England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
(1) QUEEN'S BENCH DIVISION
(2) FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd December 2004

1. I give directions in two linked sets of proceedings. The first is a claim for judicial review, for which permission to proceed has already been granted. The second is a claim issued in the Family Division under Part 8 of the Civil Procedure Rules for declarations and other relief.
2. Detailed arguments have been presented to me by leading counsel on both sides, including reference to numerous authorities. Nevertheless, in the light of the fact that I have reached a clear conclusion on simple, although I hope not simplistic, grounds, I would be wise to keep this judgment relatively short. It is not yet clear whether it will be convenient to the listing authorities that the claims should be substantively determined by myself; and, particularly in case they fall to be determined by another judge, it would be wise not to say anything unnecessarily which might encroach upon his ability to conduct the hearing or hearings of the claims, and to analyse the issues, as he thinks best.
3. Both sets of proceedings arise from a decision dated 20 May 2004 to close Orchard Hill Hospital, Carshalton, Surrey. The two claimants in each set of proceedings are identical. Each acts by the Official Solicitor as his litigation friend because each is incapable of administering his property and affairs and in particular of conducting this litigation. In each set of proceedings the defendant is the same, namely Sutton & Merton Primary Care Trust, which has been responsible for running the hospital since 2002 and which, in the exercise of powers delegated to it under statute by the Secretary of State for Health, took the decision dated 20 May.
4. In the judicial review proceedings the claimants contend that the decision to close the hospital was and is unlawful. In what it will be convenient for me to call the family proceedings the claimants seek a declaration that it would not be in their best interests to be moved from the hospital and they also seek relief, apparently not yet particularised in writing, on the basis that, were it to move them from the hospital, the defendant would infringe their rights under Article 8 of the European Convention on Human Rights 1950.
5. The hospital has been in operation since 1982. It is set in 47 acres. 102 patients currently reside there. It is a long-stay hospital for adults with severe learning disabilities. The first claimant is aged 45 years but has a mental age of about two years. He cannot talk and is doubly incontinent. He exhibits challenging behaviour and, if aggravated in any way, can injure himself or others. The precise age of the second claimant is unclear; he also has a mental age of about 2 years. He is non-ambulant, blind in one eye and doubly incontinent. The layout of the hospital is analogous to a campus and the patients are accommodated in about 15 bungalows spread around it. There are extensive medical, dental and therapeutic facilities, including a hydrotherapy pool; and there is an 'experience park' in the grounds. The hospital thus has the characteristics of a community.
6. On 27 January 2000 the Merton, Sutton and Wandsworth Health Authority, the predecessor of the defendant in holding responsibility for the hospital, decided to close it. That decision gave rise to a claim for judicial review, of which the first claimant in the present proceedings was one of the claimants. On 31 July 2000 Jackson J. upheld the claim and quashed the decision. By his decision, reported at [2001] Lloyds Rep (Med.) 73, he held that the decision was unlawful for two reasons. The first was that the health authority had failed to take into account promises which had been made to some patients or to their families that the hospital would be a home for the rest of their lives. The second was that the health authority had not made the detailed assessment of the needs of individual patients, which was a pre-requisite of its lawful application of government policy to close long-stay hospitals for patients of this sort and instead to provide treatment for them within the community.
7. The defendant in the present sets of proceedings contend that the decision dated 20 May 2004 lacks the flaws in the earlier decision. It contends that, prior to taking this decision, it bore well in mind that home for life promises had been given to or in respect of a number of the patients and that its conclusion that circumstances justify the overriding of the promises is unassailable. Furthermore it contends that it has now conducted a detailed, multi-disciplinary assessment of each patient's needs.
8. In November 2003 a board created by the defendant in order to make recommendations to it in relation to the future of the hospital suggested that there were four principal options, of which the third was the most appropriate. The options were:

a) subject to refurbishment and increase in staff levels, to keep the hospital in its present form;

b) to demolish the existing buildings and build another village-style hospital on the site;

c) to close the hospital and to transfer all the patients to appropriate facilities to be developed in the community; and

d) to transfer some of the patients to new facilities in the community but to keep about 25 of them at the hospital in one small unit to be built or retained there, with the result that the hospital would continue to function on a reduced basis.

In December 2003 the defendant issued a consultation paper in relation to the third option and the consultation period continued until 29 February 2004.

9. In 2003 a clinical psychologist who had been requested to contribute to the assessment of the impact on each patient of a move from the hospital had sought to divide them into three groups: the first was those with a 'disabling' level of emotion, i.e. such that a move from the hospital would be likely to cause them intense sadness and anxiety which would disable them and raise concern for their mental, physical or psychological health; the second was those with a 'heightened' level of emotion, i.e. such that a move from the hospital would be likely to cause them a level of sadness and anxiety which would cause significant distress; and the third was those with a 'normal' level of emotion, i.e. such that a move from the hospital would be likely to cause them no more than the normal level of sadness and anxiety which would flow from dislocation of their residential arrangements. In March 2004 a team of senior clinicians which included Dr Thomson, the Responsible Medical Officer at the hospital, concluded that, of the 109 patients then at the hospital, 19 might be expected to suffer a disabling level of emotion, 86 might be expected to suffer a heightened level and only four might be expected to suffer a normal level.
10. At the meeting dated 20 May 2004 at which the decision under challenge was made, the defendant specifically addressed the fact that home for life promises had been made to or in respect of a number of patients. Although hard evidence of their existence seemed to exist only in respect of a somewhat lesser quantity, the defendant expressly acknowledged that such promises had been made to an estimated 75% of the current patients and that such promises had been relied upon by their families at the time of admission. Not surprisingly the defendant had taken legal advice in relation to the significance of these promises, as well as to other matters such as the advent of the operation of the Human Rights Act 1998 since the date of the decision of Jackson J. In a document which was prepared for the meeting on behalf of the defendant and which summarised the outcome of the consultation process and made recommendations to it, there is a section on the home for life promises, of which the final paragraph, namely paragraph 3.2.16, reads as follows:

"The Board is asked to agree that the following is a 'sufficient overriding interest' that justify departing from the Homes for Life promises and that of the residents' rights under Article 8 of the European Convention of Human Rights:

It is in the best interests of the residents to re-provide services that enable residents to live in small groups in everyday settings supported by a range of specialist health services and community based day services."

The minutes of the meeting dated 20 May 2004 include the words "3.2.16 – recommendation agreed". The defendant thereby agreed that it was in the best interests of the patients to live as described in the bullet point and that such was in its view an overriding interest sufficient to justify departure from the promises.

11. It appears that, notwithstanding its decision to close the hospital and thus to make what it considers to be appropriate alternative community-based provision for each patient, the defendant proposes that about 15 patients, including perhaps the first claimant, may be placed in a small home to be built on part of the site of the hospital. Mr Garnham Q.C., on behalf of the defendant, contends and concedes that this proposal in no way represents adoption of the fourth option and that the proposed facility on the site would not amount to the continuation of the hospital even on a reduced basis. It is thus irrelevant that the provisional proposal for the first claimant and for about 14 other patients is that they will occupy a residential facility on part of the hospital site.
12. It will be clear that a central feature of the thinking which underlies the defendant's closure decision – certainly its decision that the hospital could be closed, whether or not also that it should be closed - is that a move of the patients into the community, with support, is in their best interests. In the light of the evidence to the defendant that a move would be likely to cause 79% of them a heightened level of emotion and 17% of them a disabling level of emotion, how did the defendant reach its conclusion as to the best interests of the patients? By a statement filed in the family proceedings, Mr Drew, the defendant's Director of Services for People with Learning Disabilities, explains it as follows:

"… once it is in the best interests of the majority of residents to move, then it is no longer in the best interests of the remainder to stay, which results in it being in the best interests of all the residents to move from Orchard Hill. This is because, if the majority of those are best served by moving, then they should be enabled to do so. Once they have gone and a much smaller number of residents remain, it will not then be in the best interests of the balance of residents to remain, nor would this be feasible. This is partly because the remaining residents will suffer from more change, and therefore be exposed to a greater risk of psychological harm, but also because there will be a greater number of break-ups of friendships between residents, and relationships between residents and staff. These factors would put the remaining residents at more risk of psychological harm than the PCT's decision on 20^th May 2004 which is under challenge."

13. It seems that, in addition to challenging the logic behind that statement, the claimants would wish to challenge the assertion that a move is in the interest even of a majority of the patients. By letter dated 4 November 2004, Dr Thomson, the Responsible Medical Officer, wrote to their solicitor as follows:

"… I have grave concerns that to move 35 of the residents could be seriously harmful to their health. This is because they have been assessed as having either a disabling or heightened response to change and/or serious or complex physical or mental health problems.

I also have concerns for about a further 30 residents, for whom I believe the risks of moving to the community may well outweigh the benefits. This is because they are either frail physically, or getting towards the end of their lives, or have challenging behaviour that may not be containable or treatable in the community.

For the remaining patients [i.e. now 37], on present information, I believe the risks are well worth taking in moving them into the community. I predict that they would have a significant improvement in the quality of their life.

In conclusion I welcome the involvement of the court in reviewing the appropriateness of the closure decision of Orchard Hill. Whilst I readily accept that the hospital should not continue in its current form, this does not inevitably lead to the conclusion that all but a few of the residents should move into the community. In making a closure decision that is highly policy driven, I am concerned that the many patients who are frail medically, psychologically and socially, and who are towards the end of their lives, and have lived in a secure setting for a very long time, may suffer long-term damaging and potentially irreversible harm as a result of the move."

14. It is clear therefore that, in the judicial review proceedings as well as in the family proceedings, a substantial issue arises in respect of the best interests of some of the patients. For in the former the claimants contend that the defendant's misappraisal of such best interests leaves departure from the home for life promises unjustified and thus renders the decision dated 20 May 2004 as unlawful as that dated 27 January 2000. Additionally, however, the claimants contend that the decision is unlawful because the purported assessment of each patient's needs has been conducted with too narrow a focus and/or because the mechanism adopted by the defendant for its reception of representations on behalf of each patient has been inadequate.
15. The Official Solicitor says that, either through their families or through Dr Thomson, 43 patients, in addition to the two present claimants, have approached him with a view to seeking to join the two sets of proceedings as further claimants.
16. Any substantial proliferation of the issues in the case, and certainly any need to consider the individual best interests of up to 45 patients, fills the defendant with alarm. The defendant's main contention at this stage is that I should stay the family proceedings and make directions for the urgent assembly of the claim for judicial review and should in effect direct that it be heard on the conventional basis, namely by reference to written evidence alone. While Mr Garnham does not exclude the possibility that some issues might lead the court, exceptionally, to receive limited oral evidence, he certainly opposes any direction for oral evidence to be given in relation to where the best interests of any of the patients lie or even (such at least is his primary position) to the manner in which the defendant appraised them. He contends that such would be unnecessary for the despatch of the claim for judicial review and that, assuming that that claim failed, the court might move on to hear the family proceedings and, if necessary, to appraise the final proposals of the defendant for the placement of each patient elsewhere by reference to his or her best interests. He accepts that, were that course followed, the enquiry into a patient's best interests could not include consideration of the option of remaining at the hospital but he says that, if that option is foreclosed by the failure of the claimants to establish the unlawfulness of the closure decision, the resultant emasculation of the options to be considered in the family proceedings is a necessary and proper consequence. The defendant raises a strong prima facie case that delay in concluding the challenge to the lawfulness of the closure decision is in no-one's interest: I accept in particular that the present uncertainty whether the closure decision will survive attack in the judicial review proceedings is creating harmful unsettlement for the patients and their families and impeding the defendant's ability to retain and to find staff to work at the hospital.
17. The contention of the claimants is that the judicial review proceedings and the family proceedings should be heard together and that in particular the court has no option but to investigate for itself, with further written evidence and, probably, substantial oral evidence, the assertion that closure is in the best interests of all the residents, or of most of the residents, or of the residents who are and might become claimants in the proceedings. Mr Gordon Q.C., on behalf of the two present claimants, disavows any aspiration that, even were a further 43 claimants joined to the proceedings, the court should conduct substantial individual enquiry into all their circumstances and contends that efficient case management should result in an investigation only into the best interests of samples of residents or of groups of residents. Furthermore, while accepting the defendant's general objection to substantial delay, he contends that the court would be allowing the tail to wag the dog if it was to curtail the proper ambit of its enquiry in order to achieve its swifter conclusion.
18. My primary task is therefore to identify – at this stage in broad terms – the nature and extent of the enquiry which the court is required to conduct in order to despatch the claims in a way which is proper and indeed lawful under s.6 of the Human Rights Act 1998.
19. In that the defendant's determination as to where the best interests of the patients lie arises in the context of its address of the significance of the home for life promises, I turn first to the authority which counsel agree will be most influential in the court's determination as to whether those promises can lawfully be overridden, namely R v North and East Devon Health Authority Ex p. Coughlan [2001] QB 213. In that case home for life promises had been given to all eight severely disabled patients residing in a small unit which, for financial and operational reasons, the defendant decided to close. The Court of Appeal upheld the judge's determination that the decision was unlawful for two reasons, of which one was that the promises to the patients raised a legitimate expectation for the departure from which there was no sufficient justification. At §57 the court said:

"Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy."

In §65 and §66 the court held that, in performing the task there required, it was insufficient to ask whether the decision was rational; that the decision of the defendant in that case might well have been rational but that "to limit the court's power of supervision to this is to exclude from consideration another aspect of the decision which is equally the concern of the law"; that the present class of case "involves not one but two lawful exercises of power (the promise and the policy change) by the same public authority, with consequences for individuals trapped between the two"; and that "in such a situation a bare rationality test would constitute the public authority judge in its own cause". In §76 the court stated:-

"Here the decision can only be justified if there is an overriding public interest. Whether there is an overriding public interest is a question for the court".

20. The nature of the justification for departure from the promises unsuccessfully urged by the defendant in Coughlan was not such as to raise issues of fact between the parties; and so there is no specific reference in the judgment of the court to the proper approach to the resolution of such issues. But the assertions that justification is for the court to determine and that the decision-maker must not be allowed to be judge in its own cause lead me to the view that, where the nature of the purported justification does raise such issues, Coughlan requires them to be actively resolved rather than just to be measured from a distance.
21. I turn to enquire whether that view is confirmed or undermined by authority in the wider arena of administrative and human rights law.
22. By way, in effect, of confirmation, Mr Gordon relies heavily on R (Wilkinson) v Broadmoor Special Hospital Authority and Others [2002] 1 WLR 419. In proceedings for judicial review the claimant, a mental patient under compulsory detention, challenged the decision of the defendants to administer anti-psychotic medication to him without his consent. The Mental Health Act 1983 provided that the medication could be administered only "for the mental disorder from which he [was] suffering" and only if "having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given". The claimant disputed that either of these criteria was satisfied and alleged additionally that the proposed treatment would infringe his rights under Articles 2, 3 and 8 of the European Convention on Human Rights 1950. The Court of Appeal upheld his appeal against the refusal of a judge to direct that the two defendant doctors and his own medical expert, who substantially disagreed with them, should attend for cross-examination.
23. Picking up a phrase in §28 of the speech of Lord Steyn in R (Daly) v S.S.H.D. [2001] 2 AC 532 (in a passage in which he had stressed that the more intense review of decisions of public authorities now often required by the Human Rights Act 1998 did not mean that there had been a shift to "merits review"), two members of the Court of Appeal in Wilkinson, namely Simon Brown L.J. (as he then was) and Brooke L.J., summarised their conclusion as being that, on the facts of that case, there should nevertheless be a "full merits review". Accordingly, in the present case, Mr Gordon has cast his core request as being for a "merits review". I believe that perhaps I will explain my decision more clearly if I avoid use of that phrase. That said, I agree with Mr Gordon that the judgments in Wilkinson, including that of Hale L.J. (as she then was), are highly relevant.
24. In §24 Simon Brown L.J. pointed out that the issue raised in the claim for judicial review could have been raised either in an action in tort for assault or by freestanding proceedings under s.7(1)(a) of the Human Rights Act 1998 and that, in either such event, it would have been determined on oral evidence. In §19 he had cited §82 of the judgment of the European Court of Human Rights in Herczegfalvy v Austria (1992) 15 EHRR 437 as follows:

"The court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with."

In §27 he reminded himself that in Smith and Grady v U.K. (1999) 29 EHRR 493 the European Court had held that the traditional remedy of judicial review, even if conducted with anxious scrutiny, would be an inadequate enquiry into justification for an infringement of rights under article 8. In §34 he concluded "that the claimant on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts".

25. In §62 Hale L.J. said:

"In my view, therefore, it cannot and should not matter whether proceedings in respect of forcible treatment of detained patients are brought by way of an ordinary action in tort, an action under section 7(1) of the 1998 Act or judicial review. If there are relevant disputed issues of fact these will have to be determined, by cross-examination if necessary".

In §83 she specifically identified the issue as to the fulfilment of the two criteria which I have set out in paragraph 22 above as requiring determination at a proper hearing on the merits.

26. Before further analysing Wilkinson, I must refer to the cautionary note later sounded in relation to it by the Court of Appeal in R(N) v M and Others [2003] 1 WLR 562. The subject matter was again a challenge by a detained mental patient to the lawfulness of forcible treatment. After hearing oral evidence, the trial judge dismissed her claim and, in dismissing her appeal, Dyson L.J., who gave the judgment of the court, said at §39:

"We suggest that it should not often be necessary to adduce oral evidence with cross-examination where there are disputed issues of fact and opinion in cases where the need for forcible medical treatment of a patient is being challenged on human rights grounds. Nor do we consider that the decision in R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 should be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally. Much will depend on the nature of the right that has allegedly been breached, and the nature of the alleged breach. Furthermore, although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court's role is essentially one of review: see per Lord Steyn in R (Daly) v Secretary of State or the Home Department [2001] 2 AC 532, 547, para 27."

27. Accepting, therefore, that the contours of the decision in Wilkinson have to be analysed with care, I turn to Mr Garnham's suggested interpretation of it. He suggests that the decision is only an example of the long-established principle, reaffirmed for example in R v SSHD ex p Khera and Khawaja [1984] AC 74, that the court can always investigate for itself the existence or otherwise of "precedent facts", i.e. facts which must exist before a statutory power can be exercised. He submits that the two criteria set out in paragraph 22 above were precedent facts.
28. Let me take the second such criterion, namely whether, having regard to the likelihood of its alleviating a condition, treatment should be given. In my view such is not a question of existing "fact" at all. Nor is it precedent to anything: on the contrary it is the ultimate question which, if answered in the affirmative, leads inexorably to the decision to administer the treatment. It has not been suggested, whether in R (N) v M or elsewhere, that Wilkinson is an example of enquiry into precedent fact. Indeed in §17 of Wilkinson Simon Brown LJ implied, in the following sentences, that precedent facts did not arise:

"On what basis, then, do the respondents seek to resist this appeal? Essentially, as I understand it, on the … basis … that this is a judicial review challenge in which, as ever, the critical question is whether those whose decisions are impugned have acted fairly, reasonably and lawfully, and where no issue of precedent fact arises for the court's determination."

With respect, I reject Mr Garnham's analysis.

29. Mr Garnham relies strongly on a passage in the speech of Lord Scarman in In re W (A Minor) (Wardship: Jurisdiction) [1985] 1 AC 791. Relatives of a child who was in local authority care disagreed with the authority's plans for her future but the House of Lords held that they could not challenge them by seeking a determination on the merits in wardship. At 797C-E Lord Scarman said:

"The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized of the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority."

30. In relation to a child in care Parliament therefore entrusts to the local authority the decision as to where her or his best interests lie; and the decision is amenable only to traditional judicial review. In my view the present case is entirely different. Parliament has not made this defendant arbiter of the decision as to where the best interests of the patients lie. Its power is to close the hospital and if, in order to extricate itself from the otherwise invalidating consequences of home for life promises, it chooses to say to the patients that it is in their best interests to move, the patients – or any of them - must be entitled to deny it; and, if so, the court must determine the issue.
31. In §139 of its judgment in H.L. v UK, 5 October 2004 and not yet reported, the European Court of Human Rights cited the case of Wilkinson, with approval, for the proposition that judicial review in accordance with "super – Wednesbury" criteria was insufficiently intrusive to constitute an adequate examination of the merits of medical decisions for the purposes of Article 2, 3 and 8; and it held that the availability of such review was similarly insufficient to satisfy the right of a detained mental patient to challenge the lawfulness of his detention under Article 5.4.
32. I hold that the decision in Wilkinson is in point; and it confirms my view of the effect of the decision in Coughlan. There is, so I hold, an area of dispute between the parties which the court must determine for itself on evidence, including almost certainly oral evidence: the area of dispute relates to the validity of the defendant's proposition in the bullet point set out in paragraph 10 above, namely (in short) that it is in the best interests of the patients (by which it means all the patients) to live elsewhere than in the hospital. Were it to conduct any less intrusive enquiry into the validity of that proposition, the court would itself act unlawfully under s.6(1) of the Act of 1998. It follows that I reject as inadequate even Mr Garnham's fall-back position that the court might somehow determine the merits of the manner in which the defendant conducted its appraisal of the best interests of the patients.
33. In the light of the above decision, the issue as to the proper treatment of the family proceedings becomes unimportant. Although the best interests of the patients are squarely before the court in the judicial review proceedings, the claimants are entitled to have flagged their interests up for declaration in the family proceedings. Equally, although the claimants can rely on their rights under Article 8 in the judicial review proceedings pursuant to s.7(1)(b) of the Act of 1998, they are entitled to have made them the second subject of the separate family proceedings under s.7(1)(a) of the Act. The difficult directions for case management which now fall to be given in the light of the above decision will not be significantly affected by whether the judicial review proceedings are heard alone or jointly with the family proceedings. I consider that I should give the court maximum flexibility by directing that, subject to further order to the contrary, the two sets of proceedings be heard together. There is, as yet, nothing to displace the obvious aspiration to determine all legitimate proceedings between the parties on the same subject compendiously.