Case No: CO/1235/01
Neutral Citation Number: [2002] EWHC 181 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 13 February 2002
B e f o r e :

THE HONOURABLE MR JUSTICE NEWMAN

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	THE QUEEN ON THE APPLICATION OF 
(1) ‘C’ (by his litigation friend the Official Solicitor) 
(2) ‘M’ (by his litigation friend the Official Solicitor)
(3) ‘P’ (by his litigation friend the Official Solicitor
(4) ‘HM’ (by her litigation friend the Official Solicitor)
	Claimants	
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	BRENT, KENSINGTON AND CHELSEA  AND WESTMINSTER MENTAL HEALTH NHS TRUST
	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Jenni Richards (instructed by  Messrs Mackintosh Duncan, Solicitors for the Claimants)
Nigel Pleming QC and Gerard Clarke (instructed by Messrs Radcliffe’s for the Defendants)
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Judgment
Mr Justice Newman :
Introduction

1.	The Claimant, C, is 61 years old and has had a long history of mental disorder.  He has lived continuously in institutional settings for over three decades, having been admitted to Shenley Hospital in l965.  He subsequently spent ll years in Broadmoor, before transferring back to Shenley Hospital.  Although initially diagnosed as having personality disorder with paranoid features, he has been diagnosed as suffering from paranoid schizophrenia.  The claimant, M, is also 61 years old and he suffers from bi-polar affective disorder.  He has not worked since l980.  He was admitted to Shenley Hospital in l987 and subsequently had repeated admissions to Shenley.  Between l995 and l996 he was admitted repeatedly to Park Royal.  The claimant, P, is 67 years old and suffers from bi-polar affective disorder.  He has a long history of mental health problems, dating back to l96l, and of psychiatric in-patient care, dating back to l964.  He had several admissions to Shenley Hospital from l976 onwards.  The claimant, HM is 42 years old.  She has a long history of mental illness and suffers from schizophrenia and probably an underlying personality disorder.  She was first admitted to Shenley Hospital in l979, at the age of 21;  for the next few years she was in and out of hospital before being finally admitted to Shenley in l986, due to self neglect and weight loss.  Each of the claimants presently lives at Harefield Lodge.  C, P and HM moved to Harefield Lodge from Shenley Hospital in February l998.  The move to Harefield Lodge was prompted by the closure of Shenley, which was a long stay psychiatric hospital.  There was a staged closure programme, with groups of  patients being moved over a period of time.  By the autumn of l997 there was only a handful of patients (ll in total) left at Shenley.  That group included the first, third and fourth claimants, and they were living as a group in Villa 20A at Shenley.  M moved to Harefield Lodge in January 2000.  He moved from Fairlight Avenue, a psychiatric rehabilitation unit.  His conduct was such that it was not appropriate that he should be retained there.

2.	The closure of Shenley Hospital was a planned closure and formed part of a wave of long-stay hospital closures in pursuance of the Care in the Community policy.  It was planned that so far as possible the residents in Villa 20A at Shenley Hospital would be moved to premises at Norton Road, Wembley.  There is no doubt that the patients at Shenley, including the three claimants, were informed that they would be moved to Norton Road, but one of the principal issues I have to decide, to some extent, turns on what the claimants were led to believe would be their position at Norton Road and, more acutely and more directly for the purposes of an issue in this application, whether, when the accommodation at Norton Road was no longer available, what assurances, if any, they were given in connection with their residence at Harefield Lodge, the accommodation which was found in substitution for Norton Road.

3.	This application arises out of the decision to close down Harefield Lodge and to require the claimants to move.  In fact, Harefield Lodge is to be refurbished and to be used as a rehabilitation unit for acute patients from another hospital. 

4.	Although the late production of evidence and new argument based on such evidence from the claimants could be taken as indicating a broader base than the original grounds of challenge, the issues can, for present purposes, be expressed as follows:

(1)	Did the trust promise three of the claimants (C, P and HM) that they could remain at Harefield Lodge for the rest of their lives?
(2)	Did the trust breach an obligation to consult with the claimants about the proposals for the future of Harefield Lodge?
(3)	Did the trust assess and take into account the needs of the claimants when determining the future of Harefield Lodge, and the placement of the claimants?
(4)	Is the trust’s proposed course of action a breach of the claimants’ rights under Article 8 and/or Article 3 of the European Convention of Human Rights?

	As to Article 3, it can be noted that in the course of argument Miss Richards, counsel for the claimants, elected to abandon the argument.  She was plainly right to do so, but its late introduction into the case calls for some comment to which I shall come later in this judgment.

	Legitimate Expectation - the ‘Home for Life’ Issue
5.	It is not in dispute that promises can be given which have the effect of creating substantive legitimate expectations.  (See R v North and East Devon HA ex parte Coughlan [2000] l WLR 622)  The existence of a promise or promises must be established, and further, the content must be established by the claimant who relies upon such promise or promises.  Because of the legal consequences which flow, the content must be established with sufficient certainty and clarity.  The context in which any statement, said to amount to a promise, has been made should be carefully examined.  Words and expressions take their meaning from the context in which they are used.  In the context of the provision of mental health care it will be salutary and appropriate for a Health Authority to regard the accommodation it provides for its patients as a home.  For many in long term care the accommodation will be their home.  But its meaning and character as a home is circumscribed by the obligations which the Health Authority has to discharge in respect of the mental care of the patients who, at any time, reside there.  The need for care might give rise to a requirement to move a patient from such a home.  Equally, the needs of others who require mental treatment and the availability of resources can give rise to a need for a change of home.  The relevant provision or service is the provision of care and treatment, in which the provision of a home is an aspect, to be regarded as one factor in assessing the needs and considerations of treatment, which in turn can involve resource considerations.  All these considerations must be clearly recognised, otherwise, as Mr Pleming, who appeared for the defendant pointed out, those having the responsibilities discharged by the defendant in this case, will simply never refer to patient accommodation as a “home” for fear of it giving rise to legal consequences.  I am not to be taken as attempting to exclude issues such as those which have been raised in this case from the ambit of judicial review.  But this case demonstrates that where the essential facts are in issue, judicial review can be a “blunt instrument” in the resolution of differences.

6.	In the case of ex parte Coughlan and the more recent case of R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 there was no dispute that a promise had been made.  In this application a promise of a home for life is hotly disputed.  The issue has generated such a degree of controversy that, like the Court of Appeal in R v Plymouth City Council ex parte Cowl, [Case No 2001/2067, l4 December 01] this court has had concerns and regrets that litigation was not avoided.

7.	Given that the Trust does not accept that assurances or promises were given creating substantive legitimate expectations on the part of the three claimants, I must examine the evidence.  I do so having in mind that because a substantive legal obligation is said to have been created by what was said, careful consideration has to be given to the evidence and the “assurance must be ... clear and unequivocal” (see Lightman J, R v Ivy Phillips and Evelyn Rowe) v Walsall MBC (unreported 26.4.01) at paragraph 8).

8.	The case for the claimants C, M and P, was set out in the first affidavit of Nicola Mackintosh, a solicitor and partner at Mackintosh Duncan, a firm of solicitors acting for each of the claimants.  As to the case for C, it was as follows:

	“28.	Importantly, before Mr [C] first moved to Harefield Lodge from Shenley Hospital in l994-5, he was told that this was “the last place [he] would have to come to”, according to Ms Maureen Beeken, the previous manager of Harefield Lodge.  Ms Beeken also told him that he would be “dying here”, as this would be “his final resting place and he would never be moved again”.  Mr [C] also received a card from Ms Beeken and the staff at Harefield Lodge which “wished him much happiness in his new home”.

	29.  It is clear that Mr [C] regarded these unequivocal statements made by the previous manager as confirmation that Harefield Lodge would be his home for the rest of his life.  The card merely confirmed that which he had been told, namely that Harefield Lodge was his home.  It is clear that he has relied heavily on the promise of a home for life, as a decision to close Harefield Lodge had distressed him greatly.”

9.	The case for M was put as follows:

	“44.	Before Mr [M] moved to Harefield Lodge from Fairlight Road, he was very reluctant to transfer to yet another establishment as he had undergone so many moves in his life.  He was persuaded to move to Harefield Lodge when he was promised in late l999 that he would be moving to “a permanent home”, namely a home for life.  He was told that he would not have to move again.

	45.	Mr [M] states that he was given the assurances by the psychiatrist responsible for both Harefield Lodge and Fairlight Road, Dr Paternoster.  He states that he had no reason to doubt the sincerity of her statement.  Had Mr [M] not been assured of a home for life, he would not have agreed to move to Harefield Lodge at all and would have objected strongly to yet another move.  He recalls that other staff may also have confirmed the promise, including the previous manager of Fairlight Road.  The promise given by Dr Paternoster in conversation with Mr [M] was witnessed by at least one member of staff.”

10.	The case for P is as follows:

	“61.	Mr [P] states that when Shenley was closing he was led to believe that Harefield Lodge would be a home for him for the rest of his life.  He was given this assurance by Maureen Beeken, the previous manager at Harefield Lodge.  The promise was also reiterated by other staff at Harefield Lodge.  He was very worried about leaving Shenley and moving to Harefield, but once he had been assured that it was permanent and had actually moved, he liked the facility very much.”

11.	When these facts were denied, Miss Mackintosh swore a second affidavit.  In the second affidavit she stated that she had spoken at length with Dr Peter Jeffreys, a consultant psychiatrist employed by the Harrow and Hillingdon NHS Trust, who, it was said, had been very closely involved in the whole closure and re-provision programme for those being moved from Shenley Hospital.  In paragraph l0 of that second affidavit she stated: 
	
	“He has told me that throughout the entire process, all those involved from a clinical and management viewpoint expected and endorsed a “home for life” promise philosophy.”  

	A little later she stated:

	“Dr Jeffreys was completely clear in stating to me that the message given to patients was that they would not have to move again.”

	In a third affidavit dated l0 May 2001 she provided more material in response to the denial that Dr Paternoster had ever given a promise to M.  She stated that the promise had been given in the presence of a member of the nursing staff, who had expressed concern about the conflict of evidence and was fearful of her identity being revealed because there may be disciplinary consequences for her and her employment could be put at risk.

12.	The Trust’s response by way of evidence is, to a significant extent, contained in a witness statement from Mr Alexander Hamilton Clarke and attached to it various contemporaneous documents.  But a short response to the second affidavit of Miss Mackintosh was provided in a witness statement from Dr Peter Jeffreys in September 200l.  He had the following to say about her second statement:

	“Miss Mackintosh is inaccurate to state, paragraph 7, that I was involved in the whole closure of Shenley Hospital.”

	Further, he states:

	“With regard to the reference at paragraph 10 of Miss Mackintosh’s statement, I do not recall stating that the “home for life” promise and expectation was explicitly part and parcel of the philosophy of the process in closing Shenley.  Indeed, the reference to a “home for life” is not the terminology that I recall being used in the early l990s, even though it has now become a popular term.  I believe that I stated there would have been an endorsement to a continued commitment to establish a quality of life for the patients who were to be moved to new accommodation.  It would have been a promise to support their best clinical interests.”

13.	As Miss Richards accepted in the course of argument, it was neither proper nor necessary for Miss Mackintosh to give second hand evidence of what she believed Dr Peter Jeffreys had said on such an important issue.  She could have either approached Dr Jeffreys with a view to obtaining a witness statement or sent to him a copy of her affidavit in draft before it was sworn, asking for his comments.  Miss Richards pointed out that urgency may have been a factor leading to this not having been done.  Further, the tenor of the statements from Miss Mackintosh contain impermissible comment and argument.  As a result, a process which was meant to provide the best evidence to enable the court to determine the words actually used, has been blurred and confused by suggested interpretations of the words used.  For example, the expression “home for life” is not attributed to anyone.  Its entry into the case and its supremacy as an issue is derived from Miss Mackintosh’s interpretation of words said to have been used (see paragraphs 29 and 44).  Thereafter her interpretation of what was said by Dr Jeffreys was that the move from Shenley was taken in the context of a “home for life” philosophy.  Having regard to the significance which the expression has assumed since its judicial consideration in the case of ex parte Coughlan, and the absence of evidence that the expression was used at all, the court has to conclude that it is likely that this case has proceeded upon a legal construct rather than an evidential foundation.  The evidence of Dr Jeffreys that so far as he was concerned it was not a phrase in common use at the material time, powerfully bears out the fragility of the evidence on this issue.

14.	I should refer to some material put into evidence on behalf of the Trust, through a statement by Mary Morley who, at the relevant times, was responsible for planning the re-provision of mental health services for Brent.  Her evidence and the documents exhibited are entirely consistent with Mr Hamilton Clarke’s evidence to the effect that “NWL [North West London Mental Health NHS Trust] made a proposal to the health authority to make available to it Harefield Lodge to accommodate up to ll patients, but strictly on an interim basis, to allow the health authority to develop more appropriate long term provision for those patients”.  Miss Morley’s statement provides further evidence, which makes it clear that in relation to the claimants being moved from Shenley, the emphasis was on rehabilitation and community integration, and that the unit was not intended as a home for life.

15.	In my judgment the fundamental difficulty which the undeniable facts present for the claimants’ argument is that the original intention was to move the Shenley patients to Norton Road.  Harefield Lodge was never intended to be other than an interim facility for the patients who were having to move from Shenley Hospital into new accommodation and, as a stop gap measure, until the new provision became available.  It was an interim placement and Harefield Lodge is characterised for care purposes as “an interim placement only”.  According to the material I have seen it is the view of the health authority that Harefield Lodge was, and is, not suitable as a permanent solution for patients.  I am simply unable to see how the claimants who had moved from Shenley Hospital could have been under any impression other than that Harefield Lodge was an interim solution.  It is undoubtedly the case that the interim solution prevailed for a significant period of time, in the course of which I have no doubt, the claimants became settled and grew to like the accommodation at Harefield Lodge.  Indeed, it is a house which is designed to take ll patients and throughout the bulk of the time there have been only seven residents there.  Having regard to their developed affection for the house and the care each had received, and familiarity with the area, I have no doubt that when the management decision was made in July 2000 that they were to be moved from Harefield Lodge, and that it was to be closed for refurbishment, there was a significant degree of disappointment on the part of the claimants.  Other arguments are advanced on these facts but these subsequent facts cannot alter the context in which the decision was made to move the Shenley patients to Harefield Lodge, and the circumstances which gave rise to them being there.  To conclude that anything was said to the effect that Harefield Lodge would be a “home for life” would be to find facts wholly inconsistent with the clearly expressed intention and purpose which the placement was designed to serve.

	C’s case
16.	The reference in paragraph 28 of Miss Mackintosh’s first statement to the years 1994/95 was an error.  C did not move to Harefield Lodge until February 1998.  Miss Beeken, the previous manager of Harefield Lodge, denies giving assurances to C.  She states:

	“I am aware that C and P allege that I said Harefield would be their home for life.  I can confirm that I did not say this, as I knew that it was not the case.”

	She says at the end of her statement:

	“In order to support the clients through the difficulties encountered by their re-provision scheme, information was always given with the assurance that the Trust and health authority were committed to the long term provision of care to meet their individual needs.  However I did not at any time, suggest to the clients that Harefield Lodge was intended to be a home for life.”

17.	Having regard to the caution with which Miss Mackintosh’s evidence must be approached, and in the face of the evidence from Ms Beeken, I cannot accept that there is clear and unequivocal evidence of a promise of a home for life having been given to C.  I conclude that it is unlikely such a promise was made.  The card sent by Ms Beeken to C does not confirm the evidence at all.  In fairness to Miss Richards she did not adopt this context as part of her argument.  Nor can the suggested evidence that all staff knew of the philosophy of a home for life survive the evidence from Dr Jeffreys.

	M’s case
18.	It is apparent in the argument advanced for M in particular (paragraph 44 of Miss Mackintosh’s affidavit) that on any occasion when anybody might have expressed the obligation of the Trust to be that the claimants should receive permanent care from the health authority, the court is being invited to regard such a statement as the equivalent of a promise of a home for life, or at least if not a promise, something which supports the fact that a promise of a home for life was made.  In support of the case for M, reliance was placed upon an entry in nursing notes, in January 2000, “After much discussion and persuasion, [M] agreed to move to Harefield Lodge on a long term basis”.  This was a statement in a nursing record.  M had a history of detentions at various places for varying periods of time.  It cannot amount to a promise that Harefield Lodge would be a home for life, nor provide confirmatory evidence that a promise had been made.  There is evidence from Dr Paternoster disputing that she ever stated to M that Harefield Lodge was to be a home for life.  She states:

	“Although I have no specific recollection, I may have suggested to M that he would be entitled to receive care throughout his life, in view of his psychiatric condition.”

	I have no doubt that M, having had a series of what could be regarded as short term changes, which were required for his clinical benefit, had reached a stage where he desired not to be moved frequently, but as with his past, and as with all such patients, where clinical needs give rise to a need for a different placement, then a change in placement will occur.  Where a need for long term permanent care is anticipated and there is a pattern of changing clinical needs, the primary relevant legal obligations arise in connection with the patient’s needs.  The only words attributed to Dr Paternoster which are relied upon as giving rise to substantive obligations in law outside the context of clinical need, are the words “permanent home”.  In my judgment they cannot support the case advanced for M.  On the evidence I am unable to conclude that any promise or assurance of a home for life was given to M.
	P’s case
19.	The evidence for P (paragraph 61) does not condescend to any particulars of the words used.  The suggestion, which I reject, is that the expression “home for life” was used.  Ms Beeken disputes the evidence put forward on behalf of P.  Further, one has to have some regard to the context of his clinical condition.  At all material times he has been detained under Section 3 of the Mental Health Act l983 and thus was subject to the transfer of patient provisions set out in Section 19 of that Act.  Thus it is most unlikely that anything amounting to a promise that Harefield Lodge would be a home for life would have been given and I conclude that there is no evidence to support a conclusion that such a promise was made.

 	Conclusion on the “Home for Life” issue
20.	In the light of what I regard as the unconvincing and unsatisfactory nature of the evidence advanced on behalf of these claimants in respect of the “home for life” issue, I reject the suggestion that the court should hear oral evidence, alternatively remit the matter back for the Trust to carry out an investigation.  I regard the evidence which has been adduced to be so fragile that neither course is called for.  For all the reasons I have set out above I have concluded that the claims have not demonstrated that “home for life” promises or assurances were made to them by or on behalf of the Trust.  
	The Claimants’ alternative argument - a clear legitimate expectation of a permanent home

21.	It appears from the material put in by Miss Morley that the High Care House Scheme at Norton Road was planned as a “medium stay rehabilitation unit”, and was intended to be a permanent facility, and to that extent a permanent rather than a strictly temporary home.  Miss Morley states:

	“I attended community meetings and had many informal discussions with clients, reinforcing that the Trust still hoped to proceed with Norton Road and if this did not happen, another more permanent location would be identified.”

	Miss Richards relies upon the Trust’s plans and its evidence to support the alternative argument.  But none of it, in my judgment, can give rise to an assurance that either Norton Road or Harefield Lodge or some other facility would always be available to the patients as a permanent home  As I have already pointed out, 11 patients moved from Shenley to Harefield Lodge.  Only three remain, the others (save one who died) have been moved.  In any event,.  the character of the home to which a patient is sent does not, for the purposes of the law, determine what an authority responsible for a patient’s care can decide as to another placement.  Placement decisions must be dictated by the patient’s best interests and perceived needs, which will have to be taken in the light of available resources.  There is nothing in the alternative way in which the case has been put.  However, again I emphasize, that having regard to the period of time which the claimants had spent at Harefield Lodge, and having regard to the success and level of care which they had enjoyed there, I have no doubt that when they were asked to move they were reluctant to do so.  But this aspect of the matter naturally leads me on to the case for the claimants, which has been based upon a failure to consult and a failure to properly assess and take into account their needs.  

	The decision
22.	Harefield Lodge is to be used to accommodate patients undergoing rehabilitation after leaving Park Royal Hospital.  It must be refurbished before it can be used as a rehabilitation unit, which means that the claimants must move.  The decision to re-designate Harefield was reached in or about July 2000.  In a letter dated l4 August 2000 from the Trust to Mrs M, it was stated:

	“Following a major review of the rehabilitation services within Brent, the Brent Management Team has identified Harefield Lodge as a second facility for intensive rehabilitation .... The needs of the present client group is under review and their needs will no longer be met within Harefield Lodge.”

	The Trust met on 28 July 2000 and decided that “Harefield Lodge would best serve as a second facility for intensive rehabilitation .... open to patients at Park Royal.”

	Was there a duty to consult?
23.	It is not disputed that circumstances can arise in connection with the closure of a residential home when the duty to act fairly gives rise to a requirement for consultation (see R v Devon County Council ex parte Baker and another 1995 l All E R 73.  This not being a case in which Miss Richards asserts that there was a promise that there would be consultation in relation to the transfer of the claimants from Harefield Lodge, nor that there would be consultation in respect of a decision to close Harefield Lodge for the purpose of it being refurbished to accommodate patients other than the claimants, the basis for asserting the existence of an obligation on the part of the health authority to consult with the claimants, depends upon a submission that in the particular circumstances of this case the character of the benefit enjoyed by the claimants was such that the duty of fairness required that before being deprived of it they should be consulted.  Miss Richards submitted that they have lived at Harefield and achieved a level of security and stability which they have never previously experienced and have come to regard Harefield Lodge as their home.  In an argument reflecting the dicta of Lord Diplock in his speech in the Council of the Civil Service Unions v Minister for the Civil Service l985 AC 374 at 408,
	she submitted they have enjoyed a benefit or advantage and can legitimately expect that before being deprived of it, they would be consulted.  

24.	Although no argument was advanced by reference to it, consultation did take place in connection with the decision to close Shenley.  The facts of that closure have a marked similarity to those which underlay the decision in Devon County Council ex parte Baker.  But the closure of Harefield Lodge as accommodation for the claimants cannot be equated with such facts.  Harefield Lodge was from the outset made available to the claimants on an interim basis.  It being on an interim basis, I can see no circumstances in which the duty to act fairly to these claimants included a duty to consult them in relation to a decision which marked the end of the interim period. 

25.	The nature of the case on consultation is, as Miss Richards has emphasized, not so much directed to the place to which they should go, but whether or not they should be moved at all.  Given that I have already concluded that they were not promised a home for life, and that it was always in the nature of their move to Harefield Lodge that it was on an interim basis, a case for the existence of a duty to consult in accordance with any case law, is difficult to sustain.  Nor can this position, in my judgment, be altered by the period of some three years in which the interim placement has continued.  Undoubtedly the longer the period of time they have been there, the more difficult the circumstances have become to effect a smooth transfer.  But to thwart the policy of the defendant now by holding that notwithstanding that the policy has prevailed throughout, and nothing has been said to the contrary, but because the claimants have been able to enjoy the benefit of Harefield Lodge, they cannot be deprived of it without being consulted, strains the court’s perception of what fairness requires. On these facts fairness is not affronted by there being an absence of a duty to consult.  In the circumstances of this case it is the needs of the patients which are to be met, not where they are to be met.  It is not in dispute that care planning meetings have taken place.  It is not in dispute that the content of such meetings was directed to where the patients would be moved and did not comprise consultation upon the future of Harefield Lodge.  In July 2000 there was a meeting between senior members of the Trust management team and the staff and patients at Harefield Lodge.  At that meeting it was made clear to the residents that Harefield Lodge was not being closed, but that its role was changing.  The residents were urged to work with the staff to determine what alternative placements would be suitable.  Thereafter community meetings were held at regular intervals.  The residents had the opportunity to express their concerns and to discuss possible future plans.  Each of the claimants had individual opportunities to talk about the care and placement that they thought would be appropriate for them following any decision about the future of Harefield Lodge.  These opportunities were afforded both by the regular Care Programme Approach (CPA) assessments and by the occupational therapy assessment carried out following the July l999 proposal.   The Trust wrote to each of the patients at Harefield Lodge notifying them individually of the decision to go ahead with the proposed refurbishment of Harefield Lodge.  This was done in December 2000.  I reject the case that the Trust were under an obligation to undertake a consultation exercise.

	The failure to carry out proper assessments
26.	Miss Richards relied upon the case of R v Merton, Sutton and Wandsworth Health Authority ex parte Perry, Andrew and Harman 2000 3 CCLR 378.  That case concerned the closure of a long stay hospital for people with profound learning disabilities.  There had been two stages in moving to that proposal.  When it was first proposed to happen there had been protests from those, including the applicants’ families, and others, to the effect that it was said Orchard Hill was to be a home for life for the patients there.  Later, in response to these representations it was stated that nobody would be re-located against theirs or their families’ wishes unless Orchard Hill ceased to be financially viable.  Subsequently it decided to close Orchard Hill and published a consultation document in August l999.  The challenge to the consultation aspect of the decision failed because it could not be characterised as unfair, but the learned Judge concluded that the decision making process itself was flawed, for two reasons.  First, that the respondent had not considered formally the previous promises of a home for life which had been pointed out in l993, and secondly because it had not carried out individual assessments of the residents as to their care needs.  In effect, therefore, the learned Judge was satisfied that there had been a failure to assess, understand and take account of the psychological effect of uprooting the residents from their home, which itself should have formed part of the assessment made of each and every individual’s needs.  Again, given that I have concluded against a promise of a home for life having been made, and given that the claimants’ placement at Harefield Lodge was always on an interim basis, the facts are so far removed from the facts in ex parte Perry that the decision sheds no light on the way forward in this matter.  The cases in this area of decision making, namely the closure of residential homes and hospitals and institutional care placements, are essentially fact driven decisions.  Frequently it will be where a major reorganisation and policy change has taken place without the relevant authority having had sufficient regard for the needs of individuals.  The court will protect the individual in the face of such administrative decisions where oppression, abuse of power or unfairness are made out.  But none of the claimants in this case have received anything other than careful, individual assessments in relation to their clinical needs for all the years in evidence before the court.  Indeed on the claimants’ case it is the quality of the care and treatment each has received which underlies their attachment to Harefield Lodge.  I have no doubt that it was obvious to those responsible for their care that they had formed a significant attachment to Harefield Lodge, but ultimately the assessment which had to be made was whether the time had come, in their interests, that they should be moved from Harefield Lodge to some other placement.  Although at times the argument might have been taken to involve an allegation of bad faith on the part of those deciding upon the future placement for the claimants, no grounds for any such suspicion exist.  
	
27.	After the proposal to refurbish Harefield Lodge, but before the authority was received to go ahead with the proposal, the Trust undertook a detailed assessment by an occupational therapist of each of the claimant’s daily living activities and requirements.  This assessment was specifically aimed at establishing the needs of the claimants in the light of proposals regarding the future use of Harefield Lodge.  In addition, CPA assessments have been carried out at regular intervals for each of the claimants.  

	Claimant C
28.	A detailed assessment of C’s needs was undertaken by an occupational therapist on 3l August 2000.   Since September 2000, CPA assessments have been undertaken every month.  Prior to September 2000, CPA assessments were undertaken every two to three months.  The team responsible for C’s care considered that his needs would best be met by a move to a supported housing development.  He was offered a place at Sunset Lodge in Willesden and at the time said he was happy with this proposal.  Dr Paternoster is responsible for the care of C and states:

	“Considering his good level of functioning, C is being considered for less supported accommodation, firstly in early l999 as it would have been beneficial to his daily functioning to be in a less supported environment, to be able to use his skills more and improve his independence, even with all the support needed.”

	Dr Paternoster also states:

	“In my opinion a move from Harefield Lodge is in the patient’s best interests because C is able to function in a less supported environment.  Therefore if the right level of support and supervision is provided a move would be beneficial to his rehabilitation programme.”

	The Claimant M
29.	A detailed assessment of M’s needs was undertaken by an occupational therapist on 4 September 2000.  CPA assessments had been carried out for M as they were for C.  The care team felt that the most suitable accommodation for M would be at Fairfield House.  M visited Fairfield House twice and was initially positive about it, but later complained about the meal provision.  Dr Paternoster has responsibility for his care.  She states:

	“His mental state has improved and M could be discharged from Section 3 of the Mental Health Act l983.  His compliance has remained good since allowing us to consider a less supported environment.  A move from Harefield Lodge will not adversely affect his mental state, with a package of care that offers support and supervision as needed.  All the options offered to M took into consideration Mr M’s needs and risks involved to ensure that the alternative accommodation would not adversely affect his mental state or condition.”

	After that statement was made, in a letter dated l May 200l, M was again detained under Section 3 of the Act, but by the date of the hearing had been released.  So far as the Trust are concerned it is now their position that they would make final decisions in relation to M’s placement only when the outcome of the judicial review application was resolved:

	“If the closure proceeds, there will be a need to identify suitable accommodation options which would provide Andrew [?] with adequate support, whilst also enabling him to build upon the progress he has made in recent months, in respect of independent living skills.”

	The claimant HM
30.	HM was assessed by the occupational therapist on 3l August 2000.  CPA assessments have been carried out.  It was determined that HM might benefit from a move to either Fairfield House or to The Haven.  HM initially seemed happy with The Haven, but later expressed concern.  It was suggested that she might move to St Gabriel’s.  Again, initially HM seemed happy, but her views on this have changed.  Dr Paternoster states:

	“We could predict that HM would be able to live more independently and a major problem was the difficulty for HM to engage in this plan.  Also HM’s co-operation has improved both in her pharmacology treatment and her rehabilitation programme.  A move from Harefield Lodge would be in the patient’s best interests, considering that living in less supported accommodation with the right level of support and supervision would help HM to use more of her daily living skills.  The move from Harefield Lodge would not adversely affect her mental state unless unforeseen circumstances arise.  The alternative accommodation offered to HM has considered her needs and risks involved and the care package considered took all these elements into consideration to avoid adverse effect on HM’s mental state or condition.”

	The claimant P
31.	On 4 September 2000 the occupational therapist carried out a detailed assessment of P’s needs. CPA assessments have also regularly been carried out for P.  It was felt that P would benefit from a move to Fairfield House, but P was not willing to consider this.  P was therefore offered an opportunity to visit St Gabriel’s and expressed a keenness to do so.  Dr Paternoster states:

	“P’s level of functioning has been fairly high and he would not have required a 24 hour in-patient setting considering his daily living skills ...  Several attempts have been made since l998 to look for less supported accommodation, which has been offered to P.  A major barrier remained the poor compliance with treatment.  In the last few months P’s insight into his need for medication has improved and he is now taking his medication and consenting to treatment.  It would in fact be in P’s best interests to be in a less supported environment and to be able to use his daily living skills and to continue his improvement.  The move from Harefield Lodge would be in the patient’s best interests and the alternative accommodation identified had taken into consideration P’s needs and the risks involved.”

	There are, in relation to each of the claimants, more recent assessments.  As I have stated, M was last detained under the Mental Health Act in July 200l.  

32.	Given that assessments of each of the claimants have been regularly made the emphasis of Miss Richards’ argument was that the process had to be regarded as flawed because even if the claimants had not been promised a “home for life” they had come to regard Harefield Lodge as their home and the risk of damage likely to arise from moving them from Harefield Lodge against their will had not been considered.  Put another way, the assessments had been carried out on the assumption they were to be moved and had not been carried out with a view to considering whether the emotional and psychological needs of the claimants required that they remain at Harefield Lodge.  This argument was developed by reference to the ECHR and express reliance was placed upon Article 8 of the ECHR and section 6(1) of the Human Rights Act 1998 (HRA).  

33.	This part of the case raises difficulties and gives rise to anxious concern.  It is common ground that these proceedings have generated difficulties for the health authority in maintaining communication with the claimants.  For example, on l6 October 2001 an attempt was made to conduct a meeting, but it was only attended by M.  He was obviously unwell and when asked what his wishes were, he replied, “1.  A marble swimming pool in the garden at Harefield Lodge.  2. a 24 seater sauna and hydrotherapy pool and 3. a birthday party on ll November attended by over 80 people at which he would be reconciled with his wife, which would be attended by 6 Best men and 3 Maids of Honour, and following which Mrs M would take him to her home to care for him”.  In the course of the meeting P, who declined to attend, began shouting and thumping on the wall because he was trying to hear what Dr Paternoster was saying to M.  
34.	On 2 October 2001, P informed the social worker, Trudi Bedeau, that he “now wishes and wants to move to St Gabriel’s Hostel in Willesden due to the closure plans for Harefield Lodge” but according to the fourth witness statement of Miss Mackintosh, he is now adamant that he does not wish to leave, and he denies informing Miss Bedeau that he had agreed to move to St Gabriel’s Hostel.  This has caused him surprise and annoyance.  (See later the far more disturbing response to these events mentioned in paragraph 35 below.)  These judicial review proceedings have come between the carers and the claimants. The need and entitlement of those acting for claimants is to seek and obtain evidence in support of the case.  Miss Mackintosh has done that and she has carried out her duties in this regard with considerable diligence but also with a degree of fervour which has been misplaced.  In my judgment objective appraisal of this case was lost.  The inclusion of an argument based upon Article 3 of the ECHR was misconceived.  Since it was withdrawn I have every confidence that the medical team looking after the claimants will see it in the context in which I have set it.  A search for evidence is bound to be disruptive.  It would be unusual if it did not give rise to some degree of misunderstanding and confusion.  The focused attention of a lawyer in search of evidence in support of a particular feature of a case will give rise to focused attention upon factual aspects to which it is likely no attention has hitherto been paid.  In cases like this the exacerbation of differences by the adversarial process gives rise to a need for restraint and a high degree of objective assessment of the merits of the litigation.  In R v Cambridge Health Authority, ex parte B [1995] l WLR 898, Sir Thomas Bingham MR, stated, in connection with the allocation of resources:

	“Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients.  This is not a judgment the court can make.”

	Decisions in connection with the treatment of the mentally disturbed will frequently be difficult and may have to be taken against expressions of resistance by the patients.  Although Miss Richards disavowed the suggestion that she was inviting the court to choose between medical assessments or to subject the quality of the assessments to the court’s judgment, in my judgment, on analysis this is what the thrust of the argument invited.  With her characteristic attention to detail she provided the court with a tabulated summary of the assessments, with her comments, in support of the argument that the risks in connection with moving the claimants from Harefield Lodge had not been considered and the present proposals in respect of each were unsuitable.

35.	The exercise in collating evidence in support of the claimant’s case has led to the instruction of an independent psychiatrist, Dr Jonathan Vince Bsc, MBBS, MRCPsych, DipFMH, a consultant forensic psychiatrist and a senior lecturer at St George’s Hospital Medical School.  In a report dated 27 November 2001 and headed “Independent Psychiatric Report in respect to the closure of Harefield Lodge”, he concludes under a heading “Patients’ Best Interests” as follows:

	“Whilst the plans that the Trust has for Harefield Lodge may well be very sensible as regards the pressure on acute admission beds, I believe there is no doubt that in respect of the four patients who are resident at Harefield Lodge, their bests interests would be served by remaining in that setting, but even more importantly remaining with the staff group who have cared for them for a number of years....   In the event that it is deemed not possible for Harefield Lodge to continue in its present form, then in my opinion the next best option is to attempt to replicate as many elements as possible of Harefield Lodge in another unit...   In my opinion, in the event that the patients are removed from Harefield Lodge against their wishes and transferred to placements to which they object, then for at least three of the four patients, there is a high risk of significant deterioration in their mental state, such that they will require re-admission to hospital.  In all likelihood this would mean re-admission to an acute ward.”  

	Dr Vince records that he saw M on two occasions, on 3 October 2001 and 30 October 2001.  It is plain from Dr Vince’s report that he discussed the “home for life” issue with M, whether or not he wished to move from Harefield Lodge, why he had progressed so well at Harefield Lodge, how he had fared at other places, for example at Fairlight.  He had a discussion with C, which covered similar territory by way of subject matter, but his report also covers detailed discussions with C which have no bearing upon this part of the case.  He had a discussion with the claimant P, again on similar topics.  He even went through the report of Miss Bedeau with P.  At this P became, according to his report, very aroused, angry and agitated and what he perceived as gross misrepresentations, if not lies, about his position.  P went on to state to Dr Vince that he had never expressed a wish to move to St Gabriel’s.  So far as HM is concerned, she said very little.  She remained in the room for about three or four minutes.  When he asked her whether she found the whole business of being moved out of Harefield Lodge too difficult and distressing to talk about, she nodded.  HM then left the room, saying she did not wish to talk to anybody about the matter.

36.	This evidence, and yet more material in support of the same issue, namely the report of  Health and Social Care Adviser, Mr Stuart Sinclair, was served on the defendants some ll days before the hearing commenced.  Ostensibly it has been served in support of the ECHR claims.  But its content constitutes a factual challenge to the conclusions reached by Dr Paternoster, who has had the responsibility for the care and treatment of each of the claimants for a number of years, mad whose opinion must be read with the various assessments which have been made.

37.	Dr Paternoster has been the doctor responsible for the care of all the claimants since 1997.  Her professional judgment is that a move from Harefield Lodge would be beneficial to them.  It will give them an opportunity to make better use of their daily living skills and improve their independence.  I accept the submission that the Trust’s clinical staff, having had a long and continuing relationship with the claimants, are best placed to establish what form of care will best continue their rehabilitation.  The conclusions reached by the Trust cannot be characterised as irrational or unreasonable and the differences which have emerged by reason of the reports of Dr Vince and Mr Sinclair are not for the judgment of the court.

	Article 8
38.	In R v Walsall Metropolitan Borough Council ex parte Phillips and Rowe [QBD 16 April 2001] Lightman J, in a case concerning the residents of a home, identified the distinction between the requirement to provide a permanent home and the need to substitute one home for another in meeting the requirement.  He was ready to assume that Article 8 required the former but not the latter.  There has not been detailed argument before me in support of a submission that the proposed move from Harefield Lodge did not engage Article 8.  I should be slow to conclude that it did not.  As I observed at the outset of this judgment, for many patients like the claimants accommodation provided by a health authority frequently constitutes their only home.  Article 8 includes “a person’s physical and psychological integrity” (Botta v Italy [1998] 26 EHRR 24).  In my judgment it is plain that a health authority having the responsibility for the long term care of mental patients and their placement in appropriate accommodation are required to act compatibly with Article 8.

39.	I accept the submission that Article 8(1) protects both substantive and procedural rights.  In consequence the Trust, in accordance with the principle of proportionality, had to strike a fair balance between the interference with the claimants’ Convention’s rights in connection with Harefield Lodge and the requirements of other patients for whom the Trust is responsible and to involve the claimants in the process of making the decision so that it was sensitive to the needs of the claimants.  In striking the balance consideration of the claimants’ rights necessarily required considerable weight to be given to the claimants’ clinical needs.  In my judgment the necessary consequence of the engagement of Article 8(1) in circumstances such as these is that the claimants’ rights are inextricably bound up with the primary obligation to provide medical care from which the provision of a home arises.  The proposed changes are considered by the Trust to be desirable for the benefit of the claimants and have been reached in accordance with the Trust’s duty to provide for the claimants.

40.	The decision to refurbish Harefield Lodge when implemented will confer benefits on other members of the community to whom the Trust owes a duty and who enjoy rights and freedoms which the Trust must respect.  The Trust has carried out assessments and has involved the claimants in discussion about their future placements.  Further assessments and discussions will have to be carried out.  I have considered all the material in this case with great care.  I am entirely satisfied that the Trust has acted throughout, honestly, reasonably and in an attempt to provide suitable accommodation and a suitable package of care for each of the claimants.

41.	The argument in support of these applications has been eloquent and able, but in truth the proceedings have been built upon a fallacious contention that promises of a home for life were made to three of the claimants.  The contention was rejected by Sullivan J at the oral hearing for permission.  He delivered a lengthy judgment summarising the facts, in my judgment, entirely correctly.  He hoped, no doubt, that in giving a full judgment he was providing the claimants and their advisers with as much assistance as he could in order to heal the differences and prevent the proceedings continuing.  In my judgment the time has come for the Trust’s medical carers and the claimants to rebuild mutual trust and confidence.  The misunderstandings must be placed firmly in the past.

42.	These applications for judicial review are accordingly dismissed.