North Dorset Nhs Primary Care Trust and Another v Mr. Timothy Frederick Coombs
| Jurisdiction | England & Wales |
| Judge | JUDGE PLATTS |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] EWHC 521 (QB) |
| Date | 17 February 2012 |
| Court | Queen's Bench Division |
| Docket Number | Case number: TLQ/11/0953 |
[2012] EWHC 521 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Platts
(Sitting as a Judge of the High Court)
Case number: TLQ/11/0953
MR M SPENCER QC and DR T MANGAT (instructed by Moore Blatch) appeared on behalf of the Claimant
MS J RICHARDS QC and MS SCOTT (instructed by DAC Beachcroft) appeared on behalf of the Defendants
The claimant in this case was born on 29 August 1957. He has a long history of mental illness. On 30 November 2006 he was detained under section 136 of the Mental Health Act 1983 and was taken to the Forston Clinic in Dorset where he was admitted under section 2. On 18 December 2006 his continued detention was authorised under section 3.
On 27 December 2006 he suffered a serious head injury as a result of the admitted negligence of the defendants. He remained subject to detention under section 3 and is currently contained at Llanbedr Court, a low-secure but locked unit near Newport in Gwent. Judgment has been entered against both defendants on 11 May 2011.
As part of his claim, the claimant contends that he does not need the level of security to which he is subject at Llanbedr Court and he has intimated a claim for the ongoing cost of future care and treatment at whichever institution it is in his best interests to attend.
The defendants do not accept that the claimant needs to or should move from his current placement, which is provided under the National Health Service and is funded by the Bournemouth and Poole Primary Care Trust. However, they have raised an objection in principle, namely that it is not open to any person who is detained under the 1983 Act to pay for his own care or treatment. If that proposition is correct then a substantive part of the claimant's claim against the defendants will fail.
The dispute was identified in correspondence at an early stage and so on 25 May Master Yoxall ordered a trial of this preliminary issue:
"… whether or not a person detained under a provision of the Mental Health Act 1983 is, as a matter of public policy or otherwise, prevented from paying for his own care/treatment."
There are three points about this issue which became apparent during argument: (1) as it is framed, the issue is of general application and relates to the rights of all persons detained under the Mental Health Act. It is not framed with reference to the factual background of this case or to personal injury claims as a whole. The issue of whether or not such costs, if they can be incurred, are reasonably incurred, or whether they are recoverable from a tortfeasor is not before me. (2) As will be seen, there are different ways a person can have his liberty restricted under the Act, most importantly by civil detention under Part II, or by the criminal courts under Part III. The issue as framed does not distinguish between the different reasons for detention. (3) Although in this case the claimant is a protected party and has a deputy appointed under the Mental Capacity Act 2005, there will be many patients detained who have the legal capacity themselves to make decisions that are relevant to the issues in this case. I shall address all of those points during the course of this judgment.
The defendants' argument is put in three ways, which are related, if not three different ways of putting the same point: (1) it is said that the payment by a detained patient for his own care and treatment is fundamentally inconsistent with the scheme and nature of the 1983 Act; (2) it is said that the right to make such a payment is necessarily or by implication excluded by the Act; and (3) it is said that payment should not be permitted as being contrary to public policy.
The claimant on the other hand argues that there is no good reason why the detained patient should be any different from any other patient and therefore be free to pay for his treatment if he wishes, while accepting that as a detained patient he must remain subject to the restrictions of liberty and other controls provided by the Mental Health Act.
The scheme of The Mental Health Act 1983
It is necessary first to go to the scheme of the Mental Health Act in so far as it is relevant. As I have said, there are two broad avenues to compulsory detention: first under Part II, and second under Part III of the Act. Part II detention arises as the result of an application made by two approved mental health professionals. Under Part III, a person is detained by order of a criminal court.
Dealing with Part II first, section 2 provides the detention for a limited period of 28 days for assessment or assessment followed by treatment. Section 3 provides:
"(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that —
(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) [I do not deal with (b)];
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section;
(d) appropriate medical treatment is available for him."
Section 13(1A) imposes a duty upon an approved mental health professional to make an application for the patient's admission under the Act if he is satisfied that such an application ought to be made and that it is necessary or proper to make the application having regard to all the circumstances.
The effect of admission under section 3 is that a patient is taken to a specified hospital, as provided in section 6(1), and the managers of that hospital then have authority to detain him (section 6(2)). The hospital managers have the power to discharge the patient under section 23, or to authorise the transfer of the patient to another hospital under section 19 and regulation 7 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.
By section 34(1) of the Act, a patient's responsible clinician is:
"The approved clinician with overall responsibility for the patient's case."
The responsible clinician has the power under section 17 to grant the patient leave of absence, which may involve leave to reside at another hospital or facility.
Under Part III of the Act, the patient can be ordered to be detained by a criminal court under sections 35 and 36 before sentence and under section 37 following conviction. The requirements for an order under section 37 largely mirror those requirements for detention under section 3. Section 37(2) provides that:
"The conditions referred to in subsection (1) above are that —
(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from a mental disorder and that either —
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
Section 40(4) provides that a patient who is admitted to a hospital in pursuance of a hospital order under section 37 is to be treated as if he had been admitted under section 3. If, when making a hospital order, a higher court considers that it is necessary to the protection of the public from serious harm, it may make a restriction order under section 41 of the Act. If so, the patient will be subject to further restrictions as provided for by section 41(3), in particular he is not liable to be discharged unless by the Secretary of State or the Mental Health Tribunal. The power to grant leave of absence under section 17 or to transfer the patient to another hospital under section 19 can only be exercised with the consent of the Secretary of State.
By section 117 of the Act, once a person is discharged then the local Primary Care Trust and local authorities have a duty to provide aftercare until such time as they "are satisfied that the person concerned is no longer in need of such services."
Finally, in terms of the Act, Part IV deals with the power to administer treatment without the patient's consent. I need say no more about that.
Funding of treatment
As for the funding of the care and treatment of a person detained, the core duty is contained within section 3 of the National Health Service Act 2006, which provides that:
"(1) The Secretary of State must provide … to such extent as he considers necessary to meet all reasonable requirements [a number of things including] —
(a) hospital accommodation,
(c) medical … services,
(e) such other services … the care...
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