R v Central London County Court, ex parte London
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE ROBERT WALKER,LORD JUSTICE HENRY |
| Judgment Date | 15 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0315-12 |
| Docket Number | QBCOF 98/0559 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 March 1999 |
[1999] EWCA Civ J0315-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE OWEN)
Royal Courts of Justice
Strand, London W2A 2LL
Lord Justice Stuart-smith
Lord Justice Henry
Lord Justice Robert-walker
QBCOF 98/0559
FC3 98/5425
and
MR NIGEL PLEMING QC and MR RABINDER SINGH (instructed by Messrs Gill & Co, London WC1X 8PF) appeared on behalf of the Appellant.
MISS PRESILEY BAXENDALE QC (instructed by Treasury Solicitor) appeared on behalf of the First Respondent.
MR GERARD CLARKE (instructed by Messrs Radcliffes) appeared on behalf of the Second Respondent.
Although the Appellant is no longer detained as an involuntary patient, this appeal raises questions of general importance in relation to the role of the nearest relatives and the powers of the County Court to make ex parte and interim orders under s.29 of the Mental Health Act 1983 ('The Act'), which empowers the Court to displace the nearest relative in certain circumstances.
The appeal is brought with the leave of Simon Brown LJ and is against a decision of Owen J. made on 13 March 1997 dismissing the Applicant's application for judicial review. At that hearing the judge also refused leave to move for judicial review of two further decisions. That refusal is subject to a renewed application for leave.
The applications for judicial review were of the following decisions and orders:
"(1) an ex parte order of the Central London County Court (the first respondent) dated 8 March 1996, and a further order dated 15 March 1996, purporting to displace the Applicant's mother, Mrs Grossman, as the Applicant's nearest relative within the meaning of section 26 of the 1983 Act on an interim basis [the subject of appeal to the Court of Appeal];
(2) a decision by the Managers of the Gordon Hospital (the Second Respondents) dated 22 March 1996, based on the above County Court orders, purporting to admit the Applicant compulsorily to hospital for treatment under section 3 of the Act [the subject of appeal to the Court of Appeal];
(3) a decision by the Second Respondents dated 11 September 1996, purporting to renew the Applicant's detention under that first section 3 admission, under section 20 of the Act [the subject of a renewed application to the Court of Appeal for leave to apply for judicial review]; and
(4) a further decision by the Second Respondents dated 15 August 1996, purporting to admit the Applicant compulsorily to hospital for treatment under section 3 of the Act, on a 'without prejudice' basis [the subject of a renewed application to the Court of Appeal for leave to apply for judicial review]."
Mr Pleming QC on behalf of the Appellant challenges the two orders referred to in paragraph 1 on the basis that the County Court has no jurisdiction to make ex parte or interim orders under s.29 of the Act. He also challenges the validity of the decision referred to in paragraph 3(2) on the basis that it is itself dependant upon the validity of the County Court orders. Those two matters are the subject of the appeal. Paragraphs 3(3) and 3(4) are the subject of the renewed application for leave.
The factual background can be taken from the judge's summary of the relevant facts:
(a) The Applicant has a long history of schizophrenia with admissions to hospital since September 1985. The Applicant does not accept that he has any mental illness. The general nature of the matter giving concern seems to be his collecting rubbish in his flat which has made the flat and his clothes to smell nauseously and to the great displeasure of his neighbours to at least one of whom the Applicant has made threats of physical violence.
(b) He was born on 27 April 1956 as David Grossman. He has changed his name by deed poll. His mother, Miranda Grossman, is the statutory nearest relative (see s.26 of the Act).
(c) On 5.3.96 an approved social worker applied for emergency admission of the applicant under s.4. Dr John Cohen recommended such an admission stating that David Grossman "ought to be so detained:
"(1) in the interests of the patient's own health or safety, and
(2) with a view to the protection of other persons."
On 6.3.96 Dr Malekniaz recommended such an admission, stating that "the patient ought to be so treated in the interests of the patient's own health or safety" but not specifying the safety of others.
(d) The Applicant was duly admitted to the Gordon Hospital, the managers of which are the Second Respondents.
(e) On 6.3.96 the applicant was regraded from a s.4 (emergency admission) patient to a s.2 (admission for assessment) patient.
(f) On 8.3.96 His Honour Judge Green QC, purporting to act under s.29 on an ex parte application, made an Order purporting to displace Mrs Grossman as the applicant's nearest relative. Although Mrs Grossman had been told that the application was to be made no proper notice of the hearing was given to her. The Judge's Order copied at p56 states that:
"(1) The functions of the nearest relative of the patient, namely David Grossman, also known as 'AX London', be exercised by the applicant City of Westminster pursuant to s.29 of the Mental Health Act 1983 until further order.
(2) This matter be relisted for Friday 15 March at 10.30am to be heard at 26 Park Crescent, London, with a time estimate of 1 hour where consideration shall be given to the continuation of this Order."
The Applicant claims that this Order not being final was ultra vires the County Court. S.29(3)(c) entitles the County Court to displace the nearest relative on the grounds that she "unreasonably objects to the making of an application for admission for treatment……". It was this Ground which was alleged and in Mrs Grossman's absence accepted by the Judge. This is the first Order challenged.
(g) On 12.3.96 purporting to act under s.23 Mrs Grossman, as nearest relative, gave notice to the hospital managers to discharge the applicant from hospital.
(h) On 13.3.96 the hospital refused to discharge the patient accepting that Mrs Grossman was no longer the 'nearest relative'.
(i) On 15.3.96 His Honour Judge Rich QC reconsidered the application to displace Mrs Grossman and did so inter partes. He accepted the s.29(3)(c) ground and made an order continuing Judge Green's Order until 3.4.96. That order read:
"1. The Order of His Hon. Judge Barrie Green QC dated 8 March 1996 do continue until 3.4.96 when application of the applicant City of Westminster shall be further considered inter parties and the application of the respondent dated 4.3.96 (seemingly an error) shall be determined at the said adjourned hearing."
It is argued on behalf of the applicant that this Order, just as the Order of 8 March, was unlawful and made without jurisdiction, because the County Court has no jurisdiction to make ex parte or interim orders but only final orders.
(j) On 22.3.96 on the application of the social services, purporting to act as the nearest relative, and Mrs Grossman not having been consulted, the Applicant was compulsorily admitted to hospital for treatment under s.3. Understandably the hospital managers relied on the County Court orders. The Applicant contends that those orders being void, this admission was unlawful.
(k) On 3.4.96 the County Court hearing was adjourned by consent and on 25.4.96, again by consent, the hearing was adjourned to 14 June 1996.
(l) On 13.6.96 Latham J. granted leave to move for judicial review in respect of the County Court Orders of 8 and 15 March and also in respect of the decision by the Second Respondent dated 22 March to admit for treatment under s.3. Events thereafter are relevant to the renewed application for leave.
(m) On 14.6.96 the County Court hearing was again adjourned by consent.
(n) On 12.7.96 the County Court made a final order displacing Mrs Grossman as the nearest relative. No complaint is made as to this order.
(o) On 15.8.96 the hospital managers purported to admit the applicant under s.3 without prejudice to the contention that the original s.3 admission on 22.3.96 was valid. The applicant contended that this decision was unlawful:
(i) having been made with an ulterior motive and unlawful purpose, namely an attempt to frustrate the challenge to the lawfulness of the Applicant's detention (this ground is no longer persisted in); and
(ii) as a 'without prejudice' order cannot be a valid order.
(p) On 11.9.96 the hospital managers, relying on s.20, purported to renew the original admission under s.3. ie. that of 22.3.96. The Applicant did not formally oppose but this was without prejudice to his argument that the 22.3.96 admission was invalid and accordingly could not be renewed.
(q) On 31.10.96 the Applicant was re-graded to an informal patient. Since then he has left hospital.
The relevant powers of the County Court are contained in the County Courts Act 1984 s.38 as substituted by s.3 Courts and Legal Services Act 1990 which provides as follows:
"(1) Subject to what follows, in any proceedings in a county court the court may make any order which could be made by the High Court if the proceedings were in the High Court…..
(2) Any order made by a County Court may be
(a) absolute or conditional
(b) final or interlocutory."
This is a perfectly general power, designed to equate the powers of the County Court to those of the High Court. There are limitations in subsection (3) in relation to orders of mandamus, certiorari or prohibition; there is also power to prescribe orders of a particular kind. No such prescription has been made in relation...
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