CO/3315/2003 
Neutral Citation Number: [2003] EWHC 2460 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 4th September 2003

B E F O R E:

MR JUSTICE COLLINS
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF B
(CLAIMANT)

-v- 

WEST ALLDERDALE MAGISTRATES COURT 
(FIRST DEFENDANT)
& 
EDEN VALLEY PRIMARY CARE TRUST 
(SECOND DEFENDANT) 
- - - - - - -
- - - - - - -
MS S MACHIN (instructed by Hickman & Rose) appeared on behalf of the CLAIMANT
MRS W OUTHWAITE (instructed by George Davies & Co) appeared on behalf of the SECOND DEFENDANT
 - - - - - - -
J U D G M E N T 
Thursday, 4th September 2003
1.	MR JUSTICE COLLINS:  There is before me an application on behalf of Stephen B for judicial review of a decision of the West Allderdale Magistrates Court, sitting at Workington in Cumbria, whereby they revoked an order which they had made on 13th June 2003 that the claimant should be assessed under section 35 of the Mental Health Act 1983 at a nursing home called Ty Gwyn.  There is also an application against the Eden Valley Primary Care Trust seeking a declaration that their refusal to fund the placement of the claimant at Ty Gwyn was unlawful.
2.	As will be apparent from the nature of the first defendant, this matter arises out of prosecution of the claimant.  The circumstances of that -- and I emphasise that I am dealing only with what is alleged and not what is accepted or may in due course turn out to be the situation -- are that on 27th May he had assaulted the lady with whom he was living, and who had shortly before that given birth to their child, by pouring boiling water on her.  Some week or so later she made a complaint to the police and on 9th June the police arrived to arrest the claimant.  It is alleged that he barricaded the doors of his home, threatened to blow up the house, was armed with a de-icer and a lighter, and barricaded himself into a loft when eventually the police broke in.  He was taken to the police station and it is alleged that when there he caused criminal damage to the police cells.  He was seen by the FME and by a psychiatrist and also by a social worker at the police station, but he was not then sectioned, as he might have been, under the Mental Health Act.  
3.	It is again obvious from what I have said that, sadly, the claimant does have mental problems.  He suffers from Post Traumatic Stress Disorder, and there is no question but that that is a correct description of his main difficulty because it has been spoken to by all the psychiatrists whose reports are before me.  The PTSD stems from his time when he was in the army in Northern Ireland and from what he experienced when there.  
4.	Unfortunately, he had also been convicted of offences in the past, which had led to his being in custody for a substantial period of time.  He appealed against those convictions and in the end, I understand, some of them were quashed but there was an order that there be a retrial of others, and that retrial resulted in either, on one account that has been given to me, a plea to lesser charges and going free or, as Mrs B, his mother, tells me (and she was directly involved with these matters), in fact a collapse of the subsequent trial and so an acquittal.  Be that as it may, the result was that he served, as I say, a substantial period in prison which he should not have served, and that obviously has had a very damaging effect on him.  It is relevant in itself to the issue that was before the magistrates, which was what should be done whilst he was on remand and what course should be adopted in relation to the charges against him.  
5.	It was, as I say, apparent that they were dealing with someone who was in need of treatment, and if it were the case that remand in custody would be likely to do damage, that was something which obviously they would have to take very much into account.  What they were asked to do (and this was on 13th June when the claimant was eventually provided with legal representation) was to exercise their powers under section 35 of the Mental Health Act 1983.  That section enables a Crown court or a magistrates' court to remand an accused person to a hospital specified by the court for a report on his mental condition.  So far as the magistrates' court is concerned, section 35(2)(b) makes it plain that unless the magistrates can be satisfied that he did the act which is alleged against him, they can only exercise powers under section 35 if the accused consents, and I gather that he did specifically consent to the remand to hospital.  The court then has to be satisfied, on the written or oral evidence of a registered medical practitioner, that there is reason to suspect that he is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment.  The court has further to be of opinion that it would be impractical for a report of his mental condition to be made if he were remanded on bail.  There had been a bail application made to the magistrates which had been refused, on the basis, I gather, that they were concerned that he might commit further offences whilst on bail.  
6.	There is no doubt that one of the manifestations of the problems created by the PTSD is that when under stress he sometimes reacts violently.  That has happened, as I understand it, in the past and that is a real problem, and it may well be that it was that possibility of violent reaction which persuaded the magistrates that this was not an appropriate case for bail.
7.	But then there is subsection (4) of section 35, which in the context of this case is all important.  That provides:
"The court shall not remand an accused person to a hospital under this section unless satisfied, on the written or oral evidence of the registered medical practitioner who would be responsible for making the report or of some other person representing the managers of the hospital, that arrangements have been made for his admission to that hospital and for his admission to it within the period of seven days beginning with the date of the remand; and if the court is so satisfied it may, pending his admission, give directions for his conveyance to and detention in a place of safety."
8.	Before the magistrates on 13th June there was a written statement from and oral evidence given by Dr Jones.  Dr Jones had been involved in treating the claimant for some years.  He had in fact, according to his report, first examined him in January 1998 and the claimant had spent some time under Dr Jones' care in Ty Gwyn, which is the nursing home in question.  He states that Mrs B got in touch with him to indicate what had happened, and he was spoken to by the duty psychiatrist who had seen the claimant when he had been taken to the police station.  He had also spoken to the custody sergeant.  As a result he went to see the claimant.  He discussed the matter with Dr Lamont, who was the consultant psychiatrist upon whom the second defendant were relying.  Dr Jones' conclusion in his report was that: 
"It would be very difficult to treat him in a general psychiatric unit.  On the other hand he has reacted well to staff and other ex-servicemen in the specialised ex-service treatment unit at Ty Gwyn.  This is evident from the contact that he has spontaneously maintained."
Dr Jones, in his oral evidence, told the court that a bed was available, but that would depend upon agreement for funding by the health authority.  In a subsequent letter, dated 13th June, he expressed concern that there was a requirement by the health authority for yet further assessment of the claimant, that he had shown potential for response in the ex-service environment at Ty Gwyn and that he had rapport with the staff there.  He confirmed that Ty Gwyn was registered for the reception of detained patients under the 1983 Act.  
9.	In fact, an issue was raised by Mrs Outhwaite for the second defendants whether Ty Gwyn was a hospital within the meaning of section 35.  A registered home such as Ty Gwyn is regarded as such a hospital by section 42(2) of the Mental Health Act, which applies not to the relevant part but to the previous part of the Act, but section 55(5) of the Act applies that definition to the part of the Act which contains section 35.  Accordingly, there is no doubt that Ty Gwyn is indeed a hospital within the meaning of section 35.
10.	Having heard the evidence of Dr Jones, the magistrates decided that they would make an order under section 35 that he be assessed at Ty Gwyn.  They had before them a letter from Dr Lamont dated 12th June in which Dr Lamont stated that in his view, due to the violence which had been shown by the claimant, it was not appropriate that he should be assessed other than in custody.  
11.	When the second defendants became aware of the order that had been made by the magistrates, they had to consider whether they should provide funding for the claimant to be at Ty Gwyn.  Ty Gwyn is a private nursing home and charges fees to the health authority for any patient who is there.  In the light of Dr Lamont's views, it was decided that funding should not be provided.  That information was conveyed to the magistrates, and as a result the matter was reconsidered by the magistrates.  
12.	There are statements from the clerks to the court, who gave advice on the relevant days, and from the chairman of the bench, who considered the matter on 16th June when it was referred back to the justices.  What was put to the bench was that the health authority not having agreed to fund the placement, the case had been re-listed.  The solicitor appearing on behalf of the claimant contended that the order was valid, but the court was referred to section 35(4) and advised that the order was ultra vires because section 35(4) had not been complied with since it could not be said that arrangements had been made for the claimant's admission when there was no evidence before the magistrates on 13th June that funding would be available.  
13.	The court accepted that advice and set aside the order which had been made on 13th June.  They refused bail and accordingly there was a remand in custody ordered until 7th July.  That meant that the claimant was remanded to Durham Prison, and since that was the prison in which he had spent a long time in custody -- wrongfully in custody as it turned out -- the likely damaging effect of such a remand is apparent.  Certainly Mrs B is very concerned, and understandably very concerned, at the effect that such a remand is likely to have upon her son, but she has strong reservations as to whether Ty Gwyn is the right place for her son to be in the light of difficulties that had arisen in 1999.  I do not need to go into the details.  I simply record that that is, as I understand it, her concern.  
14.	However, so far as those representing the claimant are concerned, they understood, and nothing that was reported by Dr Jones could have led them to believe otherwise, that the claimant was content to go back to Ty Gwyn if he could and was willing to comply with any assessment, and ultimately any treatment, that might be considered appropriate there.
15.	As a result of the change of heart by the magistrates, this application was made to the Administrative Court.  It was considered initially on 15th July when Sullivan J adjourned it for an oral hearing on notice, and on 21st July Maurice Kay J granted permission, directed expedition and that the magistrates be joined as an additional defendant.  The magistrates have informed the court that they do not propose to be represented, and indeed they have not been represented, but they have lodged an acknowledgment of service and witness statements from the clerks and from the chairman of the justices to which I have already referred.
16.	Ms Machin tells me that the situation now is that the claimant's case has been referred to the Crown Court.  Indeed, there is, as I understand it, to be a directions hearing on Monday.  I am told also that the claimant has been seen by a psychiatrist instructed by the Crown Prosecution Service and his report will be available on Monday so that those representing the claimant can see what is recommended in it.  
17.	If there is to be a disposal in the form of a hospital order, which is obviously what is desired in some form or another, there will have to be a further report because there is a need for two reports before the court can act under the relevant provisions.  The view has been taken, and it is a very understandable view, that the defence should wait until they see what the views are of the psychiatrist instructed on the basis of deciding what should be done, what treatment would be appropriate, before instructing their own psychiatrist to produce a report.  It is necessary of course, and this is recognised, that whoever is instructed should have experience in dealing with PTSD.  There are those who do have a specialist knowledge of and concern with that particular condition, and it is obviously essential that whoever is instructed should have that expertise.
18.	Mrs B is clear that in her view a particular disposal to St Andrews Hospital in Northampton is appropriate, and she has put forward the name of the psychiatrist who favours that course.  But, as I indicated to her, it is essential in this context that there is an objective report so that the court can decide what is indeed the best course, particularly as Stephen is apparently himself reluctant to think in terms of St Andrews.  Whether his reasons be good or bad for these purposes matters not, and it is therefore, in my view, desirable that there should be in this case an objective report from an expert.  He, of course, will take into account what has happened in the past and no doubt will speak to Dr Jones, who has been dealing with and treating the claimant in the past, but it is desirable that an independent judgment be applied to deciding what is appropriate.  
19.	It is not for those representing the claimant to seek for him a particular form of treatment.  They do not have the expertise to enable them to do that, and they would not consider it, and properly would not consider it, appropriate for them to enter into that particular arena.  But, equally, they have their instructions from the claimant and those will influence them in what submissions they may in due course make to the judge as to what is the appropriate course of action.
20.	I am bound to say that from what I have seen in this case, and it is not for me, I emphasise, to make any decision on it, it does seem that this claimant is in need of treatment and that the interests of the public may well be served better by some form of treatment than by any other disposal, but I emphasise that that is, in the end, not a matter for me and I do not have the full information before me that will in due course be before the circuit judge who has to deal with this case.  But I do understand and thoroughly sympathise with the view expressed by Mrs B that she is afraid that remand in Durham Prison is not doing the claimant any good at all.
21.	I come back to the question whether the magistrates were correct on 16th June in deciding that their previous order of the 13th could not stand because it was ultra vires.  In my view, they were correct.  Section 35(4) is designed to ensure that an order can only be made if the court is satisfied that that order will be complied with; that is to say that the individual in question, when they order that he should go to a hospital, will go to that hospital.  They therefore have to be satisfied that arrangements have been made for his admission to that hospital within a period of seven days.  In this case they could not have been so satisfied because although Dr Jones expressed the confident view that the funding would be available, and I have no reason at all to doubt that that was a genuinely held view and one which it may well have been entirely reasonable for him to hold, the fact is that the absence of funding made it clear that admission had not been arranged and could not have been.  The magistrates could not in those circumstances, in my view, have been satisfied that the arrangements had been made for his admission to Ty Gwyn within a period of seven days.  
22.	Faced with a situation such as arose in this case, it seems to me that the proper course for the magistrates to have adopted would have been, if they were persuaded that on the face of it such an order was one which they ought to make, to adjourn for a short period to enable enquiries to be made about funding, and if necessary, if there was an issue about it, to require that evidence be put before them and that the health authority be able to make representations about it.  They did have the letter from Dr Lamont which expressed the view that custody was the right course, but for obvious reasons Dr Lamont did not attend and was not required to give evidence.  But if there is an issue in a case such as this, then that issue may in due course have to be determined if the magistrates are persuaded, as I say, that prima facie a section 35 order is one which ought to be made.  If there is a contested hearing and if, after that, the magistrates decide that section 35 is right because they are persuaded by the evidence before them that that is the right course, then it may well be that it would be wrong, and indeed I think it probably would be wrong, for the health authority to say, "We are not going to comply with that because we are not going to provide the funding", but that is not the situation here.  There was no matter raised with them before the order was made and, as I say, the magistrates had no evidence that the arrangements had indeed been made.  
23.	An interesting question has arisen, but it is a theoretical question in the light of the facts of this case, whether, if the health authority had been approached by the magistrates before they made their order and had said, "We know that you want to make this order but we do not agree and we are not going to provide funding", that would have been lawful.  It would, I think, be wrong for me to reach any decision on that matter, partly because it has not been fully argued before me.  All that I do say is that it seems to me that the health authority is perfectly entitled if it has good reasons, and indeed it had here in the light of Dr Lamont's report, to take the attitude that it was not prepared to go along with the approach which was suggested of a section 35 order unless it was given the opportunity to make its points before the magistrates reached any conclusion, and it may be that the magistrates in a given case would properly take the view that if there was a real issue about it they should not in a given case force the issue.  That would be a matter entirely for them on the facts of any given case.  But it does not seem to me to be unreasonable for a health authority to take the attitude that they are not prepared to provide funding unless they are given the opportunity of putting their view before the magistrates and having it taken fully into account before the magistrates reach any decision on the matter.  As I say, that is not what happened here.  The order was simply made by the magistrates in circumstances when they should not, as a matter of law, have made it.  That being so, the relief sought cannot be granted because the requirement or the declaration in relation to funding by the second defendant is dependent upon the validity of the order made by the magistrates.
24.	As things have turned out, it does not seem to me in any event that any order would have been in the interests of the claimant.  Things have, as I have already said, moved on.  The matter is coming before the Crown Court on Monday, and of course the powers of the Crown Court are somewhat wider than those of the magistrates' court because the Crown Court has power to make orders not only under section 35 but also under section 36, which can involve treatment as well as assessment.  It seems to me that the stage has been reached when it is more in the interests of the claimant that applications for whatever is considered to be the appropriate course should be made to the Crown Court and the Crown Court judge will have the power to decide what is the right course of action.  
25.	Nothing I have said in the course of these proceedings should be taken as in any way indicating what the Crown Court judge should do on the basis of whatever material is put before him.  I simply do not have sufficient material to form any concluded views on the matter.
26.	In those circumstances the only order, I am afraid, that I can make is that this application must be dismissed.
27.	MRS OUTHWAITE:  My Lord, as you know, we are a primary care trust and therefore we are funding this litigation out of public funds.  As far as I am aware, the claimant is not publicly funded.  We have successfully resisted this application and I would ask for my costs in the usual way.  I understand that a schedule has been served.
28.	MR JUSTICE COLLINS:  Yes, I have looked at it.  What is the position?
29.	MS MACHIN:  My Lord, that is not correct.  The claimant is publicly funded.
30.	MR JUSTICE COLLINS:  Have you put in a certificate?
31.	MS MACHIN:  I understand that those instructing me have put in a certificate.
32.	MR JUSTICE COLLINS:  I am told -- well, you can see the head being shaken below me.  It has not reached the Administrative Court Office.
33.	MS MACHIN:  He is certainly publicly funded.  My clerks have had sight of the certificate.
34.	MRS OUTHWAITE:  My Lord, of course I have not.
35.	MR JUSTICE COLLINS:  They did not serve it on you obviously.  You are still entitled to the football pools order, I suppose the lottery order would be more appropriate now. 
36.	MRS OUTHWAITE:  My Lord, I would ask for the order, although I recognise the reality of the situation.
37.	MR JUSTICE COLLINS:  You cannot resist that order.
38.	MS MACHIN:  I would not resist that, save to say that I am quite clear that this client is publicly funded and I can tell the court --
39.	MR JUSTICE COLLINS:  I would be very surprised if he was not in the light of where he is now.  I can hardly see that he would have any funds available to support this, unless you are acting pro bono.
40.	MS MACHIN:  I may have been prepared to, but I am not.
41.	MR JUSTICE COLLINS:  You will want the usual order for Community Legal Services Funding, which you are entitled to, but that is on condition that your solicitors lodge with the court a copy of the certificate within 14 days.
42.	MS MACHIN:  I will ensure it is lodged forthwith.
43.	MR JUSTICE COLLINS:  Now, the terms of the football order have varied somewhat.  They used to be not to be enforced without leave of the court, but the effect of it is that the order will not be enforced unless the claimant comes into a windfall in the next however many years it is, is it three years or five years?  I cannot make any assessment, I am not allowed to.
44.	MRS OUTHWAITE:  No, my Lord.
45.	MS MACHIN:  Indeed, I understand that.  I am obliged.
46.	MR JUSTICE COLLINS:  I thank you both for your assistance.  Mrs B, I hope you do not feel that this was entirely the system being against you yet again, but I am afraid there was not really anything positive that I was able to do. 
47.	MRS B:  I assumed that before I came down.
48.	MR JUSTICE COLLINS:  Well, you were right, but there is no harm in perhaps getting an indication as to what might be desirable for the future. 
49.	MRS B:  Absolutely.
50.	MR JUSTICE COLLINS:  At least I hope you understand now, even if you did not before, perhaps you did, precisely what the situation is so far as Ms Machin and your son is concerned. 
51.	MRS B:  It has been very helpful, sir.
52.	MR JUSTICE COLLINS:  Good. 
53.	MRS B:  Thank you.
54.	MR JUSTICE COLLINS:  I assure you, they are doing their best, and they are only interested, like you in what is -- 
55.	MRS B:  I'm not disputing that, sir, but there's been another three months gone by and here we are, when will the day come.
56.	MR JUSTICE COLLINS:  I understand.  Let us hope that things will move more quickly now. 
57.	MRS B:  Hopefully. 
58.	MR JUSTICE COLLINS:  Thank you.