England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21 September 2005

1. MR JUSTICE JACKSON: This judgment is in six parts, namely Part 1 introduction, Part 2 the facts, Part 3 the present proceedings, Part 4 the law, Part 5 the challenge to the manager's decision, Part 6 conclusion.
Part 1 Introduction
2. In these proceedings for judicial review the Official Solicitor, acting as litigation friend of the claimant, a 15 year old girl, challenges the legality of a decision to discharge the claimant from hospital pursuant to Section 23 of the Mental Health Act 1983. The claimant herself does not wish to remain in hospital. However the Official Solicitor, as the claimant's next friend, takes the view that it is in her best interests that the claimant should continue to be treated in hospital. In this judgment I shall refer to the Mental Health Act 1983 as "the Mental Health Act". I shall use the abbreviation "RMO" for responsible medical officer. The defendant in these proceedings is Huntercombe Maidenhead Hospital, to which I shall refer as "Huntercombe". The claimant has been treated at Huntercombe for the last four months. Huntercombe agrees with the Official Solicitor that the claimant should not be discharged from hospital. However the hospital managers take the opposite view, and it is their decision which is challenged. Accordingly the managers are separately represented in these proceedings. That is I hope a sufficient introduction. It is now necessary to outline the facts.
Part 2 The Facts
3. The claimant was born on 30 August 1990. When she was aged 13 she developed mental health problems. On 6 April 2004 the claimant was admitted to the Coburn Adolescent Unit at St Clement's Hospital, East London. She was diagnosed as suffering from a bi-polar disorder with psychotic symptoms. She displayed chaotic behaviour, mood swings and physical aggression. The claimant was treated in the Coburn Unit for ten months. She was finally discharged home to the care of her parents on 4 February 2005. On the afternoon of 5 March 2005 the claimant left home unknown to her parents. Later that day she was found wandering in a confused state near Leyton Underground Station. The claimant was removed by police to emergency foster care. On 6 March she was admitted to Homerton Hospital. On 23 March the claimant was transferred back to the Coburn Adolescent Unit. The claimant remained in the unit for some eight weeks. Her condition deteriorated.
4. On 9 May 2005 a decision was made by the doctors and social worker responsible for the claimant's care that the claimant should be detained in hospital pursuant to Section 3 of the Mental Health Act. The statutory procedures were followed and the claimant was duly detained. On 16 May 2005 the claimant was transferred from the Coburn Unit to Huntercombe. Huntercombe Hospital is in Berkshire. Once the claimant was at Huntercombe, Dr Clapham became her RMO. Dr Clapham reviewed her medication and planned her future treatment. On 4 July 2005 Huntercombe received a letter dated 24 June from the claimant's father appealing against the Section 3 detention. This letter was treated by the hospital as a notice under Section 25 of the Mental Health Act requiring the claimant's discharge. Dr Clapham took the view that the claimant ought not to be discharged. On 4 July 2005, pursuant to Section 25 of the Mental Health Act, Dr Clapham signed and furnished to the managers of the hospital a report in the following terms:

"I am of the opinion that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to herself."

5. In these circumstances the question whether the claimant should be discharged fell to be determined by the managers of the hospital pursuant to Section 23 of the Mental Health Act. On 14 July a panel of managers met to consider that question. The record of that hearing reads as follows:

"S attended hearing and promptly kicks her solicitor. Introductions were made when S promptly kicked and punched her solicitor again. Miss Hardy, representing Mr R, requested a short adjournment and then asked for adjournment for two weeks and a psychology report. Adjournment agreed, section to continue."

6. On 10 August 2005 a fresh panel was convened in order to determine whether the claimant should be discharged. The panel comprised three experienced hospital managers; one member was a retired social worker who had specialised in mental health; one was a retired police officer; one member was an experienced social work researcher and independent evaluator who specialised in complex and sensitive issues of social and health care in working with children and adolescents and people with communication difficulties, mental health problems and disability. The written evidence before the panel included a psychiatric report by Dr Clapham, a nursing report by Miss Rule, two social circumstances reports by Ms Robinson (a social worker) and a psychological report by Miss Halworth (an assistant psychologist who was supervised by a clinical psychologist). During the course of the hearing the panel heard oral evidence from Dr Clapham, from the social worker and from the claimant's father.
7. The panel's decision was recorded on a standard form. I shall read out the relevant parts of that form:

"Conditions necessary to continue detention (on appeal or renewal)

(a) The patient is suffering from mental illness, mental disorder which makes it appropriate for him/her to receive medical treatment in a hospital.

Answer: Yes.

Such treatment is likely to alleviate or prevent a deterioration of his or her condition.

Answer: Yes.

It is necessary for the health or safety of the patient or for the protection of other persons that he/she should receive such treatment and it cannot be provided unless he/she continues to be detained.

Answer: Yes."

The managers have added the following note:

"Dangerousness not proved. Code of practice to 23.12.

Conditions necessary to continue detention (on report barring discharge by nearest relative)

The patient, if discharged would be likely to act in a manner dangerous to other persons or to himself/herself.

Answer: No.

Decision of review panel

The patient shall be discharged from section - deferred until 31.8.05.

Reasons for decision

On hearing the evidence and reviewing the written reports the managers were of the opinion that she meets the criteria for detention. However we were NOT satisfied that she met the stringent test of dangerousness (code of practice 23.12). This is an essential requirement for the RMO to bar the discharge by the nearest relative. The managers did note that S can be aggressive and violent sometimes impulsive and occasionally planned. No evidence was presented to show that S had been violent outside the hospital environment.

S is clearly vulnerable and therefore she and her family will need a great deal of support. To enable this to happen and allow time for a comprehensive and robust package of care to be prepared her discharge will be deferred until 31 August 2005 or sooner should a satisfactory and agreed plan be in place before this date."

8. The decision made by the hospital managers was a source of concern for Dr Clapham. It was also a source of concern for the London Borough of Hackney and for the East London and City Mental Health NHS Trust. These are the two authorities whose function it was, under Section 117 of the Mental Health Act, to provide after-care for the claimant following her discharge from hospital. In late August there was a flurry of activity and numerous procedural steps were taken by persons and bodies who were concerned for the claimant's welfare. It is not necessary for me to trace all those procedural ramifications. Suffice it to say that on 30 August an injunction was obtained to prevent the claimant's release from hospital. Two days later the Official Solicitor, who was seeking to challenge the hospital managers' decision, commenced the present proceedings.
Part 3 the Present Proceedings
9. By a claim form issued on 1 September 2005, the Official Solicitor, acting as the claimant's litigation friend, applied to this court for a declaration that the hospital managers' decision taken on 10 August 2005 to discharge the claimant was unlawful. The grounds of this challenge, as modified by amendment and as refined during oral argument, may be summarised as follows: (1) the managers fettered their discretion under Section 23 of the Mental Health Act, (2) the managers placed too much weight upon the code of practice guidance, (3) the managers took into account irrelevant matters, (4) not pursued, (5) the managers failed properly to particularise the details of the after-care package upon which the claimant's discharge was conditional, (6) the managers acted irrationally and reached a decision which no reasonable tribunal could have made on the question of dangerousness, (7) the managers failed to give proper reasons for their decision.
10. A variety of related proceedings were commenced at about the same time. The future progress of those other proceedings will depend upon the outcome of the Official Solicitor's challenge to the managers' decision. One consequence of those other proceedings is that, one way or another, all interested parties are before the court. The principal proceedings came on for hearing yesterday and the argument lasted all day.
11. Let me summarise how the battle lines were drawn. Miss Laura Davidson, for the Official Solicitor, presented her case as the claimant's next friend. Mr Huw Lloyd for Huntercombe, Miss Jenni Richards for East London and City NHS Trust and Miss Joanna Dobson QC for the London Borough of Hackney all made submissions in support of the Official Solicitor's contentions. Mr Gerard Clark for the hospital managers made submissions in opposition to the Official Solicitor and in support of the managers' decision. Miss Katie Scott, for the claimant's father, made submissions in support of the hospital managers' case. I thank all counsel for their detailed skeleton arguments and for their helpful oral submissions. I also congratulate counsel on compressing their oral submissions so that argument was completed by the end of yesterday afternoon. I shall now give my decision on the issues in this case after a brief review of the relevant law.
Part 4 the Law
12. Section 3 of the Mental Health Act - so far as material - provides:

"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds that -

(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.

(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in sub-section (2) above are complied with; ..... "

Section 23 of the Mental Health Act provides:

"(1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him from detention or guardianship (in this Act referred to as 'an order for discharge') is made in accordance with this section.

(2) An order for discharge may be made in respect of a patient -

(a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the responsible medical officer, by the managers or by the nearest relative of the patient;

.....

(4) The powers conferred by this section on any authority [trust] [(other than an NHS foundation trust)] or body of persons may be exercised [subject to sub-section (3) below] by any three or more members of that authority [trust] or body authorised by them in that behalf or by three or more members of a committee or sub-committee of that authority [trust] or body which has been authorised by them in that behalf."

Section 25 provides:

"(1) An order for the discharge of a patient who is liable to be detained in a hospital shall not be made by his nearest relative except after giving not less than 72 hours' notice in writing to the managers of the hospital; and if, within 72 hours after such notice has been given, a responsible medical officer furnishes to the managers a report certifying that in the opinion of that officer the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself, -

(a) any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect;

..... "

Section 118 of the Mental Health Act provides that the Secretary of State shall prepare and, from time to time, revise a code of practice for the guidance of those involved in mental health care.

13. In April 1998 Mr Justice Latham had occasion to consider the inter-relationship between Sections 3, 23 and 25 of the Mental Heath Act in R v Riverside Mental Health Trust ex p Huzzey [1998] 43 BLMR 167. This case concerned a challenge to a hospital managers' decision brought by the mother of a patient. At page 173 of the report Mr Justice Latham said:

"In my view, this argument fails to address the fact that section 23 provides, inter alia, a general discretion in the managers to discharge a patient. No criteria are set out as to what should or should not be taken into account by managers when considering a decision as to whether or not to discharge. The question of what are the relevant considerations is to be answered by looking at the general scheme of the Act. Clearly the criteria set out in section 3 of the Act are of fundamental importance. If the criteria for admission no longer exist, I cannot see how any decision by managers not to discharge could be other than perverse hence my conclusion on Mr Gledhill's first point. But that does not mean the managers are restricted to considering those criteria. Section 23 implicitly recognises that managers have a discretion to discharge even if those criteria have been met. Where, as in the present case, a nearest relative has sought to obtain a discharge order but has been confronted by a barring report, those facts must equally be relevant and material considerations. In my view, the managers are not only entitled to, but must, consider whether or not they are persuaded by the barring report that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself. For if they are not so persuaded, they will have reached the position that the nearest relative would have been entitled to an order for discharge if the responsible medical officer had not come to what they have decided was an erroneous conclusion as to the danger presented by the patient. That cannot be anything other than a relevant and material consideration, and would be likely, in almost all circumstances, to mean that discharge should be ordered ..... "

14. In March 1999 the Secretary of State promulgated a revised code of practice pursuant to Section 118 of the Act. This code duly came into force on 1 April 1999. The code includes the following provisions:

"23.1 Section 23 gives the Hospital Managers (see para 22.1) the power to discharge an unrestricted patient from detention. Discharge of a restricted patient requires the consent of the Home Secretary. The power may be exercised on behalf of the Hospital Managers by three or more members of a committee or sub-committee formed for that purpose. In the case of a Trust or Hospital Authority the committee or sub-committee must not include any employee or officer of the Trust or Hospital Authority concerned.

23.2 The legislation does not define either the criteria or the procedure for reviewing a patient's detention. However the exercise of this power is subject to the general law and to public law duties which arise from it. The Hospital Managers' conduct of reviews must satisfy the fundamental legal requirements of fairness, reasonableness and lawfulness:

a. they must adopt and apply a procedure which is fair and reasonable;

b. they must not make irrational decisions, that is, decisions which no body of Hospital Managers, properly directing themselves as to the law and on the available information, could have made; and

c. they must not act unlawfully, that is, contrary to the provisions of the Act, any other legislation and any applicable regulations.

.....

23.11 The Act does not define specific criteria to be applied by the Hospital Managers when considering the discharge of a patient who is detained or liable to be detained. The essential yardstick in considering a review application is whether the grounds for admission or continued detention under the Act are satisfied. To ensure that this is done in a systematic and consistent way the Review Panel should consider the following questions, in the order stated:

• Is the patient still suffering from mental disorder?

• If so, is the disorder of a nature or degree which makes treatment in hospital appropriate?

• Is the detention in hospital still necessary in the interests of the patient's health or safety, or for the protection of other people?

If the panel is satisfied from the evidence presented to them that the answer to any of these questions is "no", the patient should be discharged.

23.12 In cases where the rmo has made a report under Section 25 (1), the managers should not only consider the three questions above but also the following question:

• Would the patient, if discharged, be likely to act in a manner dangerous to other persons or to him or herself? [R v Riverside Mental Health NHS Trust ex p Huzzey [1998]]. This question focuses on the probability of dangerous acts, such as causing serious physical injury, not merely the patient's general need for safety and others' general need for protection: it provides a more stringent test for continuing detention. If, on consideration of the report under Section 25 (1) and other evidence, the managers disagree with the rmo and decide the answer to this question is 'no', they should usually discharge the patient.

.....

23.18 In applying the criteria in para 23.11 and 23.12, and in deciding in the light of them whether or not to discharge the patient, the panel needs to consider very carefully the implications for the patient's subsequent care. The presence or absence of adequate community care arrangements may be critical in deciding whether continued detention is necessary in the interests of the patient's health or safety or for the protection of others. If the panel conclude that the patient ought to be discharged but arrangements for after-care need to be made, they may adjourn the panel, for a brief period, to enable a full CPA/care planning meeting to take place."

It seems to me that paragraphs 23.11 and 23.12 of the code are quite close to the reasoning of Mr Justice Latham in Huzzey. Indeed these paragraphs have been influenced by that decision.

15. In R (Tagoe-Thompson) v Central and North-West London Mental Health NHS Trust [2003] EWCACiv 330; [2003] 1 WLR 1272, the panel of managers was split 2-1 on the question whether to order discharge. The Court of Appeal held that this was not good enough. In order to override the view of the RMO and order discharge, an affirmative view of at least three managers was required. Lord Justice Pill gave the leading judgment. At paragraph 24 Lord Justice Pill said:

"In my judgment, the context supports that view: (i) while the liberty of the subject is always an important consideration, this statutory procedure is also concerned with the welfare of the subject in whose case section 3 powers have been exercised and his welfare may require detention in hospital. The possibility of the patient damaging his own health or endangering life is a relevant consideration .....

.....

(ii) The RMO has a central place in the operation of procedures under the 1983 Act. The RMO can himself order discharge (section 23 (2)) and the exercise of the section 23 (4) power will only arise when discharge is not supported by the RMO. He has important functions under the Act including, for example, under section 50. It is not in the least surprising that, in circumstances in which the members are laymen, may not be directors of the trust and whose expertise may be limited, a finding that the affirmative view of at least three of them is required to override the opinion of the RMO and authorise release."

16. Finally I should refer to the Court of Appeal decision in R (H) v The Ashworth Special Hospital Authority [2002] EWCA Civ 923; [2003] 1 WLR 127. In that case a Mental Health Tribunal ordered H's discharge from detention even though no after-care arrangements were in place. Both this court and the Court of Appeal held that the tribunal's decision should be quashed. In the Court of Appeal Lord Justice Dyson gave the leading judgment. At paragraphs 66 to 68 of his judgment Lord Justice Dyson indicated that the best course would have been for the tribunal to adjourn until it was clear that suitable after-care was available.
17. With all of this guidance in mind, I must now turn to the challenge in the present case.
Part 5 The Challenge to the Managers' Decision
18. I shall deal with the seven grounds of challenge in the order set out in Part 3 above.

Ground 1

19. It is clear from the statute that managers exercising their powers under Section 23 of the Mental Health Act have a wide discretion. It is also clear from the Act, from the code and from Mr Justice Latham's decision in Huzzey that if the managers override the RMO's report certifying dangerousness, this is a strong pointer in favour of discharge. It is not however an inflexible rule that in every case the managers must discharge if they overturn the finding of dangerousness. Mr Justice Latham in Huzzey acknowledged that there may be exceptions. Furthermore, paragraph 23.12 of the code also acknowledges that there may be exceptions.
20. Finally, it is implicit in the unfettered discretion conferred by the Act that there may be exceptions. Looking at the managers' decision of 10 August, it seems to me that the managers overlooked this residual discretion. They proceeded on the basis that if they overturned the RMO's finding of dangerousness, then, as a matter of course, they must order discharge. That was an error of law. The managers failed to consider or to exercise their residual discretion in this regard. I therefore uphold the first ground of challenge.

Ground 2

21. I reject this ground of challenge. It does not seem to me that the managers placed excessive weight on the code of practice. On the contrary, the complaint might be that in relation to paragraph 23.12 of the code the managers paid insufficient attention to the last part of that paragraph.

Ground 3

22. This ground of challenge is directed to the following sentence in the managers' decision -

"No evidence was presented to show that S had been violent outside the hospital environment."

It is contended by the Official Solicitor and her supporting parties that this consideration is irrelevant. As formulated, I do not agree with this ground. If, and insofar as, the managers' observation was correct it would be a relevant consideration although, in the circumstances, a subordinate one. However the observation was not correct. There was conflicting evidence on the question whether the claimant had been violent outside the hospital environment. Furthermore, the question whether the claimant had been violent outside the hospital environment needs to be considered in context. The claimant had spent almost all of her time over the last one-and-a-half years within in hospital environment. Therefore her opportunities for violence outside were limited. I have come to the conclusion that these matters do not constitute an independent ground for attacking the validity of the managers' decision. They are however relevant to the sixth ground of challenge.

Ground 4

23. As indicated earlier, this is not pursued as an independent ground of challenge.

Ground 5

24. As formulated, this ground is untenable. The claimant's discharge was not made conditional upon the preparation of an after-care package. Indeed the managers would have had no power to make such a conditional order. Furthermore, the managers cannot be criticised for failing to particularise the after-care package which was required. It was not the function of the managers to provide such particularity. On the contrary, it was the duty of the London Borough of Hackney and (by a delegation of functions within the NHS) the East London and City Mental Health NHS Trust to devise and implement a package of after-care. I therefore reject the fifth ground of challenge as formulated.
25. There is however a related matter to consider. Whenever the claimant is discharged from hospital she will require a substantial amount of after-care. This will need to be planned in some detail. The order made by the managers on 10 August allowed very little opportunity for the preparation of an after-care package. A better way to achieve what the managers intended would have been to adjourn the hearing for a defined period in order to see what after-care package was available. See the reasoning of the Court of Appeal in R (H) v Ashworth Special Hospital Authority. See also paragraph 23.18 of the code.
26. I do not consider that this criticism of the managers' approach is a freestanding ground for attacking the validity of the managers' decision. It is however relevant to the sixth ground of challenge.

Ground 6

27. This ground is what may loosely be described as an old- style Wednesbury challenge to the managers' decision. Miss Davidson, for the Official Solicitor, submits that on the issue of dangerousness Dr Clapham was plainly correct. The managers acted perversely in overriding the opinion of the RMO on this crucial issue. There was a mass of evidence to indicate that the claimant was violent and aggressive. Indeed, so strong was that evidence that the managers were bound to endorse Dr Clapham's opinion that "the patient, if discharged, would be likely to act in a manner dangerous to other persons or to herself."
28. Mr Huw Lloyd, who appears for the hospital (as opposed to the managers), strongly supports these submissions. He submits that the managers' finding on the issue of dangerousness was perverse. Miss Jenni Richards, for the NHS Trust, also placed emphasis on this ground. She submits that the managers, who are not clinicians (despite their wide experience), should have accorded great weight to the opinion of Dr Clapham, who was the psychiatrist treating the claimant. On the other side of the fence, Mr Clark for the hospital managers, points out that their decision was in favour of the liberty of the subject; this court should therefore be slow to overturn the managers' decision. Moreover the evidence before the managers contained indications in both directions. The managers evaluated that evidence and came to a conclusion. This court should not entertain what is, in truth, a merits challenge to the managers' decision.
29. These are formidable arguments on both sides. I have read and re-read the evidence which was before the managers. Having done so, my conclusion is that the managers' decision was irrational and pererse. No reasonable body of managers, faced with the evidence available on 10 August 2005, could have disagreed with Dr Clapham's report on the issue of dangerousness.
30. I reach this conclusion for seven reasons:

(1) there was strong and recent evidence of the claimant's violent and aggressive behaviour in the reports of Dr Clapham, Miss Rule, Ms Robinson and Ms Halworth.

(2) The oral evidence also established the claimant's violent and aggressive behaviour (see the notes of the hearing taken by Susan Hardy, the solicitor representing the claimant's father).

(3) A graphic illustration of the claimant's violence is afforded by the managers' report of the hearing on 14 July (see Part 2 above).

(4) The claimant's aggression and violence could be accommodated within the environment of a hospital. However, anyone who behaved in that way in the outside world would be a danger to herself and to others. She would be liable to become entangled in numerous violent altercations.

(5) Whilst there was only a small amount of evidence that the claimant had been violent outside hospital, this was unsurprising since she had spent little time out of hospital over the last one-and-a-half years.

(6) The managers were proposing to discharge the claimant into the outside world without any information about the available after-care arrangements. This was a further reason for fearing that the claimant would be a danger to herself and to others.

(7) It is true, as Mr Clark says, that the managers' decision was in favour of the liberty of the subject. On the other hand, the claimant's detention was for a therapeutic purpose and for the benefit of herself and the community (see R (Tagoe-Thompson) v the Central and North-West London Mental NHS Trust at paragraph 24). In this case the evidence was simply not available to justify the managers in overriding Dr Clapham's clinical assessment. In those circumstances, despite all the policy arguments in favour of individual liberty, the decision of the managers cannot stand.

31. For all of these reasons I uphold the sixth ground of challenge advanced by the Official Solicitor.

Ground 7

32. In the light of my earlier findings, the challenge based on inadequate reasons has become irrelevant. The managers did not give - indeed they could not have given - any satisfactory reasons to explain their decision. I regard this as a consequence of ground 6 rather than a freestanding challenge to the managers' decision.
33. Let me now draw the threads together. I uphold the challenge to the managers' decision of 10 August on two grounds, namely ground 1 and ground 6.
Part 6 Conclusion
34. For the reasons set out in Part 5 above, the managers' decision of 10 August cannot stand. No party is asking me to make a quashing order. Accordingly I shall grant the relief which the Official Solicitor seeks in the claim form; that is, (1) a declaration that the decision of the hospital managers at Huntercombe Maidenhead Hospital on 10 August 2005 to discharge the claimant from detention under Section 3 of the Mental Health Act 1983 with an after-care package to be put in place by 31 August 2005 was unlawful, and (2) an order that a freshly constituted managers' hearing be convened to consider the application of the nearest relative for the discharge of the claimant.
35. Before parting with this case, I wish to make two comments. First, these proceedings have progressed from issue to judgment within the space of three weeks. I congratulate the parties, solicitors and counsel, on the expedition and efficiency with which they have progressed this case. Secondly, the matter which lies at the heart of this litigation is the welfare of a teenage girl with serious mental health problems, who has spent almost all of the last 18 months in hospital. A huge amount of public resources has been devoted to the present litigation. I express the hope that similar resources will be devoted to her treatment in hospital and to her after-care when she is fit to be released. I hope that that time will be soon. Hopefully also all the other legal proceedings which are currently on foot will now be the subject of a sensible and early compromise. This will enable such public funds as are available to be devoted to medical treatment rather than litigation.
36. MISS DAVIDSON: My Lord, we would ask for our costs in this matter. We have been successful and we would ask you to grant them - - - - -
37. MR JUSTICE JACKSON: Against whom?
38. MISS DAVIDSON: Against the defendant.
39. MR JUSTICE JACKSON: The defendant supported you.
40. MISS DAVIDSON: We are in this difficult position that the hospital managers are not strictly a party.
41. MR JUSTICE JACKSON: You chose not to join them.
42. MISS DAVIDSON: I did make the submission yesterday that we could not have served on them - except in the hospital - as individuals.
43. MR JUSTICE JACKSON: Should they not have been defendants?
44. MISS DAVIDSON: Perhaps they indicated to the defendant that they disagreed and they wanted to challenge the decision, and the defendant made it clear that the defendant wished to support us and against its own hospital managers, they could have applied to the court to become a party.
45. MR JUSTICE JACKSON: The managers were the body who made the decision which you were challenging. Should they not have been the defendants?
46. MISS DAVIDSON: This was discussed. Because Huntercombe Maidenhead Hospital is a private hospital and they were involved in the injunction proceedings it was decided, after discussion with all the parties, that the hospital was the correct defendant. Normally the hospital would be the correct defendant in most circumstances. This is a very unusual case where the hospital disagreed with its own hospital managers.
47. MR JUSTICE JACKSON: I will hear what Mr Lloyd for the hospital has to say.
48. MR LLOYD: I do oppose any application for costs against the hospital. The hospital, after all, did support the challenge to the hospital managers' decision. The history of this matter is a very strange one indeed. You will know that on 14 July there was a meeting before the managers which was adjourned. That was the meeting at which SR behaved in the aggressive way to her solicitor. That matter was adjourned until 10 August. Around about this time it was considered by the local authority whether the nearest relative should be removed. In my submission, had the nearest relative been removed and had the local authority acted with expedition at the time of the 14 July application we would not be here. For this reason: all parties in this case - the mental health trust, the social services and the private hospital - take the view that SR should be detained in hospital. The reason why we are here today is because there was a challenge by MR, the father. Had MR been removed as the nearest relative - as the court may conclude he should have been and certainly as the social services were planning to do - then the meeting on 10 August would not have gone ahead because MR would have been replaced by someone from social services who would have taken the view that SR should have been detained in hospital. Therefore these proceedings would not have been on board at all.
49. MR JUSTICE JACKSON: Are you the proper defendant, Mr Lloyd, or are the managers the proper defendant?
50. MR JUSTICE JACKSON: In my submission, the managers should be.
51. MR JUSTICE JACKSON: My understanding is that where an independent body such as hospital managers make their own decision, they can be made the defendant in judicial review proceedings to challenge the decision.
52. MR LLOYD: My recollection is that there are titles to cases where hospital managers are named as defendants. My first submission would be that we are not the appropriate defendant, if you like. My second submission is that in any event we should not pay the costs. Those costs should be visited on the London Borough of Hackney. My third submission would be that if any costs are to be awarded to the Official Solicitor they should be on the usual basis of 50 per cent and not full costs.
53. MISS DAVIDSON: I do have further submissions to make in reply to Mr Lloyd's submissions. The reason why we are here today is because the hospital, which considered the hospital managers' decision to be perverse, the London Borough of Hackney and East London and City Mental Health NHS Trust - none of those parties judicially reviewed the decision. There was an impasse. The only reason why the Official Solicitor was forced to bring these judicial review proceedings was because none of those bodies bothered to do that. They just ignored what appeared to be a local decision without trying to challenge it.
54. If the court is not prepared to award our costs against the defendant in this case, I would ask for costs against, in particular, Hackney Borough Council. The reason I say that is because they have not behaved properly throughout these proceedings. They got an emergency injunction in place overnight rather than judicially reviewing the decision they felt was wrong. That injunction - at an inter partes hearing in front of Mr Justice Charles - was then lifted because there was insufficient merit in it. They did not attend the hearing themselves. Miss Gannon appeared as counsel on that occasion and did not have proper instructions. The injunction was granted on an undertaking to issue proceedings to displace the nearest relative and to issue judicial review proceedings or at least to apply for permission for judicial review. Hackney did not do so. There were no instructions from Hackney to Miss Gannon to apply for permission for judicial review at the inter partes hearing. Mr Justice Charles expressed very clear criticism towards them for that. But their inappropriate behaviour did not stop there. They failed to acknowledge service. The court gave them permission yesterday, despite that failure to acknowledge service, to be represented and to make submissions. In my submission the Official Solicitor, who appears on behalf of the claimant (a detained patient) and who has succeeded in judicial review, should not be made to pay its own costs. But if the defendant should not pay those costs then the Hackney Borough Council should.
55. MR JUSTICE JACKSON: I have forgotten who is counsel for Hackney.
56. MISS GANNON: It is myself today instead of Miss Dobson QC. This is the second time I have had to address this court in relation to costs.
57. MR JUSTICE JACKSON: The second time?
58. MISS GANNON: Yes. Not this court; I believe I stood before Mr Justice Charles in relation to costs. I have apologised in relation to the conduct of proceedings on behalf of Hackney. Looking at the facts, on 10 August we were not present at that meeting either through our social worker or through legal. Furthermore there is evidence that that decision was not even communicated to the father's solicitors until 16 August, the same week. It was only on 18 August that Hackney had notice of the managers' decision and attended a legal planning meeting. There were discussions both in law and fact whether it was appropriate for care proceedings to be issued or whether we should go down the route of displacing the nearest relative. I am aware of the merits of that position. But it was, we would say, in the light of the nature of the dilemma presented to us - that is welfare - where should the justice lie? Should it lie in care proceedings or should it lie with the continuation of the managers' decision?
59. The order you have seen was handwritten by Mr Justice Charles. It was faxed to the legal department at 9 o'clock on 29 August. It was an omission on behalf of Hackney that the word "and" was there; they saw it as an "or". I apologise to the court. We have complied with the filing of evidence, but unfortunately, as you are aware, Miss Dobson represented the fact that we were not served with the trial bundle on behalf of the Official Solicitor until noon before the hearing date. So we were prejudiced ourselves in preparing for this hearing. The skeleton argument which you have before you was prepared in a vacuum. The London Borough of Hackney has accepted its responsibility in relation to the conduct of the case and, equally, the lack of instructions to me on the hearing date. As you can appreciate, there were no papers before Hackney other than what was provided by the father's solicitors because we were not present at that hearing. We would say, and do submit, that the proper authority and the proper consideration should be for the East London Mental Health Trust for they had their representatives there in the personalities of Dr Matra, also the social worker who was referred to (Miss Rule) is employed by them, as is Dr Matra. Quite frankly, we were - although we were to be the authors of any care plan which would have been forthcoming - to be guided by the clinicians. The London Borough of Hackney cannot operate in a vacuum.
60. We attended on the 30th against my advice but in relation to finding out exactly what the position was in relation to this child and why she was being accommodated and the circumstances. But as a local authority we were not yet on board. As you can appreciate, the Section 117 plan had not been drafted. In my submission, if I can assist you any further?
61. MR JUSTICE JACKSON: No.
62. MISS DAVIDSON: There are a few points that need to be made on behalf of the Official Solictior. I am informed that Huntercombe Hospital notified Hackney on 11 August of the decision, obviously the day after the decision. Hackney were well aware of that decision and they were not happy with it. They still failed to put into place any legal challenge. Furthermore in relation to the non-service of the trial bundle, as I have emphasised, there was no acknowledgement of service. My instructing solicitor did personally provide each barrister - apart from Miss Dobson - with a trial bundle, but we had not been told that she was even instructed. There was no acknowledgment of service. We did not know if Hackney were even going to turn up. There was no correspondence at all from Hackney until 16 September.
RULING
63. MR JUSTICE JACKSON: This is an application for costs made by the Official Solicitor, acting as next friend to the claimant. In the first instance, the Official Solicitor seeks an order for costs against Huntercombe Hospital and, if unsuccessful in that regard, the Official Solicitor seeks an order for costs against the London Borough of Hackney.
64. Let me deal, first, with the application against the hospital. The hospital does not agree with the decision which was taken by its managers. The hospital and the clinicians which it employs has always opposed that decision. The hospital has lent sterling support to the Official Solicitor in the present proceedings. Mr Lloyd concentrated his submissions, in particular, on ground 6 which was one of the two grounds upon which the claim has succeeded. I, for my part, do not see what more the hospital could have done to assist the Official Solicitor. It seems to me that the proper defendant to these proceedings ought to have been not the hospital but the managers. The managers are a body appointed under the provisions of the Mental Health Act to take the decision which is impugned in the present proceedings. Procedural issues such as this would not, of course, have stood in the way of this court deciding the substantive issues which arose for decision. But when I come to consider the question of costs it is a material consideration that the hospital ought not to have been joined as a defendant at all. The proper defendant was the hospital managers.
65. MISS DAVIDSON: I hesitate to rise, but my solicitor has pointed out that in the acknowledgement of service from the defendant they have indicated an intention to contest all of the claim.
66. MR JUSTICE JACKSON: As I was saying, the proper defendant was the hospital managers.
67. For all of those reasons, I refuse the application for costs which the Official Solicitor makes against the hospital.
68. I turn to the application for costs against the London Borough of Hackney. That local authority has been criticised for a number of grounds. For example, it is said that they failed to start proceedings promptly to remove the father as nearest relative. They failed to bring their own judicial review proceedings to challenge the managers' decision. Thus they left a vacuum into which the Official Solicitors stepped. It is a happy circumstance that the Official Solicitor does step in when problems such as this arise and there is a vacuum. The Official Solicitor may, in appropriate cases, recover an order against the defendant against whom she has succeeded although such an order is not appropriate in this case. I do not think that the fact the London Borough of Hackney failed to begin the various proceedings and thus created the vacuum is a ground for ordering that authority to pay the costs of the Official Solicitor.
69. I have come to the conclusion, bearing in mind that all the parties to this case are different publicly funded bodies, that the proper order to make is no order for costs.
70. MISS DAVIDSON: I have drafted orders but I have not had an opportunity to discuss matters with all the parties although they have seen my draft.
71. MR JUSTICE JACKSON: I suggest draft the order, circulate it to other counsel. I suggest before you leave the building you agree in manuscript the terms of the order, get it typed up and send it to me to initial. Can you all stay just to agree the terms of the order.