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
		Monday, 1st July 2002

1. SIR RICHARD TUCKER: This is an application for judicial review following permission granted by Grigson J, who also made an order for anonymity. Therefore I shall refer to the claimant simply as "B".

1. B is a patient at Ashworth Hospital pursuant to an order made on 25th August 1987 by the Crown Court at Birmingham under sections 37 and 41 of the Mental Health Act 1983 following B's conviction for manslaughter of his girlfriend. B was originally diagnosed as suffering from an acute paranoid psychosis. Following his detention he had a history of uncooperative behaviour, of threatening and abusing staff and of absconding. He now challenges the decision by clinicians at the hospital to place him on a ward within the Personality Disorder Unit and also the treatment regime within that ward. The remedy sought is an order quashing that decision; further, or alternatively, a declaration that B's detention on a ward for those suffering from a personality disorder is unlawful.
2. The issue that arises is whether the defendants can properly locate the claimant in such a ward despite the fact that he is classified as suffering from a mental illness and that the Mental Health Review Tribunal that last considered his case upheld that classification.
3. Reports have been obtained on B's behalf from experts who questioned his classification, one of whom considered that a diagnosis of personality disorder was totally inappropriate. However, the Tribunal, on 8th May last year, declined to reclassify B. They stated that they were satisfied that he suffers mental illness (schizo-affective disorder) of a nature or degree that requires his continued treatment in hospital for his welfare and for the safety of others.
4. The defendants contend that B suffers from both a mental illness (schizophrenia) and a psychopathic disorder, being a personality disorder of dis-social type. In other words, a dual diagnosis.
5. I have before me a statement from Dr Derek Hughes, B's Responsible Medical Officer, which supports this diagnosis. The document describes B as being one of the few patients for whom the traditional classification systems do not provide a straightforward diagnosis. B had previously been a patient at a less secure hospital, the Raeside Clinic. Dr Cope from that establishment has recently indicated that as long as B continues to improve as he has done, she will be prepared to recommend a transfer back to Raeside.
6. I am satisfied that the reason for B's transfer to his present ward was to treat his personality traits so that he could be considered for that transfer. That would be to the advantage of B, and hopefully, ultimately, for the community. I take the view that it would not be in the interests of either to disturb the present regime of treatment.
7. However, I have to consider the submissions made to me by Mr Southey, on behalf of B, that the defendants are acting unlawfully in providing such treatment and in locating B on a ward for those suffering from personality disorder when the Tribunal which considered B's case classified him as suffering only from mental illness.
8. I am reminded that in the case of R v South West Thames Mental Health Review Tribunal, ex parte Demetri [1997] COD 44, in granting leave to apply for judicial review, the Court of Appeal said that reclassifying a patient as suffering from psychopathic disorder rather than mental impairment was an important decision. My attention has been drawn to the provisions of the Act, and in particular to section 63, under the rubric "Treatment not requiring consent":

"The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 57 or 58 above, if the treatment is given by or under the direction of the responsible medical officer."

9. Mr Southey for B emphasises the use of the definite article, "the mental disorder from which he is suffering", and submits that since B was, and still is, classified as suffering from mental illness, it is that condition and no other for which he should be treated, and that there is no justification, either in the original court order or since that time, in the absence of any reclassification for treatment of the present kind. He relies on a passage in the judgment of Waller LJ in R v Anglia and Oxfordshire Mental Health Review Tribunal ex parte Hagan [2000] Lloyd's Law Reports Medical 119 at 125, where the learned Lord Justice says this:

"I do not dissent from the view that at least part of the purpose of classification in the original form of application, and the court order under section 37 is to show the basis for the detention and at least part of the purpose is to identify the mental disorder for which compulsory treatment is needed (albeit the treatment aspect was not much pursued before the judge)."

10. Mr Thorold, on behalf of the defendants, observes that it is common ground that a patient can be dual qualified and submits that the reference in the section to the disorder from which he is suffering must refer to the actual disorder as diagnosed by the clinicians, and need not, and should not, be confined to the disorder or that part of the disorder classified by the Tribunal.
11. I prefer Mr Thorold's submissions. If Parliament had intended the mental disorder to be that classified by the Tribunal it would have said so. It is clearly a matter for the professional judgment and expertise of the clinicians in charge of B's case to decide upon the best therapeutic regime for the disorder from which they assess him to be suffering. To conclude otherwise would be to put an artificial and strange interpretation upon the words of the section.
12. I further agree with Mr Thorold that I am wholly concerned in this case with statutory interpretation. Mr Southey has raised as an ancillary argument references to the European Convention on Human Rights. He does not submit that B's current treatment represents a violation of those rights, except to the extent that they are not in accordance with the law. I find that they are in accordance with the law. However, Mr Southey submits that if the defendants' arguments are correct there will be a risk of such violations. I do not agree with that, and I do not regard section 63 of the Act or any conduct on the part of the defendants as engaging the provisions of the Convention.
13. Accordingly, I refuse the application.
14. Are there any other ancillary applications?

MR THOROLD: My Lord, I would apply for costs.

SIR RICHARD TUCKER: There is not much hope of recovering them. First of all, B is a patient in a mental hospital. He is, no doubt, in receipt of public funding.

MR SOUTHEY: He is, my Lord. I was going to raise the issue of the Legal Services Commission assessment.

MR THOROLD: My Lord, there is a form of order which the court certainly do make which is that whilst this would not be enforced without the order of the court in the usual way, nonetheless there should be set-off should this patient obtain any damages, for example, against the hospital in the future.

SIR RICHARD TUCKER: It is all very speculative.

MR THOROLD: It is speculative, my Lord, I appreciate that. If I have not persuaded --

SIR RICHARD TUCKER: Yes, in theory, you are entitled to an order, but in practice you will never get anything out of it. I will see what Mr Southey says.

MR SOUTHEY: In my submission it is too speculative to make appropriate for an order to be made. In my submission quite regularly in publicly funded cases the order of the court is no order for costs other than an assessment for the purposes of the Legal Services Commission. In this case, in particular where the claimant is clearly a long term patient in mental health services, and although he is making progress he is unlikely to be released in the foreseeable future, in my submission it would be inappropriate to make such an order.

SIR RICHARD TUCKER: Are there any outstanding claims for damages?

MR SOUTHEY: Not as far as I am aware, no.

SIR RICHARD TUCKER: He does not do the football pools, I take it.

MR SOUTHEY: I suspect not. I am told not, my instructing solicitor knows that.

SIR RICHARD TUCKER: It is quite right that the defendants are entitled to apply, but I think in this case it would be unrealistic to grant them an order. No order as to costs save an assessment of the claimant's public funding.

MR SOUTHEY: My Lord, can I raise the issue of leave to appeal. I know that the issue is in some ways a very straightforward issue, but it is equally an issue that at least has some merit in the sense that the Court of Appeal did not decide it as an obvious issue in the case of Hagan, and it is an issue of some importance in that clearly the scope of section 63 is a matter that not only affects this claimant but a number of claimants generally.

SIR RICHARD TUCKER: Am I not entitled to have regard to the background of this case and indeed the future, which, if this regime of treatment continues successfully, will result in your client being transferred to a more favourable institution to his benefit and, as I have said, ultimately that of the community. I am not keen to disturb that regime of treatment, nor to give you leave to appeal.

MR SOUTHEY: My Lord, I can understand your Lordship's concern, if I can put it that way. At the same time the test, in my submission, is, one, whether your Lordship thinks there is any realistic prospect of success on appeal --

SIR RICHARD TUCKER: That was what I was coming to.

MR SOUTHEY: My Lord, all I can say is the fact that Hagan left this issue unresolved means that there is some prospect of success, in my submission. If it had been clear one way then one might have expected the Court of Appeal to have (inaudible). The second issue is the importance of the issue. Although I accept from the claimant's point of view, given the fact he hopefully will move in the near future, it may become academic in the near future, at the same time it is a matter concerning the construction of section 63 which is, in my submission, of some significance.

SIR RICHARD TUCKER: What do you say, Mr Thorold?

MR THOROLD: My Lord, I say that the applicant had a vanishingly small prospect of success before your Lordship and that, in accordance with your Lordship's judgment, he failed by a wide margin before your Lordship and has no prospects on appeal at all.

SIR RICHARD TUCKER: I do not think there are any realistic prospects of success on an appeal, Mr Southey, but if you disagree you must seek to persuade a member of the Court of Appeal otherwise. Thank you very much.