R (von Brandenburg) v East London and the City Mental Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 13 November 2003 |
| Neutral Citation | [2003] UKHL 58 |
| Date | 13 November 2003 |
| Court | House of Lords |
and another
ex parte von Brandenburg
[2003] UKHL 58
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Steyn
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
HOUSE OF LORDS
My Lords,
The appellant challenges a ruling of the Court of Appeal on an issue of law which Lord Phillips of Worth Matravers MR expressed in this way ( [2001] EWCA Civ 239, [2002] QB 235, 243, paragraph 5):
"When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant change of circumstances?"
The Master of the Rolls, with whom Buxton LJ agreed, gave an affirmative, although qualified, answer to that question. So also did Sedley LJ, although he gave his own, slightly different, reasons. Mr Gordon QC for the appellant contends that a negative answer should have been given, save where the situation in question is one of emergency.
Since the appellant's application for judicial review proceeded (unfortunately, as I think) without any judicial exploration of the underlying facts, some of which are in dispute, I need give no more than a bare summary of the agreed factual background. A more detailed account was set out by the Master of the Rolls in paragraph 3 of his judgment, adopting the summary of the judge.
On 15 March 2000 the appellant was lawfully admitted to St Clement's Hospital for assessment pursuant to an emergency application made under section 4 of the 1983 Act. The first respondent is the manager of that hospital. The application was made by the second respondent, an approved social worker (ASW), and was supported by the required medical recommendation. A second medical recommendation was obtained, and on the same day the appellant's admission was converted, again lawfully, into an admission for assessment for a period not exceeding 28 days under section 2 of the Act. On 22 March the appellant applied for a tribunal hearing under section 66(1)(a) of the Act. This hearing took place on 31 March. The appellant's application for discharge was resisted by the appellant's responsible medical officer (RMO), who gave oral evidence to the tribunal, by a staff grade medical practitioner working with the RMO, and by the second respondent. The tribunal ordered that the appellant should be discharged with effect from 7 April, deferring the discharge for 7 days to allow accommodation in the community to be found and a care plan to be made, including possible medication. On 6 April 2000 the appellant, who had not left the hospital, was again detained, this time under section 3 of the Act. The application was again made by the second respondent. The necessary medical recommendations were made by the appellant's RMO already referred to, and also a second doctor who had supported the earlier admission under section 2.
The appellant sought judicial review of the first respondent's decision to admit the appellant on 6 April and also of the second respondent's decision to apply for the appellant's admission under section 3 notwithstanding the recent decision of the tribunal. The broad thrust of his case was that the application and admission of 6 April were unlawful unless there had been a relevant change of circumstances, and that there had been none. The respondents disputed the need for a relevant change of circumstances to legitimate the application and admission of 6 April but contended that there had on the facts been such a change of circumstances. The appellant's application for judicial review came before Burton J. It was then agreed, for want of time, to confine argument to the legal issue stated at the outset of this opinion and to defer a decision on the factual issue (whether there had or had not been a relevant change of circumstances between 31 March and 6 April 2000) until, if ever, it became necessary to resolve that issue. In the event, following the decision of Laws J in R v Managers of South Western Hospital, Ex p M [1993] QB 683, Burton J decided the legal issue against the appellant and dismissed the application. He concluded his judgment by adopting the ruling of Laws J at page 696 of Ex p M and holding:
"that there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision. The doctors, social worker, and managers must, under the statute, exercise their independent judgment, whether or not there is an extant tribunal decision relating to the patient."
While agreeing in the result, the Court of Appeal did not endorse the full breadth of the judge's reasoning. The Master of the Rolls summarised his conclusions in paragraphs 30-34 of his judgment:
"30 The nature of mental illness is such that the severity of the symptoms and the need for treatment will often fluctuate over time. A sequence of discharge, readmission, discharge and readmission is not uncommon. Normally a sensible period is likely to elapse between discharge and readmission. In such circumstances the implied statutory requirement of change of circumstances for which Mr Gordon contends is neither necessary nor sensible. If the professionals concerned are acting objectively and bona fide, the application for readmission is likely to be triggered by behaviour of the patient that is, at least in part, a reaction to life in the community. This will almost certainly constitute a change of circumstances when compared with the patient's reaction to the hospital regime that was prevailing when the tribunal discharged the patient. To require the professionals involved to investigate and attempt a comparison between the two sets of circumstances in order to decide whether or not there has been a relevant change of circumstances would not be helpful or even meaningful.
31 The position is very different where an application for readmission is made within days of a tribunal's decision to discharge, which carries the necessary implication that the criteria for admission are not present - the more so if the patient has remained under the hospital regime because discharge has been deferred, so that there has been no change in the patient's environmental circumstances. In such a situation there is likely to have been, as Mr Gordon pointed out, a difference of view between the patient's responsible medical officer and the tribunal as to whether or not the criteria justifying detention were established. Under the statutory scheme, where such a conflict exists, it is the opinion of the tribunal that is to prevail.
32 In such circumstances I do not see how an approved social worker can properly be satisfied, as required by section 13, that 'an application ought to be made' unless aware of circumstances not known to the tribunal which invalidate the decision of the tribunal. In the absence of such circumstances an application by the approved social worker should, on an application for judicial review, be held unlawful on the ground of irrationality.
33 In conclusion I agree with Burton J that Mr Gordon has failed to establish the premise upon which he has based his case, namely that as a matter of statutory interpretation of the Act an application and admission of a patient under sections 2 or 3 of the Act cannot lawfully be made after the patient has been discharged by a tribunal unless either the relevant professionals have satisfied themselves that there has been a relevant change of circumstances or it is not reasonably practicable for them to do so.
34 This leaves unanswered the question of whether on the facts of this case the applicant's readmission, which took effect even before he was discharged, was unlawful on the ground of irrationality. It is the respondents' case that the applicant's mental condition had, in fact, significantly deteriorated in the six days between the tribunal's order that he be discharged and the order for his detention under section 3, so that they were in a position to demonstrate, if so required, that there had been a relevant change of circumstances. This raises the question of the significance of the fact that the reasons upon which the applicant's readmission was founded gave no explanation as to why admission was said to be justified despite the tribunal's decision that the applicant should be discharged and, indeed, made no mention of that fact. Neither of these matters were explored before Burton J and they are not matters upon which it would be appropriate for this court to express a view."
Sedley LJ expressed his conclusions in paragraphs 38-43 of his judgment:
"38 This case has taken a peculiar and in some ways unsatisfactory shape. Mr Gordon has, I agree, succeeded in his challenge to the decision of Laws J in Ex p M [1993] QB 683, 696 that 'there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision', but has failed in his endeavour to introduce in its place, as a matter of law, a change of circumstances criterion for readmission. What has been confirmed in the space between the two is the set of private law and public law controls which Burton J described and which Lord Phillips of Worth Matravers MR in paragraphs 31 and 32 of his judgment endorses, as I would.
39 In a great many cases, especially those where readmission comes hard on the heels of discharge by the tribunal, there may in the light of this be little practical difference between what Mr Gordon has sought and what he has achieved. Any decision made in the exercise of statutory powers and affecting a person's liberty must not only be made...
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