Lewis v Gibson & Anor

Brenda Lewis, with the permission of my lord Wall LJ, appeals the judgment of His Honour Judge Mitchell given in the Telford County Court on 22^nd July 2004. By his judgment he confirmed an interim order made on the 31^st July 2003 displacing Brenda Lewis as nearest relative to her daughter M under the provisions of Section 29 of the Mental Health Act 1983. That brief summary requires some elaboration.

M is 34 years of age having been born on the 9^th December 1970. She suffers from Down’s syndrome and has inevitably imposed great burdens and responsibilities on her parents. Between her birth and the 31^st January 2003 she was in the care of the appellant. Her father has given her much support and has continued to see her regularly since the breakdown of her parents’ marriage. Concerns as to M’s welfare arose in 2000 and, on the 1^st March 2001, a case conference was convened to consider whether the Local Authority, the Borough of Telford and Wrekin, should intervene by taking legal action.

At a case conference on the 30^th January 2002 there was some discussion of an application under Section 135 of the Mental Health Act 1983 in the light of the fact that the appellant had referred to euthanasia, not as a direct threat but as a last resort.

On the 25^th July 2002 a case conference concluded that M did not then meet the criteria within Section 1 of the Mental Health Act. It resolved to seek a medical opinion from M’s psychiatrist, Dr Langton, and then to seek counsel’s opinion.

The evidence as to developments in the second half of 2002 is partially disputed. The proper interpretation of those facts that are not in contention is also disputed. However an objective reading of the available material clearly suggests that there had been significant deterioration in M’s wellbeing and conduct, that the appellant was at the end of her tether and that, without active intervention, there might be a tragic outcome. On the 31^st January 2003 a warrant was executed under Section 135 and M was removed by the police with the attendance of Dr Langton, M’s social worker, Mrs Bannister and an approved social worker, Mr Jones. M was admitted to Shelton Mental Hospital under Section 2 of the Mental Health Act. The appellant’s endeavour to obtain a discharge under Section 23 was obstructed by a report under Section 25(1)(b) from the responsible medical officer, the effect of which was that no further application for discharge could be made for 6 months.

It was on the 27^th February 2003 that the local authority applied under Section 29 in the Telford County Court to displace the appellant as nearest relative. It is easy to understand the basis of the application. M’s removal destroyed any hope of collaboration between the local authority and the appellant. A consequence of the application was that the Section 2 order, which was due to expire, was, by operation of Section 29(4), extended. However there was a referral of the case to a Mental Health Review Tribunal by the Secretary of State under the terms of Section 67 of the Act. However the Tribunal refused the application for M’s discharge on the 26^th March 2003. On the 20^th May 2003 judicial review of that decision was sought on behalf of M on a number of grounds.

The local authority’s application of the 31^st July for an interim displacement order succeeded in the absence of the appellant on the 1^st August and allowed the local authority to assume guardianship on the 11^th August 2003. That was for six months and further guardianship renewals were intermittently made, the last being of twelve months’duration from August 2004. That therefore establishes M’s current guardianship.

The mother’s claim for judicial review was dismissed by Silber J on the 21^st January 2004 but his judgment was set aside by this court on the 3^rd December 2004: see R(H) v Secretary of State for Health [2004] EWCA Civ 1609 [2005] 1 WLR 1209.

The applicant’s application for a substantive order displacing the appellant as nearest relative was the subject of a three-day hearing on oral evidence in the Telford County Court in June 2004. Before the court there were a number of written statements and reports. The local authority called four witnesses including Dr Langton and Mrs Bannister. The appellant’s oral evidence was supplemented by the oral evidence of her former husband and of Mr Hargreaves, an expert consultant in social work with particular experience of Down’s syndrome cases. Judge Mitchell’s reserved decision was handed down on the 22^nd July. The mother’s notice of application was filed with this court on the 5^th August and was the subject of orders made by my lord, Wall LJ, including the grant of permission to which I have already referred.

Although none of the parties to this appeal has sought to file additional evidence, we have been informed by counsel of practical arrangements that are in place following M’s move on the 1^st November 2004 to a special placement some thirty miles from the appellant’s home town of Telford. M’s placement is achieved under Section 21 of the National Assistance Act 1948. In her current home there is accommodation for only four persons. Presently there are only two in the home with a very high ratio of staff to patients. Broadly speaking M appears to be thriving, although we were told that during the course of a recent review of her present placement and future needs, she reverted to intermittent challenging outbursts.

Before recording the rival submissions it is convenient to set out the essential statutory provisions.

First I set out below so much of Section 29 as is directly applicable to the present appeal:-

“29 (1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient’s nearest relative and is willing to do so.

(a)

………….

(b)

…………

(c)

an approved social worker;

(3)

An application for an order under this section may be made upon any of the following grounds, that is to say-

(a)

………….

(b)

………….

(c)

that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; or…”

Equally I set out below so much of Section 7, which deals with applications for guardianship, as is relevant to the present appeal:-

“7 A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as “a guardianship application”) made in accordance with this section.

(1)

A guardianship application may be made in respect of a patient on the grounds that-

(a)

he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and

(b)

it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.”

That leads to Section 1 from which it is necessary to include the definition of severe mental impairment:-

“1 (2) “severe mental impairment” means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned and “severely mentally impaired” shall be construed accordingly;”

Finally I cite the relevant provisions of Section 8 which demonstrate the extremely limited nature of the statutory powers conferred on the guardian:-

“8 (1) Where a guardianship application, duly made under the provisions of this Part of Act and forwarded to the local social services authority within the period allowed by subsection (2) below is accepted by that authority, the application shall, subject to regulations made by the Secretary of State, confer on the authority or person named in the application as guardian, to the exclusion of any other person-

(a)

the power to require the patient to reside at a place specified by the authority or person named as guardian;

(b)

the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;

(c)

the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved social worker or other person so specified.”

It is to be noted that once an order has been made under section 29, which effectively replaces the local social services authority as the patient’s nearest relative, the processes by which the state of guardianship is created and extended are essentially administrative and internal to the local authority. An approved social worker applies and gives notice to the local social services authority as the nearest relative. The only external check is the requirement for expert reports to substantiate the need for guardianship. This administrative process does not involve either the patient or the displaced nearest relative. Neither is notified. Neither has any right of objection. Any contemporary reaction is bound to question the apparent disregard of the Article 6 and Article 8 rights of the patient and her family. Breach of human rights was the basis of the judgment of this court in allowing the appellant’s appeal in the judicial review proceedings. The apparent breach of human rights was the basis of the grant of permission in the present appeal.

However the Official Solicitor, representing M in the appeal as her litigation friend, received a letter from the Department of Constitutional Affairs dated 22^nd February 2005 giving notice that the Civil Procedure Rule Committee had amended CCR order 49 rule 12(3)(b) with effect 4^th April 2005 (see Civil Procedure (Amendment) Rules 2005 SI 2005/352). That may have led to the postponement of the appeal which had been fixed for February 24^th.

Rule 12 is the rule which, as it had stood, appeared to jeopardise M’s Convention rights. For it provided as follows:-

“(3)

Where an application is made under section 29 for an order that the functions of the nearest relative of the patient shall be exercisable by some other person –

(a)

the nearest relative shall be made a respondent to the application unless the application is made on the grounds set out in subsection (3)(a) of the said section or the court otherwise orders;

and

(b)

the court may order that any other person, not being the patient, shall be made a respondent.”

The amendment announced by the letter of the 22^nd February was simple: the words “not being the patient” were deleted from rule 12(3)(b). The result was of course to confer on the court the discretion to join the patient as a respondent to the Section 29 application.

Although neither the patient nor the nearest relative has acquired any right to oppose the making or extension of a guardianship direction, or indeed to apply to discharge an existing guardianship direction, the nearest relative does have the right, provided by Section 66 of the Mental Health Act 1983 to apply to a Mental Health Review Tribunal for the discharge of the guardianship direction.

In the context of the present case the existence of the guardianship direction enables the local authority to do nothing that is restrictive other than to maintain M’s placement at her present home. Were the appellant to succeed in an application to the Mental Health Review Tribunal to discharge the guardianship direction, she could on the very day of discharge lawfully collect M and remove her from her present environment.

I have one further observation on these relatively complex statutory provisions. As my lady, Smith LJ, pointed out during argument, had the appellant accepted that she was no longer coping and that a respite placement was essential to avert a crisis, then there would have been no application under Section 29 and any application for the making or extension of a guardianship direction would have been notified to her as the nearest relative.

I turn now to the submissions of Ms Lang QC and Ms McDonald for the appellant. Ms McDonald appeared below but Ms Lang has only come into the case comparatively recently, replacing Ms Forster QC who was originally briefed. My understanding of the appellant’s written submissions was that Ms Lang would principally argue that there had been a fundamental interference with the appellant’s Article 8 rights to respect for her family life. The interference she asserted was obvious: M had been removed from the family by force. No other party denied the breach. The respondents only relied upon Article 8(2). Ms Lang’s anticipated reply was that they could not demonstrate that the interference was proportionate, given that M’s needs would have been better managed by an application to the High Court under its inherent jurisdiction to make best interest declarations in relation to an incapacitated patient. Ms Lang submitted that the alternative remedy was both less draconian and better tailored to the circumstances of the case.

This submission did appear in Ms Lang’s oral argument. She urged that this was a welfare case and not a mental health case. She submitted that the local authority had wrongfully, or at least inappropriately, used the Mental Health Act as a means to an end, namely to separate M from her mother’s care.

However when pressed Ms Lang principally relied upon the submission that the judge’s conclusion that the local authority had proved the essential criteria contained in Section 7(2)(a) and (b) was plainly wrong on the facts. She relied upon a schedule of the evidence which was only made available to the court and to the respondents shortly before the court sat. First she reviewed the social work history from 1974 to 2001. This was a highly selective summary given that it was achieved on a single page. She then made a selective review of the evidence at the case conferences to which I have referred in my review of the history. This was also compressed, extending only to some two and a half pages. Then in the more recent reports and statements before the judge she selected passages from Dr Langton’s reports of 12^th September 2002, 17^th February 2003, 20^th June 2003 and 25^th May 2004. Similarly selections were made from Mrs Bannister’s report for the Mental Health Review Tribunal, the appellant’s statement, Mr Hargreaves’ letter of 31^st May 2004 and the transcript of the hearing on the 1^st August 2003 at which the interim displacement order emerged.

I have no doubt that had due notice been given to the respondents we would have been furnished with their selections from the evidence to contrary effect. But above all I reject this attack on the judge on the simple ground that the judge did not decide the case so much on written reports and statements as on the oral evidence from the essential witnesses given over the course of approaching three days. Ms Lang has not bespoken transcripts of the evidence nor referred to any aspects of the oral evidence that might enable her to submit that the judge’s conclusions on the facts were unfounded.

After the short adjournment she summarised her criticisms under the following three heads:-

Ms Lang’s criticisms were well answered by Mr Cragg for the local authority. He emphasised that the local authority had taken the statutory route on advice, particularly that of Dr Langton. At no stage did they wish to shut out the patient or the appellant. The local authority welcomed the rule amendment and supported the Official Solicitor’s submissions as to how that amendment should be operated hereafter. Whilst the rule change came too late for M, she had suffered no prejudice since precisely the same outcome would have resulted had the local authority made application at the outset for a best interests declaration that would have fully involved the patient, represented by the Official Solicitor, and the appellant.

Mr Cragg disputed that the local authority had a choice of alternative remedies. The case of Re: F(Adult: Court’s Jurisdiction) (2000) 2FLR 512 demonstrated that the court’s inherent power to make a best interests declaration was essentially limited to filling a statutory lacuna. Here M’s essential need was to be removed from the carer who could no longer meet her needs. Section 8(1)(a) of the Mental Health Act 1983 provided the precise legal power. Mr Cragg pointed out that there will be cases in which the Section 29 criteria are satisfied but which cannot be managed within any of the restricted powers conferred by Section 8. In such a case the local authority would perceive the statutory lacuna and would apply for a best interests declaration. Mr Cragg further accepted that there might well be requirements that could not be managed within the three express powers conferred by Section 8(1). For instance in the present case there might be issues as to the nature and extent of the appellant’s contact with M. In such situations Mr Cragg accepted that a best interests application would be needed to supplement the statutory powers achieved through the route of Sections 7 and 8.

In relation to Ms Lang’s criticisms of judge’s conclusions expressed in paragraph 28-31, Mr Cragg relied on the case of Re: P, an apparently unreported decision of this court of the 16^th April 2002, (2002) EWCA Civ 697. In the course of his judgment Pill LJ emphasised that the absence of contemporaneous symptoms amounting to abnormally aggressive or seriously irresponsible conduct did not result in the conclusion that the patient no longer suffered from the underlying disorder. He pointed out that the absence of such symptoms might indicate either that the underlying disorder had resolved or that it continued to exist but without recent manifestations of aggressive or irresponsible behaviour.

Although those observations were made in relation to psychopathic disorder that ‘results in’ aggressive or irresponsible conduct, in my judgement they apply equally to severe mental impairment that is “associated with” abnormally aggressive or seriously irresponsible conduct. To make a balanced assessment of the patient’s present state some regard must be had to the past history and the future propensity. A conclusion based only on the recent past, which might represent a transient phase of quiescence, would be superficial. Accordingly I conclude that Mr Cragg’s citation of the case of Re: P was apt. It was not cited below but it fully supports the judge’s approach.

Ms Markus’ submissions simply support the respondent on all points in issue. On the jurisdiction debate she adds that in most cases the guardianship role is accepted and accordingly most reviews are before Mental Health Tribunals. Where there is a dispute as to residence that is customarily and properly dealt with under the provisions of Section 7 and 8 of the Mental Health Act 1983. Applications for best interest declarations can be brought not only by the local authority but by anyone with an identifiable interest. Thus the appellant, although displaced as nearest relative, could have applied, and could still apply, for a best interests declaration in regard to ancillary issues such as contact. Equally it is open to her to apply for discharge of the guardianship to the Mental Health Review Tribunal.

Ms Markus also reminds us that although the guardian’s role is limited by the terms of Section 8, the Code of Practice casts positive responsibilities on the guardian, including the maintenance of a comprehensive care plan.

As to the relevant date for the determination of the Section 7 and Section 29(3)(c) criteria, Ms Markus submits that the former issue is here academic, since in M’s case the criteria were clearly met both at the date of issue and at the date of hearing. Nonetheless she seeks the court’s guidance on the proper threshold date for the purpose of Section 29(3)(c). She also seeks this court’s approval of the Official Solicitor’s proposals for the implementation of Rule 12(3)(b) in its amended form.

Insofar as I have not already expressed conclusions on the rival submissions I will briefly explain my reasons for dismissing this appeal. By the date of the final hearing and in consequence of the amendment to Rule 12(3)(b), Ms Lang concentrated her attack first on the judge’s findings and then on the exercise of his discretion. In an admirably succinct and clear judgment the judge set out his essential findings in paragraphs 25-31 inclusive. They deserve full citation: -

“25.

The experts are agreed that M fulfilled the section 7(2)(a) definition as at 27 February 2003, and indeed, the express finding of the Mental Health Review Tribunal on 26 March 2003 supports that proposition. The Tribunal found that they accepted the evidence of the responsible medical officer that the patient suffers severe learning disability and that this has been associated with both abnormally aggressive and seriously irresponsible conduct on her part. That the patient has severe learning disability was not disputed at the hearing, and there is recent evidence of conduct on her part, both before and since her admission to hospital, which involves physical and gestural aggression towards care and medical personnel, self-harming and destruction of property, all to a degree which falls outside any normal parameters of social conduct. The patient is not able to care for herself or to guard herself against serious exploitation.

26.

Mr Hargreaves, however, has expressed some doubt whether M now continues to fulfil the condition of severe mental impairment following the amelioration in her condition and conduct brought following the intervention of the local authority and her accommodation at Rockfield House. The local authority have to assess the position as at the date their intervention is initiated. Thereafter, there may occur points in time when the patient’s condition improves. Equally, there may occur points in time when it regresses. It would be odd if the jurisdiction depended on the happenstance of the final hearing date. It would be even odder if, having commenced intervention which, as here, was shown to have served the patient’s welfare by a demonstrable improvement in her condition by the time of the hearing, the patient was condemned to be returned to antecedent condition before the local authority might intervene once again for her welfare and protection.

27.

I would hold that the material date is the date of the originating application by analogy to the situation which arises under section 31 of the Children Act 1989: see the decision of the House of Lords in Re: M ( a minor: Care Order: Threshold Conditions) [1994] 2 AC 424. Once the jurisdictional threshold test is passed at the date of the application, the court will then, of course, take the ensuing circumstances and events into account in deciding whether or not to exercise the jurisdiction.

28.

The distinction between Dr Langton’s opinion and Mr Hargreaves’ opinion at the current date results from their differing views as to how long should lapse after the last recorded incidence of seriously irresponsible conduct before it may be said that the patient ceases to fulfil the definition of “severe mental impairment”. Dr Langton’s evidence is that his opinion remains that the criteria continued to apply as at present. His view is that the criteria continues to apply as at present. His view is that the criteria will continue to apply as at the review date. He does agree that there may come a time when the criteria will not be met, but seriously irresponsible conduct, in his opinion, has continued to occur, albeit at less frequent intervals. It is not just conduct which is contemporaneous, but historical conduct and potential for behaviour to recur which has to be considered, and if M were to be discharged, the opportunity for both aggressive and irresponsible behaviour is, in the opinion of Dr Langton, 100 per cent. He anticipates that, as I have said, M will continue to fulfil those conditions for some time.

29.

Mr Hargreaves, in his written report, said that whilst he agreed that M had been exhibiting such conduct, she was no longer doing so, and I quote from his report:

“In Miss Hs’ case, it appears to me that the behaviours which brought her within the scope of the Act were a direct result of the highly abnormal care regime in which she had been living for most of her life, that there was then a temporary and understandable exacerbation of her behaviour when she was removed from home to an alien environment, but that once she had adapted to her situation, the behaviours faded without the need for any specific therapy, and there was then no evidence of any persistent disorder of behaviour. She does not, therefore, meet the criteria for continued classification as severely mentally impaired.” [Quote unchecked].”

30.

His oral evidence was more ambivalent. He said that M was now coming to the end of the period when she might be said to be exhibiting this conduct, although he entirely agreed that such behaviour would almost certainly recur if M were to return to live with the mother.

31.

In case I should be considered to be wrong in my judgment as to the material date, I would say that on the question of M’s current condition, I prefer the evidence of Dr Langton, who is the responsible medical officer and her psychiatrist. There can be no doubt that it is in the interests of M and for her protection that she has been received into guardianship, nor can there be any doubt that the mother’s objection to the making of the application was and remains unreasonable.”

Those findings are transparent and plainly well founded on the evidence, both written and oral. Insofar as their evidence differed the judge was plainly entitled to prefer the evidence of Dr Langton to that of Mr Hargreaves. Moreover he clearly exercised a judgment in the round and had regard to all the material evidence. I therefore found Ms Lang’s criticisms unconvincing.

Equally, once the local authority had established their entitlement to the order sought under the Mental Health Act, the suggestion that the judge should in the exercise of his discretion refuse relief and send the local authority to another court to seek a best interests declaration was hardly likely to succeed. Of course I recognise that the argument was sustainable, given that by the use of the word “may” in the opening phrase of Section 29, Parliament conferred a discretion on the judge. I also recognise that the argument derives some support from the decision of this court in the earlier case of Re: F (2001) FLR 192. However that case is so obviously distinguishable on the facts as to offer little if any realistic support for the submission. In the end it is enough to say that the judge exercised a discretion in a manner that is not open to criticism.

In response to the Official Solicitor’s invitation, I would hold that, in order to succeed on an application under Section 29, the applicant must demonstrate that the statutory criteria are made out both at the date of application and at the date of hearing. The judge held that the language of the section indicated that the relevant date is the date of application. In that I think he was right. The language of Section 29 demonstrates that jurisdiction arises upon an application being made in accordance with the provisions of the section. The identity of the applicant is set by subsection 2 and the grounds by subsection 3. The grounds so defined are described in the present tense as at the date of the application (grounds) (a), (b), and (c) or, in relation to ground (d), the past and future tense by reference to the date of application. The judge rightly looked to the decision in Re: M (1994) 2AC 424 as a relevant analogy. The argument there approved applies even more strongly to Section 29 which directly links the grounds to the making of the application whereas Section 31 of the Children Act 1989 links the grounds to the making of the order.

However the grounds in Section 29(3) not only specify the basis of the court’s jurisdiction but also its power to make an order. In consequence I am of the opinion that the judge must also be satisfied that the grounds exist at the date of the final hearing.

I would also endorse the Official Solicitor’s proposal for the implementation of the amended CCR Ord 49 Rule 12(3)(b) in such a way as to ensure compliance with the patient’s Convention rights. Although the new rule does not require it, I support the Official Solicitor’s conclusion that the patient must be served with the proceedings and notified of the right to be joined. Second the County Court Judge must at the earliest stage enquire whether the patient has been so served and ensure that appropriate steps are taken to secure the patient’s Article 6 and 8 rights. Third he should extend his enquiry into the patient’s capacity in order to ensure that a person willing to act as litigation friend has been identified and served. These precautions must be taken even in cases where urgent relief is sought. I accept the Official Solicitor’s submission that it is difficult to conceive of circumstances in which a patient could lawfully be deprived of any opportunity to participate in proceedings. Any justification would have to address the patient’s Article 6 and Article 8 rights.

For the reasons given I would dismiss this appeal.

I agree with the judgments of Thorpe and Wall LJJ and have nothing to add.

I am in complete agreement with Thorpe LJ, whose judgment I have had the advantage of reading in draft, that this appeal should be dismissed. I also agree with the reasons he gives. I add a short judgment of my own partly because I was the member of the court who gave permission to appeal on the papers, and partly because I was also a party to the decision of this court in the related but distinct aspect of the case, now reported as R (H) v Secretary of State for Health [2004] EWCA Civ 1609, [2005] 1 WLR 1209. That decision, which is currently the subject of an appeal by the Secretary of State to the House of Lords, was critical of both (1) the absence of any mechanism within the Mental Health Act 1983 (MHA 1983) to enable M or any incompetent patient in her position to gain access to a Mental Health Review Tribunal (MHRT) within the 28 day detention period permitted by MHA 1983 section 2; and (2) MHA section 29(4), which extended the period for which M was to be detained (and during which she had no independent right of access to a MHRT) until the determination of Mr. Gibson’s application to the county court for an order under section 29 directing that the functions of her nearest relative (the appellant in this appeal) be exercised by Mr. Gibson rather than the appellant.

In the course of my judgment in R (H) v Secretary of State for Health [2005] 1 WLR 1209 at 1223, I commented on the consequences for M of an application to displace the appellant as M’s nearest relative, when the application was being made under MHA 1983 section 29(3)(c), and where the appellant’s resistance to it was based on her denial that M’s condition fell within MHA 1983, section 7(2). I said:

“51.

Not only, of course, did M not have any right of recourse to an MHRT throughout this period, she was also not a party to the section 29 application, and had no control over the timing or the manner in which it was processed. And as Buxton LJ points out, the issue before the county court is not directly related to the patient, but to the suitability of the nearest relative.

52.

I cannot but contrast the procedure under section 29 with that under the inherent jurisdiction, where the patient is represented by the Official Solicitor with all the resources at his command, and both the nearest relative and the local authority can be represented in a hearing before a High Court Judge of the Family Division which is both fully informed and swiftly convened.”

In giving permission in the instant case, I commented that, whilst in a rapidly developing jurisprudence, it might be, as the appellant sought to argue, that this was a case more appropriately dealt with under the inherent jurisdiction, it did not follow that the judge was necessarily wrong to a make a final order under MHA 1983 section 29. It also did not follow, given that the judge had found that M fulfilled the criteria contained in MHA 1983 section 7(2), that guardianship was inappropriate.

The anxieties which I held about the section 29 process have been largely assuaged by the careful arguments addressed to us by Mr Cragg on behalf the approved social worker, Mr. Mark Gibson, and by Ms Kate Markus on behalf of the Official Solicitor. The development which has most eased my mind is the amendment to CPR 1998, Schedule 2, CCR Order 49 rule 12(3)(b) referred to by Thorpe LJ in paragraphs 17 to 19 of his judgment. This amendment enables the court to make the patient a party to the application. In combination with the good practice guidelines proposed by the Official Solicitor which, like Thorpe LJ, I wholeheartedly endorse, the position should now be that the patient’s interests can be properly safeguarded in the context of an application to displace the nearest relative under MHA 1983 section 29.

I was further reassured by the clear recognition on the part of the local authority that the time may well come when guardianship would be inadequate or inappropriate to meet M’s needs, and that it would be necessary at that point to invoke the High Court’s best interests inherent jurisdiction, which would then fulfil its historical role as a means of filling a lacuna, or appropriately supplementing the statutory scheme.

As to the relevant date for determining “unreasonableness” in section 29(3)(c), it is, I think, worth repeating the terms of the sub-section. It provides: -

“(3)

An application for an order under this section may be made upon any of the following grounds, that is to say –”

……

(c)

that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient.

The judge identified the issue neatly when he summarised the appellant’s argument in the following terms: -

“… whilst she concedes that M is a patient, it is denied that her condition now falls within the definition provided by section 8(2) of the Act for the purposes of making a guardianship application, hence, the mother says, she cannot be said to be unreasonably objecting to the making of such an application. ”

This identification of the issue seems to me to contain two components, namely the date on which the nearest relative must be held to be unreasonable; and, relative to that date, the date on which the patient qualifies for guardianship under MHA 1983 section 7(2).

As to the latter, the judge found M fulfilled the section 7(2) criteria throughout. It was, accordingly, academic whether one took, as the relevant date, the date of the originating application under section 29(3) or the date of the hearing. In any event, the judge was plainly right to find that at the date of the issue of the originating application under section 29(3) M fulfilled the section 7(2)(a) definition and that the finding of the MHRT on 26 March 2003 supported that proposition.

In my judgment, the language of section 29(3)(c) makes it clear that the date for establishing the court’s jurisdiction to deal with an application is the date of the application itself. As at that date (27 February 2003) the patient must qualify for admission for treatment or a guardianship application and the nearest relative’s objection must be unreasonable. On the evidence, both were established in the instant case.

Like Thorpe LJ, however, I cannot think that this is the end of the matter. Like him, I take the view that section 29 is not simply a section which confers jurisdiction, but also gives the power to make an order. As the judge himself put it in paragraph 27 of his judgment: -

“Once the jurisdictional threshold test is passed at the date of the application, the court will then, of course, take the ensuing circumstances and events into account in deciding whether or not to exercise jurisdiction.”

Jurisdiction having been established under section 29(3)(c) at the date of issue of the originating application, the judge was absolutely right in my view to hear evidence about M’s condition as at the date of the hearing, and fully entitled to conclude, as he did, that she continued to satisfy the section 7(2) criteria. His further conclusion is likewise in my view unassailable:-

“There can be no doubt that it is in the interests of M and for her protection that she has been received into guardianship, nor can there be any doubt that the mother’s objection to the making of the application was and remains unreasonable.”

As a matter of logic, it would seem to me difficult to defend the exercise of a power under section 29(3)(c) to displace a patient’s nearest relative if the patient had qualified for guardianship when the proceedings were issued, but had ceased to qualify for guardianship at the date of the hearing. I therefore respectfully agree with Thorpe LJ that the position at the date of the hearing must be considered, and that the judge must also be satisfied that the grounds under section 29(3)(c) exist at the date of the final hearing.

In my judgment, therefore, the arguments addressed to us in this appeal have helpfully clarified a number of questions relating to applications under MHA 1983 section 29, including the date on which the statutory criteria must be made out. On the facts of the instant case, I am satisfied the judge reached the right conclusion, and I share Thorpe LJ’s admiration for his clear, well-structured judgment. I regard Ms Lang QC’s attack upon it as ineffectual for the reasons Thorpe LJ has given, and which I need not re-iterate.

I, too, would therefore dismiss this appeal.