Northampton Health Authority v The Official Solicitor and the Governors of St Andrews Hospital
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NOLAN,SIR MICHAEL FOX |
| Judgment Date | 13 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0513-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 May 1993 |
| Docket Number | No. FAFM1 92\1609\F |
[1993] EWCA Civ J0513-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION (PRINCIPAL REGISTRY)
(Mr. Justice Thorpe)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Nolan and Sir Michael Fox
No. FAFM1 92\1609\F
MR. D. SWEETING (instructed by Messrs. Beachcroft Stanleys, London EC4) appeared on behalf of the Appellant.
MISS J. PARKER Q.C. (instructed by Messrs Hewitson Becke & Shaw, Northampton) appeared on behalf of the Official Solicitor (The First Respondent).
MISS B. CAMERON (instructed by Messrs Twitchen Musters & Kelly, Southend-on-Sea), appeared on behalf of the Second Respondent.
(As approved)
THE MASTER OF THE ROLLSThis is an appeal against the judgment of Mr. Justice Thorpe, given on 19th November 1992. He then ordered that the Northampton Health Authority should pay half the costs of the Official Solicitor in proceedings before him. His order was an unusual one because the Health Authority was not a party to the proceedings in which the Official Solicitor's costs were incurred. The judge considered the case to be one in which it was appropriate to make an order for costs against a non-party to the proceedings and it is not contended that he lacked jurisdiction to make such an order. The Heath Authority, however, challenges the appropriateness of the order on the facts before the judge and contends that the costs should have been ordered to be paid by St. Andrew's Hospital. The Hospital seeks to uphold the judge's order against the Health Authority as a correct and unassailable exercise of discretion but, in the alternative, argues that the Official Solicitor should bear his own costs. That is, I observe, an argument which was not addressed to the judge and is not the subject of a respondent's notice. The Official Solicitor says that he should have these costs against either the Health Authority or the Hospital and is not particularly concerned which, although the application was originally made against the Hospital and it was at the instance of the learned judge that the order was made against the Health Authority.
The fact that the appeal concerns only part of the Official Solicitor's costs does not reflect any criticism of the Official Solicitor's conduct in these proceedings. It springs from the fact that the learned judge made an order in respect of half the Official Solicitor's costs and the Official Solicitor has not sought to challenge that part of the order.
It appears to me that three questions arise for consideration in this case. The first is, whether in all the circumstances it was appropriate for the judge to make any order for costs in favour of the Official Solicitor. The second question is whether, if so, he was entitled to make the order that he did against the Health Authority. The third question is, whether if not any other order should be made and if so what it should be.
This appeal is brought with the leave of the learned judge so that the Court of Appeal's jurisdiction is not restricted by Section 18(1)(f) of the Supreme Court Act 1981. That does not, of course, mean that the Court of Appeal is free to exercise its own discretion without regard to the exercise of discretion by the judge. It is made plain by Findlay v. Railway Executive [1950] 2 AER, 969 and Alltrans Express Limited v. C.V.A. Holdings Limited [1984] 1 WLR, 394, that although the Court enters into its task with less hesitation where leave has been given it will not interfere with the learned judge's exercise of discretion, save on familiar grounds. That is, the challenger has to demonstrate an error of law, or principle, or persuade the Court of Appeal to the conclusion that the judge has exercised a discretion which was plainly wrong and must have been reached by a faulty assessment of the factors or the weight to be given to the factors properly to be taken into account.
The facts of this matter can be taken from an extremely helpful and expert summary given by Mr. Justice Thorpe in the course of an earlier judgment on 10th September 1992. I take the facts from him. The Hospital is an independent trust operating outside the National Health Service. Among other facilities, it has two secure units, one of them named "the
John Clare unit". That unit is under the charge of a Consultant Psychiatrist named Dr. Burnett. It specialises in handling cases of highly disturbed adolescents, generally committed either under the Mental Health Act or under Secure Accommodation Orders. The John Clare unit is a highly specialised unit, offering treatment which is not to be found elsewhere in this country. It accepts referrals from all over England and Wales and elsewhere and assists local authorities who have statutory responsibilities in relation to unmanageable adolescents.
The admission of patients to the unit is preceded by careful exploration, and the local authority and the family concerned are invariably invited to visit the unit before any decision is taken on admission. As one would expect, the unit has internal memoranda governing the manner in which its treatment is administered.
Relevant for present purposes is paragraph 7 of the current memorandum which, having referred to emergency incidents involving conduct which is dangerously
self-destructive or combative and requires staff intervention, continues as follows:
"Staff will always try to prevent such incidents reaching a crisis point and will endeavour to use other less restrictive interventions to alleviate the problem. However, in the event of a situation where the young person is at serious risk of self harm and/or harming others, and other alternative approaches have been attempted and have failed to manage the difficulty, then nursing staff must contact the consultant psychiatrist on duty for authorization for the use of emergency medication. After such authorization is given, then the young person will be asked to take the medication orally and only if that request is refused may intra-muscular injection be given. The medication used is carefully selected by the consultant psychiatrist to minimise unwanted effects. Any such use is very carefully recorded. Were it is possible to inform parents in advance, that opportunity would be taken. Certainly parents are always informed as soon as possible after the crisis."
Before admitting a patient to treatment the unit requires a written consent from the relevant parent and/or the local authority to the regime adopted by the unit, including the emergency use of medication under the paragraph which I have just recited. The evidence a doctor relayed to the judge was that a patient would not be admitted to the unit unless such consent had been given.
It appears that in the course of 1991 one or two adolescents who had received treatment at the John Clare unit made complaints concerning, in particular, alleged interruption of their home visits by the Hospital authorities. In one instance there was also a complaint relating to the administration of emergency medication. As a result of these complaints a committee was set up by the Health Authority to investigate and report on the practices in the unit, the report being intended not only for the Health Authority but also for the Department of Health. It appears quite clearly from the material before us that the investigation was indeed prompted by the Department of Health and when at an interim stage the committee found its terms of reference unduly restricted, those terms of reference were expanded to enable the committee to consider and report on questions concerning consent to treatment.
It was in that way that the committee in pursuit of its investigation visited the John Clare unit and informed itself of how matters were being handled there.
On 10th July, the draft report of the committee was informally released to the Hospital. The whole document is before us and it is quite a substantial draft report. It begins with a summary of recommendations and it is there apparent that the recommendations are divided between recommendations described as "for the Department of Health" and recommendations described as "for St. Andrew's Hospital". It was under the first head that the summary included a recommendation concerning emergency treatment. The effect of that recommendation was that the law regarding consent to treatment for minors, and particularly minors suffering mental disorder, appeared to be complex and up to a point confusing. The committee accordingly recommended that the Department of Health should take steps to clarify the position and give guidance to those responsible for such treatment and added the comment:
"At the moment practising clinicians would be wise in the circumstances of doubt, in conjunction with the hospital's legal advisers, to apply for a ruling in the form of a section 8 order under the Children Act 1989."
The summary of recommendations was, as one would expect, followed in the report by a much more detailed consideration of various issues and chapter 8 was devoted exclusively to the question of consent to treatment. That chapter contains quite a detailed discussion, both of the case law and the statutory background to the treatment of minors. It reviews the question of emergency treatment. At the end of that section under the heading "Recommendations" one finds in paragraph 8.17 the following:
"The law as regards consent for...
To continue reading
Request your trial
-
Susan Glover v Iain Paul Barker
...51 of the 1981 Act “gives the trial judge an unfettered discretion over costs”. In Northampton Health Authority v Official Solicitor [1994] 1 FLR 162, Bingham MR endorsed a passage from an unreported judgment of Sheldon J in which he had summarised the law as follows: “In my judgment, howev......
-
Re Capita Translation and Interpreting Ltd
...EWCA Civ 67, [2001] 1 BCLC 468. Northampton Area Health Authority v Official Solicitor and Governors of St Andrews Hospital[1994] 2 FCR 206, [1994] 1 FLR 162, Palmer v Palmer[2008] EWCA Civ 46, [2008] Lloyd’s Rep IR 535. Phillips v Symes [2004] EWHC 2330 (Ch), [2005] 4 All ER 519, [2005] 1 ......
-
HB v PB
...discretion in family cases to make orders against non-parties (other than lawyers). The cases of Northampton Health Authority v The Official Solicitor and the Governors of St Andrews Hospital [1994] 1 FLR 162 [1994] 1 FLR 162 and Sarra v Sarra [1994] 2 FLR 880 (neither of which are in fact ......
-
Capita Translation and Interpreting Ltd
...pressed by the local authority (see para 49) with the proposition, derived from the decision of the Court of Appeal in Northampton Health Authority v Official Solicitor [1994] 1 FLR 162, 170, that a non-party should be ordered to pay costs only if he "is so closely connected with, or respon......
-
Hidden Law‐Making in the Province of Medical Jurisprudence
...[19], [21],[82] (Lord Phillips). See further below.119 Northamptonshire HA vOfficial Solicitor and Governors of St Andrew’s Hospital [1994] 1 FLR 162.Similarly, in the context of advance directions, see Ms B vAn NHS Hospital Trust [2002] EWHC429 (Fam) at [99] (Dame Butler-Sloss).Jonathan Mon......