R (Wirral Health Authority and Another) v Mental Health Review Tribunal and Another

Friday 19 October 2001

Mr Edwards is at the moment detained in Ashworth Hospital as a result of the decision of Scott Baker J under the provisions of section 37 of the Mental Health Act 1983. It is not necessary for the purposes of this judgment to go into the lengthy history of how the matter arose, but to explain the decision it is necessary just to give one or two salient facts.

Mr Edwards was originally detained in Ashworth in March 1993 pursuant to the provisions of sections 47 and 49 of the Mental Health Act, having been sentenced to four years' imprisonment on 1 May 1992 but having subsequently been diagnosed as paranoid schizophrenic. He had a long history of violence and drug abuse; and he was sentenced in May 1992 for threatening to kill his wife.

After the end of the sentence he remained detained in Ashworth because his mental condition was considered still to justify his detention; but in the spring of 2000 he made an application to the Mental Health Review Tribunal for his position to be reconsidered and in July of that year it was considered appropriate for arrangements to be made, if they could, for unescorted leave to take place which could test whether or not he was capable of living satisfactorily in the community without danger to either himself or anyone else. Unhappily, no such unescorted leave could be arranged.

The matter came before the Health Review Tribunal on 20 November 2000 when it ordered Mr Edwards' discharge on 8 January 2001. It made no provision as to unescorted leave. It gave no reasons which could be considered in any way adequate for its decision and, in particular, did not seek to give any reasoned resolution to a dispute before it which related to the difference of views between psychiatrists as to whether or not he did indeed remain unfit by reason of a relevant psychiatric illness.

The application for his release had been supported by his then responsible Medical Officer. That doctor was moved in December 2000 and a Dr Finnegan became involved. Dr Finnegan clearly took the view that Mr Edwards was not fit to be discharged to the community and he took what he considered to be appropriate steps in those respects, firstly by discharging the section 37 order (which was the extant order) under the provisions of section 23, and then by taking steps to have Mr Edwards admitted under section 3 of the Mental Health Act. That is the ordinary provision for the detention of those who are mentally ill and in need of in-patient treatment. In order to achieve that objective effectively, application had to be made for the replacement of Mr Edwards' mother as the nearest relative because she opposed his detention, and an interim order to that effect was obtained from the appropriate circuit judge in January 2001. 6. The effect of those steps, it was intended, was that Mr Edwards should be detained under section 3. However, in the meantime, the local authorities who would have been responsible for his care in the community took the view that the decision of the Mental Health Review Tribunal to discharge him was invalid by reason of the failures to which I have already referred and sought judicial review, but very late in the day. Further, when the matter came before the Administrative Court in February they sought to raise the issue of the lawfulness of the discharge of Mr Edwards by Dr Finnegan, it having been argued at the original hearing before the Administrative Court on Mr Edwards' behalf that that discharge had been effective and that that particular order could not be reinstated.

A further challenge by way of judicial review was therefore made to invalidate Dr Finnegan's order on the basis that, as it appeared from material then available, Dr Finnegan had taken the view that discharge was a necessary step as a matter of law in order to be able to order Mr Edwards' detention under section 3. In that he was wrong. And, of course, there being no other reason given by Dr Finnegan for the discharge of the section 37 order, it was said that meant that the order for discharge was itself invalid and therefore void and of no effect.

When both applications came before Scott Baker J, his conclusion was that both challenges succeeded. The decision of the Mental Health Review Tribunal was quashed and the discharge order made by Dr Finnegan was likewise quashed. It followed that the consequence of that decision was that Mr Edwards remained subject to detention under section 37, it is said, of the Mental Health Act 1983. 9. Mr Vaughn has submitted before us on his application for permission to appeal quite simply that the interaction of section 37 with the original order of imprisonment, together with the way in which the matter was dealt with by the health authority and local authority, are such as to raise issues which should properly be considered by this court as matters of principle. The way he put it is, could a section 37 hospital order be reconstituted after it had been discharged?

It seems to me that there are very real difficulties with that argument. However, the case does raise relevant issues for consideration by this court as to the interaction of the various provisions of the Mental Health Act which it may be useful for this court to consider and to determine. It may be that, in the course of considering those issues of principle, the court might like to consider (if Mr Vaughn was to provide appropriate grounds) the extent to which, in the circumstances of cases such as this, it is right for challenges to be made as late as they were and the extent to which the court should exercise its discretion to permit such challenges to continue.

For those reasons I would be prepared to grant permission to appeal, but without indicating to Mr Vaughn that this is a case in which I consider that there are realistic prospects of success. Permission is granted on the alternative ground, namely that there are other reasons why it is important, it seems to me, for this court to consider the facts of this case.

This case involves the liberty of the subject. Mr Vaughn has raised matters of principle which in my view are worthy of consideration by this court. I too would prefer to express no view as to the likely outcome of the appeal, for which I also would grant permission.

ORDER: Application allowed. Costs reserved.

DE is 51 years of age and has been detained in Ashworth Hospital since 1993. He has a long history of violence and drug abuse. On 1st May 1992 he was sentenced to four years' imprisonment for threatening to kill his wife. In ordinary circumstances he would have expected to have been released on 24th February 1994. Subsequently, however, he was diagnosed as suffering from paranoid schizophrenia and a paranoid and personality disorder.

On 15th March 1993 he was transferred to Ashworth Hospital pursuant to a transfer direction made by the Secretary of State under section 47(1) of the Mental Health Act 1983 (“the Act”). The making of the transfer order meant that he was treated as if he had originally been sentenced by the court to a hospital order under section 37 (see section 47(3)). The transfer order was made in conjunction with a restriction direction made under section 49(2), whose effect was to treat him as if the restriction direction had been imposed under section 41. Pursuant to section 50 the restriction direction expired on 24th February 1994, the date on which DE would ordinarily have been released from his original sentence of imprisonment.

On 4th April 2000 he applied to the Mental Health Tribunal (“the...