Lewis v Gibson (MH as Interested Party)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LADY JUSTICE SMITH,LORD JUSTICE WALL |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 587 |
| Docket Number | Case No: B1/2004/1704/CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2005 |
[2005] EWCA Civ 587
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TELFORD COUNTY COURT
HIS HONOUR JUDGE MITCHELL
TF300860
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Smith and
Lord Justice Wall
Case No: B1/2004/1704/CCRTF
Ms B Lang QC & Ms M McDonald (instructed by Messrs Sharrats) for the Appellant
Mr S Cragg (instructed by Borough of Telford & Wrekin Legal Services) for the Respondent
Ms K Markus (instructed by Bindman & Partners) for the Interested Party
Brenda Lewis, with the permission of my lord Wall LJ, appeals the judgment of His Honour Judge Mitchell given in the Telford County Court on 22 nd July 2004. By his judgment he confirmed an interim order made on the 31 st July 2003 displacing Brenda Lewis as nearest relative to her daughter M under the provisions of Section 29 of the Mental Health Act 1983. That brief summary requires some elaboration.
M is 34 years of age having been born on the 9 th December 1970. She suffers from Down's syndrome and has inevitably imposed great burdens and responsibilities on her parents. Between her birth and the 31 st January 2003 she was in the care of the appellant. Her father has given her much support and has continued to see her regularly since the breakdown of her parents' marriage. Concerns as to M's welfare arose in 2000 and, on the 1 st March 2001, a case conference was convened to consider whether the Local Authority, the Borough of Telford and Wrekin, should intervene by taking legal action.
At a case conference on the 30 th January 2002 there was some discussion of an application under Section 135 of the Mental Health Act 1983 in the light of the fact that the appellant had referred to euthanasia, not as a direct threat but as a last resort.
On the 25 th July 2002 a case conference concluded that M did not then meet the criteria within Section 1 of the Mental Health Act. It resolved to seek a medical opinion from M's psychiatrist, Dr Langton, and then to seek counsel's opinion.
The evidence as to developments in the second half of 2002 is partially disputed. The proper interpretation of those facts that are not in contention is also disputed. However an objective reading of the available material clearly suggests that there had been significant deterioration in M's wellbeing and conduct, that the appellant was at the end of her tether and that, without active intervention, there might be a tragic outcome. On the 31 st January 2003 a warrant was executed under Section 135 and M was removed by the police with the attendance of Dr Langton, M's social worker, Mrs Bannister and an approved social worker, Mr Jones. M was admitted to Shelton Mental Hospital under Section 2 of the Mental Health Act. The appellant's endeavour to obtain a discharge under Section 23 was obstructed by a report under Section 25(1)(b) from the responsible medical officer, the effect of which was that no further application for discharge could be made for 6 months.
It was on the 27 th February 2003 that the local authority applied under Section 29 in the Telford County Court to displace the appellant as nearest relative. It is easy to understand the basis of the application. M's removal destroyed any hope of collaboration between the local authority and the appellant. A consequence of the application was that the Section 2 order, which was due to expire, was, by operation of Section 29(4), extended. However there was a referral of the case to a Mental Health Review Tribunal by the Secretary of State under the terms of Section 67 of the Act. However the Tribunal refused the application for M's discharge on the 26 th March 2003. On the 20 th May 2003 judicial review of that decision was sought on behalf of M on a number of grounds.
The local authority's application of the 31 st July for an interim displacement order succeeded in the absence of the appellant on the 1 st August and allowed the local authority to assume guardianship on the 11 th August 2003. That was for six months and further guardianship renewals were intermittently made, the last being of twelve months'duration from August 2004. That therefore establishes M's current guardianship.
The mother's claim for judicial review was dismissed by Silber J on the 21 st January 2004 but his judgment was set aside by this court on the 3 rd December 2004: see R(H) v Secretary of State for Health [2004] EWCA Civ 1609 [2005] 1 WLR 1209.
The applicant's application for a substantive order displacing the appellant as nearest relative was the subject of a three-day hearing on oral evidence in the Telford County Court in June 2004. Before the court there were a number of written statements and reports. The local authority called four witnesses including Dr Langton and Mrs Bannister. The appellant's oral evidence was supplemented by the oral evidence of her former husband and of Mr Hargreaves, an expert consultant in social work with particular experience of Down's syndrome cases. Judge Mitchell's reserved decision was handed down on the 22 nd July. The mother's notice of application was filed with this court on the 5 th August and was the subject of orders made by my lord, Wall LJ, including the grant of permission to which I have already referred.
Although none of the parties to this appeal has sought to file additional evidence, we have been informed by counsel of practical arrangements that are in place following M's move on the 1 st November 2004 to a special placement some thirty miles from the appellant's home town of Telford. M's placement is achieved under Section 21 of the National Assistance Act 1948. In her current home there is accommodation for only four persons. Presently there are only two in the home with a very high ratio of staff to patients. Broadly speaking M appears to be thriving, although we were told that during the course of a recent review of her present placement and future needs, she reverted to intermittent challenging outbursts.
Before recording the rival submissions it is convenient to set out the essential statutory provisions.
First I set out below so much of Section 29 as is directly applicable to the present appeal:—
"29 (1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient's nearest relative and is willing to do so.
(a) ………….
(b) …………
(c) an approved social worker;
(3) An application for an order under this section may be made upon any of the following grounds, that is to say—
(a) ………….
(b) ………….
(c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; or…"
Equally I set out below so much of Section 7, which deals with applications for guardianship, as is relevant to the present appeal:—
"7 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.
(1) A guardianship application may be made in respect of a patient on the grounds that—
(a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is 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."
That leads to Section 1 from which it is necessary to include the definition of severe mental impairment:—
"1 (2) "severe mental impairment" means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and "severely mentally impaired" shall be construed accordingly;"
Finally I cite the relevant provisions of Section 8 which demonstrate the extremely limited nature of the statutory powers conferred on the guardian:—
"8 (1) Where a guardianship application, duly made under the provisions of this Part of 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 social worker or other person so specified."
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R (Holloway) v Oxfordshire County Council and Others
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M.H. v. United Kingdom (Secretary of State for the Department of Health) et al., [2005] N.R. Uned. 177
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