England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		Tuesday, 6th March 2001

Tuesday, 6th March 2001

1. MR JUSTICE SCOTT BAKER: There are before the court two separate but linked judicial review proceedings. Both concern a mental patient, DE, who is currently detained in Ashworth Hospital, where he has been for some time.

1. The essential background is as follows. DE is 51. He was admitted to Ashworth Hospital in March 1993 on transfer from prison under sections 47 and, subsequently, 49 of the Mental Health Act 1983. He was suffering from paranoid schizophrenia and a paranoid and social personality disorder. After the end of his sentence he was held under section 37 of the Mental Health Act.
2. DE has a long history of violence. He is a heavy drinker and drug user, especially cannabis. He has also on some occasions in the past taken LSD. Some detail of his past violence is set out in Dr Finnegan's letter to Dr Mukherjee of 16th January of this year, and it is unnecessary for present purposes to repeat the detail of that letter.
3. DE was married to a woman called Julie, by whom he has a 14-year-old daughter. The prison sentence arose from a threat to kill Julie. There is evidence that if released he could present a serious risk to other people including, in particular, Julie. Historically, DE has been hostile to several Responsible Medical Officers and, in particular, to anybody who was inclined to take a different position to that of himself; since he did not accept that he was mentally ill there were obvious difficulties.
4. DE's case was eventually taken over by Dr Kulupana as his Responsible Medical Officer. She, of all of the RMOs who looked after him, was able to establish a therapeutic relationship with him, and was successful in persuading him to participate in a programme designed to effect his discharge.
5. Early last year, DE applied to the Mental Health Review Tribunal for the grounds of his detention to be reviewed. The matter came first before the Tribunal on 6th July of last year and the Tribunal decided to adjourn the hearing. It did so for the following reasons:

"1. To enable [DE's] RMO to endeavour to make arrangements with Dr Sharma on the Wirral for [DE] to be transferred to his care on a trial leave basis.

2. To enable the community care team to put into place a package of care appropriate for [DE] in the event of his being discharged from section direct into the community."

6. The Tribunal gave the following direction:

"1. In the event of Dr Sharma not having accepted [DE] on a trial leave basis by the date of the reconvened hearing, the Tribunal will require Dr Sharma to attend to explain why not.

2. The Tribunal will require the attendance of Mr Judson [the local social services authorities social worker] at the reconvened hearing."

7. Dr Sharma, in accordance with the directions, did accept DE for trial leave in the community, but Ashworth Hospital would not let the leave take place because of the risk to hospital security. There was concern about him being unescorted and there was also concern about drugs being brought back into the hospital.
8. On 20th November of last year DE's case came back before the Tribunal. The decision of the Tribunal was that DE be discharged with effect from 10:30 on the morning on 8th January 2001. The Tribunal answered the two standard questions in the affirmative. Those questions are:

"A. Is the Tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment, mental impairment or any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?

B. Is the Tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of others that the patient should receive such treatment?"

9. The Tribunal's reasons were as follows:

"The evidence of the Patient's RMO to the Tribunal, after a full review of her own report and that of Dr Kumar, is that the Patient is no longer detainable under the Act. This view is supported by the Patient's ward manager and by Mrs Goodridge, the hospital social worker involved with the Patient's care. The Tribunal accepts this evidence and agrees that the Patient is no longer detainable under the Act. There is, however, no doubt that the Patient will require a high level of support in the community in order to both remain well and enable him to function properly as he appears to be institutionalised to a degree having been either in prison or hospital for some 12 years.

The Tribunal has therefore deferred the discharge for 7 weeks to enable a full package of support to be prepared and put in place for this patient."

10. The Tribunal, on 20th November, had the following material before it:

(1) a report from Mrs Goodridge, the social worker at Ashworth Hospital, that is to be found at page 71 of the bundle;

(2) the oral evidence of Dr Kulupana, the Responsible Medical Officer, who was a consultant forensic psychiatrist;

(3) an independent report of Dr Noblett, a consultant forensic psychiatrist, commissioned by the Ashworth Hospital;

(4) a report by Dr Kumar which had been commissioned by those advising DE, he too being a consultant psychiatrist;

(5) a report from Mr Judson, a social worker employed by the Wirral.

11. Dr Sharma did not attend at the hearing but the Tribunal proceeded with the hearing in his absence, albeit there was an issue about whether or not he had received notice of the proceedings. Mr Judson was unable to attend but another social worker attended in his stead and this appears to have been acceptable to the Tribunal.
12. The evidence before the Tribunal included the following. In Mrs Goodridge's report she said:

"It is now 16 years since he has lived in the community... [So it appears that the reference to 12 years in the Tribunal's reasons was a factual error.] Mrs E's [DE's mother] insight [into his mental illness] is clearly influenced by her loyalty and devotion to her son ... His intention is to remain in his mother's house ...

he explained frankly that he did intend to take Cannabis on release, which made it impossible [for any hostel] to accept him..."

13. Mrs Goodridge noted that it was impossible for the Ashworth Hospital to arrange escorted leave for DE into the community because of the likelihood that he would return to the hospital with cannabis, thereby placing himself and other patients at risk. Mrs Goodridge's report concluded with these words:

"...the Tribunal is the appropriate context to arbitrate between the views of his Patient Care Team [at Ashworth Special Hospital] and the community agencies."

14. Accordingly, the Tribunal should have been clear that Wirral Health Authority and Wirral Borough Council were not in agreement that DE fitted the criteria for discharge from detention under the Mental Health Act.
15. The Tribunal also had Dr Noblett's report of 30th June which said:

"... [Dr Kulupana] noted that [she] had spent several hours discussing medication with [DE] and believed that he would comply with this in the short term but would not guarantee that he would take it long term...

Dr Boyd expressed doubts that [DE] would take his medication in the community within a very short space of time, which would almost certainly lead to a deterioration in his mental state...

[DE] continues to abuse cannabis whilst in hospital...

Clearly, from his history, [DE] suffers with a psychotic illness..."

16. Then a little later Dr Noblett said:

"He presented as insightless into his mental illness and need for treatment ... I have serious doubts that he would continue to comply with treatment in the community and as a result could pose a significant risk to others..."

17. There was then Mr Judson's report of 5th July, which said:

"He has made threats to kill on several occasions during his time in prison and hospital, which have been the reason for his 'gate arrests'. These threats to kill have centred upon his ex-wife, whom he blames for his continued detention in hospital and his imprisonment as well as for the problems that their daughter is currently facing."

18. That was a reference to Julie, and the daughter I think is currently in care.

"[DE] has maintained his belief (and that of his immediate family) that he does not suffer from mental illness. It is therefore felt that he and his family minimise or lack insight into his problems and his needs which would make support and monitoring in the community extremely problematic and potentially risks, both for [DE] and for the public e.g.: his ex-wife. He has not had the preparatory rehabilitation/leave of absence that the CMHT had requested ... This then causes concern, given the forensic and risk history and leave the possibility of too hasty, poorly planned discharge, with unsafe, inappropriate supervision in the community.

For these reasons the CMHT would not be in favour of discharge until some of these issues have been addressed."

19. The Mental Health Review Tribunal made no mention in its reasons of the dissenting voices, nor did it refer to its earlier observation that DE should be tested with trial unescorted leave in the community before discharge. On 30th November of last year Dr Boyd wrote as follows:

"...DE is a man suffering from schizophrenia and an antisocial personality disorder. He is likely to abuse alcohol and controlled drugs when they are available to him and at such times the risk of violence to others increases. I have no doubt DE will quite rapidly stop taking his medication if discharged and his mental state will deteriorate, which also increases the risk to others...

I feel that any consultant who accepts responsibility for this man [in the community] puts the safety of the public...at risk."

20. On 7th December of last year a Multi Disciplinary Risk Assessment Meeting was held by the Wirral Health Authority and the Wirral Borough Council, who are the claimants in the first judicial review proceedings. At that meeting the Wirral Borough Council social worker, Mr Croft, highlighted the fears of the local community about the release and the extremely high risk DE presented to his ex-wife, Julie, who lived five minutes away from his discharge address. During the marriage he said there were issues of domestic violence and Julie was said to be extremely fearful about the release. According to her, the threats to kill were made against her and so it was because of her that DE was taken to the Ashworth Hospital. He presented, said Mr Croft, a lesser risk to his daughter Jackie who is the subject of a care order regarding issues of emotional abuse from her mother and risk of physical injury from DE.

"DE [continued Mr Croft] is to reside with his mother and aunt, which could present problems as they do not believe he has mental health needs, nor do they believe he needs medication ... They are thus likely to be uncooperative ... It will be difficult for anyone to work with [DE] in the community. He presents a risk to every worker."

21. There was a change of Responsible Medical Officer – Mr Finnegan becoming the RMO in place of Dr Kulupana – during the course of December of last year. It remains, to me at any rate, unclear what the precise circumstances were that caused the change.
22. On 18th January of this year, the Wirral Health Authority and the Wirral Borough Council sought judicial review of the Tribunal's decision. They did so on the basis that the decision was irrational and that no grounds were given for rejecting the strong body of evidence that was effectively against discharge.
23. The Mental Health Review Tribunal, defendant to the judicial review claim, was prepared to consent to an order for judicial review. In a letter dated 22nd February of this year the Treasury Solicitor, acting for the Tribunal, said this:

"The MHRT concedes this challenge on the following basis:

(1) the basis of the adjournment on 6th July 2000 was to enable the RMO to make arrangements for the patient to be transferred to Dr Sharma's care on a trial basis under s.17 MHA 1983;

(2) it was implicit in this that the patient remained liable for detention at that time or the extended unescorted leave would not have been justified;

(3) by the time of the reconvened hearing, no extended unescorted leave had been arranged because of the security systems at Ashworth;

(4) there had therefore been no opportunity to assess the patient under the extended unescorted leave conditions which had previously been considered necessary;

(5) notwithstanding this, Dr Sharma was not present at the reconvened tribunal to have his views considered;

(6) at the reconvened MHRT, the MHRT was told that the only possible step is to discharge him and trust him;

(7) that was not the case - if Ashworth's security systems could not accommodate the previously acknowledged need in this case for unescorted leave then a transfer to a medium secure unit (as advised by Dr Boyd) would have been a means of providing for that unescorted leave. The Tribunal did not consider this;

(8) if it was no longer considered that unescorted leave was required then the MHRT had an obligation to explain why this was so given the earlier stance that had been taken on the adjourned hearing;

(9) the MHRT's approach can only have been justified if it was of the view that the patient was no longer susceptible to being detained. However, in making its decision on this, the MHRT should have been aware from Dr Noblett's report that there was opposition to release on the basis that he remained within s.3 and should have explained why they did not agree with Dr Noblett or at least record that they had considered his evidence – it did not;

(10) the MHRT would have been aware that Dr Sharma's suggestion of unescorted trial leave (of which it was informed by Dr Kulupana) was predicated on the assumption that this was necessary to see whether the patient could cope safely in the community; and yet

(11) the MHRT failed to explain why, in the absence of the unescorted trial leave which had previously been considered to be necessary, it was appropriate to order discharge without even hearing from Dr Sharma;

(12) if the true basis of the MHRT decision was that the patient was no longer within the criteria for detention under s.37, then in reaching that conclusion the MHRT had to explain:

(1) why Dr Noblett's evidence was rejected; (2) why it was appropriate to proceed without Dr Sharma being present; and (3) why the previous need for unescorted leave no longer pertained."

24. The next paragraph:

"The concession is thus framed in terms of reasons for the decision. It is accepted that from the reasons given it is not clear how the MHRT had grappled with what remained the two principal controversial issues:

(1) whether the patient fulfilled the criteria for detention; and

(2) whether in making that assessment a period of trial leave was required."

25. It is of note that in the Tribunal's reasons on two occasions they used the shorthand phrase "no longer detainable".
26. At paragraph 16 of the letter:

"The MHRT gave no indication that it had considered the evidence of Dr Noblett or the reasons why it had rejected it; the MHRT did not consider the implications of the lack of unescorted leave; and the MHRT proceeded without hearing from Dr Sharma whom it must have known opposed release."

27. DE, who was joined in the proceedings as an interested party, was not however prepared to be a party to a consent order. In the circumstances, it is plainly not appropriate to make a consent order if DE does not agree. The matter has to be properly considered by the Court to see whether it is appropriate in the circumstances to grant judicial review.
28. Meanwhile, however, steps were being taken to detain DE under section 3 of the Mental Health Act 1983. Section 3 is the section pursuant to which people can be detained for treatment. It is different from section 37 in this respect: section 37 detention arises either pursuant to the order of a criminal court, or following transfer from prison, where the patient has been detained serving a sentence of imprisonment.
29. The basis of the section 3 order was set out in the two medical reports that are required by statute for a section 3 detention. The first of those reports was from Dr Finnegan, the material part of which reads:

"He describes a current active delusional system of paranoid belief involving the government, local authorities and others. He believes his wife gave evidence against him as part of their conspiracy. He is insightless and will not cooperate with informal management. He believes in the reality of previous paranoid experiences and these beliefs still influence him. He is suffering from active paranoid schizophrenia.

He does not believe he is ill. He is appositional and confrontational. When aroused he becomes extraordinarily angry and dominated by his paranoid belief. He only takes medication because he believes it is associated with his DLA and he makes it clear any variation would cause him to stop. He has issued threats against his ex-wife, police officers and others (me). When very angry there is a great risk of his acting on these [threats] physically."

30. The second report was by Dr Sharma, at page 61 in the bundle there is a typescript of the material parts.

"He believes that the Government wishes to drive him 'mad'. He is convinced (deluded) that he received messages through radio and heard his ex-wife's name being called. He believes that he is in danger because of some involvement in organised crime, the government and Local Authorities' involvement in these matters. The symptoms are indications of paranoid schizophrenic illness.

He doesn't believe that he suffers from a mental illness. He receives injections just to get disability living allowance. He gets very angry and aggressive when suggested about the need of his psychiatric care. He will be uncooperative of any kind of treatment plan in the community. His intention to drink and use cannabis makes him very vulnerable to aggressive outbursts."

31. So there was the supporting evidence for a section 3 order. A section 3 order was also supported by an appropriate social worker. There is an important distinction which I have not yet mentioned between section 3 detention and section 37 detention and it arises in this way. With regard to a section 3 detention, the nearest relative is entitled to object and to bring the detention to an end. There is, however, machinery in the Mental Health Act to make application to the county court in appropriate circumstances for displacement of the nearest relative.
32. Such an application was made in the present case under section 29 of the Mental Health Act 1983. On 5th January of this year an interim order was made to displace Mrs E (that is DE's mother) as the nearest relative. The judge who made the order, Judge Bernstein, said:

"There is evidence in my judgment upon which anybody could correctly conclude that the patient does continue to suffer from mental illness of a nature or degree which makes it appropriate for him to receive treatment in hospital."

33. The substantive hearing of the nearest relative displacement is due to take place in the county court on Tuesday of next week, that is one week today. Mrs E's argument, as I understand it, is that she is acting perfectly reasonably as DE's nearest relative in seeking his discharge from hospital because that is precisely what the Mental Health Review Tribunal ordered in November of last year. That view is supported by, amongst other people, Dr Kulupana.
34. Dr Finnegan mistakenly believed that a patient could not lawfully be detained concurrently under sections 3 and 37 of the Mental Health Act. It will be recalled that the Tribunal had deferred the discharge of DE under section 37 until 8th January of this year. Dr Finnegan decided in the circumstances that he should release DE from the section 37 detention as soon as he was clear that DE could continue to be held under section 3, albeit only on an interim basis, until the nearest relative issue was resolved by the county court.
35. The second judicial review application is in respect of Dr Finnegan's order discharging DE from the section 37 detention. Both Dr Finnegan and the Ashworth Hospital concede that this order should be quashed. It was made by Dr Finnegan under a misapprehension. He was unaware that the courts had held that it was perfectly appropriate in certain circumstances to continue to detain somebody under both sections. Again, however, DE is an interested party in these proceedings and he does not agree that a consent order, or indeed any other judicial review order, ought to be made.
36. On 28th of last month I heard argument from both sides with regard to the first judicial review application, that is with regard to the Tribunal's decision. I also granted permission for the claimant to bring judicial review proceedings in respect of Dr Finnegan's decision, that is the second judicial review application. I then adjourned both applications until yesterday in order for the interested party, DE, to be in a position to argue fully the second judicial review application and to lodge any necessary material with regard to it. By yesterday the third party, DE, had the benefit of a certificate for leading counsel. Accordingly, I heard further argument from Mr McDermot QC yesterday, not only with regard to the second judicial review application but also additional argument with regard to the first judicial review application.
37. Ms Morris, who appears for the claimants in both matters, argues in the first place that the decision of the Tribunal plainly cannot stand. She says that there is no justification for how the Tribunal came to reject a substantial body of evidence that disagreed with Dr Kulupana, nor for the Tribunal's apparent about turn in being prepared to accept that DE should be released without a successful trial period.
38. In this regard she drew my attention to Dr Kulupana's report that was initially before the Tribunal, dated 25th May of last year (that is before the adjourned hearing). The last two sentences of that report read:

"His [that is DE's] basic personality characteristics cannot be changed. If DE's proposed trial leave is a success it will not be appropriate to detain him any longer."

39. Ms Morris makes the point that the clear implication there is that discharge from detention is conditional upon successful trial leave. That, of course, is something that we now know has not taken place, and it is unclear how the Tribunal was able to change its position in the meantime.
40. Mr McDermot has valiantly sought to uphold the decision of the Tribunal, arguing that it is important that I should look at this matter from DE's point of view and that the liberty of the subject is involved. He appeared to submit that a stronger case is needed to justify overturning a decision of a tribunal in his favour than would be required to overturn a decision that went against him. In my judgment no such distinction can properly be made; either the decision is lawful or it is not.
41. It was also argued by Mr McDermot that I should have in mind the original reasons given by the Treasury Solicitor for agreeing to a consent order (which we can find at pages 22 and 23 in the bundle) which, argues Mr McDermot, are somewhat different from the detailed reasons that I read out earlier in this judgment. In the letter of 24th January the Treasury Solicitor said:

"Whilst the MHRT does not accept that its decision was unreasonable, it does accept that it failed to give reasons as to how it grappled with a principal controversial issue, namely, the dispute as to whether any discharge needed to be preceded by trial unsupervised home visits."

42. In a letter of 30th January:

"Notwithstanding [DE's] objection, and having taken counsel's advice, my client is prepared to consent to a quashing of its decision on the basis that the reasons given for its decision were insufficient. As set out in the request for an order, my client agrees to a remittal of [DE's] application to a fresh tribunal for re-hearing."

43. In my judgment nothing is to be made about any distinction between the very broad basis advanced in those two letters and the much more detailed reasons that I have referred to that are set out in the letter of 22nd February.
44. In my judgment, on its face, the decision of 20th November of the Tribunal plainly cannot stand. The fact that the Tribunal, through the Treasury Solicitor, has consented to an order being made, overturning the decision is not, of course, of itself determinative. The decision is mine. But it seems abundantly plain, having considered the reasoning set out in the Treasury Solicitor's letter of 22nd February, that the Tribunal had very good reason to agreeing to the decision being overturned. In my judgment, there is plainly substance in the argument as advanced by Ms Morris.
45. Mr McDermot took me in some detail through the subsequent history, that is after the Tribunal's decision. He referred me, first of all, to Wirral's letter of 7th January to Dr Kulupana. The last paragraph of which reads:

"I would therefore be most grateful if you could confirm whether or not it is correct that DE is about to be released on Section 17 leave, and let me know what...safeguards have been put into effect to minimise any risks he may pose particularly to his ex-wife and daughter."

46. I said "subsequent events" this of course is a preceding event. Mr McDermot traced the history back from January 2000 when the consideration of DE's release was first under review.
47. Then the reply on 10th January:

"...I wish to say that there is no plan to 'release' DE into the community on 10.01.00. DE is a patient at this hospital and his discharge will be decided on the state of his mental health at the time and its effect on himself and others. Prior to his discharge he will be having trial leave on Section 17 with supervision from the team and very strict conditions attached to it, including that he does not seek contact with his wife nor with his daughter."

48. So it will be plain what the intention was at that juncture.
49. I then move on to the meeting on 7th December, that is after the Tribunal hearing, to discuss leave of absence arrangements for DE. There are a number of passages in that letter that are of some significance. I refer in passing to paragraph 1, "What planning has been done for trial leave discharge package?" There is reference to Dr Kulupana being satisfied that DE's mental illness is well under control and that DE will take his medication regularly to avoid relapse. There is a passage dealing with substance abuse, and pointing out that it is likely that he will consume cannabis and take drink. A reference at page 10 to Dr Finnegan's concern that DE seemed to be showing symptoms of mental illness with paranoid tendencies at that time, namely 7th December, and that Dr Sharma, who would be the supervising psychiatrist, needed to be convinced that DE was not mentally ill. The passage continues:

"There appears to be an exacerbation of paranoia while psychotic. Dr Kulupana said that [Mr E] can be challenged in Ashworth regarding his behaviour..."

50. But it was pointed that this would not be the case when he was out in the community.
51. There was then a reference from Dr Kulupana that if DE met his wife face to face that she could not predict what he might do. She also stated that he is also at risk from her inasmuch as she could get him arrested.
52. Dr Sharma had suggested that if DE did not have any escorted leave before his due discharge date he would take matters further to the Minister, if necessary, as he would not agree to supervising him in the community without that criterion being met. It was then said that:

"With all the above factors if was not felt appropriate to send [DE] out on unescorted leave as suggested and that a package be prepared and presented to the Chief Executive and Medical Director for their opinion. Dr Finnegan agreed to liaise with both the Chief Executive and Medical Director after this meeting."

53. So it was plain from as early as 7th December that those who were going to be responsible for DE had serious concerns as to whether it was safe and appropriate for him to be in the community.
54. Another meeting was held on 27th December and there reference was made of possibly reporting to the police threats to kill his wife that he was said to have made earlier in that month, that is December, and that this might result in his gate arrest. It was noted at the meeting on 27th December that after various negotiations a decision was taken by the medical director of the hospital to transfer DE's care to Dr Finnegan, following a request to him to review the case. The community health team expressed concern about DE being discharged on 8th January and strongly expressed the view that they could not offer what they considered to be appropriate support for him in the community because of the significant risks they considered him to pose in relation to his wife and possibly others in the community and possibly members of the care team. They pointed out that this was a view that they had expressed over the previous 12 months.
55. Mr McDermot argued that, in reality, the claimants disagree with the decision to release DE and what they are asking for, in effect, is to have the case reconsidered. Mr McDermot contends that the Tribunal's decision is based on perfectly credible evidence which the Tribunal accepted, in particular the evidence of Dr Kulupana and that, therefore, the decision of the Tribunal should stand. Also, argues Mr McDermot, an order of this kind, which has come to an end, should not be reinstated, as it were, after it has come to an end. The detention under section 37 in this case came to an end, first of all, on 5th January when Dr Finnegan discharged DE. But, in any event, secondly, if it did not it would have come to an end, according to the Tribunal's decision, on 8th January. Failing that, thirdly, it would have lapsed on 24th February if it was not reviewed because section 37 orders last only for a year and require renewal on an annual basis.
56. Mr McDermot says, leaving aside for a moment the question of the reviewability of the two decisions, even if there are justifiable grounds in law they should be barred by the delay in making the applications in each case. Furthermore, that the court in all the circumstances should exercise its discretion to refuse relief.
57. In my judgment, the decision of 20th November is plainly reviewable on ordinary judicial review grounds. As I have indicated, the fact that the Treasury Solicitor has consented is not determinative; it is my decision. But I have come to the clear conclusion that the decision is bad in law for the reasons advanced by Ms Morris.
58. It is necessary to consider briefly the effect of a conclusion that the decision of the Tribunal is bad in law. In that regard Ms Morris helpfully referred me to R v Hendon Justices ex parte Director of Public Prosecutions [1994] QB at 167. Ms Morris referred me to a number of passages from the judgment of the three member Divisional Court. Mann LJ giving the judgment of the court said at page 173E:

"This court in the exercise of its supervisory jurisdiction over magistrates' courts will ordinarily treat as a nullity a decision of such a court if it is so unreasonable that no reasonable bench in like circumstances could have come to it. In so doing, the court is not acting in an appellate capacity but is acting so as to ensure that the inferior court is acting within the limits of the powers which have been granted to it by Parliament."

59. At page 177 Mann LJ cites Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171:

"'It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.'"

60. That, it seems to me, is precisely what has happened in the present case.
61. Mann LJ continued at 178F:

"In our judgment, certiorari can go to quash a decision which is a nullity and which by hypothesis is accordingly not an acquittal. We recognise the defiance of logic in stating that the order can go, but in practice decisions which are nullities are quashed as a convenient way of preventing the continuance of any ostensible effect. However, it will usually be more appropriate to issue mandamus where the prosecution wishes to proceed upon the information: see per Lord Roskill in Ex parte Harrington [1984] AC 743, 753. Mandamus is, like certiorari, a discretionary remedy. In exercising discretion the court will take into account a variety of factors. Amongst them will be the time since the alleged offence was committed, for the court should be slow to issue mandamus where the case is dependent on recollection which may have dimmed. In R v Birmingham Justices, Ex parte Lamb [1983] 1 WLR 339, 344, McNeill J had regard to the fact that the defendants 'might properly feel they have been acquitted and it would be wrong to allow them to feel, however erroneously, that they would be put in jeopardy for a second time.' An important factor the other way is that properly presented prosecutions for a serious offence should be heard. In this case, the offence alleged against the defendants was a serious one, the date of commission is not remote, and the defendants can have no reasonable belief that the dismissal of the charges was other than a fortuity. In our judgment, mandamus should issue requiring the justices to hear the informations according to law."

62. Now in the Hendon Justices case the problem was that a case in the magistrates' court had quite inappropriately not been proceeded with when it should have been. The fact that the Hendon Justices case concerned a magistrates' court and the present case concerns a Mental Health Review Tribunal is not, in my judgment, a distinction of any relevance for present purpose. What is important is to look at the nature of the effect of the court's decision, which is that if quashed the decision becomes a nullity.
63. Turning again to the second judicial review application. As I have already mentioned, Dr Finnegan did not think that the section 37 and section 33 detentions could stand together. At page 19 of the supplementary bundle, in a file note of 20th February, he says this:

"The decision that I made on 5th January 2001, to discharge DE from his section 37 (Notional) order was not made for clinical reasons. The decision was taken on legal grounds as I was advised that it would be legally inappropriate for DE to be simultaneously detained under both sections 3 and 37 of the Mental Health Act 1983."

64. That legal advice was wrong: see R v North West London Mental Health NHS Trust ex parte Stewart [1997] 4 All ER 871.
65. In the circumstances, Dr Finnegan discharged DE from the section 37 order on 5th January of this year. An entry in the Ashworth Hospital clinical notes makes it clear that Dr Finnegan was in a dilemma whether to let the section 37 hospital order expire on 8th January, as anticipated by the Tribunal, or order its discharge under section 23 of the Mental Health Act. He chose the latter course as he felt it would be unacceptably cruel to DE, as he had previously been the subject of a gate arrest and he did not think it was in his best interests that that should happen again. I do not read the clinical notes as in any way detracting from what Dr Finnegan says in his file note of 20th February, which gives the underlying reason why he decided that the section 37 order ought to come to an end.
66. Dr Finnegan directed DE's discharge from detention not because he thought DE no longer fulfilled the criteria for detention but because he believed it was an administrative requirement for the fresh order of detention under section 3. In this respect, in my judgment, he made an error of law and accordingly his decision is reviewable.
67. Section 23(2) empowers a patient's Responsible Medical Officer to order the patient's discharge by the completion of a written order. There are no statutory criteria governing the exercise of this power. Its exercise is wholly within the Responsible Medical Officer's discretion subject, in my judgment, to the usual restrictions of lawfulness and so forth. I accept Ms Morris' submission that if it is exercised for reasons based on error of law it is susceptible to challenge by judicial review.
68. On 5th January of this year, DE was admitted for treatment under section 3 of the Mental Health Act 1983, and it is under that section that he is currently held. The conditions necessary to justify detention under section 3 were, as I have said, certified by two duly qualified psychiatrists as being met, namely Dr Finnegan and Dr Sharma. Also, on 5th January the interim order was made by Judge Bernstein in the Birkenhead County Court displacing Mrs E as DE's nearest relative under section 29 of the Act. Mrs E, as I have said, does not support her son's detention. Detention under section 3 can be brought to an end by the nearest relative and there is nothing that the hospital can do about it, save that the hospital is able to make an application under section 29 for the nearest relative's replacement. This, of course, requires an order of the county court. An interim order to that effect was obtained on 5th January and the position will be considered afresh on Tuesday of next week.
69. It is important for the claimant that the judicial review application against the Tribunal should succeed. Equally, it is important for DE that it should not. If the decision of the Tribunal stands, Mrs E can say to the county court that she is not acting unreasonably as the nearest relative in seeking her son's discharge, because that is precisely what the Tribunal has ordered. The court would then be left with difficult issues to look at and see whether there had been a significant material change since the decision of the Tribunal.
70. Mr McDermot's arguments run thus. If DE succeeds in overturning by judicial review the decision of Dr Finnegan to discharge the section 37 order, at best what would be achieved is the reconstitution of an order that was going to lapse on 8th January by order of the Tribunal. Further, supposing that that was overcome by a successful review, the Tribunal's decision was going to come to an end anyway by the passing of time on 23rd February. Section 37 orders only last in cases such as the present for 12 months unless renewed: section 20 of the Mental Health Act. It is a condition of the renewal under section 20(2) that the patient has not previously been discharged. Also section 20(1) provides that the patient shall not be detained or kept for any longer period (i.e. than 12 months since last reviewed) unless authority for his detention is renewed under that section.
71. The machinery for renewal is that renewal follows the lodgement of the necessary medical evidence. If the period expires before the report is furnished the detention becomes unlawful: see R v Birch [1989] 11 Crim App R (S) 202 at 210. There is in my judgment no issue to be resolved by this court whether or not there was an effective renewal before 24th February. It does not seem to me to be of direct importance for present purposes.
72. There is no evidence before the court to establish whether or not the necessary procedures were followed. Mr McDermot says, should it become relevant, renewal ought to be strictly proved. For present purposes the position seems to me to be this. If the section 37 order was properly discharged, either by Dr Finnegan on 5th January or by order of the Tribunal on 8th January, then there was nothing to renew before the date when had there been a still valid section 37 order it would have expired. On the other hand, each of the orders of Dr Finnegan and the Tribunal was, in my judgment, unlawful and a nullity in the sense referred to in the Hendon Justices case.
73. In those circumstances, the section 37 order did subsist and was amenable to renewal. Whether in fact it was renewed is not the subject of the present challenges and depends on whether the appropriate procedures were followed. Ms Morris says that this is not a matter with which her clients are concerned, it is a matter for the Ashworth Hospital.
74. It makes no difference, in my judgment, that the claimant did not seek injunctive relief to stop either implementation of the RMO's decision or the MHRT's decision coming into effect. Nor does it make any difference that no challenge was made by judicial review until 18th January of this year in respect of the MHRT's decision, and later in respect of Dr Finnegan's decision. The fact that no challenge is made until after an unlawful order is implemented does not of itself clothe the order with a validity that it does not otherwise have.
75. Delay: Mr McDermot argues that neither application was made promptly. With regard to the MHRT the release date was 8th January of this year, the decision having been made on 20th November of last year. The application for judicial review was not made until 18th January, that is all but a couple of days short of two months from the date of the decision of which complaint is made. Applications should be made promptly and, in any event, within three months of the decision of which complaint is made.
76. Dr Finnegan's decision of 5th January was not challenged until late February. Now it goes without saying that there is a high premium on speedy challenges in this kind of case, not least in fairness to the patient. I am satisfied that although some of those whose job it was to implement the decision of the Tribunal did not agree with it, they did their best to see how DE could be discharged into the community.
77. In my judgment no criticism is to be levelled at the claimants in this case for not applying sooner for judicial review of either decision. This was a complicated story and they were doing their best to unravel it. There was also a change of Responsible Medical Officer and a difficult interrelationship between sections 3 and 37. I am unable to find any culpable delay in either case. In any event, even if there is delay in the sense referred to in the authorities it would not, in my judgment, be prejudicial to the good administration of justice for these claims to proceed.
78. Mr McDermot made some argument on the basis that the hospital order under section 37 is in the nature of a criminal penalty. It is true that it is a direct alternative to other sentencing options: see section 37(8). It was imposed in this case on transfer from prison, initially via section 47 of the Act, but the sentence of imprisonment as such has long since expired. Mr McDermot argues that because of the criminal context giving rise to section 37 orders, whether imposed directly by a criminal court, or arising as a result of transfer to hospital from prison, that once discharged they are not renewable full stop; i.e. whatever the circumstances. I cannot accept this where the discharge is in the circumstances unlawful.
79. Next it is said that the position under section 23 (i.e. as operated by Dr Finnegan) is that discharge under section 23 should follow: (1) where the criteria for admission no longer exists; or (2) in the exercise of the RMO's residual discretion: see the case of Huzzey 1998 48, 43 Butterworth's Medical Law Report 167.
80. In this case Dr Finnegan discharged under the residual discretion. He does not, as Ms Morris pointed out, have to give by statute any reasons for the decision. Mr McDermot argues that there is in these circumstances no mechanism for interfering with the decision. It is not judicially reviewable. It is a clinical decision. I do not agree. If it is clear that the decision has been made as a result of an error of law, the error in this case being that section 3 and section 37 orders could not stand together, in my judgment it is plainly reviewable. So too would it be reviewable were a doctor who was a Responsible Medical Officer to say one day, for example, that all patients with red hair were immediately to be released under section 23 regardless of any other circumstances.
81. I have also considered, although the point does not arise directly in the present case, whether in the circumstances it was appropriate for an application to be made for a section 3 detention. The Court of Appeal has recently considered the question of readmission following release in R v East London and City Mental Health NHS Trust and Von Brandenburg. Lord Phillips MR at paragraph 30 in his conclusions said:

"The nature of mental illness is such that the severity of the symptoms and the need for treatment will often fluctuate over time. A sequence of discharge, readmission, discharge and readmission is not uncommon. Normally a sensible period is likely to elapse between discharge and readmission. In such circumstances the implied statutory requirement of change of circumstances for which Mr Gordon contends is neither necessary nor sensible. If the professionals concerned are acting objectively and bona fide, the application for readmission is likely to be triggered by behaviour of the patient that is, at least in part, a reaction to life in the community. This will almost certainly constitute a change of circumstances when compared with the patient's reaction to the hospital regime that was prevailing when the Tribunal discharged the patient. To require the professionals involved to investigate and attempt a comparison between the two sets of circumstances in order to decide whether or not there has been a relevant change of circumstances would not be helpful or even meaningful. The position is very different where an application for readmission is made within days of a Tribunal's decision to discharge, which carries the necessary implication that the criteria for admission are not present - the more so if the patient has remained under the hospital regime because discharge has been deferred, so that there has been no change in the patient's environmental circumstances. In such a situation there is likely to have been, as Mr Gordon pointed out, a difference of view between the patient's RMO and the Tribunal as to whether or not the criteria justifying detention were established. Under the statutory scheme, where such a conflict exists, it is the opinion of the Tribunal that is to prevail.

In such circumstances I do not see how an Approved Social Worker can properly be satisfied, as required by Section 13, that 'an application ought to be made', unless aware of circumstances not known to the Tribunal which invalidate the decision of the Tribunal. In the absence of such circumstances an application by the Approved Social Worker should, on an application for judicial review, be held unlawful on the ground of irrationality."

82. To section under section 3 immediately after a release under section 37 by a tribunal, just because the sectioning doctors disagreed with the tribunal's decision would, in my judgment, be an abuse of process as it would effectively usurp the tribunal's decision. But that is not this case, where I am satisfied: (a) that efforts were made to see if the decision of the Tribunal could be implemented; and (b) there were genuine grounds for thinking, and in the event it has proved to be the case, that the Tribunal's decision was unlawful.
83. Finally, I turn to discretion. Mr McDermot argues that I should exercise my discretion not to grant relief because this is a case where the liberty of the subject is at stake, and bearing in mind all the various matters that he has advanced during the course of argument it would be inappropriate for relief to be granted. I have to balance DE's position and the obvious distress that it will cause to him of having his release in these two ways set aside against the importance of considering the protection of the public so that those who are released into the community are only released when the correct decisions in law have been taken.
84. In all the circumstances, I have come to the conclusion that this is a case where relief is appropriate. Therefore, judicial review will lie in both cases.

MS MORRIS: My Lord, as to the terms of that relief that can be taken quite quickly, we would just ask for an order in the form already agreed with the Tribunal, and that appears at page 24 of the supplementary bundle. In respect of Dr Finnegan's order, it would just be an order quashing his decision. That is the only relief that we would seek.

MR JUSTICE SCOTT BAKER: Yes.

MS MORRIS: In respect of costs, the MHRT has agreed to pay our costs up to the dates of concession. Our costs thereafter I would seek as against the interested party, because of course all the hearings have been necessitated by his being joined to these proceedings. Plainly, he is legally aided and therefore the usual wording should be provided for. But, of course, we need to seek that order before we can make our application against the legal aid fund.

As against Dr Finnegan, the situation is similar in that again a concession was made by the defendant, and these proceedings effectively have been necessitated by the involvement of the interested party, who sought to be made a party and file evidence and so forth. So I would ask that costs follow the event in the same terms?

MR JUSTICE SCOTT BAKER: Are you asking for an order against Dr Finnegan?

MS MORRIS: No, as against the interested party.

MR JUSTICE SCOTT BAKER: So there is not a question of making an order against him up to his date of concession?

MS MORRIS: No, obviously it would not be appropriate to make an order against an individual in that sense, and plainly because he was doing what he was told.

MR JUSTICE SCOTT BAKER: I thought you might be in some difficulty if you were asking, but I was not quite clear.

MS MORRIS: No. Plainly, we do not want to punish DE but we do need a normal legal aid order so that we can approach the Legal Aid Board.

MR JUSTICE SCOTT BAKER: You can have an order against the Tribunal up to the date of concession. You can, subject to anything Mr Vaughan says, have an order against DE not to be enforced without further order on the usual terms. In the other case, you can have an order against DE not to be enforced without further order on the usual terms.

MS MORRIS: I am grateful.

MR VAUGHAN: My Lord, can I make a number of observations? I have listened obviously with great care to your Lordship's very detailed judgment, and I have endeavoured to clearly take on board in the time available the points you make. I accept that your Lordship's very detailed judgment does cover various avenues that would prevent me pursuing an appeal. I do, however, say there are two aspects of your Lordship's judgment which impinge upon what up to this particular judgment is a novel area of the law.

MR JUSTICE SCOTT BAKER: Yes.

MR VAUGHAN: The first of those areas is of course the ability to judicially review the residual discretion of the RMO to discharge under section 23.

MR JUSTICE SCOTT BAKER: Yes.

MR VAUGHAN: The second area is your Lordship's determination that even though a section 37 order is the criminal penalty, and technically speaking when discharged it comes to an end, it is still capable of judicial review of the decision to bring to a conclusion. I say again that is a novel point that you can reactivate – if that is the appropriate word?

MR JUSTICE SCOTT BAKER: I know what you mean, yes.

MR VAUGHAN: To reactive a criminal sentence. Again, I respectfully submit that that is a novel aspect of this particular case.

Now aside from those two aspects, I concede entirely that I do not have grounds to appeal for the reasons your Lordship has given. But because of the novelty of those two aspects, I do ask for leave to pursue them further before the Court of Appeal?

MR JUSTICE SCOTT BAKER: What does Ms Morris have to say?

MS MORRIS: My Lord, I say that this case has been determined on ordinary judicial review principles, and in that sense there is nothing of any great novelty, if one can say that without being unkind to the court, in the decision. Perhaps if DE does wish to formulate his arguments it might be better if he put them by way of written application to the Court of Appeal rather than permission being granted at this stage.

MR JUSTICE SCOTT BAKER: Do you wish to add anything, Mr Vaughan?

MR VAUGHAN: My Lord, no.

MR JUSTICE SCOTT BAKER: I am not going to grant you leave to appeal. I think that this is a matter which if it is to be appealed it would be under the decision of the Court of Appeal where you must go. So I refuse permission.

MR VAUGHAN: My Lord, aside from that matter there are obviously two other aspects that I need to address. The first is the funding aspect. I think I would respectfully ask for an assessment of funding under the certificate?

MR JUSTICE SCOTT BAKER: In both cases?

MR VAUGHAN: In both cases, my Lord.

MR JUSTICE SCOTT BAKER: Certainly.

MR VAUGHAN: As far as my learned friend, I know you have made preliminary directions that my learned friend is entitled to an award against DE, I would ask that you reconsider that and temper that view in light of the fact that DE's invidious position was not invited by him, it was forced upon him, and what choice did he have but to take the stance that he did take. I would ask in those circumstances that the order, although it will not be enforced, because of his own financial circumstances, against him still should not stand.

In addition to that there is one aspect which----

MR JUSTICE SCOTT BAKER: He is only potentially liable for the costs from the date of concession of the Tribunal, is he not?

MR VAUGHAN: On the first one, yes. On the second one, of course, it would be the entire costs of that particular application.

MR JUSTICE SCOTT BAKER: Yes.

MR VAUGHAN: The only other aspect that was given some consideration at the beginning of the hearing before your Lordship, and upon which my view has changed, is whether there should be an order for DE's anonymity. I am not aware that there has been any publishing of this matter until now, but if it is to be published I wonder if such an order would be appropriate in the circumstances of the outcome of this particular hearing?

MR JUSTICE SCOTT BAKER: Yes. What do you say, Ms Morris, about that?

MS MORRIS: My Lord, very often patients do want their anonymity preserved, as long as that could be made without trying to shut the stable door, then I would be perfectly content for that order to be made.

MR JUSTICE SCOTT BAKER: What do you mean by shutting the stable door?

MS MORRIS: Well, I know that journalists have been here and have left, provided that it is possible to communicate with them. Certainly if it is reported, there are members of the press here now, they ought to understand that an order has been made.

MR JUSTICE SCOTT BAKER: Yes. I shall make the order that nothing should be published to indicate his identity.

MR VAUGHAN: I am grateful.

MR JUSTICE SCOTT BAKER: I think it is very unlikely that DE is going to win the lottery, is it not?

MR VAUGHAN: I imagine it is one of the few things he is allowed to do.

MR JUSTICE SCOTT BAKER: Yes. I think that costs ordinarily in this situation should follow the event. I do not really think that there is a good reason for saying that the claimant should not have an order, albeit that they are very unlikely to enforce it.

MR VAUGHAN: I hear what your Lordship says and I am grateful.

MR JUSTICE SCOTT BAKER: Thank you both very much.