B v Barking Havering and Brentwood Community Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE HOBHOUSE,LORD JUSTICE THORPE |
| Judgment Date | 30 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0730-25 |
| Docket Number | LTA 98/6128/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1998 |
[1998] EWCA Civ J0730-25
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE RICHARDS)
Royal Courts of Justice
Strand
London WC2A 2LL
The Master of the Rolls
(Lord Woolf)
Lord Justice Hobhouse
Lord Justice Thorpe
LTA 98/6128/4
MR K GLEDHILL (Instructed by Messrs Glabraith Branley, London, N12 9QD) appeared on behalf of the Appellant
MR J GRACE QC and MR H LLOYD (Instructed by Messrs Scrivenger Seabrook, Cambridge, PE19 1AJ) appeared on behalf of the Respondent
Thursday 30 July 1998
On 11 May 1998 Mr Justice Richards dismissed Miss Barker's applications for habeas corpus and judicial review in relation to her continued detention at the Warley Hospital under the provisions of the Mental Health Act 1983. This judgment deals with her appeal against the judge's decision on both her applications. The merits of her application for habeas corpus and judicial review are the same. However leave is required to appeal to this court from a decision on an application for judicial review but not from a decision on an application for habeas corpus. In the circumstances we give her leave to appeal against the decision on her application for judicial review and deal with the substance which is the subject of both appeals.
Miss Barker wants to challenge the renewal of her detention under the Mental Health Act 1983. Mr Kris Gledhill repeats his submissions which he made on her behalf before the judge. Mr John Grace QC appears on behalf of the Health Trust responsible for the Warley Hospital where she was detained and on behalf of Dr Jason Taylor a Consultant Psychiatrist at that hospital who has been the appellant's responsible medical officer for the purposes of the Act from time to time since 1994.
The appeal raises points of importance as to the general approach which should be adopted as to the interpretation of the Act. It also raises questions as to what is the procedure which should be adopted in order to test the issues which the appellant seeks to have determined in her favour. Should they be raised on an application for habeas corpus or an application for judicial review or are both procedures appropriate? If they can be raised on either, then can the choice of procedure affect the outcome?
The Facts
The evidence which is before this Court and was before the judge is limited. The appellant's medical history is contained in an affidavit of Dr Taylor prepared for these proceedings and a report prepared by him in January 1998 for a hearing before a Mental Health Review Tribunal. The evidence indicates that the appellant has a long history of personality problems and she has repeatedly been admitted to hospital because she was in an amphetamine induced psychotic state. On 28 May 1997 she was again admitted to Warley Hospital suffering from a drug-induced psychosis after she had set fire to her home causing extensive damage. From the 3 June 1997 on an application of an approved social worker supported by the recommendation of two medical officers, one of whom was Dr Taylor, she was formally detained under section 3 of the Act for treatment of what was said to be a psychopathic disorder. The authority for detention under section 3 expires after six months unless it is continued under section 20 of the Act. Her detention was therefore due to expire at the latest on 2 December 1997. From 21 October 1997 she was granted a succession of weekly periods of leave by Dr Taylor under the Act. The periods of leave allowed her to be away from the hospital from Thursday to Monday. In addition she was allowed to be away from her ward for a number of hours each day. On 11 November 1997 Dr Taylor completed Form 30 under section 20 of the Act in order to continue her detention. The form states that in his opinion the appellant is suffering from:
"Psychopathic disorder and [her] mental disorder is of a nature or degree which makes it appropriate for [her] to receive medical treatment in a hospital and such treatment is likely to alleviate or prevent a deterioration of [her] condition."
Form 30 also states that Dr Taylor is of the opinion that it is necessary :
"(i) in the interest of the patient's own health
(ii) in the interests of the patient's own safety
(iii) with a view to the protection of other persons
that this patient should receive treatment and it cannot be provided unless [she] continues to be detained under the Act, for the following reasons:
She remains at high risk of relapse of drug induced psychosis. She will need a 24 hour staffed residential unit on discharge from hospital. She requires further inpatient care and would not comply on an informal basis."
On 9 December 1997, Dr Taylor completed a certificate of consent to treatment in which he certified that the appellant understood the effects of the medication she was receiving and consented to the treatment. It was on 10 December that the managers of the hospital sent a letter to the appellant indicating that they had considered the reports relating to the renewal of her detention and had decided not to discharge her. On 30 December 1997, her leave was made seven days a week to be renewed weekly.
After she had been granted leave to make her application for judicial review and her application for habeas corpus had been adjourned on 17 March 1998, on 23 March 1998 she took amphetamines and returned to hospital suffering from a drug-induced psychosis and was then reclassified as suffering from mental illness as well as a psychopathic disorder. At the end of May 1998 she inflicted serious injuries upon herself and since that time she has remained as an inpatient of the hospital.
Mr Gledhill accepts that at the present time, if an application was to be made to detain her under section 3 of the Act, it would not be possible to show that the order was without lawful foundation. He disputes that this was the position on 11 November 1997, when Doctor Taylor completed Form 30, and on 2 December 1997, when the section 3 order was due to come to an end if not renewed. However even if Mr Gledhill is correct in his submissions, in reality, there is no question of the appellant being released. From the practical point of view the significance to her of the outcome of this appeal is the difference in the length of the period which can elapse before the authority for her detention has to be renewed (6 months in the first instance and 12 months thereafter) and when the question of her release can be referred to a Mental Health Review Tribunal.
In his affidavit, Dr Taylor, in addition to confirming the correctness of the statements contained in Form 30 of 11 November 1997, states that the appellant consented to her treatment by medication throughout, she underwent screening of her urine for illicit drugs, and she attended as an inpatient occupational therapy service and an art therapy group. He indicates that she was involved in a "care programme approach" which involved seeking to reintroduce her into the community gradually under supervision, given the potential risks she represented to the community and the long term nature of her condition. He states that he considers she requires this treatment until such time as he is satisfied that she is able to return to live in the community with the degree of support which he considers she requires to avoid damage to her own health and to protect the safety of other persons.
The Statutory Framework
In order to determine whether the appellant is lawfully detained, the respondents have first to establish that she was lawfully detained under section 3 of the Act on 3 June 1997. Section 3 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 subsection (2) above are complied with; and each such recommendation shall include—
(a) such particulars as may be prescribed on the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (b) of that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate."
In the appellant's case she was suffering from psychopathic disorder and so the treatment had to meet...
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