R (on the application of X) v NHS Trust
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FOSKETT: |
| Judgment Date | 07 May 2008 |
| Neutral Citation | [2008] EWHC 986 (Admin) |
| Date | 07 May 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3676/2008 |
[2008] EWHC 986 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Foskett
Case No: CO/3676/2008
Alexander Ruck Keene (instructed by Cartwright King Solicitors) for the Claimant
David Lock and Ms Nageena Khalique (instructed by Mills and Reeve Solicitors) for the Defendant
Hearing date: 25 th April 2008
Introduction
This claim for judicial review raises an interesting and, on one view, a potentially concerning issue arising from the operation of Section 37 of the Mental Health Act 1983. By that section a criminal court may, instead of sentencing someone convicted of an offence punishable with imprisonment, make what is known as “a hospital order” if the offender's mental or psychiatric condition makes it appropriate to do so.
The Claim Form was dated 17 April 2008 and on that day Owen J. ordered that an oral hearing for permission, to be followed by a substantive hearing if permission was granted, be heard on 25 April. I heard the submissions on that day and reserved judgment. I have given permission to apply for judicial review and have treated the hearing as the substantive application.
In 2004 657 hospital orders were made by Crown Courts and Magistrates' Courts without any restriction as to time (see paragraph 7 below) and 288 such orders were made (by the Crown Court) with restrictions as to time: “Statistics of Mentally Disordered Offenders 2004” published by the Home Office. Inevitably, some made the subject of a hospital order will be dangerous offenders (and probably made the subject of a restriction order), others (like the claimant in this case) will be psychiatrically disturbed, though not dangerously so. However, the same legislative regime applies to the making of the hospital order itself, whether subject to a restriction order or not.
As the more detailed analysis of section 37 below demonstrates, the intention of the section is that someone made the subject of a hospital order should take up a place at a hospital or other unit specified in the court order within 28 days of the order. The broad issue that arises for consideration in this case is the legal status of someone who a court intends should be received into a particular hospital or unit pursuant to such an order within 28 days of the order, but in fact is not received into that hospital or unit until after the expiration of that period with no additional authority by the court having been given. Does that result in the court's order becoming frustrated and of no further effect such that the continued detention of the patient thereafter is unlawful? Or does the order still have effect and the continued detention fall to be treated as being authorised by the order of the court?
I will explain how the issue arises on the facts of this case in due course, but it may be helpful to note the terms of section 37 and the way it is intended to operate. I should say that, in addition to my indebtedness to both counsel for their assistance, I have been greatly assisted in my analysis of the statutory provisions and the general history by the “Mental Health Act Manual”, 10 th Edition, by Richard Jones.
Section 37 of the Mental Health Act 1983
The relevant parts of section 37 of the Mental Health Act 1983 are as follows:
(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law … and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified.
(2) 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 mental illness, psychopathic disorder, severe mental impairment or mental impairment 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, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; 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.
…
(4) An order for the admission of an offender to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital …, and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety.
(5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given —
(a) the Secretary of State shall cause the person having the custody of the patient to be informed, and
(b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order.
As previously indicated, the court has power to restrict the circumstances in which someone made the subject of a hospital order may be released: section 41. That jurisdiction was not exercised in this case (since it was not the view of any medical practitioner that it was necessary), although it frequently is in cases where the court is concerned about the protection of the public from an offender with serious psychiatric problems.
The nature and the effect of a hospital order (and a restriction order) was explained by the Court of Appeal in R v Birch (1989) Cr.App.R(S) 202, 2 10–211:
“Once the offender is admitted to hospital pursuant to a hospital order or transfer order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal. Thus, like any other mental patient, he may be detained only for a period of six months, unless the authority to detain is renewed, an event which cannot happen unless certain conditions, which resemble those which were satisfied when he was admitted, are fulfilled. If the authority expires without being renewed, the patient may leave. Furthermore, he may be discharged at any time by the hospital managers or the “responsible medical officer.” In addition to these regular modes of discharge, a patient who absconds or is absent without leave and is not retaken within 28 days is automatically discharged at the end of that period … and if he is allowed continuous leave of absence for more than six months, he cannot be recalled ….
Another feature of the regime which affects the disordered offender and the civil patient alike is the power of the responsible medical officer to grant leave of absence from the hospital for a particular purpose, or for a specified or indefinite period of time: subject always to a power of recall (except as mentioned above).
There are certain differences between the positions of the offender and of the civil patient, relating to early access to the Review Tribunal and to discharge by the patient's nearest relative, but these are of comparatively modest importance. In general the offender is dealt with in a manner which appears, and is intended to be, humane by comparison with a custodial sentence. A hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial. The offender who has become a patient is not kept on any kind of leash by the court, as he is when he consents to a probation order with a condition of inpatient treatment. The sole purpose of the order is to ensure that the offender receives the medical care and attention which he needs in the hope and expectation of course that the result will be to avoid the commission by the offender of further criminal acts.
In marked contrast with the regime under an ordinary hospital order, is an order coupled with a restriction on discharge pursuant to section 41. A restriction order has no existence independently of the hospital order to which it relates; it is not a separate means of disposal. Nevertheless, it...
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