R (von Brandenburg) v East London and the City Mental Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS M.R,LORD JUSTICE BUXTON,LORD JUSTICE SEDLEY |
| Judgment Date | 21 February 2001 |
| Neutral Citation | [2001] EWCA Civ 239 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C/2000/2513 |
| Date | 21 February 2001 |
[2001] EWCA Civ 239
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr Justice Burton
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Of The Rolls
Lord Justice Buxton and
Lord Justice Sedley
Case No: C/2000/2513
C/1308/2000
In The Matter Of An Application For Judicial Review
Mr Richard Gordon, QC and Mr Paul Bowen (instructed by Lucy Scott-Moncrief) for the Appellant
Miss N. Davies, QC and Miss Kristina Stern (instructed by Messrs Le Brasseur J Tickle) for the First Respondent
Mr Stephen Knafler (instructed by London Borough of Tower Hamlets) for the Second Respondent
This is the second of two interrelated appeals which we heard consecutively. The nature of the relationship between the two appeals is explained at the start of my Judgment in the first appeal R v Camden and Islington Health Authority ex parte K.
This appeal challenges not merely the decision below of Burton J., but an earlier decision of Laws J. in R v South Western Hospital Managers ex parte M [1993] QB 683, which Burton J. followed.
The Facts
The following facts summarised at the outset of Burton J's judgment are not in dispute:
"1. The Appellant, Count Franz Karl Wilhelm Von Brandenburg, otherwise known as Nicholas Brendan Hanley, applied to Burton J. for judicial review of the decision of the First Respondent, The Tower Hamlets Health Care NHS Trust as managers of the Royal London Hospital (St. Clements) to admit him to that hospital for treatment under Sections 3 and 6 of The Mental Health Act 1983 ("MHA") and of the decision of the Second Respondent, David Stuart Snazell, an Approved Social Worker (as so defined within Section 145(1) of the MHA) to make an application for such admission….
2. The Applicant was for some two years provided with accommodation at a Salvation Army Hostel in the Whitechapel Road, London E.1. On 9 th February 2000 the project manager at that hostel referred the Applicant to HHELP (Health and Social Care for Single Homeless People) and on 15 th March there was, at the hostel, a mental health assessment of the Applicant by the Second Respondent and a Dr Oviasu; the Applicant was on that day admitted to St. Clements Hospital by emergency application under Section 4 MHA (to the lawfulness of which there has been no challenge), on the recommendation of Dr Oviasu and the application of the Second Respondent. On the same day, as a result of a second medical recommendation, given by a Dr Bapna, the Section 4 admission was converted to an admission under Section 2 of the MHA, being an admission for a period not exceeding 28 days for assessment (again there is no challenge to the lawfulness of this admission). On the 22 nd March the Applicant applied for a tribunal hearing pursuant to Section 66(1)(a) of MHA which was fixed for 31 st March. Reports were supplied for the Tribunal by a Dr Roy, the staff grade practitioner working with Dr Bhui, the Applicant's Responsible Medical Officer ("RMO"), and by the Second Respondent, and oral evidence was given by Dr Bhui, all advising against discharge.
3. The Tribunal ordered discharge of the Applicant, with effect from 7 th April 2000, i.e. after a period of deferment of 7 days. Its reasons concluded as follows:
The Tribunal are satisfied that [there] may be evidence of mental illness, but do not believe that it is of a degree which justifiesdetention. Moreover, having heard [the Applicant's] own account of the episodes of alleged aggression, we do not consider that his own health or safety requires detention, nor do others need to be protected from him. In the light of our concern, however, that [the Applicant] may continue to suffer from a mental illness, it is appropriate for accommodation in the community to be found for him and a care plan be made including possible medication. The discharge has therefore been delayed to enable this to happen.
4. On 6 th April 2000, the Applicant was further detained under Section 3 of MHA. This was based, as is statutorily required, upon two medical recommendations. That from Dr Bhui stated, in the relevant form (Form 11) dated 4 th April 2000, as follows:
He is over-active, agitated, hostile, has delusional beliefs about conspiracy, Germans, Bengalis feels persecuted, has a manic mental state, refusing medication, unable to consider treatment plan as he does not think he is ill. Has no insight, has refused medication, refuses any out patient contact out patient care failed has no insight into his illness."
5. The second medical recommendation, also in Form 11, dated 6 th April 2000, was from Dr Bapna, and read as follows:
This man who is agitated, aggressive, with pressure of speech, and does not want to communicate with doctor and social worker. He has grandiose delusions and does not want to stay in hospital. He does not want any medication and is very uncooperative. He has no insight. This agitated, aggressive man who is uncooperative and denying for medication and to stay in hospital. He has no insight. He has no fixed abode. He has psychotic illness with previous history. He does need to stay in hospital for further assessment and treatment.
6. On the basis of those recommendations, the Second Respondent, as the Approved Social Worker, made the application and the Applicant was admitted."
The following points are noteworthy:
(1) The recommendation for admission under Section 3 of the MHA was made in the face of the order of the Tribunal for the discharge of the Appellant from his detention under Section 2 of the MHA, which had been made only 6 days before.
(2) The Second Respondent who, as the Approved Social Worker, made the application, had appeared before the Tribunal and advised against the Appellant's discharge.
(3) One of the two medical recommendations which led to the Appellant's admission was made by his RMO, who had appeared before the Tribunal and advised against the Appellant's discharge.
(4) Neither of the medical recommendations referred to the Tribunal's decision or indicated that there had been any change in circumstances since the Tribunal's order was made 6 days earlier.
Because of time constraints and with the agreement of the parties, Burton J. dealt with only one of a number of issues raised before him, which was a seminal question. When a Mental Health Review Tribunal has ordered the discharge of a patient, is it lawful to re-admit him under S.2 or S.3 of the MHA where it cannot be demonstrated that there has been a relevant change of circumstances?
Mr Gordon, QC, who has appeared for the Appellant both before us and below, submitted to Burton J. that the answer to this question was no. Before us he modified his position, in that he advanced the following proposition:
"The relevant professionals (including Hospital Managers) exercising functions under the admission provisions of the MHA are bound to respect the Tribunal's decision to discharge except where they have satisfied themselves that there has been a relevant change of circumstances since the Tribunal's decision and, where they are so satisfied, given reasons for their conclusion unless, having followed the guidance in the Code of Practice, it is not reasonably practicable for them to follow the Tribunal's decision."
The Statutory Provisions
Burton J. adopted the helpful summary of the relevant provisions of the MHA prepared by Counsel for the First Respondent and I shall do the same:
" Admission for Assessment
An individual can be admitted for assessment under MHA under either Section 2 or Section 4. The grounds upon which an individual can be so detained are those set out in Section 2:
s.2(2)(a) The patient is suffering 'from mental disorder in a nature or degree which warrants the detention of the patient in a hospital for assessment (or assessment followed by medical treatment) for at least a limited period;' and
s.2(2)(b) The patient 'ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons'.
Mental Disorder is defined in Section 1(2) of MHA as:
'Mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and " mentally disordered" shall be construed accordingly.'
An application under Section 2 must be based upon the written recommendations of two registered medical practitioners, including a statement that the conditions set out above are made out (Section 2(3)). It is effective for a period not exceeding 28 days, beginning with the date upon which the patient was admitted. A patient shall not be detained after the expiration of that period, unless before it had expired he has become liable to be detained by virtue of a subsequent application, order or direction under MHA (Section 2(4)). This is subject to Section 29(4) which enables an extension of this period under certain circumstances.
In the case of a Section 4 admission, i.e. a detention of 'urgent necessity', the application for admission can be made by either an approved social worker or by the nearest relative of the patient, and must include a statement that:
'It is of urgent necessity for the patient to be admitted and detained under Section 2 above, and the compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay'...
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