Buxon v Jayne
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD |
| Judgment Date | 19 May 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0519-2 |
| Date | 19 May 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0519-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod and
Lord Justice Devlin
MR. JOHN WILLMERS (instructed by Mr. Kenneth Goodacre, Guildhall, Westminster, London, S.W. 1) appeared for the Appellant, Mr. Eric Mr. Jayne, Defendant below.
Mr. M. D P. CROOM-JOHNSON, Q.C., and MR. GORDON HARDY; (instructed by Messrs. Brecher & Co. Hayes, Middlesex) appeared for the Respondents, Plaintiffs below.
This is an appeal by Eric M. Jayne against an order of Mr. Justice Thesiger made on the 21st January, 1960, whereby he gave leave to the respondents, under Section 16 of the Nertal Treatment Act of 1930, to institute an action against the appellant Eric M. Jayne and against the South West Middlesex Hospital Management committee. There is no appeal by the Hospital Management Committee.
The complaint against the appellant relates to his conduct in removing the proposed plaintiff Annie Buxton to a mental hospital in purported pursuance of the provisions of section 20 of the Lunacy Act 1890, the appellant being at the tine a duly authorised officer of the local health authority. The section reads as follows:— "If a duly authorised officer of the local health authority or any constable is satisfied that it is necessary for the public safety or the welfare of a person alleged to be of unsound cine!. with regard to whom it is his duty to take any proceedings under this Act, that the said person should, before any such proceedings are taken, be placed under care and control, the officer or constable may remove the said person to any hospital or part of a hospital vested in the Minister (whether a mental hospital or not) which is designated by the Minister for the purposes of this section, and the person in charge of the said hospital or part shall receive and detain the said person therein, but no person shall be detained under this section for more than three days."
It is to be observed that before the duly authorised officer can act there must be a person alleged to be of unsound mind with regard to whom it is his duty to take any proceedings under the Act and he, the officer, must be satisfied that it is necessary for the public safety or the welfare of that person, that such person should be placed under immediate care and control. In considering who is a person with regard to whom it is the duty of the officer to take proceedings under the Act, regard must be had to sections 14 end 15. It is unnecessary to consider section 15 here as it deals with matters outside the scope of this appeal. Section 14 is as follows:— "1. If a duly authorised officer of the local health authority — (a) has reasonable ground for believing that a person in the area of the authority is a person of unsound mind and a proper person to be sent to a mental hospital; and (b) is satisfied that he is not under proper care and control, or that there are no relatives or friends who intend and are able to take proceedings by petition for a reception; order under the foregoing provisions of this Act: he shall, within three days, give notice thereof to a justice having jurisdiction in the place where the said person is."
It follows therefore that before the provisions of section 20 can come into operation the duly authorised officer must (l) have reasonable ground for believing that a person is of unsound mind and a proper person to be sent to a mental hospital and (2) be satisfied that he is not under proper care and control.
Section 330 of the Lunacy Act 1890 , as amended by section 16 (l) of the Mental Treatment Act 1930 is as follows:— "330. Protection to persons putting the Act in force, — (l) Where a person has presented a petition for a reception order, or signed or carried out, or done any act with a view to signing or carrying out, an application, recommendation, or certificate purporting to be a report, application, recommendation, or certificate under this Act, or any Act amending this Act, or has done Anything in pursuance of this Act, or any Act amending this Act, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad faith or without reasonable care. (2) No proceedings, civil or criminal shall be brought against any person in any court in respect of any such matter as is mentioned in the last preceding subsection, without leave of the- High Court, and leave shall not be given unless the Court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care."
It will be seen that leave will not be given unless the court is satisfied that there is substantial ground for the contention that the person against whom it is sought to bring the proceedings, in this case the duly authorised officer, has acted in bad faith or without reasonable care. There is no suggestion here of bad faith, and the question therefore which the learned Judge had to decide, and which he decided in the affirmative, was whether there was substantial ground for the contention that the appellant had acted without reasonable care.
It is clear from the authorities that under section 20, it is only necessary that the duly authorised officer should be honestly satisfied that it was necessary for the public safety or the Plaintiff's welfare that she should be removed to a place of safety, it is not necessary that there should be reasonable grounds for his opinion. See Harward v. Guardians of the Poor of the Hackney Union (1896) 14 Times Law Reports 306. But that is not the position under section 14. Under that section the officer must have reasonable ground for believing that the Plaintiff is a person of unsound mind and therefore the question has to be considered whether he acted with reasonable care.
It was contended on behalf of the respondent that there could be no reasonable ground on the evidence before the Court for belief that she was of unsound mind, and in these circumstances there was substantial ground for the contention that the appellant had acted without reasonable care. The evidence before the Court was contained in a number of affidavits sworn by Mr. and Mrs. Buxton and their daughter and by the appellant and Dr. Singer and his wife. Dr. Singer was at the relevant time the medical attendant to Mr. and Mrs. Buxton. It appeared from the affidavits that Mrs. Buxton was a woman of 57 years of age, living with her husband and family at 21, Glamis Crescent, Hayes. It is clear that at the end of the year 1958 there were unfortunate differences between Mrs. Buxton and her son. The son was determined to marry a girl regarded by Mrs. Buxton as unsuitable. As a result of these differences of opinion and consequent arguments there is no doubt that Mrs. Buxton became emotionally upset, and on Tuesday 6th January 1959 Mr. Buxton called in Dr. Singer who examined Mrs. Buxton and prescribed rest in bed and sleeping tablets. It appears from the affidavits that the sleeping tablets were not very effective and on the following nights Mrs. Buxton slept restlessly. Matters came to a head on the following Saturday morning when according to the evidence of Mrs. Buxton after a perfectly normal night she had a further dispute with her son at about 8.30.a.m. As a result she was very much upset, and she cried for a time and faint so that her son telephoned for Dr. Singer to come. He was unable to come at once, but about 11 a.m. Mr. Jayne arrived and according to Mrs, Buxton produced 'some kind of warrant card' and insisted that she should go to hospital, she protested that she did not want to go, and eventually Mr. Jayne left the house to return about 12.15 with Dr. Singer. There were further protests but eventually three ambulance men entered the room and she allowed herself to be led outside the house where she was put into an ambulance and taken to the West Hospital, Isleworth and placed in an observation ward. This account as given by Mrs. Buxton is substantially confirmed by her husband and daughter, Mr. Jayne in his affidavit gave his version of what happened that morning. He said that when he went into the room where Mrs. Buxton was, she was "shouting and screaming to such an extent that it was quite impossible to carry on normal conversation with her. She was obviously greatly disturbed and acting in a quite abnormal manner and was highly excited". Later, speaking of her removal to hospital, he said 'It is quite clear to me that for her own protection this was the only sensible and proper step as Mrs. Buxton could there be looked after, whereas at home she clearly could no longer be looked after properly. I thought that she was in real danger unless she were removed to somewhere where proper care could be given to her'
There were a number of matters in the affidavits of Mr. Jayne and Dr. Singer which were disputed by Mr. Buxton. Mr. Jayne said that he explained the procedure to Mr. Buxton who was quite satisfied that the course being taken was the right one. He also said that Mr. Buxton told him that the trouble had been going on since 2 a.m. These matters were denied by Mr. Buxton who said that he had had little or no conversation with either Mr. Jayne or Dr. Binger. Dr. Singer in his affidavit said that he saw Mr. Buxton on the Friday and explained to him the necessity of calling in the duly authorised officer, but this Mr. Buxton denied.
The learned Judge formed the view that on the affidavits, without coming to any conclusion as to the truth of the matters in dispute, there was substantial ground for the contention that Jayne had acted without reasonable care. I have come to the...
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