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
		Thursday, 4th May 2000

Thursday, 4th May 2000

JUDGMENT
1. MR JUSTICE BURTON: This is an application for leave to issue a writ of habeas corpus brought on behalf of G.M. who is presently a mental patient at the Hartington Wing of the Royal Hospital, Chesterfield in Derbyshire. He has an unfortunate medical history of which the medical practitioners involved in this case had a considerable knowledge.
2. The approved social worker, however, Mrs Elizabeth Donaghy had only indirect knowledge of Mr M.'s mental state from some two weeks prior to his admission, as a result of a discussion with those who have been involved with his care, and she herself had not met Mr M.. Nevertheless, as I have indicated, she was armed with knowledge about him and in particular knowledge of the circumstances which in April of this year had heightened the concerns of those involved with his care, particularly including a disturbing incident relating to his relationship with his daughter.
3. On 5th April, according to Mrs Donaghy, the approved social worker, after discussion with Dr Jackson, she and the medical practitioners involved concluded that they should make an urgent visit to the premises of Mr M. the following morning with a view to securing, voluntarily or otherwise, his admission to hospital if it should prove necessary or appropriate on the following morning.
4. She was unable, in the emergency position that there was, to find a second medical practitioner, and she went on 6th April to Mr M.'s premises with Dr Jackson, one of the medical practitioners with a very detailed knowledge of Mr M.'s condition, and four police officers.
5. According to Mrs Donaghy, the evening before the visit, namely on 5th April, she spoke at length to Mrs C., Mr M.'s mother and nearest relative, seeking her views on the situation, and Mrs C. was in agreement with a need to act quickly and felt her son's mental health was deteriorating. At that stage Mrs Donaghy says she did not plan necessarily to make an application under section 4 of the Mental Health Act 1983, which as I shall explain in a moment did eventuate, because that would have pre-empted the assessment since there might well have been room for an informal admission but, nevertheless, that was a clear possibility, and so too was the possibility of an assessment with a view to a section 3 application in an appropriate eventuality.
6. Mrs C. has provided a witness statement in which she says that she did not speak to Mrs Donaghy, to the best of her knowledge and belief, on 5th April but she did speak, according to her, to a Bob Gardner who also had, as a community psychiatric nurse, a very detailed knowledge of her son's condition. Mrs C. does not indicate what her recollection is of the conversation that she admits that she had with Mr G..
7. On 6th April after some difficulty in obtaining access, which was only in the end obtained by virtue of the fortuitous arrival of Mr M.'s brother, the access was gained shortly after 8 o'clock, and without dealing with the detail of what then occurred it is plain that both Dr Jackson and Mrs Donaghy formed the view that immediate admission was necessary, and Mr M. was not communicative or co-operative in relation to any kind of voluntary informal admission.
8. Mrs Donaghy has given evidence by witness statement that she told Mr M. her name, told him the purpose of her visit was to assess his mental condition, and carried out an assessment of Mr M. and she says as follows:

"Whilst conducting my assessment of Mr M., although I was aware of the constraints of having only one medical opinion available, I considered whether he fulfilled the criteria for an admission under section 4 (which entails evaluation of the section 2 criteria) or section 3. I was satisfied that Mr M. fulfilled the criteria for admission under either section. Dr Jackson and I both felt the risk that leaving him in the community was unacceptably high; we therefore detained him under section 4 for the reasons given. He was found to have knives in his possession by the police and attempted to bring sticks into hospital with him. I emphasised that I continued to observe and speak to Mr M. following the section 4 application, timed at 8.26 am and his admission to Morton Ward at 9.45 am. He was driven to the hospital by the police and was clearly agitated as he entered the ward."

9. Once he arrived at the hospital further steps were taken, to which I shall turn in a moment. But before I do so, I should explain the statutory background by reference to the Mental Health Act 1983.
10. Admission for Assessment.
11. Section 2 of that Act provides circumstances in which there can be admission of a patient and detention for a period of 28 days for assessment. Section 2 admission is based upon an application on the grounds set out in section 2(2) of the Act that:

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons." By virtue of section 2 (3):

"An application for admission for assessment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out set out in subsection (2) above are complied with."

12. That makes clear that what is required is the involvement of two registered medical practitioners.
13. There is provision under section 4 of the Act for admission for assessment, that is assessment which is covered by section 2, in cases of emergency. At section 4(1):

"In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions of this section, and any application so made is in this

Act referred to as 'an emergency application.'

(2) An emergency application may be made either by an approved social worker or by the nearest relative of the patient; and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above, and that compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay."

14. The difference between a section 2 and a section 4 admission is that an emergency application can be founded on only one of the medical recommendations required by section 2 given, if practicable, by a practitioner who has previous acquaintance with the patient and verifying the urgent necessity referred to in section 4 (2).
15. A section 4 admission emergency application only lasts for 72 hours, and does not allow for the giving of any treatment, which is otherwise permitted under section 63 of the Act as a result of the specific exception under section 56.
16. What is required then for a section 4 application to become a section 2 admission for assessment to last the full 28 days is for the second medical recommendation required by section 2 to be given and received within the 72 hour period. If that is received, then the section 4 admission is converted, as it is being described by counsel, into a section 2 admission. Those are the provisions for Admission for Assessment.
17. Admission for Treatment.
18. There is then "Admission for Treatment" under section 3 of the Mental Health Act 1983, which provides that:

"(1) A patient may be admitted to hospital and detained there for the period allowed..."

19. Which is six months. The criteria for such application is set out in section 3(2) which reads:

"(2) An application for admission for treatment may be made in respect of a patient on the grounds that--

(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) in the case of 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 or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section."

20. An application for a section 3 admission requires:

"... the written recommendations in the prescribed form of two registered medical practitioners, including in each case the statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with;..."

21. And then there are certain requirements for that opinion.
22. Section 5 of the Act makes it plain that there can be a section 3 admission for treatment even in respect of a patient who has already been admitted under sections 2 or 4 for assessment. Section 5(1) reads:

"An application for the admission of a patient to a hospital may be made under this Part of this Act notwithstanding that the patient is already an in-patient in that hospital or, in the case of an application for admission for treatment that the patient is for the time being liable to be detained in the hospital in pursuance of an application for an admission for assessment, and where an application is so made the patient shall be treated for the purposes of this Part of this Act as if he had been admitted to the hospital at the time when that application had been received by the managers."

23. It is thus the case that whereas a section 4 emergency application can be 'converted' into a section 2 admission simply by the subsequent provision of the second medical report, if however a patient is admitted under section 4, or indeed under section 2, then there must be a separate and fresh application under section 3; but such application under section 3 does not have to be in respect of a patient who is in the outside world, it can be in respect of a patient who is already in hospital.
24. There is no provision for an emergency one-practitioner application in respect to a section 3 application. That only applies, as I have indicated, in respect of a section 2 application, the emergency provisions for which are provided for in section 4.
25. Other Provisions.
26. There are general provisions applicable to all such applications, as to which the relevant sections, for the purposes of this application, are set out in Sections 11 and 13. Subsection 11(1) reads as follows:

"Subject to the provisions of this section, an application for admission for assessment [and] an application for admission for treatment... may be made either by the nearest relative of the patient or by an approved social worker; and every such application shall specify the qualification of the applicant to make the application."

27. By subsection (3), which relates to a section 2 application:

"Before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved social worker, that social worker shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made..."

28. And that of course also applies naturally to a section 4 which is the emergency version of section 2.
29. By subsection (4) of section 11 it is provided that:

"... An application for admission for treatment shall [not] be made by an approved social worker if the nearest relative of the patient has notified that social worker... that he objects to the application being made and, without prejudice to the foregoing provision, no such application shall be made by such a social worker except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay."

30. By subsection (5):

"None of the applications mentioned in subsection (1) above shall 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."

31. By subsection 13(2):

"Before making an application for the admission of a patient to hospital an approved social worker shall interview the patient in a suitable manner and satisfy himself 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."

32. A considerable raft of evidence has been put in in this case because it was not clear as to what the basis would be of the application, and the nature of that application has been sensibly limited by Mr Musaheb who has argued the matter very ably on behalf of the Applicant once he saw that evidence. A number of the bases on which he was indicating an intention to rely have not been pursued in the light of that evidence, and of discussions between him and counsel, Mr Andrew Hockton who has appeared for the social worker and the Derbyshire County Council and Mr Huw Lloyd who has appeared for the North Derbyshire NHS Trust.
33. There have in the event only been two issues that have been argued before me. It has not, therefore, been in any dispute before me or indeed perhaps at all that Mr M. was, and no doubt still is, suffering from a severe mental disorder, and there has been no challenge to the making of the application under section 4 and consequently no challenge to the fulfilment, at least for the purposes of today, of the criteria under section 2.
34. There is also no challenge for the purposes of today to the satisfaction of the criteria under section 3 or any challenge to the factual matrix in which the emergency which led to the admission of Mr M. arose. The submissions have fallen into a narrow compass. I shall take them in reverse order.
35. 1. Subsection 11(4).
36. The first submission related to the suggestion that, with regard to the section 3 admission, there was a failure to comply with the mandatory provisions of subsection 11(4), to which I have referred. I have recited the evidence that Mrs Donaghy has given and the conflict with Mrs C. relating to what happened on 5th April.
37. With regard to 6th April, Mrs Donaghy gives the following evidence in her witness statement at paragraphs 11 and 12:

"F.Mr M.'s admission Dr Sykes was invited on to the ward. It was clear that the in-patient unit did not want to medicate Mr M. until an assessment for a section 3 had been carried out. I spoke to Dr Sykes who told me he was able to give an independent second opinion in a section 3 assessment. He and Dr Jackson spoke to Mr M. who I understand was guarded and rather uncommunicative. I did not interview Mr M. again as I had just assessed him and did not believe a second interview within such a short timescale was either legally necessary or desirable. I would not have interviewed Mr M. alone at any point during the assessment process as, in my view, he posed a significant risk to my personal safety. Whilst Dr Jackson and Dr Sykes were assessing Mr M. to ascertain whether he met the criteria for section 3 admission, I spoke again on the telephone to Mrs C., Mr M.'s nearest relative about a section 3 application. Mrs C. was supportive of the application and relieved that her son was receiving treatment."

38. Mrs C.'s evidence however is to the contrary. I have already indicated that in her evidence she denies that she spoke to Mrs Donaghy on 5th April, and is certain that her conversation was with Mr G.. She said this, in a short witness statement, about 6th April:

"I spoke to Elizabeth Donaghy on that day. She telephoned me at home to tell me that my son had been sectioned. That is the first and only time I ever spoke to her."

39. Mrs Donaghy does not rely on the (disputed) conversation on 5th April with Mrs C. as being sufficient to comply with section 11(4) of the Act. She says that on 5th April there had not been a definitive decision taken, in the circumstances to which I have just referred, as to what steps were going to be taken on the following morning, and provisional arrangements had simply been made, knowing that on any basis there was only going to be one medical practitioner available.
40. She relies however on what she said according to her evidence on 6th April. If Mrs C.'s evidence is right, what was said on 6th April was plainly insufficient. The only conversation, according to Mrs C., took place, it must be deduced from her evidence, after the sectioning under section 3, and there was simply, on that basis, a courtesy telephone call from Mrs Donaghy through to Mrs C. to inform her that Mr M. had been sectioned. If that is what occurred, then there would not have been a compliance with subsection 11(4), because no opportunity was given for objection by Mrs C., and in any event there was no consultation with Mrs C. prior to the sectioning.
41. Mrs Donaghy's evidence however is that while her doctor colleagues were carrying out their fresh assessment for the purposes of section 3, she, having concluded that there was no need for a further interview, took the opportunity to comply with her obligation under subsection 11(4).
42. There has been a submission made by Mr Musaheb that even assuming Mrs Donaghy's evidence was correct, the conversation to which she deposes would be insufficient to comply with section 11(4). I understand that he is referring to a commentary, I think by Richard Jones, on the Mental Health Act 1983, which says this:

"As this provision does not require the nearest relative to give a positive consent to the application being made, an approved social worker should not ask the nearest relative whether he 'agrees with' or 'consents to' the application. The appropriate question for the approved social worker to ask would be whether the nearest relative 'objects to' the application. Either a negative response or a failure to respond would enable the approved social worker to proceed with the application."

43. That is the view of Mr Jones. The context of the paragraph is plainly intended to make clear that it is not necessary for the social worker positively to ask whether the relative consents. Mr Jones appears to go further than that in indicating what he calls the appropriate question to ask, but that is not consistent with the direct and binding authority of the Court of Appeal in R.W. (Mental Patient: Habeas Corpus) [1997] 39 BMLR 94, in which Phillips LJ says as follows:

"No express provision is made as to when [the] consultation should take place. Counsel for the respondents conceded that a nexus must exist between the consultation and the application that is subsequently made. The consultation must relate to the application. It must place the nearest relative in a position, if so minded, to object to that application."

44. And then the crucial passage:

"... Provided that the social worker explains to the nearest relative that he or she is considering making an application and why, the nearest relative will be afforded the opportunity for objecting to the application that the Act requires."

45. That is plainly the authoritative statement of law, and on the evidence of Mrs Donaghy she complied with that obligation. Not only did she indicate before the section 3 was applied for and was planned, but she gave the opportunity for Mrs C. to respond. She did not in terms say "do you object?", but Mrs C. perfectly well understood the nature of the question and the information that she was being given, and she responded not with an objection but with support and relief.
46. In those circumstances there would be the plainest possible compliance with subsection 11.4 so far as the opportunity for objection is concerned.
47. How am I to approach that fact that there is a conflict of evidence between Mrs Donaghy and Mrs C.? I put to Mr Musaheb that there were three possibilities. The first is that this is an application made on a conflict of evidence, which I cannot resolve, and consequently that there is no sufficient evidence of a breach of section 11(4) before me. The second possibility is that I should seek to resolve the affidavit evidence as best I can. The third is that I should give Mr Musaheb the opportunity of an adjournment so that Mrs C. and Mrs Donaghy can both be cross-examined on their affidavits and an attempted resolution be made by me. On such adjourned hearing, clearly it would be an unusual course to have cross-examination on affidavits in the Crown Office, and I suspect particularly unusual on a habeas corpus application, but there would be nothing to rule out that possibility if it were canvassed before me; but in the event Mr Musaheb did not pursue that suggestion, so I did not call upon either Mr Hockton or Mr Lloyd to see whether they would have had any contribution to make as to whether that was an appropriate course. Mr Musaheb had himself, mindful as he indicated of what he called in the modern jargon the obligations of proportionality, indicated that although Mrs C. would be, as far as he was concerned, willing to be cross-examined, he did not make an application that there should be an adjournment and cross-examination on affidavit, and he left it to me to resolve on affidavits, effectively taking the second of the three courses.
48. As I indicated in the course of argument, if I am left to resolve the question on affidavit, I have no difficulty in resolving that affidavit evidence for the purposes at any rate of today in favour of Mrs Donaghy. If Mr Musaheb's case is right, then Mrs Donaghy is lying. There is no question of mistake. She has positively asserted, knowing no doubt the obligations that she has under the Act, that she had a conversation prior to the sectioning, in which Mrs C. not only did not object but was supportive of the application. Mrs C. does not recall such a conversation -- she says that she was phoned afterwards -- a conversation which, as I have earlier indicated, would have had no purpose whatever within the statutory framework, and would have been quite unnecessary except as a matter of courtesy. Of course it is not to be said that officials working and doing their best within the mental health regime cannot be dishonest and lie, just as, sadly, other officials from policemen through to politicians and no doubt judges can and do lie on oath no doubt on some occasions. But where I am faced with the question as to whether it is more likely that Mrs Donaghy has lied than that Mrs C. is mistaken, in the circumstances before me, I have no doubt at all that, given the extraordinary difficulty and emotional and stressful pressure that Mrs C. was labouring under at that time, it is more likely that she is mistaken than that Mrs Donaghy is lying. She said she had a conversation on the evening before which she believed was with Mr G.. She may not be right about that either. Certainly the circumstances of her son, which must have put her under great distress at the best of times, and this crisis on 6th April, are such that it would not be at all surprising if she had mistaken the precise circumstances and context of the conversation she had with Mrs Donaghy, not knowing, as she would not have done, the statutory context of that conversation.
49. In those circumstances, having being invited to resolve the question on affidavit, I resolve it in that way, but of course can do no other than say that that is a resolution for the purposes of today's application. In those circumstances, given that I accept the evidence of Mrs Donaghy, I am satisfied that there has been no breach of subsection 11(4) and the attack on the section 3 admission on that basis fails.
50. 2. Subsection 13(2).
51. The first and more significant attack by Mr Musaheb on the section 3 application is once again in very short factual compass. He submits that because there is no provision for an emergency section 3 procedure, as there is in a section 4 and section 2 situation, the court should be careful not to allow the creation through the back door of an emergency application under section 3. He reminds the court of the words of Sir Thomas Bingham MR, as he then was, in Re S-C (mental patient: habeas corpus [1996] 1 All ER 532, in which it is emphasised that there must be strict compliance with the provisions of section 3 before detention can be lawful, because liberty of the subject is involved in relation to the way in which detention of a mental patient is approached.
52. That of course means that there must be strict compliance with the provisions of section 3 which, in this case, the Respondents assert that there has been. But it also no doubt emphasises the fact that in construing a statute which interferes with liberty of the subject, strict construction can and plainly should be adopted.
53. The facts I have referred to already by reference to Mrs Donaghy's statement, indicate that she did have -- and this is not challenged -- an interview with Mr M. which lasted perhaps 15 minutes. She arrived at some stage after 8 o'clock, and signed the relevant form at 8.26, which said that she had last seen Mr M. at 8.20.
54. It is not in any doubt, and Mr Musaheb accepts that there can be circumstances in which the approved social worker can arrive at a sufficient conclusion for the purposes of the relevant interview under subsection 13(2) within seconds if, for example, extreme violence is being used; but certainly, given the experience of professionals, it is not suggested that 20 minutes or 15 minutes, or even 10 minutes, would be too short for an interview within section 32 to be sufficiently carried out and for the social worker to hold an interview with the patient in a suitable manner and 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 which the patient in fact does need.
55. And indeed, Mr Musaheb specifically does not challenge the sufficiency of the interview so far as the making of a section 4 application is concerned. His case is that that interview was only for a section 4 application, with subsection 13(2) applying, of course, both in respect to sections 2/4 and section 3, but that that interview cannot be used both for the purposes of justifying the original section 4 admission and the subsequent section 3 admission.
56. His submissions at some stages almost became the suggestion that this procedure was a sham, that is that what was in fact an emergency section 3, which was not permissible under the Act, had been adopted by following a section 4 route.
57. I am unable to say that, on the evidence before me, that begins to be arguable. Dr Jackson and Mrs Donaghy were acting, in my judgment, in absolute good faith. I cannot see any way in which I can reject the evidence of either of them as to the steps they took which, so far as they were concerned, consisted of the making first of a section 4 application, because they knew they were entitled to do so with the benefit of one medical practitioner, with a view to further consideration, if appropriate, of a further section 3 application, which became necessary once, as Mrs Donaghy has explained in paragraph 11 of her witness statement from which I have quoted, the in-patient unit did not want to medicate Mr M. until an assessment for a section 3 had been carried out.
58. But leaving aside any suggestion that this was a sham, it is still necessary for the Respondents to show, the onus of course being on the Applicant, which I did not seek to reverse by putting it that way, that there was the necessary interview pursuant to subsection 13(2).
59. Mr Hockton for the Council puts it very simply. On the evidence of Mrs Donaghy there was an interview within subsection 13(2). She carried out the interview of the patient in a suitable manner within subsection 13(2), and it occurred before the making of the section 3 application. When it came, therefore, to the making of the section 3 application, I think at 10.15 on 6th April at the hospital, the necessary precondition of an interview had been fulfilled, and Mrs Donaghy herself says that she did in fact consider, and again in the paragraph which I have cited from her witness statement, that a second interview within such a short timescale was neither legally necessary nor desirable.
60. Mr Musaheb's submissions are two-fold. First, his primary submission is that it is not legally possible to have one interview doubling as a section 4/2 interview in the first instance, followed, without further interview, by a section 3 application. He submits that there must be a separate interview for the purposes of each application. He accepts that, on the face of it, the Act does not say so, but his submission is that only in that way is what he calls the impermissible conversion of a section 4/2 into a section 3 avoided, the impermissible rewriting of the statute so as to create an emergency section 3 prevented.
61. When asked what the mischief is, or would be, of a section 3 starting as a section 4, he submits that the mischief is that a section 4 itself can only last for 72 hours; a section 2, into which it can be converted, can last a maximum of 28 days; whereas a section 3 can last as long as six months. He accepts, however, of course that in relation to a section 3 admission, the patient can immediately apply for a review by the Mental Health Review Tribunal which must be dealt with in ten days.
62. Whatever may be what he submits to be the mischief, his submission is that that is the proper construction of subsection 13(2), and one which accords with the requirements, or the encouragement, laid down by Sir Thomas Bingham MR, to which I have referred, of a strict construction of a statute which interferes with the liberty of the subject.
63. He further submits that the necessity for two interviews is underlined by the Code of Practice which has been created by way of delegated legislation by the Secretary of State for Health and the Secretary of State for Wales under the Mental Health Act 1983. He refers to paragraph 2.11 of the Code of Practice, headed up 'Individual Professional Responsibility - the Approved Social Worker'. It reads:

"It is important to emphasise that an approved social worker assessing a patient for possible admission under the Act has overall responsibility for co-ordinating the process of assessment and, where he or she decidesto make an application, for implementing that decision. The approved social worker must, at the start of the assessment, identify himself or herself to the person, members of the family or friends present and the other professionals involved in the assessment. They should explain in clear terms the approved social worker's own role and the purpose of the visit..."

64. He submits that for the purpose of that paragraph of that Code of Practice 'explaining the purpose of the visit' must mean explaining that the interview is for the purpose either of a section 2 or 4 admission or a section 3 admission, and unless it is explained that it is for both, then the purpose of the visit has not been satisfactorily explained. Further, he submits that in any event there cannot be an interview which has both purposes, because he submits the criteria in section 2 are different from the criteria in section 3; the one looking to the question of assessment and the other looking to the question of treatment.
65. His fallback case is that even if there can be one interview which doubles as both the necessary precondition for the section 2/4 admission and the necessary precondition for a section 3 admission, on the facts of this case, particularly given the shortness of the interview that was not the case here. That submission he recognises is extremely difficult, if not impossible, to put forward, in the light of the evidence of Mrs Donaghy, to which I have referred and which I accept, namely as appears from paragraph 9, that she considered whether "he fulfilled the criteria for an admission under section 4 (which entails the evaluation of the section 2 criteria) or section 3. I was satisfied that Mr M. fulfilled the criteria for admission under either section".
66. Having had the benefit of the submissions of Mr Hockton and Mr Lloyd to the contrary, I am entirely satisfied that Mr Musaheb is not right in his submission.
67. First, I accept that subsection 13(2) is entirely straightforward. It requires that there must be the necessary interview prior to the making of either a section 2/4 or a section 3 application, and there was such an interview.
68. Secondly, insofar as it was necessary for the interview to have in mind, at the time, the possibility either of the one route or the other, Mrs Donaghy's evidence here is that that was exactly what did occur. In fact I am not at all sure that it is necessary for that to be in mind at the time. It seems to me entirely possible, provided that a necessary and suitable interview is carried out, for the social worker to have acquired the necessary knowledge, either retaining it in her memory or if necessary reflecting back on any notes, so that there is sufficient to justify an initial section 2 or 4 application, but subsequently, when it comes to a section 3 application, for her to be able to draw on that same knowledge when she comes to consider section 3.
69. Thirdly, I am entirely clear, not least because of the express provisions of section 5 of the Act, that there is nothing unusual or devious at all in the making first of a section 2/4 application followed by a section 3 application thereafter. There is no provision, as has been described, for the conversion of a section 4 admission into a section 3 admission by the simple provision of one extra report. It is required that the section 3 procedure is self-standing, but there is nothing odd or, as I put it, devious about it; it is clear that there can be a section 3 application at any stage after a section 4 admission has been made. There is no provision within section 5 which says that a section 3 admission can only be made after the expiry of 72 hours after a section 4 admission, or before the expiry of 72 hours, or after the expiry of 28 days, or any of those kinds of preconditions.
70. In those circumstances there is nothing which prevents the use, for the purpose of a subsequent section 3 admission, of any proper information available on an earlier section 2/4 admission, just as there is no prohibition upon the social worker using acquired knowledge prior to the interview for the purposes of the interview itself, such as inevitably here Mrs Donaghy had, and indeed it is not complained of for the purposes of her section 2 and 4 conclusion.
71. Fourthly, I am satisfied that Mr Musaheb is not right when he makes his submission about paragraph 2.11 of the code. There is not a requirement under 2.11 that the approved social worker must make it clear for the purposes of which section he or she is operating. What is required is that the role of the social worker and the purpose of the visit must be explained by someone, not necessarily by the social worker himself, given the plural word "they" as to who should explain in paragraph 2.11. It seems to me, on the facts of this case, that Mrs Donaghy did explain the purpose of the visit when she says in her evidence "I told Mr M. my name and that the purpose of the visit was to assess his mental condition". That is what in my judgment is required by the need for the purpose of the visit to be explained, namely that this is not, as I suggested in the course of argument, a visit to read the gas meter, this is a serious visit intended to assess the condition of the proposed mental patient so that he should be in no doubt that he is being carefully studied and assessed, and should not treat the matter lightly.
72. It is plain in my judgment that paragraph 2.11 is the suggested way of going about subsection 13(2), which is not a question of warning a mental patient that he may be subject to a particular section, but one which is dedicated to ensuring that the social worker can carry out a suitable interview, and one which enables him to satisfy himself that detention in the hospital in all the circumstances of the case is the most appropriate way of providing the care and medical treatment of which the patient stands in need.
73. Fifthly, that is the submission of Mr Hockton, including reference to the case of W. to which I have earlier referred. The case of W. is relevant because in that case the necessary consultation and interview had occurred some time before the admission was made. What Mr Hockton points out is that in subsection 11(5) there is an express provision, to which I have referred, that none of the applications under the Act shall be made by any person in respect of a patient unless that person has personally seen the patient within the period 14 days ending with the date of the application. Of course the persons who can make the application include relatives of the patient, but they also specifically include the approved social worker; and so the only requirement so far as an approved social worker is concerned under 11(5) is that that social worker should have personally seen the patient within the period of 14 days. That must, to my mind, lead to the proposition that the interview required under subsection 13(2), for which no time limit is specifically provided in subsection 13(2) itself can have taken place 14 days earlier. The only limit on that, as Mr Lloyd points out, is that by subsection 4(5) an emergency application under section 4 requires that the social worker or applicant shall have seen the patient within the previous 24 hours not the period of 14 days. There is however no such limitation in relation to the making of an application, or the carrying out of an interview, with a view to a section 3 application, i.e. no requirement of a fresh interview.
74. Finally, Mr Lloyd points out that there is an express requirement under section 3 of the Act that the medical practitioners can only make their necessary recommendations under section 3 in the prescribed form, with a special fresh recommendation and opinion. Thus, it is clear that even if such medical practitioners have been involved in giving an opinion, again in the prescribed form for the purposes of section 2 and/or 4, they must make a fresh recommendation for the purposes of section 3; whereas there is no similar requirement for a social worker, who must simply have interviewed the patient before making the relevant application for admission.
75. In those circumstances I am entirely satisfied that the gloss on the Act which Mr Musaheb seeks to make that there must be a separate interview within subsection 13(2) annexed to each application, and therefore that there must be a fresh interview for any fresh application for admission is misconceived, and that the requirement under subsection 13(2) in this case was fulfilled, and in those circumstances that the section 3 admission, which was self-standing so far as far as the medical experts were concerned, but which relied, in the circumstances described by Mrs Donaghy in paragraph 11 of her written statement, on the earlier interview that she had carried out -- at that stage leading, as it did, to a section 4 application, but in any event foreseeing the possibility or probability of a subsequent section 3 application -- was valid and sufficient. In those circumstances this application must fail.
76. MR HOCKTON: My Lord, I ask for costs in the usual circumstances. I understand that the applicant is legal-aided.
77. MR JUSTICE BURTON: I will make the usual order that the applicant pays both the respondents' costs but subject always to the Legal Funding Services Assessment.