Re Waldron

JurisdictionEngland & Wales
Date1985
CourtCourt of Appeal (Civil Division)
[COURT OF APPEAL] Ex parte WALDRON 1985 July 30, 31; Aug. 1; Oct. 2 Ackner, Neill and Glidewell L.JJ.

Mental Disorder - Leave to bring proceedings - Judicial review - Patient's admission to hospital for treatment - Patient's application for leave to apply for judicial review to quash application for admission - Whether constituting “civil proceedings” - Whether court having Jurisdiction to grant leave - Mental Health Act 1983 (c. 20), ss. 3, 139

Section 139 of the Mental Health Act 1983 provides:

“(1) No person shall be liable, whether on the ground of want of Jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act … unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; ….”

Two doctors recommended that the applicant, who suffered from schizophrenia, be admitted to hospital for treatment under section 3 of the Mental Health Act 1983, in order that they might exercise the power, under section 17 of the Act, to grant her conditional leave of absence from the hospital. The applicant was compulsorily admitted to hospital under section 3 and, on the following day, she was granted leave of absence on condition that she received the necessary medication for her illness. The applicant, who did not allege that the doctors had acted negligently or in bad faith, applied to the High Court for leave to apply for judicial review and the remedy of either an order of certiorari to quash the application for admission to hospital or a declaration that it was ultra vires. The judge ruled that applications for judicial review were civil proceedings which were barred by section 139 of the Act of 1983 and dismissed the application.

On her application to the Court of Appeal for leave to apply for judicial review: —

Held, granting the application, that on a true construction of section 139(1) of the Act of 1983 the words “civil proceedings” did not, in the absence of any specific definition, cover proceedings for judicial review, and a respondent in proceedings for judicial review by those proceedings; that section 139 did not contain the clear and explicit words which would be necessary to exclude the court's Jurisdiction to grant orders of certiorari; and that, accordingly, the court would grant the applicant leave to apply for judicial review (post, pp. 1101G–H, 1103C, 1104H–1105A, 1106B–C, 1108C–E, 1109A).

Dictum of Denning L.J. in Reg. v. Medical Appeal Tribunal, Ex parte Gilmore [1957] 1 Q.B. 574, 583, C.A. applied.

Shackleton v. Swift [1915] 2 K.B. 304, C.A.; Everett v. Griffiths [1920] 3 K.B. 163, C.A. and Richardson v. London County Council [1957] 1 W.L.R. 751, C.A. considered.

Per Ackner L.J. The Jurisdiction given to the mental health review tribunal by section 72 of the Act of 1983 is limited to entertaining applications by persons who are liable to be detained under the Act. It has no power to consider whether a person is so liable, and cannot be used as a route to the High Court where it is sought to challenge the validity of an application for admission. Therefore the applicant was not entitled to seek from the tribunal a decision as to the vires of her admission, and accordingly there was no remedy open to her other than an application for judicial review (post, pp. 1102E–F, 1103A–B).

The following cases are referred to in the judgments:

Everett v. Griffiths [1920] 3 K.B. 163, C.A.

Reg. v. Board of Control, Ex parte Rutty [1956] 2 Q.B. 109; [1956] 2 W.L.R. 822; [1956] 1 All E.R. 769, D.C.

Reg. v. Bracknell Justices, Ex parte Griffiths [1976] A.C. 314; [1975] 3 W.L.R. 140; [1975] 2 All E.R. 881, H.L.(E.)

Reg. v. Governor of Pentonville Prison, Ex parte Azam [1974] A.C. 18; [1973] 2 W.L.R. 949; [1973] 2 All E.R. 741, C.A.

Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720; [1974] 2 W.L.R. 805; [1974] 2 All E.R. 643, D.C.

Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617; [1981] 2 W.L.R. 722; [1981] 2 All E.R. 93, H.L.(E.)

Reg. v. Medical Appeal Tribunal, Ex parte Gilmore [1957] 1 Q.B. 574; [1957] 2 W.L.R. 498; [1957] 1 All E.R. 796, C.A.

Reg. v. Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 W.L.R. 524; [1983] 3 All E.R. 358, D.C.

Rex v. Judge Radcliffe, Ex parte Oxfordshire County Council [1915] 3 K.B. 418, D.C.

Richardson v. London County Council [1957] 1 W.L.R. 751; [1957] 2 All E.R. 330, C.A.

Shackleton v. Swift [1913] 2 K.B. 304, C.A.

Smalley, In re [1985] A.C. 622; [1985] 2 W.L.R. 538; [1985] 1 All E.R. 769, H.L.(E.)

South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union [1981] A.C. 363; [1980] 3 W.L.R. 318; [1980] 2 All E.R. 689, P.C.

Squibb United Kingdom Staff Association v. Certification Officer [1979] 1 W.L.R. 523; [1979] I.C.R. 235; [1979] 2 All E.R. 452, C.A.

The following additional cases were cited in argument:

Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.)

Bone v. Mental Health Review Tribunal [1985] 3 All E.R. 330

Farrell v. Alexander [1977] A.C. 59; [1976] 3 W.L.R. 145; [1976] 2 All E.R. 721, H.L.(E.)

O'Brien v. Prudential Assurance Co. Ltd. [1979] I.R.L.R. 140, E.A.T.

Reg. v. Foster [1985] Q.B. 115; [1984] 3 W.L.R. 401; [1984] 2 All E.R. 679, C.A.

Secretary of State for the Home Department, Ex parte (unreported), 12 July 1985, Forbes J.

APPLICATION for leave to apply for judicial review.

The applicant, Valerie Mary Waldron, applied ex parte to the High Court for leave to apply for judicial review by way of (1) an order of certiorari to bring up and quash an application for her admission for treatment to Banstead Hospital, Banstead, Surrey, made on 24 July 1984 under section 3 of the Mental Health Act 1983 upon medical recommendations submitted by Dr. Cosmo Hallstrom and Dr. Rosemary Morgan, as a result of which she had been admitted for treatment and then granted conditional leave of absence under section 17 of the Act of 1983; or, alternatively, (2) a declaration that the application for her admission for treatment had been ultra vires. The grounds of the proposed application for judicial review were, inter alia, that the doctors had not at the time of making the recommendations believed that the applicant was suffering from a mental disorder of a nature or degree which made it appropriate for her to receive medical treatment in hospital, and that accordingly the precondition for the making of a valid application, set out in section 3(2) of the Act of 1983, had not been satisfied. It was not alleged that the doctors had acted in bad faith or without reasonable care.

On 17 May 1985, Kennedy J. refused the applicant leave, holding that the proceedings were civil proceedings which were barred in limine by section 139 of the Act of 1983.

By a notice of application for leave to apply for judicial review, the applicant applied to the Court of Appeal for such leave.

The facts are stated in the judgment of Ackner L.J.

Oliver Thorold for the applicant.

Henry Brooke Q.C. and John Williams for the doctors.

John Laws as amicus curiae.

Cur. adv. vult.

2 October. The following judgments were handed down.

ACKNER L.J. Dr. Cosmo Hallstrom is a consultant psychiatrist at Banstead Hospital, Sutton, Surrey. For quite some time he has been treating the applicant for a schizophrenic illness from which she has suffered since 1974. This has apparently resulted in 11 admissions to psychiatric hospitals. Dr. Hallstrom's assessment of her illness was that, apart from the usual features, with ideas of possession by demons, hallucinations and lack of insight, the applicant has socially disruptive aspects to her illness. On occasions she has been aggressive towards people and has also set fire to things. Her ability to function relatively normally is, in Dr. Hallstrom's opinion, undoubtedly helped and made possible by regular administration of slow-release injections. When she left hospital early in 1984 she was an informal patient and was happy to continue with medication. More recently she refused to take medication and denied that she had ever been ill. Dr. Hallstrom feared that she would relapse shortly if medication was not continued. A hospital social worker confirmed the absence of insight by the applicant into her condition, her denial that she had ever been mentally ill and her refusal to take the prescribed injections. She considered that it would be “tragic if she were allowed to deteriorate, and thus need further in-patient treatment.”

In this situation Dr. Hallstrom concluded that an order under the Mental Health Act 1983 was necessary to enforce compliance with the required treatment. This he considered could be achieved by making an order under section 3 of the Act and then granting leave of absence, under section 17, subject to the necessary conditions to ensure she received the medication.

Section 3, the marginal title of which is “Admission for treatment,” reads:

“(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as ‘an application for admission for treatment’) made in accordance with this section. (2) An application for admission for treatment may be made in respect of a patient on the grounds that — (a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) in the case...

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