Winch v Jones
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PARKER,LORD JUSTICE BALCOMBE |
| Judgment Date | 09 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0709-2 |
| Docket Number | 85/0366 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 1985 |
and
[1985] EWCA Civ J0709-2
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Parker and
Lord Justice Balcombe
85/0366
1984 W. No. 1733
1984 W. No. 1734
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE OTTON)
Royal Courts of Justice.
MR. JOHN MACDONALD and MR. COLIN BRAHAM (instructed by Messrs. B.M. Birnberg & Co.) appeared on behalf of the (Plaintiff) Appellant.
MR. JON WILLIAMS (instructed by Messrs. Hempsons) appeared on behalf of the (Defendants) Respondents Dr. Jones and Dr. Bishop.
MR. CHRISTOPHER SYMONS (instructed by the Treasury Solicitor) appeared on behalf of the (Defendants) Respondents, the Personal Representatives of the Estate of Dr. Hayward and the Home Office.
Miss Mary Winch applied to the High Court for leave to bring two actions alleging negligence. The first was against Dr. David Alun Jones and his employers the Clwyd Health Authority. The second was against the personal representatives of the late Dr. Paul William Eardley Hayward, his employers the Home Office, and Dr. Paul Manley Bishop. She needed leave because at the relevant time all three doctors were acting, or purporting to act, under the authority of the Mental Health Act 1959. Mr. Justice Otton refused leave and Miss Winch now appeals by leave of this court.
Miss Winch's mother died in July 1972 and she sought to become the administrator of her mother's estate. Unfortunately there ensured a protracted dispute between Miss Winch and her sister, and the estate was administered by the Public Trustee. In the course of this administration, the Public Trustee brought an action against Miss Winch and also, I think, her sister, and Miss Winch was ordered to hand over certain documents. This Miss Winch refused to do, and she was committed to the Risley Remand Centre for contempt of court by His Honour Vice-Chancellor Blackett-Ord. This committal occurred in October 1977, but Miss Winch was not arrested until July 1978.
The learned judge records that Miss Winch was much affected by her mother's death and was referred by her general practitioner at that time to Dr. Jones, who is a consultant psychiatrist attached to the North Wales Hospital at Denbigh. He treated her on a voluntary out-patient basis until her committal to Risley.
In October 1978, that is to say about two or three months after she had arrived at the Risley Remand Centre, Miss Winch was discharged from the custody of the governor of the remand centre by order of the learned Vice-chancellor and was admitted to the North Wales Hospital for treatment pursuant to recommendations made under section 26 of the Mental Health Act 1959. Such an admission authorises the detention of the patient for up to 12 months. The necessary recommendations were made by Dr. Hayward and Dr. Bishop and, on admission, Miss Winch came under the care of Dr. Jones. Dr. Hayward was the medical officer of the remand centre. Dr. Bishop was a general practitioner. Both were qualified under the Mental Health Act.
Miss Winch spent 12 months subject to the section 26 admission either at the North Wales Hospital or on leave from it. She complains that Dr. Hayward and Dr. Bishop failed to exercise reasonable care in diagnosing that she suffered from paranoia and in recommending that she be admitted to a mental hospital. It appears that she had consulted several solicitors in the course of the litigation to which I have referred and, indeed, is now suing two of them for negligence. As a result of her experience, she formed the view that all the solicitors whom she had consulted were conspiring together to stifle her justified complaints. Whilst it is inherently unlikely that she is correct, this is not an uncommon reaction by a dissatisfied client. If this were itself a justification for compulsory detention, the mental hospitals would be overfull.
She further complains that if the doctors were justified in recommending her admission to a mental hospital, they failed to give any or any adequate consideration to the possibility of admitting her under section 25 as contrasted with section 26, which would have been effective for a period of one month rather than for a full year.
As against Dr. Jones, Miss Winch complains that he failed to give any or any adequate consideration to discharging her before the time when the order came to an end 12 months after her admission.
The first and much the most important issue is what criteria should be applied in deciding whether or not to give leave in such a situation. At the time of the acts and omissions complained of, the relevant statute was the Mental Health Act 1959 and the relevant section was section 141. This is in the following terms:
"(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 thereunder, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VIII of this Act, unless the act was done in bad faith or without reasonable care.
(2) No civil or criminal proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care."
I need not refer to the other subsections of section 141.
It follows that under that section the judge had to be satisfied that there was substantial ground for the contention that the person proceeded against had acted in bad faith or without reasonable care. I hasten to emphasise that bad faith has never been alleged by Miss Winch, and it is not alleged now.
Subsection (2) was repealed and a new section added by section 60 of the Mental Health (Amendment) Act 1982. This in turn was incorporated into a new codifying Act, the Mental Health Act 1983, where section 141 of the 1959 Act, as so amended, now features as section 139. As a result of the transitional provisions contained in paragraph 28 of the 5th Schedule to the 1983 Act, section 139 applies in Miss Winch's case notwithstanding that the acts and omissions complained of took place in 1978. Section 139 is in the following terms:
"(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 in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of 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; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions."
It will be seen that the words "and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care" are omitted from subsection (2) of the 1983 Act. I entertain no doubt whatever that this change of wording effected by the 1982 amending Act, now incorporated in the 1983 Act, was a change of substance and not merely an improvement in the drafting.
That said, the problem arises of what the amended section requires to be demonstrated before leave should be given. The general importance of this appeal lies in the fact that this is the first occasion upon which this court has had to consider this matter.
The rationale for the section, which does not depend upon its exact wording, was explained by Lord Simon of Glaisdale in Pountney v. Griffiths [1976] A.C. 314 at page 329. He said:
"My Lords, section 141 of the Mental Health Act 1959 places a hindrance on the recourse of a class of citizens to the courts of justice. Although Magna Carta promised that to no man would justice be denied or delayed, it is not unparalleled for the legislature to constitute such lets and conditions. An obvious example is the legislation relating to vexatious litigants. The mischief and the parliamentary objective must be similar. It must have been conceived that, unless such classes of potential litigant enjoy something less than ready and unconditional access to the courts, there is a real risk that their fellow-citizens would be, on substantial balance, unfairly harassed by litigation. Section 141 of the Mental Health Act 1959 admittedly modifies the general right of recourse to the courts. The only question is how far it goes."
He then referred to the speech of Lord Edmund-Davies, and went on:
"I would, however, venture to add this. Patients under the Mental Health Act may generally be...
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