R (Holloway) v Oxfordshire County Council and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 April 2007 |
| Neutral Citation | [2007] EWHC 776 (Admin) |
| Docket Number | Case No: CO/9675/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 April 2007 |
[2007] EWHC 776 (Admin)
IN THE HIGH COURT OF JUSTICE
The Honourable Mr Justice Beatson
Case No: CO/9675/2006
Mr Bowen (instructed by Scott-Moncrieff, Harbour and Sinclair) for the Claimant
Mr Choudhury (instructed by Oxfordshire County Council) for the 1st Defendant
Mr Cragg (instructed by) Capsticks for the 3rd Defendant
Hearing dates: 28 February 2007
Crown copyright©
Beatson J :
The Claimant has suffered from chronic paranoid psychosis since the early 1980s. This has manifested itself in several incidents of serious violence and a conviction for the manslaughter of a fellow patient. He has been compulsorily detained under the Mental Health Act 1983 ("the Act") on several occasions. Before 15 November 2006 the interested party, his mother Jeanne Rance, was his "nearest relative" for the purposes of the Act. This application for judicial review arises as a result of the failure on 1 September 2006 to renew the authority for his compulsory admission to and detention in hospital for treatment under section 3 of the Act.
The challenge is to steps taken to ensure the Claimant remained in hospital after 16 November 2006, when a 72 hour "holding" admission pursuant to section 5(2) of the Act expired. The primary challenges are to an application made without notice on 15 November by Oxfordshire County Council, the first defendant, to displace the Claimant's mother from her status as his "nearest relative" for the purpose of the Act, and to an interim order to this effect made by the second defendant, the Oxford County Court, that day. The application to displace the Claimant's mother was made because she objected to a fresh admission under section 3. As his "nearest relative", her objection precluded admission under section 3: see section 11(4) of the Act. Section 29 of the Act enables an application to be made to displace the nearest relative inter alia on the ground of unreasonable objection to an application for admission for treatment.
The interim order of the County Court authorised the functions of the "nearest relative" to be exercisable by the Claimant's Approved Social Worker, Rachel Griffiths, on behalf of the Council. Having secured the interim displacement of his mother as nearest relative, the Council, also on 15 November 2006, applied for the Claimant to be admitted for treatment under section 3. The Oxford and Buckinghamshire Mental Health Trust, the third defendant, then detained him in the Oxford Clinic. There is a claim against the third defendant in respect of his detention after 16 November 2006. The third defendant has accepted that there was no authority for the Claimant's detention between 1 September and 13 November 2006 when he was admitted under section 5(2) of the Act. On 8 January 2007, following a contested hearing, a final order displacing his mother as his nearest relative was made.
The Council's decision to apply without notice for the displacement of the Claimant's mother as his nearest relative, and the Court's decision to make an interim order are challenged on broad natural justice grounds. It is submitted by Mr Bowen, that the court, in acting in this way, did so in breach of the principles of natural justice and of the rights of the Claimant and the interested party under Articles 6 and 8 of the European Convention. He argued that this meant it had acted without jurisdiction, with the consequence that the Claimant's mother was not validly displaced as his nearest relative. The second stage of Mr Bowen's submissions concerned the consequences of this. It followed, he submitted, that the Council's subsequent application pursuant to section 3 was unlawful because of the Claimant's mother's objection and, as a result, there was no authority for his detention by the third defendant. The application for permission was lodged on 16 November 2006, the day after the County Court made its order. Crane J gave permission on 24 November after an oral hearing.
Statutory Framework : The procedures for compulsorily admitting a patient to a hospital are contained in sections 2 to 5 of the 1983 Act. Section 2 is concerned with admission for assessment and section 3 with admission for treatment. The criteria upon which a person may compulsorily be detained in hospital for treatment are set out in section 3(2). These are that the person is suffering from inter alia mental illness which makes it appropriate for him to receive treatment that is necessary for his health and safety or the protection of other persons and the treatment cannot be provided unless the patient is detained in a hospital. By section 3(3):
"An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case his statement that in the opinion of the practitioner the conditions set out in subsection (2) … are complied with; and each such recommendation shall include [the prescribed particulars and a statement of reasons for the opinion] specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate."
The particulars required of the two medical practitioners are contained in section 12. In particular section 12(1) requires both practitioners to have personally examined the patient separately within the 5 days before they make their recommendations.
Section 11 specifies a number of conditions for applications for admissions for assessment and for treatment. Sub-section (1) provides that an application for admission for treatment may be made either by the patient's nearest relative or by an approved social worker. Sub-section (4) provides that no application for admission for treatment shall be made by an approved social worker except after consultation with the person appearing to be the nearest relative of the patient unless it appears to the social worker that in the circumstances such consultation "is not reasonably practicable or would involve unreasonable delay". Sub-section (4) also provides that an application for admission for treatment shall not be made by a social worker if, as occurred in this case, the nearest relative has informed that social worker that he or she objects to the application being made.
Section 6 of the Act deals with the effect of an application for admission. In the case of a person who is already an in-patient, section 6(2) provides that the application for admission, duly completed in accordance with the statutory requirements, "shall be of sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of [the] Act". Section 6(3), which is of crucial importance to the claim against the third defendant, provides:
"Any application for the admission of a patient under this part of this Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it."
Section 20(1) of the Act provides that a person admitted to hospital in pursuance of an application for admission for treatment may be detained for a period not exceeding 6 months. Section 20(2) enables the authority for the detention to be renewed, initially for a further period of 6 months, and then for further periods of 1 year at a time provided that the conditions of the section are satisfied. These conditions are substantially the same as those required for an application under section 3.
Section 29 of the Act provides in part:
"(1) The County Court may, upon application made in accordance with the provisions of this section in respect of the patient, by order direct that the functions of the nearest relative of the patient … shall, during the continuance in force of the order, be exercisable by the applicant, or by any other persons 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."
By section 29(2)(c) one of the persons specified is "an approved social worker". It is provided that in relation to an application made by such a social worker the application is to be treated as made by the local social services authority. Section 29(3) provides that "an application for an order under this section may be made upon any of the following grounds, that is to say-… (c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment … in respect of the patient; …"
By section 29(4), where, immediately before the expiration of the period for which the patient is liable to be detained by virtue of an application for admission for assessment pursuant to section 2 of the Act, an application to displace the nearest relative is pending, the period for which detention is authorised until the application has been finally disposed of or, if the court so orders, for a further period of 7 days. This provision, however, has no application in the present case because it only concerns applications to displace the nearest relative where (a) the patient is detained for assessment pursuant...
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