Kenneth John Richards (by his Deputy & litigation friend, Anne Minihane) v Worcestershire County Council and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rupert Jackson,Lord Justice Lewison,Lord Justice Hamblen,and |
| Judgment Date | 12 December 2017 |
| Neutral Citation | [2017] EWCA Civ 1998 |
| Docket Number | A3/2016/3451,Case No: A3/2016/3451 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2017 |
[2017] EWCA Civ 1998
Lord Justice Rupert Jackson
Lord Justice Lewison
and
Lord Justice Hamblen
Case No: A3/2016/3451
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Chancery Division, Bristol District Registry
Mr Justice Newey
B30BS221
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Jenni Richards QC & Ms Katie Scott (instructed by Burroughs Day LLP) for the Claimant/Respondent
Mr David Lock QC & Mr Lee Parkhill (instructed by Worcestershire County Council Legal Services) for the Defendant/Appellant
Hearing date: Wednesday 1st November 2017
This judgment is in seven parts, namely:
Part 1 – Introduction
| Part 1 – Introduction | Paragraphs 2 – 11 |
| Part 2 – The facts, actual or assumed | Paragraphs 12 – 31 |
| Part 3 – The present proceedings | Paragraphs 32 – 44 |
| Part 4 – The appeal to the Court of Appeal | Paragraphs 45 – 49 |
| Part 5 – Does this claim contravene the exclusivity principle? | Paragraphs 50 – 68 |
| Part 6 – Did the defendants' non-compliance with section 117 of the Mental Health Act 1983 give rise to a private law claim? | Paragraphs 69 – 84 |
| Part 7 – Executive Summary and Conclusion | Paragraphs 85 – 90 |
This is an appeal by two public authorities against a refusal to strike out the claimant's claim as an abuse of process. The principal point of law which arises for decision is whether (following O'Reilly v Mackman [1983] 2 AC 237) the claimant was entitled to proceed under Part 7 of the Civil Procedure Rules rather than by way of judicial review.
The claimant has suffered a head injury affecting his mental health. He therefore brings this action by his deputy and litigation friend, Ms Anne Minihane.
The first defendant, as its name suggests, is responsible for the delivery of social services in Worcestershire. Both defendants are responsible for delivering after-care services under section 117 of the Mental Health Act 1983 in South Worcestershire. The South Worcestershire Primary Care Trust was the second defendant's predecessor body with this responsibility. Nothing turns on the distinction between those two bodies. Therefore all references in this judgment to the second defendant are to the body which had functions under section 117 at the material time.
In this judgment I shall refer to the Rules of the Supreme Court 1965 (as amended) as "RSC". I shall refer to the Civil Procedure Rules 1998 (as amended) as "CPR". "CPN" is an abbreviation for community psychiatric nurse. I shall refer to Community Care Management Services Ltd (a company based in Shipston-on-Stour, Warwickshire) as "CCMS".
I shall refer to the Mental Health Act 1983 as "the 1983 Act". The provision in the 1983 Act which is central to this appeal is section 117. That provides:
" 117 After-care.
(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and whether or not immediately after so ceasing leave hospital.
(2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject."
The references in that section to "Primary Care Trust" should be taken as references to the local NHS clinical commissioning group with effect from 1 st April 2013.
Between 2002 and 2007 section 25A of the 1983 Act provided:
" 25A Application for supervision.
(1) Where a patient –
(a) is liable to be detained in a hospital in pursuance of an application for admission treatment; and
(b) has attained the age of 16 years,
an application may be made for him to be supervised after he leaves hospital, for the period allowed by the following provisions of this Act, with a view to securing that he receives the after-care services provided for him under section 117 below.
(2) In this Act an application for a patient to be so supervised is referred to as a " supervision application"; and where a supervision application has been duly made and accepted under this Part of this Act in respect of a patient and he has left hospital, he is for the purposes of this Act " subject to after-care under supervision" (until he ceases to be so subject in accordance with the provisions of this Act).
(3) A supervision application shall be made in accordance with this section and sections 25B and 25C below.
(4) A supervision application may be made in respect of a patient only on the grounds that –
(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment;
(b) there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the after-care services to be provided for him under section 117 below after he leaves hospital; and
(c) his being subject to after-care under supervision is likely to help to secure that he receives the after-care services to be so provided.
(5) A supervision application may be made only by the responsible medical officer.
(6) A supervision application in respect of a patient shall be addressed to the Primary Care Trust or Health Authority which will have the duty under section 117 below to provide after-care services for the patient after he leaves hospital.
(7) Before accepting a supervision application in respect of a patient a Primary Care Trust or Health Authority shall consult the local social services authority which will also have that duty."
Section 25B set out the duties of the responsible medical officer who made an application under section 25A. Section 25D enabled the responsible after-care bodies to impose requirements on the patient as to place of residence, attendance at appointments and so forth.
Sections 25A – D of the 1983 Act were repealed on 3 rd November 2008.
Section 7 of the 1983 Act, as amended, provides:
" 7 Application for guardianship.
(1) A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as "a guardianship application") made in accordance with this section.
(2) A guardianship application may be made in respect of a patient of the grounds that –
(a) he is suffering from mental disorder, …of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.
(3) A guardianship application 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 of the grounds for that opinion so far as it relates to the conditions set out in paragraph (a) 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 (b) of that subsection.
…
(5) The person named as guardian in a guardianship application may be either a local services authority or any other person (including the applicant himself); but a guardianship application in which a person other than a local social services authority is named as guardian shall be of no effect unless it is accepted on behalf of that person by the local social services authority for the area in which he resides, and shall be accompanied by a statement in writing by that person that he is willing to act as guardian."
Section 8 of the 1983 Act, as amended, provides:
" 8 Effect of guardianship application, etc.
(1) Where a guardianship application, duly made under the provisions of this Part of this Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person –
(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified."
Having set out the relevant statutory provisions, I must now turn to the facts. Since this is an application to strike out I shall assume, without of course deciding, that the facts pleaded by the claimant are correct.
Part 2 – The facts, actual or assumed
The claimant was...
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