Derbyshire Health Care NHS Trust v Secretary of State for Health and Social Care

Hearing dates: 31 October and 1 November 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

The claimant is a hospital trust. It brings these proceedings under Part 8 of the CPR, seeking declarations as to the meaning of particular provisions in the Mental Health Act 1983 (“the 1983 Act”). The provisions in question contain pre-conditions for the lawful imposition of restrictions on the liberty of a person who has or may have a “mental disorder”, defined in section 1 of the 1983 Act as “any disorder or disability of the mind”.

THE DECLARATIONS SOUGHT

The declarations sought are as follows:-

“1. The responsible clinician is not required to undertake a face-to-face examination of the patient before making a community treatment order (“CTO”) under section 17A(1);

2. The word “examine” in section 20A(4) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the community patient by the responsible clinician before the latter extends the CTO may be sufficient; and/or

3. The word “examine” in section 20(3) and (6) should not be interpreted as meaning a face-to-face examination, so that a remote examination of the patient by the responsible clinician before the latter renews the authority for detention for hospital treatment of a patient under section 3 or guardianship in the community under section 7, may be sufficient.”

THE MENTAL HEALTH ACT 1983

It is necessary to refer in some detail to the provisions of the 1983 Act.Section 1(1) explains that the Act has effect with respect to the reception, care and treatment of mentally disordered patients, the management of their property and other related matters.Section 1(2) defines “mental disorder” as “any disorder or disability of the mind”, such that “mentally disordered” is to be construed accordingly.

Section 2 concerns admission for assessment. A person (“P”) may be admitted to a hospital and detained there for a period not exceeding 28 days (except in certain circumstances). The application for admission for assessment can be made on the grounds that P is suffering from mental disorder of a nature or degree that warrants detention in hospital for assessment and that P ought to be detained in the interests of P's own health or safety or with a view to the protection of others.

Section 3 is concerned with admission for treatment. P may be admitted to hospital and detained for the period allowed by the 1983 Act, in pursuance of an application made in accordance with the requirements of section 3. Section 3(2) states that the application must be made on the grounds that P is suffering from mental disorder of a nature or degree which makes it appropriate for P to receive medical treatment in hospital and that it is necessary for P's health or safety or the protection of others that P should receive that treatment, which cannot be provided unless P is detained and provided with appropriate medical treatment.

Section 3(3) provides that admission for treatment is founded on the written recommendations in prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions of section 3(2) are complied with.

Section 5 contains provisions concerning an application for admission in respect of a patient who is already in hospital as an inpatient.

Section 6 explains what the effect is of an application or admission duly completed in accordance with the provisions of Part II of the 1983 Act. The application is sufficient authority for the applicant or any other person authorised by the applicant to take P and convey P to hospital. Where P is duly admitted to hospital, the application is authority for the hospital managers to detain P there in accordance with the provisions of the Act.

Section 7 concerns an application for guardianship. If P has attained the age of 16, P may be received into guardianship for the period allowed by the Act, in pursuance of a guardianship application made in accordance with section 7. Section 7(2) provides that the application may be made on the ground that P is suffering from mental disorder of a nature or degree that warrants P's reception into guardianship and that it is necessary in the interests of P's welfare or the protection of other persons that P should be so received. Section 7(3) provides that the guardianship application is to be founded on the written recommendations of two registered medical practitioners.

Section 8 concerns the effect of a guardianship application etc. Where a duly made guardianship application is forwarded to the local social services authority, within the period allowed by section 8(2), and is accepted by that authority, the application shall confer on the authority or person named in the application as guardian, certain exclusive powers; namely, to require P to reside in a place specified; to require P to attend at places and times specified for the purpose of medical treatment, etc; and to require access to P to be given, at any place where P is residing, to any registered medical practitioner, approved mental health professional or other person so specified.

Section 11 deals with general provisions as to applications for admission for assessment, admission for treatment and guardianship.Section 11(5) provides that none of the applications in question are to be made by any person in respect of P “unless that person has personally seen” P within a period of 14 days ending with the date of the application.

Section 12 provides that the recommendations required for the purposes of an application for admission of P under Part 2 or a guardianship application must be signed and must be given “by practitioners who have personally examined the patient either together or separately…”.Section 12(2) provides that, of the medical recommendations given for the purposes of any such application, one is to be given “by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder”. Additionally, unless that practitioner “has previous acquaintance with the patient”, the other recommendation “shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance”.

Sections 17A to 17G were inserted into the 1983 Act by the Mental Health Act 2007. The sections concern community treatment orders (described above and hereafter as CTOs).Section 17A provides that the “responsible clinician may by order in writing discharge a detained patient from hospital subject to his being liable to recall in accordance with section 17E…”. The responsible clinician is not to make a CTO unless in their opinion the relevant criteria are met and an approved mental health professional states in writing that they agree with that opinion and that it is appropriate to make the order. The relevant criteria, defined in section 17(5), broadly reflect the criteria in section 3, adapted so as to provide for recall.Section 17A(6) provides:-

“(6) In determining whether the criterion in subsection (5)(d) above is met [viz. the power of recall], the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).”

Section 17B provides that a CTO shall specify conditions to which P is to be subject while the CTO remains in force.Section 17B(3) specifies conditions to be imposed in all CTOs. These are that P makes themself available for examination under section 20A; and that, in certain circumstances, P makes themself available for examination so as to enable a Part 4A certificate to be given.Section 17B(2) confers a power to specify other conditions if the responsible clinician, with the agreement of the approved mental health professional, thinks them necessary for certain specified purposes concerning P's receiving medical treatment, preventing risk of harm to P and protecting other persons.Section 17B(6) provides that if P fails to comply with a condition under section 17B(2), that fact may be taken into account for the purposes of exercising the power of recall.

Section 17C deals with the duration of a CTO. A CTO remains in force until expiry of the period mentioned in section 20A(1) (as extended under any provision of the Act), but subject to sections 21 and 22.

Section 17E makes provision for the power of recall to hospital. A responsible clinician may recall P to hospital if, in the opinion of the...