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 WC2
		Tuesday, 13th February 2001

JUDGMENT
1. MR JUSTICE SULLIVAN:Because I do not believe in keeping the parties in suspense I announce in advance that this application for judicial review will be dismissed. I now give the formal judgment.

Introduction

2. This is an application for judicial review of a decision dated 8th January this year by the Mental Health Review Tribunal for the London and South Western Region ("the Tribunal") upon applications made to the Tribunal in October 2000 by a patient, who will be referred to as "W" in this judgment, and her mother.
3. The application is unusual in that it is made by the Epsom and St Helier NHS Trust ("the Claimant"). The Tribunal's decision was that W should be discharged under section 72(1)(b) of the Mental Health Act 1983 ("the Act"). W has been represented as an interested party in these proceedings. The provisions of section 72(1)(b), so far as relevant for present purposes, are as follows:

"(b) the tribunal shall direct the discharge of [the] patient ... if they are satisfied -

(i) that [she] is not then suffering from mental illness ... of a nature or degree which makes it appropriate for [her] to be liable to be detained in a hospital for medical treatment; or

(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that [she] should receive such treatment ..."

The Tribunal's Decision

4. There is no dispute that W suffers from a mental illness. In the reasons for its decision the Tribunal said:

"The medical evidence is that W suffers from a mental illness, namely somatoform disorder. It was described as being persistent in nature and severe in degree. That evidence is not challenged."

5. The Tribunal found the case to be "uniquely complex and difficult" because of the particular characteristics of W's illness, which were described as:

"'having a pre-occupation with particular physical problems, her particular understanding of the physical basis of these or the diagnosis without acceptance of medical conclusions after extensive examination and investigation. Further, she expresses her psychiatric illness through seeking medical attention for physical complaints and her central relationships with other people are through illness symptoms and through opposition to medical intervention to restore her health.' For some time now the manifestation of her mental illness has been an irrational belief that she cannot swallow and a consequent inability to maintain adequate levels of nutrition and hydration leading to loss of weight which was at one point considered to be life threatening.

"The management of her illness is shared between Dr Forrest Consultant Psychiatrist, Dr Howard, Consultant Physician and Gastroenterologist and her general practitioner Dr Tyler, and is described by Dr Forrest in his report of December 1st 2000 as presenting substantial problems."

6. The Tribunal set out the history of W's treatment, which is not in dispute:

"W has been cared for in Jesmond Nursing Home since June of 1997. It is not a registered mental nursing home and W's placement was under a supervised discharge pursuant to section 25A of the Act.

"On 23rd March 2000 W was admitted to hospital when her weight loss was considered life threatening and she was detained under section 3 of the Act. She was granted section 17 leave on the 5th of April 2000 and readmitted to hospital on the 5th of May 2000. At that time she had a PEG tube fitted in order that she could be provided with nutrition and hydration, which she would not accept orally. She was again placed on leave pursuant to section 17 of the Act on 8th May 2000. Her detention was reviewed by a tribunal on 19th of September 2000. She was not discharged and the section 3 was renewed on 5th October 2000.

"When the section 3 was renewed on the 5th of October 2000 W was immediately granted section 17 leave. She has not had any in-patient treatment in hospital during this period of detention. Her treatment consists of ensuring that she receives adequate nutrition and hydration via the PEG tube, reviewing her mental state through visits from Dr Forrest, reviewing the section 17 leave, monthly out-patient appointments with Dr Howard to supervise her feeding and to check on her physical condition and weight. Consideration is being given to a trial of anti-psychotic medication. W will not cooperate with other forms of treatment e.g. attendance at a day centre or discussions with Dr Forrest regarding the psychological aspects of her condition."

7. The Tribunal then summarised the issue and the rival submissions as follows:

"The issue before this tribunal is whether or not, despite the severity of W's mental illness she is entitled to a mandatory discharge under section 72 of the Act, on the grounds that as she is not in fact receiving any in-patient treatment, and has not received any such treatment during this admission, it is not appropriate for her to be liable to be detained in hospital for treatment.

"The submissions made by those representing W and her mother are to that effect. They argue that the renewal and subsequent continuing detention under section 3 is in reality being used by the treatment team as a community treatment order and is unlawful, and a misuse of section 17. It is further argued that any further in-patient treatment that may prove to be necessary will be due to her medical condition and not treatment for her mental illness per se.

"The Trust argues that the fact that W is not in actual fact receiving in-patient treatment does not entitle her to a mandatory discharge, on the grounds that there is a certainty that there will be a need for readmission as an in-patient at some point in the future for the removal or replacement of her PEG tube. It is further argued that there is a significant possibility that a period of in-patient treatment will be necessary because of W's lack of cooperation with her treatment programme if this leads to a deterioration in her condition."

8. The evidence before the Tribunal was as follows:

"Dr Forrest's evidence was that the most readily perceived grounds for readmitting W to hospital would be Dr Howard's decision and would be for management of feeding from the PEG and overall loss of weight caused by non-cooperation. In that regard, we note that in November and December W followed a pattern of expelling as much as possible of each feeding through the PEG by opening it when unobserved. In this way she has been able to induce marked fluctuation in her weight including a steep loss of over 2 kilograms in mid-December. His view is that her repeated efforts to prevent adequate nutrition indicate that medical treatment of physical illness arising from her somatoform disorder could only be under the provisions of a section 3 treatment order. However, he does not anticipate that he will be providing any psychiatric treatment on an in-patient basis.

"Dr Howard's evidence was that it is not anticipated that the PEG tube would need to be replaced or removed during this period of liability to detention [5th October 2000 to 5th April 2001]. Furthermore he conceded that it is possible that she may not need any in-patient treatment in hospital during this period of detention. Further in-patient treatment in a hospital will be necessary if her weight should fall to a life threatening level or if she develops any complications such as an infection caused by impaired immunity."

9. Dr Howard prepared monthly reports on W, the most recent, dated 20th December 2000, was before the Tribunal, and said:

"W is continuing to empty her gastrostomy feed into the sink. Her weight now has now fallen to 36.7 kg ...

"Despite the PEG feeding tube W is losing weight. I suspect this is due to her manipulation of the feeding regime ... I am firmly of the view that she is not doing very well and although there is no specific medical problem at present her behaviour and current state reinforces the need for her to be closely monitored and supervised by myself in conjunction with Dr Forrest and Dr Tyler. This lady is not in a position to be able to fend for herself or feed herself. She is getting excellent care and attention at the Jesmond Nursing Home under very difficult circumstances.

"I will continue to monitor her on a monthly basis but am somewhat concerned that despite our best endeavours she is managing to lose weight and I suspect this is partly due to her endeavours to interfere with the feeding regime."

10. Dr Forrest prepared a lengthy report in December 2000 for the assistance of the Tribunal, it included the following:

"... it has not been possible for me to discuss with W her own understanding or reasons for her self-injurious behaviour. In my view, this pattern re-emphasises the point reported earlier, that removal of the provisions of the section 3 Treatment Order would lead to her behaving in a way that endangered herself.

"Further, although the medical responsibility for the monitoring of her physical health, and decisions on the management of physical illness arising out of her somatoform disorder rests with her General Practitioner Dr Tyler, and Dr Howard, Consultant Gastroenterologist, it is in my view clear that her present behaviour November/December is directly relevant to the issue of whether her current treatment plan contains a significant element of in-patient care.

"Previously, W's loss of weight brought her to a point where her life was in danger, requiring the unusual measure of the PEG. Her active opposition to medical and nursing measures to protect her physical health, clearly raises the continuing possibility of investigation or treatment in a medical in-patient setting.

"Further, her repeated efforts to prevent adequate nutrition indicate that medical treatment of physical illness arising from her somatoform disorder could only be under the provisions of a section 3 Treatment Order."

11. The report continued:

"Although Dr Howard and Dr Tyler are responsible for decisions about medical intervention, it is clear that her treatment plan (including the period when section 3 was renewed) has as an essential part the possibility and facility of using medical in-patient resources in a controlled way."

12. He noted that medical out-patient appointments had continued under Dr Howard. He also noted:

"The first and most crucial has been the exceptional level of dedication and skill shown by the staff at Jesmond Nursing Home in managing W's care ..."

13. He continued:

"As indicated above, medical assessment, and medical treatment of medical problems (arising out of her somatoform disorder) continue to be necessary at the present time. They can only be provided under section 3 of the Mental Health Act given the illogicality of W's views of her medical disabilities and their treatment and rehabilitation.

"Her treatment plan overall contains the significant possibility of assessment or treatment in an in-patient setting."

14. These reports are only the most recent in a series of reports. It is plain from Dr Forrest's report that the Tribunal was supplied with a number of earlier reports. On the material before this Court it is not possible to ascertain the extent of the dossier before the Tribunal. It seems probable that it included the reasons given by the earlier tribunal, on 19th December 2000, for not ordering W's discharge at that time.
15. Against this background the Tribunal set out its conclusions under the heading "The Decision":

"We do not accept the argument that a patient who is liable to be detained under section 3 and who is on section 17 leave is automatically entitled to be discharged under section 72 purely by virtue of the fact that he or she is not receiving any element of in-patient treatment whilst on such leave. However we do think that the position is different where there has not been any element of in-patient treatment in a hospital throughout the period of liability to detention. Furthermore, we are of the view that we cannot ignore the reality of the situation, which is, as we see it, that the actual place of W's detention is this nursing home and has been so since May of 2000. It is in this establishment that she is and has been receiving the care and treatment that she needs.

"It is a breach of anyone's human rights to be deprived of their liberty save in accordance with a procedure prescribed by law. Under the Mental Health Act, patients can only be detained in a hospital or a mental nursing health. As Jesmond Nursing Home is not a registered mental nursing home, we have concluded that it is not appropriate for her to be liable to be detained under section 3 and accept the submission that the section is really being used as a community treatment order."

16. It is agreed that the Tribunal's reference to a "community treatment order" was a reference to a proposal in a White Paper, "Reforming the Mental Health Act: The New Legal Framework", which had been published in December 2000, shortly before the Tribunal's decision. The Tribunal added as a footnote:

"This decision should not be seen in any way as a criticism of the quality of the care W is receiving. We note that an application for supervised discharge, with a condition that she continues to reside in Jesmond Nursing Home has been made and accepted. The discharge of the section 3 today will bring that supervised discharge into effect."

17. It is important that I emphasise the fact that there is no criticism of the standard of medical care that W is receiving from the nursing home, or from any of the doctors referred to above. All are acting in what they perceive to be W's best interests in circumstances which were described by the previous tribunal, on 19th September 2000, as being:

"... outside the experience of any of the Tribunal, either sitting as members or in their professional lives."

The 1983 Act

18. The fact that treatment is perceived by medical professionals to be vital in the patient's best interests does not of course make it lawful. As the Court of Appeal said in St George's Healthcare NHS Trust v S (1998) 3 WLR 936, when dealing with the case of a 36 weeks pregnant woman who refused to have an induced delivery, notwithstanding clear advice that her life and that of her unborn child would be placed at risk if she insisted on having a natural birth:

"The Mental Health Act 1983

The Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual, even apparently bizarre and irrational, and contrary to the views of the overwhelming majority of the community at large. The prohibited reasoning is readily identified and easily understood. Here is an intelligent woman. She knows perfectly well that if she persists with this course against medical advice she is likely to cause serious harm, and possibly death, to her baby and to herself. No normal mother-to-be could possibly think like that. Although this mother would not dream of taking any positive steps to cause injury to herself or her baby, her refusal is likely to lead to such a result. Her bizarre thinking represents a danger to their safety and health. It therefore follows that she 'must' be mentally disordered and detained in hospital in her own interests and those of her baby. The short answer is that she may be perfectly rational and quite outside the ambit of the Act, and will remain so notwithstanding her eccentric thought process.

"Even when used by well intentioned individuals for what they believe to be genuine and powerful reasons, perhaps shared by a large section of the community, unless the individual case falls within the prescribed conditions the Act cannot be used to justify detention for mental disorder:

"'No adult citizen of the United Kingdom is liable to be confined in any institution against his will, save by the authority of the law. That is a fundamental constitutional principle, traceable back to ... Magna Carta ... Powers therefore exist to ensure that those who suffer from mental illness may, in appropriate circumstances, be involuntarily admitted to mental hospitals and detained. But, and it is a very important but, the circumstances in which the mentally ill may be detained are very carefully prescribed by statute:' per Sir Thomas Bingham MR in In re SC (Mental Patient: Habeas Corpus) [1996] QB 599, 603.

"In R v Hallstrom ex parte W [1986] QB 1090, 1104, McCullough J used language which encapsulated an axiomatic principle:

"'There is ... no canon of construction which presumes that Parliament intended that people should, against their will, be subjected to treatment which others, however professionally competent, perceive, however sincerely and however correctly, to be in their best interests ... Parliament is presumed not to enact legislation which interferes with the liberty of the subject without making it clear that this was its intention. It goes without saying that, unless clear statutory authority to the contrary exists, no one is to be detained in hospital or to undergo medical treatment or even to submit himself to a medical examination without his consent. That is as true of a mentally disordered person as of anyone else.'"

19. The relevant statutory framework is set out in the judgment of Lord Woolf MR, as he then was, in B. v Barking, Havering and Brentwood NHS Trust [1999] Lloyd's Law Reports, Medical, 101. It is unnecessary to rehearse it in detail for the purposes of the present case.
20. W was admitted to hospital under the following provisions of section 3(1):

"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section.

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

"(a) he is suffering from mental illness ... of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and ...

"(c) it is necessary for the health or safety of the patient ... that he should receive such treatment and it cannot be provided unless he is detained under this section."

21. She was given leave of absence under section 17(1):

"(1) The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that officer considers necessary in the interests of the patient or for the protection of other persons.

"(2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient."

"(4) In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this section, and it appears to the responsible medical officer that it is necessary to do so in the interests of the patient's health or safety ... that officer may ... revoke the leave of absence and recall the patient to the hospital."

22. Section 20 provided for periodic, six-monthly reviews of the authority for W's detention. In summary, she could continue to be detained under section 3 only if the responsible medical officer, having examined her, reported that she was:

"... suffering from mental illness ... of a nature or degree which makes it appropriate for [her] to receive medical treatment in a hospital ...": see section 20(4).

The Barker Case

23. Ms B. challenged her continued detention under section 3 of the Act. At the relevant time for renewal under section 20 of the authority to detain her, she had been given leave under section 17:

"... to be away from the hospital from Thursday to Monday. In addition she was allowed to be away from her ward for a number of hours each day."

24. It was argued that she was, in effect, being detained purely for assessment, which was not treatment for the purposes of the Act. Section 20(4) could not be used if it was not necessary for the patient to be treated as an in-patient. The court did not accept that argument. Lord Woolf said this, at page 106:

"Mr Gledhill's [who appeared on behalf of the claimant] argument depends on looking not at the appellant's treatment as a whole, that is both at what happens in hospital and when she is on leave, but only that part of the treatment of the appellant when she is 'detained' as an in-patient. The treatment when she is detained he categorizes as being no more than 'assessment' which would not be sufficient for section 3 and therefore should not be sufficient for section 20 which mirrors section 3.

"If Mr Gledhill's approach is right it creates considerable difficulties in treating the many patients like the appellant who should be treated partly as an in-patient and partly as an out-patient as described by Dr Taylor in the case of the appellant. In such cases the activities which take place as part of the in-patient treatment may all individually be capable of being performed without the treatment taking place in the hospital, yet for the treatment as a whole to be successful there will often need to be an in-patient element to the treatment which means it is in fact 'appropriate for him to receive medical treatment in a hospital' and 'that it cannot be provided unless he continues to be detained'. The requirement that the patient has to return to hospital and be monitored and is liable to be recalled and from time to time is subjected to the discipline of being treated in hospital as an in-patient under direct supervision with urine and other tests is an essential part of the treatments. They enable the patient to attempt the process of rehabilitation in the wider community which would be more precarious otherwise. This appears to be just the type of treatment contemplated by the second half of the definition of treatment contained in section 145 of the Act. As the Code of Practice states in paragraph 20.1, leave 'can be an important part of a patient's treatment plan'.

"The approach of Mr Gledhill conflicts with that of Hoffmann LJ as to the meaning of 'treatment' in R v Croydon Health Authority [1995] Fam 133. Hoffmann LJ was not considering out-patient treatment but he rejected an 'atomistic' approach to what is treatment by looking at treatment as a whole. It is the treatment as a whole which must be calculated to alleviate or prevent a deterioration of the mental disorder from which the patient is suffering. As long as treatment viewed in that way involves treatment as an in-patient the requirements of the section can be met."

25. Hobhouse LJ agreed with Lord Woolf. Thorpe LJ said this:

"In my opinion it is important that any construction of section 20 of the Mental Health Act should be as far as possible compatible with section 17. Medical treatment as defined by section 145 includes rehabilitation under medical supervision. Obviously a statutory power to grant leave of absence under section 17 is an important power where the appropriate treatment for the patient is rehabilitation under medical supervision ...

"On 2 December 1997 the primary treatment thought appropriate for Miss B. was rehabilitation under medical supervision. The endeavour to rehabilitate was dependent upon her regular consumption of the prescribed drugs and her abstinence from the illicit drugs which in the past have proved her undoing. The stepping stones to the goal of rehabilitation were weekly leaves of absence under section 17, gradually extended in duration so long as there were no setbacks. But her home base remained the hospital despite the fact that she slept many more nights out than in and despite the fact that she had a daily leave of absence for four hours on each of the two days per week when she returned to the hospital. It seems obvious to me that those two days of detention each week were an essential ingredient of the treatment. If it were to succeed structure and discipline were important ingredients. Indeed once those elements were reduced to minimal levels the treatment soon failed. Furthermore those periods of weekly detention were crucial to allow Dr Taylor to assess Miss B.'s state of mental and psychological well-being and to monitor her progress. Mr Gledhill's submission that medical treatment cannot be construed to include general monitoring or urinalysis is in my opinion plainly wrong. How can there be medical supervision of the rehabilitation without monitoring and without the resident medical officer having the power to carry out physical tests, such as urinalysis, to ascertain the patient's behaviour when not subject to direct attention."

The Claimant's Submissions

26. Against this factual and legal background, Mr Havers QC makes essentially two criticisms of the Tribunal's decision. He says that having, correctly, rejected the argument that a patient who is liable to be detained under section 3, but is on section 17 leave, is automatically entitled to be discharged under section 72 purely by virtue of the fact that he or she is not receiving any element of in-patient treatment whilst on leave, the Tribunal firstly erred in concluding that:

"... the position is different where there has not been any element of in-patient treatment in a hospital throughout the period of detention."

27. That was to look simply at the past, and it might be a matter of chance that the patient had not required treatment in hospital during a particular period. In looking at treatment as a whole one also had to look at the prospect of treatment in the future. The starting point in the present case was the fact that it had been necessary to insert the PEG tube during a period of in-patient treatment. Looking to the future, he drew attention to three aspects of the evidence that was before the Tribunal. There was a certainty, at some unspecified time to be determined by W's progress, of either the removal of the PEG tube or its replacement or renewal, and that would have to be done on an in-patient basis.
28. Secondly, there was "a significant possibility" of in-patient treatment being required by reason of medical complications, such as chest infections, which might arise at any time, given W's condition: see Dr Forrest's report (above). There might be uncertainty as to when in-patient treatment would be required, but section 17 expressly envisaged that leave of absence might be granted indefinitely.
29. Thirdly, the Tribunal's approach ignored Dr Forrest's evidence that removal of liability to section 3 detention would lead to W "behaving in a way that endangered herself" (ibid). In short, he regarded W's liability to be detained as a key part in her overall treatment. Sadly, Dr Forrest's fears for W's health have proved to be well-founded. Following the Tribunal's decision to discharge W from liability to be detained she refused to cooperate with the staff at the nursing home. Dr Howard reported on 24th January 2001:

"W has deteriorated substantially since 2nd January 2001. In discussion with Dr Forrest and ... the Matron at Jesmond Nursing Home, it is clear that she is now refusing tube feeding. Her calorie intake must be very poor if her sole solid intake is derived from oranges ... I am very concerned about her physical state. If she continues to lose weight at this rate there is a very real prospect of her dying from dehydration or malnutrition within the next few weeks. A profound weight loss will also cause deterioration in her immunity to infection and it is possible that she may develop a chest infection which of course would prove life threatening.

"As she is clearly taking insufficient hydration and nutrition I can no longer guarantee that this lady will survive and in my professional opinion her life is imminently at risk. I understand that proceedings are being taken with the High Court to try and resolve the legal issues. My concern is that her condition will deteriorate even further or that she may even die if matters are not resolved quickly and her doctors, nurses and carers are enabled to feed her using the PEG tube."

30. In these wholly exceptional circumstances, I expedited the hearing of this application to 12th February and granted a stay of the Tribunal's order. In simple terms, that course was necessary to allow PEG feeding to continue, if necessary by the use of physical restraint, in order to preserve W's life pending resolution of the legal challenge to the decision to release her from liability to section 3 detention.
31. Secondly, Mr Havers submitted that the Tribunal failed to look at W's treatment overall when it said:

"... we cannot ignore the reality of the situation ... the actual place of W's detention is [the Jesmond] Nursing Home and has been so since May of 2000. It is in this establishment that she is and has been receiving the care and treatment that she needs."

32. It is said that this reasoning, again, looks at the past, and does not take account of the part played by W's liability to be detained under section 3 and have treatment, and ignores the evidence that W regularly attended the hospital each month to be assessed and reviewed by Dr Howard. Such assessments would include, for example, the taking of blood tests. Although those were arranged on an out-patient basis, that was a technicality: W attended the hospital each month.
33. Whilst the present case was different on the facts from B., two of the factors identified by Lord Woolf on page 106 were present: the requirement that the patient has to return to hospital to be monitored, and the liability to recall. Instead of the third factor, the patient being subject to the discipline of being treated in hospital as an in-patient under direct supervision, there were the regular monthly assessments on an out-patient basis.
34. Thus, looking to the future and at the whole of W's treatment, he submitted the Tribunal should have concluded that her illness was of such a nature as made it appropriate for her to be liable to be detained in hospital for medical treatment. The Tribunal had failed to take those factors into consideration when giving reasons for its decision, alternatively if it had taken them into account, it had failed to give adequate reasons as to why the claimant's case for continuing section 3 liability to detention had been rejected.

Reasons

35. The Tribunal's obligation to give reasons for its decision is contained in rule 23(2) of the Mental Health Review Tribunal Rules 1983, which is in the following terms:

"The decision by which the tribunal determines an application shall be recorded in writing; the record shall be signed by the president and shall give the reasons for the decision and, in particular, where the tribunal relies upon any of the matters set out in [various sections] of the Act, shall state its reasons for being satisfied as to those matters."

36. In R v Mental Health Review Tribunal ex parte Pickering [1986] 1 All ER 99, Forbes J explained the need to give reasons in the following terms at page 102:

"I need not go over the authorities dealing with what is meant by reasons when a statute requires a tribunal to give reasons for its decisions. There is a long line of cases, starting, perhaps, with Re Poyser and Mills's Arbitration [1963] 1 All ER 612, [1964] 2 QB 467, through Givaudan & Co Ltd v Minister of Housing and Local Government [1966] 3 All ER 696, [1967] 1 WLR 250, both decisions of Megaw J. They go through a further long line of cases which continually crop up in the field of town and country planning law, particularly enforcement provisions and that sort of thing. The principles are well known. Among them are that the reasons must be adequate and intelligible reasons and that they must grapple with the important issues raised. There are other aspects of the matter and some of them will be found in a judgment of my own called Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P&CR 26. For instance, one must not seek to subject reasons of this kind to the analytical treatment more appropriate to the interpretation of a statute or a deed. Also, one finds cases in which, although on the face of it the reason by itself is not clear or immediately intelligible, nevertheless, because the decision is addressed to parties who were well aware of what issues were raised and the nuances raised by those issues, you cannot, as it were, read the decision in the air. You have to remember that it is addressed to parties who knew what the issues were."

37. Mr Havers pointed to the summary of the Trust's case, which had referred to the need for readmission at some point in the future and the need to secure W's cooperation with the treatment programme, and submitted that the Tribunal's reasons did not grapple with those arguments

The Submissions on behalf of the Tribunal

38. On behalf of the Tribunal, Miss Lieven submitted that the reasons for the Tribunal's decision had to be read as a whole. It was not appropriate to take passages in the part described as "The Decision" in isolation, or out of context. They should not be dissected sentence by sentence. Section 72(1)(b) required the Tribunal to exercise a judgment: given W's illness was it "appropriate" for her to be liable to be detained in a hospital for medical treatment?
39. In challenging such a judgment reached by an expert tribunal (the Mental Health Review Tribunal comprises a lawyer Chairman, a medical and a lay member) the claimant faced an uphill task. While the claimant clearly disagreed with the Tribunal's conclusion, it did not say that it was Wednesbury perverse. Reading the decision as a whole, it was plain that the Tribunal had taken into consideration the factors referred to by Mr Havers. The starting point, which did not need repeating because the parties were only too well aware of it, was the in-patient treatment to have the PEG tube inserted. Having referred to that at the outset of its decision, the Tribunal was entitled to focus on what treatment had been received since then and to place particular weight on the fact that no in-patient treatment had been received whilst W was on leave since May of 2000.
40. The Tribunal understood the Trust's case, it correctly summarised it, and it referred to evidence that the PEG tube would need to be removed at some future date, that there might be a need for in-patient treatment during the period of detention and to W's monthly out-patient appointments with Dr Howard. Having done so, the Tribunal was entitled, as a matter of judgment in deciding what was "appropriate", to place greater weight on the fact that W had been cared for in the nursing home, without any element of in-patient treatment, since May of 2000. That decision was open to the Tribunal as a matter of law. The fact that Dr Forrest's fears had, subsequently, been realised was not relevant for the purpose of deciding, in judicial review proceedings, whether the Tribunal's decision was erroneous as a matter of law. In any event, once the Tribunal had concluded that the conditions in section 72(1)(b)(i) were met, it had to discharge W, and could not go on to consider (ii) whether it was necessary for her health or safety that she should receive treatment.
41. Miss Lieven did not dissent from Mr Havers' submission that the Tribunal had to look at W's treatment overall and had to look to the prospect of future in-patient treatment, as well as past in-patient treatment. Reading the decision as a whole, she submitted that that was what the Tribunal had done. The word "indefinite" in section 17 was used by way of contrast to "a specified period". It did not mean that lengthy periods of leave were appropriate, on the basis that some in-patient treatment might, eventually and at some uncertain time in the future, be required. Such an approach to section 17 would effectively bypass the safeguards of the six-monthly review process.
42. She distinguished the B. case on the facts, referring in particular to the judgment of Thorpe LJ:

"... those two days of detention each week were an essential part of the treatment."

The Submissions on behalf of W

43. On behalf of W, Mr Simblett advanced the submission, which was rejected by the Tribunal, that W was entitled to be discharged under section 72 purely by virtue of the fact that, whilst she was on section 17 leave, she was not receiving any element of in-patient treatment. He submitted that the discharge criteria in section 72 mirrored the admission criteria in section 3. A patient could not be admitted and detained for treatment in a nursing home: it had to be shown that it was appropriate for a patient to receive medical treatment in a hospital. "Hospital" was widely defined in section 145 of the Act, and it was common ground that it did not include the Jesmond Nursing Home.
44. He submitted that the present case was analogous with the position in R v Hallstrom ex parte W [1986] 1 QB 1090. In that case, the patient (who was also referred to as W) had a long history of chronic schizophrenia. She was living in a hostel and was refusing to take her medication. Her doctors were of the opinion that it was necessary for her to be detained under section 3 to ensure that she continued to take her medication whilst she was living in the hostel. McCullough J concluded that there was no power to detain her under section 3 for this purpose since there was no question of her receiving treatment as an in-patient. Although the Court of Appeal concluded in B. that McCullough J's interpretation of section 20 was flawed, it did not question the correctness of his decision on the facts of W's case.
45. In so far as the Tribunal had a discretion to consider the question of appropriateness, Mr Simblett adopted Miss Lieven's submissions. He further submitted that even if the Tribunal had erred in law in directing that W should be discharged, relief should be refused as a matter of discretion, because the claimant could, if it became concerned as to W's state of health, supply information to an approved social worker who would then be able to make a fresh application under section 11 of the Act to admit W for treatment under section 3. The claimant's response to that is, in substance, that W's state of health is precarious and unpredictable, and that it does not wish to see a situation arise where her health has deteriorated to such an extent that the only possible course is to admit her to hospital and to detain her there for treatment to save her life.

My Conclusions

46. The Tribunal was right to reject the argument that W was:

"... automatically entitled to be discharged under section 72 purely by virtue of the fact that she is not receiving any element of in-patient treatment whilst on [section 17] leave."

47. B. is authority for the proposition that one has to look at the whole course of treatment. To do so, one has to look at the past, present and future. It is not enough to say that a patient is not receiving treatment at a particular time. If, for example, it was proposed that the patient should be admitted to hospital for in-patient treatment in the week following the expiration of a six-month period of liability to detention, it would be absurd if the Tribunal could not take that fact into account. The timing of in-patient treatment, whether it falls within or outside a particular period of liability to detention, might be dictated by factors other than the patient's own state of health, for example, resource availability or the availability of specialised staff, and so forth.
48. Moreover, any approach to section 17 and 72 has to recognise the progressive nature of treatment in many cases: see Thorpe LJ's judgment in B.. One hopes that, at least in the majority of cases, there will be progressively longer periods of leave, with a corresponding reduction in the need for in-patient treatment. It is important that no artificial "cut-off", requiring the Tribunal to look simply at whether in-patient treatment is being provided, is applied. To do so would not be in accord with the aim underlying section 17, to enable patients to return to normal life in the community at their own pace. I am satisfied that the Tribunal approached the matter on the basis that no such artificial cut-off should be applied.
49. The Tribunal's reasons must be read as a whole, in a common sense way, not as a legal treatise: see Pickering. If that is done, it is plain that the Tribunal was well aware of the factors referred to by Mr Havers. Having set the scene by referring to W's admission to hospital on 5th May 2000 for the PEG tube to be inserted, it did not need to repeat the point, since both parties knew that this was the starting point. The Tribunal specifically referred to W's lack of cooperation. It was common ground that if discharged under section 3 she would refuse nutrition. That, in essence, was why the claimant was arguing before the Tribunal for the retention of section 3 liability to detention. The Tribunal referred to W's monthly out-patient appointments with Dr Howard, but stated correctly that she had received no in-patient treatment in hospital since May 2000.
50. It is clear that the Tribunal understood the evidence of Dr Forrest and Dr Howard that in-patient treatment, for replacement or removal of the PEG tube, and in the event of complications such as an infection, would or might be requested in the future. As to the former, it recorded Dr Howard's evidence that "it is not anticipated" that the PEG tube would need to be removed or replaced during the period up to April 2001. As to the latter, Dr Howard accepted that it "was possible that she may not need" any in-patient treatment during that period.
51. At this stage in its reasons, having described W's illness, the Tribunal was very much alive to the need to look to the future to see what in-patient treatment would or might be required. It was probing the extent to which that was likely over the next few months. The likelihood of treatment being required in the future within the period of detention is plainly a relevant contention. It would be inconsistent with the scheme of the Act, which affords protection to the patient by making provision for regular six-monthly reviews, if the mere prospect, that at some unspecified future time in-patient treatment would or might be required, compelled a tribunal to reject a patient's application for discharge.
52. The matter has to be looked at in the round, including the prospect of future in-patient treatment, but there will come a time when, even though it is certain that treatment will be required at some stage in the future, the timing of that treatment is so uncertain that it is no longer "appropriate" for the patient to continue to be liable to detention. It is the Tribunal's function to use its expertise to decide whether the certainty, or the possibility, of the need for in-patient treatment at some future date makes it "appropriate" that the patient's liability to detention shall continue.
53. Reading the decision letter as a whole, it is plain that the Tribunal did perform this function, and did have regard to the factors referred to by Mr Havers in doing so. Applying the dicta of Forbes J in Pickering, the Tribunal's reasons are perfectly intelligible. It attached particular significance to the fact that there had been no in-patient treatment in hospital throughout the period of liability to detention, and that the reality was that W was being, and had been, receiving the care and treatment that she needed in the Jesmond Nursing Home since May of 2000. Since the Tribunal was looking at the matter in January 2001, it was entitled to attribute significant weight to those matters.
54. On a fair reading of the reasons as a whole the Tribunal, in the passages criticised by Mr Havers, under the heading of "The Decision", was not losing sight of the future, and excluding it from consideration, it was placing greater weight on what had actually been happening since May of 2000. Given the acknowledged uncertainties as to the future, that was understandable. The Tribunal did grapple with the issues so that the claimant knows why its argument was rejected: the Tribunal gave greater weight to past and present treatment in deciding what was "the reality of the situation".
55. The Tribunal's decision is not an enactment and it should not be construed as such. It is implicit in the Tribunal's rejection of the proposition that W was automatically entitled to be discharged under section 72 purely by virtue of the fact that "she is not receiving any element of in-patient treatment whilst on leave", that the Tribunal looked beyond the treatment which W was receiving at the time of its decision. Having referred to the prospect of future treatment immediately above the passage in the reasoning headed "The Decision", it did not need to repeat that material in order to demonstrate that it was looking at the position in the round, that is to say at past, present and future treatment. The reference to looking "at the reality of the situation" carries with it the implication that the Tribunal was indeed looking at the position in the round, and looking at all of the factors to which it had referred in the earlier part of its reasons.
56. Subject to the adequacy of the Tribunal's reasons (which I have dealt with above) it could not be said that the Tribunal reached a conclusion that was Wednesbury perverse. The claimant, and Drs Forrest and Howard, believed very strongly that continued liability to detention was appropriate, notwithstanding the fact that W had received no in-patient treatment since May of 2000. The weight to be given to the lack of in-patient treatment since May of 2000 was for the Tribunal to decide. It clearly attached considerable significance to this factor and to "the reality of the situation", namely that W was being, and had been, cared for in the nursing home for many months.
57. A different tribunal might have given these factors less weight, and attached greater significance to the prospect of future in-patient treatment at some uncertain time. But it cannot be said that this Tribunal's decision was perverse. The fact that Dr Forrest's fears have been borne out is not a reason for concluding that on the evidence before it, the Tribunal reached a perverse conclusion. Whilst issues relating to the health and safety of the patient will be relevant in deciding whether it is "appropriate" for him or her to be liable to be detained in a hospital for medical treatment, the Tribunal were considering the question proposed by section 72(1)(b)(i), not (ii).
58. In my judgment, there is a close analogy with the Hallstrom case. The patient in that case would not take her medication unless placed under section 3 detention. Her health would undoubtedly suffer if she did not take her medication. But there was still no power to detain her under section 3, because she was being required to take her medication whilst living in a hostel, and not as an in-patient in a hospital. In the present case, W is being required to take nourishment through the PEG tube in a nursing home. She does visit hospital, but not as an in-patient. On the evidence before the Tribunal that position was likely to continue, subject of course to the future prospect of removal or replacement of the tube, and admission as an in-patient in the event of complications arising: see above.
59. It might be said that W is being detained for treatment in a nursing home to ensure that there will be no need for her to be detained in a hospital for medical treatment. The lack of a power to compulsorily detain a patient for treatment in a "half way house" such as a nursing home, and thus avoid the need for more expensive and indeed more intrusive medical treatment in a hospital, appears to be a lacuna in the Act. That lacuna may well be filled in due course by the proposal for a community treatment order. On the evidence the Tribunal was entitled to conclude that W's section 3 detention was really being used as such an order. Again, the reference to the powers of section 3 being used, in effect, as a community treatment order, underlines the fact that the Tribunal was looking at the position in the round. It is quite artificial to suggest that it was not looking to the future and was simply looking to the past in terms of treatment.
60. The position in the present case is clearly distinguishable from that in B. where there was a significant, albeit reducing element, of in-patient treatment. Moreover, in B. there was the factor of rehabilitation. There was a gradual process, during which the periods of leave were being extended. In the present case, on the evidence before the Tribunal, there was no suggestion, sadly, that there was any significant likelihood of that kind of progress being made. In truth, on the material in front of the Tribunal it would appear that W's treatment in the nursing home, by means of the PEG tube, would simply continue for the foreseeable future.
61. B. supports the proposition that the Tribunal should look at "the reality of the situation" in deciding whether it is appropriate that a patient should be liable to be detained in hospital for medical treatment. Artificial cut-offs should not be applied. It follows that there will be a broad spectrum between the Hallstrom type of case at one end, where no in-patient treatment is, or is proposed to be, provided, and the B. type of case at the other, where in-patient treatment forms "an essential ingredient" of the overall treatment programme. It was for the Tribunal to decide where W's case fell within that spectrum. It was entitled to conclude that, in effect, this case was sufficiently close to the Hallstrom end of the spectrum to make continued liability to detention under section 3 inappropriate.
62. It gives me no pleasure to reach this decision. The practical consequence is likely to be that W, released from liability to detention under section 3, will decline to take nourishment, her condition will deteriorate, so that she will have to be admitted to hospital in order to save her life.
63. For the reasons described in the St George's Healthcare NHS Trust case I must resist the temptation to give a strained interpretation to section 72, effectively authorising her detention in a nursing home for treatment which will be provided there rather than in a hospital, however sensible that may appear to be on the facts. I must also resist the temptation to substitute my own view of the merits for that of an expert tribunal which was dealing with a "uniquely complex and difficult case".
64. For these reasons, I have concluded, with considerable regret, that I am bound to dismiss this application.
(End of Approved Judgment)

MR JUSTICE SULLIVAN:Yes.

MR KOLINSKY:My Lord, I appear in place of Miss Lieven.

MR JUSTICE SULLIVAN:Yes, Mr Kolinsky.

MR KOLINSKY:I simply have an application for costs. A summary schedule has been prepared and served this morning.

MR JUSTICE SULLIVAN:Yes.

MR KOLINSKY:My Lord, the amount claimed is a modest £2,510. I do not know if my learned friend has any specific comments on the schedule, but I simply ask for an order for costs for that amount as against the claimant.

MR JUSTICE SULLIVAN:Yes. We did actually go longer than one day, so I do not know that we can force Mr Havers to take summary assessment, but we will see what he says about it.

MR HAVERS QC:I am very happy to take summary assessment.

MR JUSTICE SULLIVAN:I thought you might be.

MR HAVERS QC:I am not very happy to have to pay the Tribunal's costs, but I can see no alternative to having to do so.

MR JUSTICE SULLIVAN:No, I imagined that would be your position. Right then, Mr Simblett?

MR SIMBLETT: My Lord, I also have an application for costs.

MR JUSTICE SULLIVAN:Yes.

MR SIMBLETT: I should say that W is legally aided.

MR JUSTICE SULLIVAN:Yes.

MR SIMBLETT: I therefore seek detailed assessment, that is community legal services commission --

MR JUSTICE SULLIVAN:I think it is, yes.

MR SIMBLETT: But that should not, in my submission, inform the approach that your Lordship applies to the costs.

MR JUSTICE SULLIVAN:No.

MR SIMBLETT: There has been quite a lot of reference in this case to the planning cases, and indeed it is a planning case that in my submission informs the basis upon which your Lordship should approach the issue of costs. It is the Bolton case.

MR JUSTICE SULLIVAN:Yes, I am familiar with it.

MR SIMBLETT: Which if your Lordship is familiar with --

MR JUSTICE SULLIVAN:Yes.

MR SIMBLETT: I think I am probably, ironically, in the position of the Manchester Ship Canal Company in that case.

MR JUSTICE SULLIVAN:I think you are.

MR SIMBLETT: As far as a separate interest is concerned. But in my submission, I clearly have a separate interest from the Tribunal. First --

MR JUSTICE SULLIVAN:Shall we just see if, in truth, Mr Havers does resist the proposition that a patient who is resisting a challenge to an order releasing them from detention, and is successful at the end of the day, is not entitled to their costs. It would, perhaps, be surprising, but there we are. In the plain, the patient does have a separate interest from the Tribunal itself, but ...

MR HAVERS QC:Of course, she has a real interest.

MR JUSTICE SULLIVAN: Yes.

MR HAVERS QC: But whether that is an interest that amounts to a separate interest that requires -- and I was going to show your Lordship the passage -- that the separate interest that requires separate representation is altogether a different matter. The usual rule, which has been followed for longer than I can remember, and that probably means not as long as your Lordship can remember, is that where there is --

MR JUSTICE SULLIVAN:Not in this field I am sure, Mr Havers. No no, I am sure you have a considerable advantage.

MR HAVERS QC: -- is that a second respondent who was successful is not entitled to his or her costs. It is really very exceptional where the argument, in particular the argument advanced by the second respondent, has not identified any separate issue, or indeed has been addressed to the separate issue other than the issue raised by the first respondent, for such a second respondent to obtain their costs independently. Although in the course of his submissions my learned friend identified other points which he sought to urge upon your Lordship, at the end of the day he was adopting Miss Lieven's submissions, that ultimately no fault could be found properly with the decision of the Tribunal.

MR JUSTICE SULLIVAN:It does seem to me that there may be a distinction to be drawn between the type of case where the Tribunal's decision is challenged by the patient and the hospital weighs in. It might be unusual, I quite understand it in those circumstances, unless there was really something rather unusual which meant that the hospital actually had to be there to explain something that the Tribunal could not, for two public bodies to end up with costs. On the other hand, where an individual is released by a public body, and then another public body challenges the order to release him or her and the individual turns up and says, "please, I would not like to be released", it would be a hard rule, I would have thought, that said that he or she could not get his or her costs. Because one has to ignore the fact that W is legally aided, it does not seem to me that makes any difference.

MR HAVERS QC:Yes.

MR JUSTICE SULLIVAN:If she was forking out, Mr Simblett, if I put crudely "out of her own pocket".

MR HAVERS QC:My Lord, one can characterise the question in a number of different ways leading perhaps to a different result, depending on how you characterise the question.

MR JUSTICE SULLIVAN:Yes.

MR HAVERS QC:But at the end of the day, this was a challenge to the correctness or otherwise of the decision of the Tribunal. The issue that was raised was whether their decision was supportable or not. No separate issue arises, and no separate issue was raised by the interested party. True it is she has an interest in the result, but that is altogether different from saying that she has an interest that requires separate representation. One can understand her anxiety to be represented up to a point, because obviously the Tribunal --

MR JUSTICE SULLIVAN: Yes.

MR HAVERS QC: -- were adequately represented, more than adequately represented, but that is very different from the requirement that she be separately represented. It is almost as if your Lordship -- let us test it this way: yesterday morning, if the interested party had not been present and said, "hang on a minute, I think this is so important to the interested party that she needs to be represented". Now that may be overstating the test, but it is perhaps an indication of what is required before an interested party can legitimately be entitled to his or her costs for separate representation.

MR JUSTICE SULLIVAN:Yes.

MR HAVERS QC:The passage I had in mind --

MR JUSTICE SULLIVAN: Yes.

MR HAVERS QC: Does your Lordship have the bundle?

MR JUSTICE SULLIVAN:No, not immediately to hand. Just read it out to me.

MR HAVERS QC:It is page 1039:

[quote unchecked] "The courts do not generally [I am looking at the following page] order an unsuccessful claimant to pay two sets of costs, i.e. the defendant's costs and the costs of any interested party served with the claim ..."

and then a reference to the Bolton case.

MR JUSTICE SULLIVAN: Bolton, yes.

MR HAVERS QC: [quote unchecked] "The courts may order two sets of costs where the interested party deals with a separate issue not dealt with by the defendant ..."

That does not apply here, I say:

[quote unchecked] "... or where the defendant and the interested party have separate and distinct interests which require separate representation."

Not which might justify, as it were, a separate representation, but which require it. Applying that test, in my respectful submission, I think I can say, and bearing in mind that this is an exercise which would involve the Trust having to fund the interested party's costs out of Trust's own funds, which would otherwise be put to the use of patient care, it is not right that the Trust should have to pay two sets of costs.

MR JUSTICE SULLIVAN:Thank you very much. Mr Simblett, I do not need to trouble you, thank you very much.

ORDER

MR JUSTICE SULLIVAN: First of all, I am satisfied that the Trust ought to pay the Tribunal's costs and that they should be summarily assessed in the sum of £2,510.

So far as the application by W is concerned, it does seem to me that whatever the position may be generally, and I acknowledge that generally in cases of judicial review an applicant would not be ordered to pay two sets of costs, where the liberty of the subject is involved, it would be perhaps unusual if the subject appears to resist further detention and is successful, if the subject were then to be deprived of his or her costs. It does seem to me that the decision in Bolton, which was a decision taken in a planning context, is perhaps at some remove from a case such as this where an individual who has been released from detention seeks to resist being placed back under detention. In my judgment, they do have a separate and distinct interest which indeed requires to be heard.

The position may well be different if it is a case of the individual challenging the Tribunal's decision and then being faced by two public bodies, that is to say the Tribunal and the hospital, seeking costs against him or her. It does seem to me that the two situations are not the same. I do not make any criticism of the Trust in making this order, but it does seem to me that the important principle is that those who face detention should be entitled to be represented, they do have a distinct interest.

So two lots of costs. Mr Simblett, do you have any schedule you would like to give Mr Havers?

MR SIMBLETT: I have not. I would seek detailed assessment. We have gone more than a day, and in fact where it is a CLS matter then --

MR JUSTICE SULLIVAN:We cannot do it summarily, can we.

MR SIMBLETT: -- there is not even a possibility to do that.

MR JUSTICE SULLIVAN:No.

MR SIMBLETT: So I seek also the order that your Lordship indicated he was going to grant, an assessment by the community legal service.

MR JUSTICE SULLIVAN:Yes.

MR SIMBLETT: So two sets of assessments, essentially.

MR JUSTICE SULLIVAN: Yes, right.

MR SIMBLETT: Thank you. Just for completeness, my Lord, in fact in the Bolton case one of the developers did get their costs.

MR JUSTICE SULLIVAN:I know, yes, sorry. I lost the case in the Court of Appeal, so I was (inaudible) what has happened to it in the House of Lords. Yes.

MR HAVERS QC:My Lord, I will come to the Court of Appeal and the House of Lords in a moment, if I may.

MR JUSTICE SULLIVAN:Yes.

MR HAVERS QC:Before I do, my Lord, one final point on costs. Your Lordship reserved, I am told, the costs from last Thursday when the interested party applied unsuccessfully to set aside the stay. So those reserved costs fall to be dealt with today.

MR JUSTICE SULLIVAN: Right.

MR HAVERS QC: Since the interested party failed, I respectfully submit that the just order is that the Trust should have its costs of last Thursday, as against the interested party, to be set-off against the order your Lordship has made in favour of the interested party on the substantive application.

MR JUSTICE SULLIVAN:What do you have to say about that, Mr Simblett?

MR SIMBLETT: It is true that the application failed, but then of course the propriety of the stay depended upon the substantive matter, that is why your Lordship refused to make the order that Mr Havers seeks, on Thursday, in order for it to be determined at the end of the hearing. In my submission, having failed on the substance, the claimant should also pay the costs incurred in dealing with the stay.

MR JUSTICE SULLIVAN:Thank you. I think, subject to anything you may say, Mr Havers, the proper order on the stay is to make no order for W's costs, because in my view, with all due respect to Mr Simblett, the application to set aside the stay was not well-founded, but I bear in mind that at the end of the day W has succeeded, if you like, on the substance of the matter.

MR HAVERS QC:I never manage to persuade a judge to change his provisional view as to costs at this late stage, so I am not going to try now.

MR JUSTICE SULLIVAN:Right, so no order as to costs as to that.

MR SIMBLETT: Could I ask for legal aid assessment of those costs.

MR JUSTICE SULLIVAN:You could, you will get legal aid assessment on that. You have legal aid assessment for this one and a detailed assessment for legal aid purposes. Right. Mr Havers, I assume you have an application.

MR HAVERS QC:I do have an application for permission to appeal.

MR JUSTICE SULLIVAN:Yes.

MR HAVERS QC:My Lord, obviously not on the first ground on which permission to appeal is available, that is to say that there is a reasonable prospect of success on appeal, since it would be a bold advocate who invited your Lordship, at this stage, to decide that there was a reasonable prospect of success against the decision that your Lordship has just provided. It is rather on the other --

MR JUSTICE SULLIVAN:I am not that big headed, but ...

MR HAVERS QC:I am not that bold.

MR JUSTICE SULLIVAN:Right, fair enough.

MR HAVERS QC:But the other ground, of course, is that there is some other compelling reason why the appeal should be heard. I can show your Lordship the --

MR JUSTICE SULLIVAN:I am familiar with it, yes.

MR HAVERS QC:I thought your Lordship would. In my submission there is some other compelling reason. In a sense your Lordship identified it during the course of the your judgment when referring to a serious "lacuna" in the Act. Perhaps one way of identifying the other compelling reason is to turn that around into a question: is there a serious lacuna in the Act which mandates the regrettable consequences that your Lordship identified at the end of your judgment? Another way of putting it is whether the decision in B. can and would be extended to cover cases such as these, where there is no in-patient treatment hitherto, but a significant possibility of it being required in the future.

My Lord, the practical consequences are serious, as your Lordship has indicated you accept, and they are all the more serious because, as I indicated yesterday afternoon, not only will some further steps have to be taken by the Trust in the event of the inevitable deterioration in W's condition, but the Trust may get it right or they may get it wrong. In other words, they may choose the right time to force-feed, they may choose the wrong time. If they choose the wrong time they are at risk of assault, if they choose the right time they are not and they may be too late and the patient may die. They may need to come back for a declaration, but again, if they get the timing of that wrong the consequences are going to be extremely grave.

There is, of course, one further consequence which is this, that such patients as this patient will no doubt be given section 17 leave less often in future than may be the case at present, with a result that they would be detained in hospital, notwithstanding that they could be managed elsewhere, and arguably should be, and notwithstanding, although this I am sure is wholly irrelevant to the present debate, that hospital bed may be needed urgently for other patients. My Lord, there are very significant practical consequences that will necessarily follow, both in relation to this case and more widely, and it is on those bases that I invite your Lordship to grant permission to appeal.

MR JUSTICE SULLIVAN:Yes. What do you want to say about that, Mr Kolinsky, anything?

MR KOLINSKY:My Lord, I have no positive submissions, I leave it to the Court to determine.

MR JUSTICE SULLIVAN:Mr Simblett?

MR SIMBLETT: My Lord, in my submission there is not a compelling basis for the Court of Appeal to consider this matter. Partly because of the extreme novelty of these particular facts, so it is unlikely that this poses any general problem upon which the authoritative resolution of the matter by the Court of Appeal is required, and secondly, because of course your Lordship has not acceded to the submissions I was making about the inevitable obligation of the Tribunal to release W from detention. Your Lordship has decided this on a straightforward, if I might put it in that way, application of the Wednesbury principle.

In my submission, there is no compelling reason why the Court of Appeal should, as it were, put its nose into what your Lordship has, in my submission, respectfully or accurately labelled the decision-making process of the expert tribunal, because essentially your Lordship's judgment comes down to the fact that the patient had a right to apply to the Tribunal. The Tribunal heard all the evidence and properly considered it and rejected the Trust's contention. No greater point of principle, in my submission, arises than that on this application, though I accept that the concerns of the Trust, so far as their duties towards W, were genuine and well-founded. But in my submission, it does not fall within that second limb of the criteria for granting permission, which is that there is some other compelling reason because of those two reasons. This is not a matter that raises an issue of general importance or principle, being confined to its facts.

MR JUSTICE SULLIVAN:Thank you very much.

ORDER

MR JUSTICE SULLIVAN: I am satisfied that permission to appeal ought to be granted. I do so on the basis that I do think there is some other compelling reason, and the reasons are those identified by Mr Havers. This case, although it turns on its particular facts, does raise a question as to whether there is a serious lacuna in the Act, and specifically whether B. can be extended to cases where there is a prospect of in-patient treatment in the future, because if it cannot then undoubtedly there are serious implications for the use of section 17. So for those reasons, I think there are compelling grounds on which to grant permission to appeal.

MR HAVERS QC:My Lord, that inevitably leaves me to apply to your Lordship to continue with the stay that presently applies, although I accept that I would almost certainly need to undertake to the Court that the appeal would be pursued with all due expedition.

MR JUSTICE SULLIVAN:Yes, I am obviously very concerned, Mr Havers, about continuing that -- and I know Mr Simblett is going to object in any event -- but if I do I would, in a sense, be concerned to extend it for a short a period as possible. I would ask for an expedited transcript so effectively requiring you to get on in front of the Court of Appeal, if you wanted it continued, and get the Court of Appeal to continue it. I would place it in the Court of Appeal's hands.

MR HAVERS QC: Yes.

MR JUSTICE SULLIVAN: But that is certainly something that is in my mind, rather than just giving you, as it were, a blanket and saying, "until you appeal", because I do not think that is good enough, frankly.

MR HAVERS QC:I entirely accept that, which is why I raised the question of expedition as soon as I got to my feet.

MR JUSTICE SULLIVAN: Yes.

MR HAVERS QC: It is a question of working out the mechanics.

MR JUSTICE SULLIVAN:Let us hear what Mr Simblett has to say in any event.

MR SIMBLETT: My Lord, of course I have had clear instructions. The parents of W's intervention is precisely because she wants the fruits of her litigation. I remember when I came in front of your Lordship at the permission stage, I made this point. She has sought, as is her right, as is now in fact her human right, under Article 5, to invoke the independent procedure for her discharge from detention. She has, as it were, succeeded in front of the Tribunal and your Lordship has found nothing wrong with the Tribunal's approach to that. In my submission, it would be wholly improper, as an exercise of your Lordship's discretion, to conclude that the stay ought to continue. The basis upon which your Lordship has granted permission to appeal is not that there is merit in the appeal, your Lordship has granted permission to appeal on the basis that there may be a matter for flagging up, as it were, as to a lacuna in the Act.

In my submission, W should not be visited with the consequences to her liberty and to her separate principles of self-determination, which in fact formed the bedrock of your Lordship's judgment in the citation of the St George's Healthcare NHS Trust v S case to which I drew to your Lordship's attention, which your Lordship cited from favourably in the judgment that you gave. In my submission, the proper course is for your Lordship to refuse the application for a stay on the basis that it falls well short of the test in the American case, which still applies to interim relief of the claimant, the appellant as they now are, having made out any prima facie case.

Your Lordship has not been asked even to grant permission to appeal on that basis, and Mr Havers, in my submission, realistically recognises that he might not get it on that basis. If it is only that the point is being taken before the Court of Appeal as a matter of general importance as opposed to the importance to W, or to the claimant as regards W, which is the basis upon which permission is being sought, it is wholly inappropriate, in my submission, for a stay to be granted. If your Lordship is uneasy about that then of course your Lordship can always leave it to Mr Havers (a) to pursue the appeal, and (b) to pursue the application for a stay --

MR JUSTICE SULLIVAN:Yes.

MR SIMBLETT: -- to the Court of Appeal, because they are the people who will decide whether your Lordship's permission is something that they see being --

MR JUSTICE SULLIVAN:Yes.

MR SIMBLETT: So in my submission, the logic of your Lordship's judgment and the round rejection of the merits of the claimant's claim leads to a round rejection of the application for the stay to continue.

MR JUSTICE SULLIVAN:Yes, Mr Havers.

MR HAVERS QC:My Lord, firstly, the reason why I put the application for leave to appeal only on the second ground and not the first was not, with the very great respect to your Lordship, I will not seek to argue in the Court of Appeal.

MR JUSTICE SULLIVAN:You were putting your best foot forward, I imagine, rather than --

MR HAVERS QC:I was putting my best foot forward to the Tribunal I was addressing.

MR JUSTICE SULLIVAN:Yes, it seemed to be the sensible course, yes.

MR HAVERS QC:So I shall not be arguing to the Court of Appeal that this is just a matter of general importance, I shall also be arguing, obviously, that it is a matter of specific importance in this case. My Lord, secondly, in my submission, consonant with the concerns expressed by my learned friend, your Lordship could impose a very firm timetable, such as a stay for 14 days or 21 days, pending the Trust getting before the Court of Appeal so as to seek an extension to that stay.

MR JUSTICE SULLIVAN:That is the idea, a very brief time. It would not be as long, in fact, as 14 days, but a period so that you would effectively have to go back in front of the Court of Appeal and persuade them that the merits of the appeal were such that they ought to continue.

MR HAVERS QC:My Lord, I do not seek any more than that. My Lord, can I however add this. My learned friend has referred to his client's rights under Article 5 of the Convention. It is not something that arose directly on the application, but it must not be lost sight of that under Article 2 of the Convention, of course, the Trust have a positive obligation to take positive steps to protect the lives of those within their sphere of responsibility. If we are going to, as it were, start deploying Convention rights, it is important to bear in mind that there is more than one Convention right in play in this case.

MR SIMBLETT: My Lord, the Article 2 aspects, of course my Lord, I would have thought the Trust has discharged any substantive obligation imposed by Article 2 by resisting the application in the Tribunal, let alone taking the proceedings before your Lordship, so in my submission, that does not arise. But I am wholly opposed to the --

MR JUSTICE SULLIVAN:I think I have worked that one out.

MR SIMBLETT: In my submission, Mr Havers should be left to seek his stay elsewhere.

MR JUSTICE SULLIVAN:Yes, you say it ought to go on to the Court of Appeal. Yes, I understand the round of submissions. (Discussion with shorthand writer). I have ascertained from the shorthand writer that I shall be able to get an expedited transcript after three days, that is to say by the end of this week. I shall turn it round on the same day and get it back to you. In those circumstances, what I am going to do is (a) order an expedited transcript, (b) I shall give you a stay, Mr Havers, for 7 days from today. That is not including today, I would be starting tomorrow, 7 days from tomorrow, because it does seem to me that you will be able to formulate your various grounds at least in draft even before seeing the final version of the transcript, so you will be able within a week to be able to be in front of the Court of Appeal with at least grounds of appeal in draft and the transcript of this decision saying "we ought to continue this stay" and Mr Simblett will be able to be there saying "no you should not", then it is over to the Court of Appeal.

MR HAVERS QC:Yes, my Lord. Thank you very much, my Lord.

MR JUSTICE SULLIVAN:As I say, I will turn it round as soon as I get it and you will get it either that day or the next working day, so after that it is up to you.

MR HAVERS QC: Thank you, my Lord.

MR JUSTICE SULLIVAN: Thank you all very much indeed.