rather than to have gainsaid them.
32. It follows that, despite the ingenious and initially attractive arguments of Miss Morris, this application must be dismissed.
(Application dismissed; no order for costs; legal aid taxation)