England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice London WC2A 2LL
		11 April 2002

Mr Justice KEITH

Introduction

1. This case concerns the decision of the managers of a private psychiatric hospital to change the focus of one of its wards. The one remaining claimant claims that as a result she has been denied the care and treatment appropriate to her condition. On this claim for judicial review, she seeks an order which will have the effect of restoring the appropriate care and treatment to her.

The basic facts

2. The detailed circumstances which led to the decision complained of and its aftermath are hotly disputed, but what is not in dispute is what the claimant needs. She is 31 years old. She has a severe personality disorder. Her disorder causes her to harm herself and to attack others. The treatment which she needs consists for the most part of psychology and psychotherapy in a therapeutic setting. She has been detained in hospitals pursuant to section 3(1) of the Mental Health Act 1983 on many occasions over the years.
3. The claimant's case The hospital at which the claimant is currently detained is a private psychiatric hospital. It is one of a number of such hospitals owned and run by the defendant. The claimant's case is that one of the hospital's wards was intended to be a single sex unit dedicated to working therapeutically with women patients with a primary diagnosis of personality disorder. On 12 June 2001, the claimant was admitted to the ward. She had been waiting for more than two years for such a placement. Her care and treatment there was to be funded by payments to the defendant from the health authority for the area from which she comes.
4. On 6 August 2001, it was decided to change the focus of the ward. In future, it would serve women with a primary diagnosis of mental illness, though its current patients could remain on the ward for up to 18 months in order to complete their treatment. The treatment of patients with mental illness consists for the most part of medication. Indeed, psychology and psychotherapy is regarded as counter-productive for many of the mentally ill. Since then, the specialist psychology and psychotherapy staff have left the ward, and it is said that there are no staff on the ward qualified to provide the specialist care and treatment which patients such as the claimant need.
5. The defendant's case The defendant accepts that the ward was intended to be for patients with a primary diagnosis of personality disorder, though it was to be a mixed-sex ward. However, mixed-sex wards for mentally disordered patients were discouraged, and after consultation with the clinical staff, it was decided that the ward would be a female ward for roughly equal numbers of patients who were mentally ill and patients who were suffering from personality disorders. Accordingly, when the ward was opened on 21 May 2001, it had 13 women patients--six of whom had a primary diagnosis of personality disorder, five of whom had a primary diagnosis of mental illness, and two of whom had a mixed diagnosis.
6. However, even before the ward opened, it had been recognised that patients who were mentally ill and patients who were suffering from personality disorders should not be treated on the same ward. What had to be decided in due course was whether the ward should cater for patients who were mentally ill or for patients who were suffering from personality disorders. However, the resignation on 18 June 2001 of the consultant psychiatrist, Dr Mary Walsh, whose expertise related to women with personality disorders, forced the managers of the hospital to make a decision about the future of the ward sooner than they had anticipated. (There is no evidence as to who the managers of the hospital are, but I was told that they were members of the defendant's management team whom the defendant nominated to be the managers of the hospital.) By their decision on 6 August 2001, the managers of the hospital decided that the ward should cater for patients who were mentally ill. Patients who were suffering from a personality disorder would be moved from the ward over the next 18 months when places became available for them elsewhere. But they would continue to receive care and treatment appropriate to their condition in the meantime. The defendant accepts that the claimant has not received such care and treatment as fully as it would wish, but that was because of the unexpected departure of staff with the special skills needed to provide the claimant with the care and treatment which she needs.

The course of the proceedings

7. The decision of 6 August 2001 is the decision challenged on this claim for judicial review. When the claim was originally issued on 23 November 2001, there were three claimants. The other two, like the one remaining claimant, suffered from personality disorders, but their claims have been withdrawn since the defendant has secured provisional placements for them at other hospitals. The claim of the one remaining claimant is proceeding because no such placement had been secured for her by 11 February 2002 when the substantive hearing of this claim for judicial review began. The defendant did not oppose either the grant of permission for the claim for judicial review to proceed, or the expedition of the substantive hearing, and pending the substantive hearing it undertook not to take any further steps to give effect to the decision to change the focus of the ward from the provision of care and treatment for patients suffering from personality disorders to the provision of care and treatment for patients suffering from mental illness, and not to admit to the ward any other patients with a primary diagnosis of mental illness. The defendant was named as the defendant to the claim, and no point has been taken that that was incorrect, presumably because the defendant regards itself as responsible for the decision of the managers of the hospital.

The issues

8. The case raises a number of difficult issues, but in my view the resolution of two of the issues is not dependent on facts which are in dispute. They are (a) whether the decision of the managers of the hospital of 6 August 2001 to change the focus of the ward was a decision made "in relation to the exercise of a public function" within the meaning of CPR r 54.1 and therefore amenable to judicial review, and (b) whether the managers of the hospital are a public authority within the meaning of section 6 of the Human Rights Act 1998. The first of these issues is critical, because the decision of the managers is challenged on public law grounds, i e illegality and irrationality. The second of these issues arises because of an alternative case which the claimant's advisers wish to argue on her behalf, and which is the subject of an application for permission to amend the details of the claimant's claim in the claim form. That alternative case is that the decision challenged infringed the claimant's rights protected by articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Any such infringement would have been unlawful if the managers of the hospital are a public authority, because section 6(1) of the 1998 Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
9. These two issues stand or fall together. By section 6(3)(b), the phrase " 'public authority' includes... any person certain of whose functions are functions of a public nature", and section 6(5) provides that, in relation to any particular act, "a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private". In R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429 it was common ground, and accepted by Stanley Burnton J at paragraph 65, that if a body is a public authority within the meaning of section 6 of the 1998 Act when it makes a particular decision, that decision is also susceptible to judicial review. That view of the law was consistent with what the Court of Appeal had said in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB48, 69, para 65(i), and that was the assumption on which both counsel in the present case proceeded. I agree with that view, and I proceed on the same basis.

The application for an adjournment

10. At the commencement of the substantive hearing on 11 February, Mr Steven Kovats for the defendant applied for an adjournment of the hearing. The principal ground was that the defendant needed to consider--and if necessary respond to--evidence which had only recently been served on behalf of the claimant. There is, of course, rarely a need in a claim for judicial review for a defendant to respond to the evidence served by the claimant in response to the defendant's first tranche of evidence, but it was said that a response was necessary in this case, if only to deal with a new allegation made on the claimant's behalf, namely that a promise had been made to those responsible for referring her to the ward that the claimant was being admitted to the ward to enable her to receive the treatment she needed for a period of three to five years.
11. Mr Kovats accepted that the other topics on which the defendant wished to consider whether to serve more evidence were topics which the defendant's first tranche of evidence sought to address--namely, the nature of the advice which the clinicians gave to the defendant on whether the patients on the ward should be consulted over the proposed decision to change the focus of the ward, the effect which the proposed decision might have upon the patients, the efforts which the defendant had made to replace Dr Walsh, whether the defendant's decision was made on the assumption that there would be no other resignations by staff with the skills needed to treat patients with personality disorders, and whether that assumption was reasonable in the circumstances. But it was said that the defendant had not been able to address these topics properly in its first tranche of evidence because the claimant's evidence to which it had been responding had itself been short on detail.
12. I was unable to come to an informed view as to whether the defendant really needed to file evidence on these issues, and whether it should be given an adjournment to enable it to do so, but I decided that there were nevertheless sound practical reasons for limiting the hearing to the resolution of the two issues which were not dependent on facts in dispute. I noted that if the hearing of the claim proceeded initially on all the issues which the case raised, the hearing would be likely to exceed by a very substantial margin the amount of time which had notionally been allotted to it. But much more important were two factors. First, if the two issues which were not dependent on facts in dispute were heard and decided first, and if those issues were decided in favour of the defendant, the other issues in the case would not have to be addressed. A hearing which involved the consideration and determination of all the issues may therefore have been longer (and ultimately more expensive for the parties) than might ultimately prove to be necessary--though in taking that into account, I did not overlook the fact that limiting the hearing to the two issues could result in the ultimate resolution of the claimant's claim (if she succeeded on one or both of those issues) being delayed. Secondly, the defendant was actively considering a placement for the claimant elsewhere at another of its hospitals which had a vacancy in a unit which catered for women suffering from personality disorders, and which was subject to the same level of security as the ward on which the claimant currently was. The suitability of the claimant for admission to the unit would take about a fortnight to assess, and the approval of the health authority had to be obtained, especially as the daily rate for patients in the unit was more than was being charged in the ward in which the claimant currently was. It was said that steps to find an alternative placement for the claimant had not been taken earlier because prior to the service of the most recent tranche of evidence from the claimant it had not been appreciated that the defendant's case on the facts was to be disputed, and that the interests of everyone would be best achieved if an alternative placement could be found thereby rendering it unnecessary for the claim to be adjudicated.
13. I therefore directed that the present hearing be limited to the two issues which were not dependent on facts which were in dispute. I gave the claimant permission to rely upon the evidence which had recently been filed on her behalf, and I gave directions for the time by which the defendant's evidence in response was to be filed and served. I also gave the claimant permission to amend the details of her claim in the claim form.

Decision of a public authority

14. In order to determine whether the decision challenged was made by a public authority and was susceptible to judicial review, the starting point is the statutory framework within which the decision was made. The National Health Service Act 1977 sets out the general duties on the Secretary of State for Health for the provision of a comprehensive health service. The core provision is section 3(1), which provides, so far as is material:

"It is the Secretary of State's duty to provide throughout England and Wales, to such extent as he considers necessary to meet all reasonable requirements--

(a) hospital accommodation...

(c) medical [and] nursing... services...

(f) such other services as are required for the diagnosis and treatment of illness."

The Secretary of State may delegate these functions to health authorities ( section 16D(1)), including his functions relating to mental health and nursing homes: section 16D(3). The current relevant scheme of delegation is that contained in the National Health Service (Functions of Health Authorities and Administrative Arrangements) (England) Regulations 2001 (SI 2001/747).

15. The Secretary of State may also arrange for private bodies to provide services under the 1977 Act. Thus, section 23(1)(3) provides, so far as is material:

"(1) The Secretary of State may, where he considers it appropriate, arrange with any person or body (including a voluntary organisation) for that person or body to provide, or assist in providing, any service under this Act."

"(3) The powers conferred by this section may be exercised on such terms as may be agreed, including terms as to the making of payments by or to the Secretary of State..."

Since these powers have been delegated to health authorities under the 2001 Regulations, it follows that health authorities may arrange for private hospitals to provide health services under the 1977 Act, including the care and treatment of persons with mental disorders, pursuant to such contractual arrangements as they may make with such private hospitals. That is the route by which the hospital in the present case, which is not part of the National Health Service, came to admit and treat all, or at any rate most of, its patients. I use the words "at any rate most of" advisedly. There is no evidence of the breakdown between National Health Service and private patients in the hospital when the decision complained of was made, or at any other time for that matter. There are no restrictions on the hospital taking private patients, and for all I know, there may be a small number of private patients at the hospital. However, I was told that all the patients on the ward in question were National Health Service patients.

16. Although the hospital is not part of the National Health Service, it is registered as a mental nursing home under the provisions of Part II of the Registered Homes Act 1984 and as one which can receive patients who are liable to be detained under the provisions of the Mental Health Act 1983. Its promotional material states that all the patients are detained under the 1983 Act (though since the hearing I have been told that a comparatively small number of patients are "informal" patients, which I take to mean voluntary patients). The Nursing Homes and Mental Nursing Homes Regulations 1984, which were made under the 1984 Act, give the registration authority, i e the Secretary of State acting through the relevant health authority, a measure of control and supervision over the hospital. More important for present purposes is regulation 12(1), which provides, so far as is material:

"The person registered shall, having regard to the size of the home and the number, age, sex and condition of the patients therein--

(a) provide adequate professional... staff...

(d) provide... adequate treatment facilities..."

17. Admission to the hospital, and the detention and treatment there, of patients suffering from mental disorders (whether a personality disorder or mental illness or otherwise) are functions which are governed by the comprehensive statutory regime laid down in Part II of the 1983 Act. Part II applies to the hospital: see section 34(2) of the 1983 Act. Section 3 of the 1983 Act governs the admission of patients to the hospital. The persons responsible for their subsequent detention in, and discharge from, the hospital under sections 6 and 23 of the 1983 Act are the managers of the hospital, though the persons responsible for patient's treatment in the hospital are the psychiatrists on the various wards, because they are the responsible medical officers within the meaning of section 34(1) of the 1983 Act. In its corporate capacity as the body which owns and runs the hospital, the defendant may be a private company run on commercial lines, free to admit whichever patients it chooses. But in its statutory capacity as manager of the hospital, the defendant is a body upon whom important statutory functions have devolved, albeit as a result of the contractual arrangements which it has made with the health authorities to which the responsibility for the care and treatment of those of the hospital's patients who are not being treated privately have been delegated by the Secretary of State under the 2001 Regulations.
18. From the statutory framework, I turn to the relevant authorities. In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB48, 68, para 63 the Court of Appeal adopted the statement in Clayton & Tomlinson, The Law of Human Rights (2000), vol 1, para 5.08 that the Human Rights Act 1998 envisages three different types of public authorities:

"public bodies which are obviously public authorities (and which might be described as standard public authorities);

public authorities defined as such under the Human Rights Act by virtue of carrying out some public functions (which might be described as functional public authorities); and

courts and tribunals"

In Donoghue's case itself, the court had to decide whether a housing association, to which a local housing authority had transferred a substantial proportion of its housing stock, was a functional public authority for the purpose of section 6 of the 1998 Act when it sought an order for possession against the tenant of one of the properties transferred. The court said, at [66] that there was no clear demarcation line between the acts of a body which were public and those which were private. In a borderline case, it was a matter of fact and degree. It was necessary to look at all the circumstances of the particular case, and to step back and look at the situation as a whole.

19. But in concluding that applying for an order for possession in these circumstances amounted to an act of a public nature, so that the housing association was in this instance a functional public authority, the court regarded as crucial the assimilation by the housing association of the powers of the local housing authority. The court said, at para 65: "The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public." The housing association was "no more than the means by which" the local housing authority sought to perform its statutory duty to house the homeless. Indeed, prior to the transfer of the property to the housing association, the tenant had been the tenant of the local housing authority, and it had been intended that she would be treated no better and no worse than if she had remained a tenant of the local housing authority. Thus, once she became a tenant of the housing association, the housing association stood in relation to her in very much the position previously occupied by the local housing authority.
20. The decision in Donoghue's case has to be seen in the context of a wider debate about the impact of the privatisation of public services on public law. To what extent are private providers of public services to be regarded as public authorities and therefore amenable to judicial review? That question was addressed in two cases concerning the closure of residential homes: R v Servite Homes, Ex p Goldsmith [2001] LGR 55, which was decided before Donoghue's case [2002] QB 48, and R (Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429, decided after Donoghue's case [2002] QB 48. In the Servite case [2001] LGR 55 the residential accommodation had been provided by a charitable housing association pursuant to arrangements made under section 26 of the National Assistance Act 1948. In the Leonard Cheshire Foundation case [2001] EWHC Admin 429 the residential accommodation had been provided by a charitable body pursuant to arrangements made under both the 1948 Act and the 1977 Act.
21. In the Servite case [2001] LGR 55 Moses J held that the decision to close the residential home was not amenable to judicial review. He held that the local authority's statutory obligation to provide residential accommodation had ended when the local authority had made its arrangements with the housing association. That was because the statutory obligation on the local authority had been to make arrangements to provide residential accommodation, rather than to provide that accommodation itself. There being no other statutory underpinning of the housing association's functions, what the housing association did as a result of the arrangements which it had made with the local authority was a matter for private law. The 1998 Act had not come into force at the time, and Moses J expressly left open the question whether a different result would have been reached under the 1998 Act.
22. In the Leonard Cheshire Foundation case [2001] EWHC Admin 429 Stanley Burnton J agreed with Moses J's analysis of the amenability to judicial review of the decision to close the home. He concluded that the same result should be reached under the 1998 Act. However, in the light of the approach of the Court of Appeal in Donoghue's case [2002] QB 48, he addressed at some length the question whether the relationship between the foundation and the bodies which had arranged for the foundation to provide the accommodation was different from the relationship between the housing association and the local housing authority in Donoghue's case. He concluded that it was, and he was therefore able to distinguish Donoghue's case upon its facts.
23. Reverting to the present case, it may be that the relationship between the managers of the hospital and the health authorities who have arranged for the defendant to provide care and treatment to patients with mental disorders is different from the relationship between the housing association and the local housing authority in Donoghue's case. Thus, it may be that the factors which caused the Court of Appeal in Donoghue's case to conclude that the housing association had become enmeshed in the activities of the local housing authority are not present in this case. Accordingly, it may be that the statutory obligations of the health authorities ended when they arranged for the defendant to provide care and treatment to patients with mental disorders, and that those statutory obligations, i e those of the health authorities, were not assumed by the defendant. But the question still remains whether there were any other obligations imposed on the managers of the hospital--free-standing obligations which were not derivative from those of the health authority--which made the decision complained of an act of a public nature.
24. In my opinion, the decision of the managers of the hospital to change the focus of the ward was an act of a public nature. Decisions as to the form which treatment for a particular patient should take are clinical decisions for the psychiatrists, and the claimant is not challenging either the lawfulness of the decision to detain her in hospital, or the decision as to the type of treatment which she needs, or the decision that she is not ready to be discharged. But whether facilities can and should be provided, and adequate staff made available, to enable the treatment which the psychiatrists say should take place is another matter entirely. That is the subject of specific statutory underpinning directed at the hospital: the statutory duty imposed by regulation 12(1) of the 1984 Regulations on the hospital to provide adequate professional staff and adequate treatment facilities was cast directly on the hospital as the registered person under the Registered Homes Act 1984. The public interest in the hospital's care and treatment of its patients is apparent when one remembers that if, as a result of the lack of staff or facilities, patients detained under the Mental Health Act 1983 do not receive the care and treatment which they need, their detention may well be prolonged because they may not recover sufficiently to meet the statutory criteria for their discharge from hospital. The fact that the decision challenged is said to have been forced on the hospital by the unexpected departure of staff with the special skills needed to provide the claimant with the care and treatment which she needs goes not to whether the decision made was an act of a public nature but to whether the claim for judicial review should succeed.
25. In short, the fact that the managers of the hospital are a functional public authority for present purposes is borne out by the following passage in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed (1995), para 3-031 (cited with approval by Dyson J in R v Cobham Hall School, Ex p S [1998] ELR 389 and by Stanley Burnton J in the Leonard Cheshire Foundation case [2001] EWHC Admin 429 at [50]):

"not all the activities of private bodies (such as private companies) are subject only to private law. For example, the activities of a private body (such as a recently privatised company) may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when, by virtue of the function it is performing, or possibly its dominant position in the market, it is under an implied duty to act in the public interest. A private company selected to run a prison, for example, although motivated by considerations of commercial profit, should be regarded, at least in relation to some of its activities, as subject to public law because of the nature of the function it is performing. This is because the prisoners, for whose custody and care it is responsible, are in the prison in consequence of an order of the court, and the purpose and nature of their detention is a matter of public concern and interest."

The analogy between the hospital and a prison is an apt one. Even if the operation of a private prison is an activity which has become enmeshed in the activities of the public body which "subcontracted" its statutory obligations to the operators of the prison, the nature of the functions which even private prisons perform may well be enough to bring their decisions within the ambit of public law. Likewise, the need for the hospital's patients to receive care and treatment which may result in their living in the community again is a matter of public concern and interest. And those of the hospital's patients who are admitted to the hospital under section 3 of the 1983 Act (such as the claimant) are admitted by compulsion and not by choice (a fact which Stanley Burnton J rightly considered as critical in the Leonard Cheshire Foundation case, at para 51, in distinguishing between a prison and the residential homes run by the foundation).

Conclusion

26. For these reasons, I have concluded that the decision challenged was that of a public authority and is susceptible to judicial review. The claimant's claim for judicial review will now proceed to a further hearing on its merits.