David Routley (Appellant Plaintiff) v Worthing Health Authority (1st Defendant) Brian Hunt Vawdrey (Sued as Dr. B. H. Vawdrey) (2nd Defendant) John Herbert Lewis (Sued as Dr. J. H. Lewis) (3rd Defendant) West Sussex County Council (4th Defendant) Alan John Plaster (Sued as A. Plaster) (5th Defendant) Chichester Health Authority (6th Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN |
| Judgment Date | 14 July 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0714-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0315 |
| Date | 14 July 1983 |
[1983] EWCA Civ J0714-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, BRIGHTON DISTRICT REGISTRY
MR. JUSTICE WOOD
Royal Courts of Justice
Lord Justice Dunn
Lord Justice Slade
83/0315
MR. M. C. W. HALL-SMITH (instructed by Messrs. Malcolm Wilson & Cobby, Lancing, West Sussex) appeared for the Appellant Plaintiff.
MR. J. WILLIAMS (instructed by Messrs. Hempsons) appeared for the 2nd and 3rd Defendants (Respondents).
MR. M. J. CURWEN (instructed by Messrs. Woolley Bevis & Diplock, Brighton, East Sussex) appeared for the 4th and 5th Defendants (Respondents).
This is the judgment of the court on an adjourned application for leave to appeal against an order of Wood J. whereby, on 18th January 1983, he dismissed the intended plaintiff's application for leave under section 141 of the Mental Health Act 1959 (the Act) to institute proceedings against the intended defendants. Goff L.J., in adjourning the application, directed that, if leave were granted, the court would proceed immediately to hear the appeal. So, effectively, the appeal has been fully argued on the application.
On 17th July 1981 the plaintiff was admitted to Graylingwell Hospital pursuant to section 26 of the Act, and discharged 18 days later. He was then 22 years old. He says that, as a result of the admission, he failed to complete the application forms for admission to a Polytechnic in due time, so that his education was delayed. He further claims to have suffered mental anguish while detained at the hospital. He seeks to bring proceedings against the defendants for false imprisonment and negligence, alleging that the provisions of the Act were not complied with.
Section 141 of the Act provides a defence to such proceedings. Sub-section (1) provides: "No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act…unless the act was done in bad faith or without reasonable care. (2) No civil or criminal proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care."
Three types of admission are provided for under the Act. Section 25 provides for admission for observation; section 29 provides for admission for observation in case of emergency; and section 26, under which the application for admission was made in this case, provides for admission for treatment.
Section 26 so far as material is in the following terms:
"(1) A patient may be admitted to a hospital, and there detained for the period allowed by the following provisions of the Act, in pursuance of an application (in this Act referred to as an application for admission for treatment) made in accordance with the following provisions of this section. (2) An application for admission for treatment may be made in respect of a patient on the grounds—(a) that he is suffering from mental disorder being—(i) in the case of a patient of any age, mental illness or severe sub-normality;…and that the said disorder is of a nature or degree which warrants the detention of the patient in a hospital for medical treatment under this section; and (b) that it is necessary in the interests of the patient's health or safety or for the protection of other persons that the patient should be so detained. (3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in paragraphs (a) and (b) of sub-section (2) of this section are complied with;".
Section 27 so far as material provides: "(1) Subject to the provisions of this section, an application for the admission of a patient for observation or for treatment may be made either by the nearest relative or the patient or by a mental welfare officer; and every such application shall be addressed to the manager of the hospital to which admission is sought and shall specify the qualification of the applicant to make the application. (3) No application for the admission of a patient shall be made by any person unless that person has personally seen the patient within the period of 14 days ending with the date of the application."
Section 28 (1) provides: "The recommendations required for the purposes of an application for the admission of a patient under this Part of this Act (in this Act referred to as "medical recommendations") shall be signed on or before the date of the application, and shall be given by practitioners who have personally examined the patient either together or at an interval of not more than seven days.'
Section 31 gives the managers of the hospital power to act on an application for the admission of a patient which appears to be duly made and to be founded on the necessary medical recommendations, by detaining him for the period appropriate to the nature of the application, subject to his right to apply to a Mental Health Review Tribunal.
Section 32 provides for the rectification within 14 days of the admission of the patient to hospital of applications and recommendations.
Section 43 provides that a person admitted under section 26 may be detained in a hospital for a period not exceeding one year, unless the authority is renewed under the provisions of that section.
Section 47 provides that an order for discharge may be made in respect of a patient at any time inter alia by the responsible medical officer who is defined as meaning the medical practitioner in charge of the treatment of the patient (section 59(1)).
Section 54(1) is in these terms: "It shall be the duty of a mental welfare officer to make an application for admission to hospital…in respect of a patient within the area of the local authority by whom that officer is appointed in any case where he is satisfied that such an application ought to be made and is of opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him."
The maximum period of detention under sections 25 and 29 are 28 days and 72 hours respectively.
The three authorities, cited to the judge and binding on this court, show that, on an application for leave under section 141(2): (1) the court does not confine itself to an examination of the plaintiff's evidence to see whether his contention is made out. It must also look at and analyse the evidence of the defendant by way of answer, to see whether the defendant's evidence robs the plaintiff's contention of substantial ground. Only if the analysis shows that there is substantial ground for the contention ought leave to be given. ( Buxton v. Jayne (1960) 1 W.L.R. 783 per Devlin L.J. 793; Carter v. Commissioner ofPolice for the Metropolis (1975) 1 W.L.R. 507per Cairns L.J. 513 and Lawton L.J. 514).
(2) It is not enough for the plaintiff to show that the order was made without jurisdiction; he must show that there is substantial ground for the contention that the defendants had acted in bad faith or without reasonable care. ( Richardson v. L.C.C. (1957) 1 W.L.R. 751).
(3) If the defendants have, in good faith, misconstrued the statute in a way in which a reasonable person who is not a lawyer could have construed it, it cannot be said that the defendants have acted without reasonable care. ( Richardson v. L.C.C. supra; Shackleton v. Swift (1913) 2 K.B. 304).
The judge, having read the above authorities, refused the application without giving any reasons.
The main ground of the appeal in this case is that the affidavits of the defendants themselves show that Dr. Vawdrey, a consultant psychiatrist, had signed the recommendation for admission without personally examining the plaintiff as required by section 28(1), had acted without reasonable care in accepting the history of the plaintiff's condition given by the plaintiff's father, and had not applied his mind to the question whether the plaintiff was indeed suffering from mental illness or severe abnormality. It was said that Dr. Lewis, the plaintiff's G.P., also signed the recommendation without personally examining the plaintiff, and acted without reasonable care in failing to exercise an independent judgment as to whether or not the plaintiff was suffering from mental illness, and in accepting without question the opinion of Dr. Vawdrey that he was. The case against Mr. Plaster, the mental welfare officer, was that he signed the application for admission without having seen the plaintiff within 14 days ending with the date of the application, as required by section 27(3) of the Act, and that he failed to exercise reasonable care in that there was insufficient evidence upon which he could be satisfied that an application under section 26 ought to be made. The West Sussex County Council are parties to the application as the employers of Mr. Plaster.
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