M, R (on the application of) v Homerton University Hospital NHS Trust & Anor

This is an application for permission to appeal a refusal by McCombe J to grant permission to apply for judicial review of the decisions by the respondent, National Health Service Trust, to detain the applicant under section 3 of the Mental Health Act 1983 (“the Act”) concurrently with her detention under section 29(4) of the same Act. At the beginning of the hearing we granted the applicant permission to appeal..

Both the appellant, a woman in her early forties, and her mother have been known to the local psychiatric services in the area where they live for some time. They have both attempted suicide. The appellant has been diagnosed as suffering from a life-threatening disease, namely a severe form of atypical anorexia nervosa. On occasions, her condition deteriorates to the extent that without treatment she may die. The appellant and her mother insist that she suffers only from food intolerances and/or pernicious anaemia. The doctors maintain that she and her mother are in denial and/or suffer from a condition known as folie à deux, whereby they suffer and reinforce the same delusional beliefs.

The background to these proceedings and the appellant’s detention is that in April 2007 she went to doctors employed by the first respondents, of her own free will. She was reported as having been bedridden for the past three to four years and, as was conceded by her mother at the time, her weight was life-threateningly low. The appellant’s attitude to treatment was inconsistent. She was originally detained under section 5(2) of the Act as a patient already in hospital. She was then admitted under section 2 of the same Act. She gained weight steadily; her father was pleased with her progress, but nevertheless, on 25 June 2007 her mother, as her nearest relative, indicated her intention to apply for an order of discharge. This was blocked by the hospital under section 25 of the Act. On 19 July, before the expiry of the section 2 admission, an application was made under section 29 of the Act to displace her mother as the nearest relative on the basis that she was unreasonably objecting to the application for admission for treatment. It seems both the appellant and her mother are of the mind that the appellant can be treated voluntarily at a different hospital where she has been treated in the past and a hospital which was, back in the summer of 2007, prepared to accept her.

An interim order was made by the county court displacing the appellant’s mother as the nearest relative; this was expressed to last until 27 July. It was followed by a second interim order on 31 July; this was to expire on 14 September. On 1 August an application was made under section 3 of the Act for admission for treatment. On 7 August the appellant challenged her admission under section 3 before a Mental Health Review Tribunal. The doctors gave their opinions as to her condition. Not surprisingly, in my view, the tribunal decided that the criteria for admission under section 3 were met, and she remained in hospital. On 21 August she was transferred to a specialist unit within the control of the second respondents.

We are told that the final hearing for the section 29 proceedings was due in November 2007, but it seems this hearing never took place and, as far as I can ascertain, nobody has done anything to progress those proceedings since July. Mr Havers QC who appeared before us today on behalf of the appellant informed us that, for their part, neither the appellant, who appears to have been made a party to those proceedings, nor her mother have done anything.

On 16 October 2007 the appellant’s claim for judicial review was issued on the basis that, where the machinery for extended detention under section 29(4) of the Mental Health Act existed, it was said to be unlawful, in the absence of exceptional circumstances, to place the appellant on a section 3 detention so that she became subject to concurrent detention regimes. Mr Havers maintained that this appeal raises important issues of principle, touching upon the fundamental rights of a vulnerable section of the population, namely those who may be suffering from mental illness who may be admitted and detained in hospital against their will. It was urged upon us that it is important that the rights of this vulnerable group are scrutinised with care by the courts. With that last proposition I wholeheartedly agree. However, as will become apparent, I have serious reservations whether this challenge to her detention was ever in the appellant’s best interests, or was a justified use of precious resources.

The appellant’s representatives do not argue that treating the appellant was unlawful or unnecessary, or that her continued detention (for she is still being treated) has been unlawful. It is common ground that the first respondents had lawful authority to detain, treat and transfer the appellant to the second respondents’ hospital, pursuant to her detention under section 2 as extended by section 29(4). Indeed, it is that concession which underpins the present application to bring judicial review proceedings. It is accepted, therefore, that there was in existence, at all relevant times, at least one statutory power to detain and treat the appellant whilst the doctors tried to save her life. Any claim for damages for false imprisonment is therefore either doomed to failure or is so insignificant as to be meaningless. Any quashing of the section 3 order is likely, in my view, to have little or no practical effect. If she succeeds in her attempts to quash it, she will remain where she is, being treated in the same way as she is currently being treated, unless, and until, she, or her mother (if she remains the appellant’s nearest relative) can persuade a court and/or a tribunal that they are right and the doctors are wrong. Given the background to this matter, for my part, I find that wholly unlikely.

Mr Havers, when pressed, was able to point to just one other aspect of the case to support his contention that these proceedings might be of more than passing academic interest to the appellant namely that a section 3 admission for treatment will forever appear upon her record. I did not find that a sufficient justification for this challenge. The appellant has a history of psychiatric treatment and I fail to understand why the fact that in 2007 it was deemed appropriate to detain her under section 3 because, as is accepted, she required life saving treatment would prejudice her in any significant way.

We have been taken through the various sections to which I have already referred. I shall, for the purposes of this extempore judgment, merely summarise the effect of the relevant sections. The powers with which we are concerned are in Part 2 of the Act. Section 2 provides for the making of an application to admit a person compulsorily for the purpose of assessment, or assessment followed by treatment, for a maximum of twenty-eight days, subject to extension under section 29, to which I shall come in a moment. Section 3 is in broadly similar terms, but the emphasis is on treatment rather than assessment, and the regime is far more stringent. It should be noted that there is nothing expressed in these two sections which prohibits the use of section 3 powers in preference to section 2 powers, or which prohibits the use of powers under sections 2 and 3 concurrently. Section 4 provides for emergency admission for assessment. Section 29 provides for the appointment by a court of someone to act as the patient’s nearest relative where, in summary, none is available, where the nearest relative is incapable of acting, or where they unreasonably object to the making of an application for admission for treatment under section 3, as is alleged here.

Section 29 (4) provides for the situation where there is extant an application to displace the nearest relative for acting unreasonably, or not in the best interests of the patient or the public. If the patient has already been admitted compulsorily for assessment under section 2, her admission and detention thereunder is extended under section 29(4)(a), in any case until the application under section 29 has been finally resolved; or under 29 (4) (b) if an order is made in pursuance of that application for a further period of seven days.

Section 30 provides for the discharge and variation of orders under section 29. Section 30(4) in particular provides for the expiry of section 29 orders where no expiration of the period is specified within the order itself. It is worth rehearsing in full:

“An order under section 29 above shall, unless previously discharged under subsection (1) above, cease to have effect at the expiration of the period, if any, specified under subsection (5) of that section or, where no such period is specified-

a.

if the patient was on the date of the order liable to be detained in pursuance of an application for admission for treatment or by virtue of an order or direction under Part III of this Act (otherwise than under section 35,36,or 38) or was subject to guardianship under this Part of this Act or by virtue of such an order or direction, or becomes so liable or subject within the period of three months beginning with that date, when he ceases to be so liable or subject (otherwise than on being transferred in pursuance of regulations under section 19 above);

b.

if the patient was not on the date of the order, and has not within the said period become, so liable or subject, at the expiration of that period.”

Mr Havers argued that the relevant statutory provisions provide a clear and coherent statutory scheme to this effect: if the nearest relative objects to an application compulsorily to admit under section 3 and the hospital trust considers that objection to be unreasonable, the trust may apply under section 29 to displace the nearest relative. This triggers an extension of the authorised period for detention under section 29(4). In due course, a county court judge will determine whether the nearest relative’s objection is unreasonable and, if so, whether they should be displaced. Mr Havers submitted that Parliament cannot have intended that, pending the determination by the county court of the section 29 proceedings, the hospital trust would have the power compulsorily to admit the patient under section 3. This, he argued, would be pre-empting the decision of the county court judge. It would render the application under section 29 otiose, save for the purposes of obtaining an interim order. He argued that there is no need for a hospital trust to proceed in this way pending the determination of the section 29 application, because it has full powers to treat and transfer the patient in the meantime. He submitted there would have to be compelling and exceptional reasons for detaining a patient under concurrent regimes, although he was unable to provide any examples of what might amount to compelling and exceptional circumstances.

Mr Havers then made what seemed to me to be something of a leap: from the proposition that it was not necessary to use section 3 powers to the proposition it is unlawful to use section 3 powers, so that lawfully a patient may only be admitted compulsorily under section 3 after the county court has finally determined the trust’s application under section 29.

Mr Havers also submitted that the respondents had not advanced in these proceedings any proper grounds for using the section 3 powers. However, as was pointed out in argument, this matter has already been tested before an expert tribunal. The appellant has already exercised her right to have her case considered by a Mental Health Review Tribunal and she can return there should she so wish. She may challenge whether or not the criteria under Section 3 are met and whether her detention under section 3 is therefore justified.

Mr Havers put before us two decisions to assist: one a decision of the House of Lords in R (H) v the Secretary of State for Health [2006] 1 AC 441 and a decision of this court in R v Central London County Court & Ors ex parte L [1999] QB 1260. Ironically, given the appellant’s argument in this case, the point at issue in H was the compatibility of section 2 powers, as extended under section 29(4), with Article 5 of the ECHR there being arguably limited scope for judicial review of section 2 detention. This should be compared with the greater scope for review under the more stringent section 3 regime. Yet the argument advanced before us was essentially that it would have been better for this appellant if she had been detained under section 2 powers, as extended under  section 29. In the event, in H the House declared both section 2 (compulsory admissions for assessment) and section 29(4) (extensions) compatible with Article 5.4 of the Convention.

In the court below, Mr Havers’ junior, Mr Chawatama, placed considerable reliance on what he described as the “principle and test” propounded by Stuart-Smith LJ in ex parte L. It should be noted that the court was there primarily concerned with the question of the jurisdiction of the county court to make ex parte and/or interim orders under section 29 of the Act. However, Mr Pleming QC, appearing on behalf of L, advanced the proposition that the Act did not contemplate that an application under section 3 could be made whilst the nearest relative objected. He argued that the procedure of obtaining an order under section 29 had to be completed, and the nearest relative displaced, by a final order, before an application under section 3 could be made. It will be noted, therefore, that there are striking similarities between parts of Mr Pleming’s argument and the argument advanced on behalf of the applicant, something which Mr Havers realistically conceded. Nothing daunted he attempted to draw a distinction between the decision in ex parte L and the present case on the basis that the sequence of events was different in ex parte L and, in any event, in ex parte L the issue was whether or not the county court had jurisdiction to make an interim order.

However I note that in ex parte L Stuart-Smith LJ said this at paragraph 23:

“It is clear, in my judgment, that s.30(4) does envisage that an application under s.29 can be made concurrently with or subsequent to an application under s.3 for the reasons which I have earlier stated.”

To my mind, the meaning of that sentence if clear: section 2 and section 3 powers are not mutually exclusive.

Nevertheless, we were reminded of a further passage of the judgment of Stuart-Smith LJ. At page 999G he said this:

“But having said that, it seems to me that unless there are cogent reasons to the contrary, it is preferable that questions under s.29(3)(c) should be finally determined before an application is made under s.3, and the machinery of extension of detention under s.2 afforded by s.29(4) should be used.”

Desirable or “preferable” it may be for the section 29 proceedings to be concluded before an application is made under section 3, but in my view Mr Havers’ argument involves yet another leap from the proposition “it is preferable for there to be a final disposal of the section 29 application before a section 3 application is made” to the proposition “it is unlawful to make a section 3 application until the section 29 proceedings have been finally resolved”. I do not accept that there is any justification for such a leap.

On a strict reading of the Act, and a consideration of the authorities I would respectfully agree with Stuart-Smith LJ that the powers are not expressed or intended to be mutually exclusive. There is nothing in the Act or in the case law to suggest that if a hospital chooses to go down the section 29 route to try to displace the unreasonable relative, they are then bound to conclude those proceedings before taking action under section 3. I fail to see why Parliament should have intended that to be the case. Had that been Parliament’s intention I have no doubt it would have said so.

In section 3, Parliament has carefully specified the requirements for admission under that section. Those requirements are stringent but do not include restrictions on the right to apply for admission under section 3 until any application under section 29 has been finally determined; nor do I find anywhere a suggestion that Parliament intended that exceptional circumstances must exist before the two regimes may run in tandem.

I turn, therefore, to the enactment which is said to make all the difference, the Human Rights Act 1998. The appellant submits that since the coming into force of the Human Rights Act the test under ex parte L has become more stringent. Mr Havers argued that if we read together the established common law principle that detention must be justified by express statutory authority and the respect for private life enshrined in Article 8 of the ECHR it becomes plain that the section 3 detention in this case was unlawful. For my part, I find this part of the argument even harder to follow. For the purposes of this appeal it is common ground that detention under sections 2 and 3 is compatible with the Human Rights Act and the Convention and that both the section 2 and  section 3 regimes are carefully regulated and subject to proper review. Further, we know as a result of H that extension under section 29 (4) of detention is compatible with the Act and the Convention. It is accepted therefore that reliance on sections 2 and 29 would not breach the appellant’s Convention rights and reliance on section 3 alone would not breach the appellant’s Convention rights. For my part I fail to see how the fact there may be reliance on two or more sections at the same time amounts to a disproportionate and unjustified interference with the appellant’s Article 8 rights. Her private life was bound to be interfered with and in exactly the same way because it is accepted that, at all times, she was lawfully detained and treated.

She has not been falsely imprisoned or detained on some whim of the authorities. Her detention has always been subject to proper review. At any time her mother, or indeed the appellant herself, if she is a party to the section 29 proceedings, could have insisted on returning to the county court for a final hearing of the section 29 application. The appellant could have exercised her right to return to the Mental Health Review Tribunal.

It is far from uncommon that a citizen or their legal representatives may have more than one way to challenge their detention. It does not mean that the existence of concurrent powers is unlawful or incompatible with the European Convention. Any lack of clarity of so-called “double detention” as argued by Mr Havers may be regrettable but, to my mind, if it matters, (about which I have my doubts), it need only be shortlived. As I have indicated the confusion is easily resolved by putting any application back before the court or returning to the Tribunal.

For all those reasons, for my part, I would dismiss this appeal.

I agree.

I also agree that the appeal should be dismissed for the reasons given by my Lady. I would only add this. The nub of Mr Havers’ submissions really seems to be that when section 29 proceedings were on foot, it was obligatory for those proceedings to be finally determined before the local authority could properly contemplate the making of a section 3 order. Whilst I would agree that that approach may be desirable in some cases, it really is impossible to spell out from the statute, or to think as a matter of common sense, that there must be a binding rule to that effect. The section 29 proceedings are essentially proceedings between the nearest relative and the local authority and concern the role, if any, to be played by the nearest relative in consideration of the patient’s treatment. They are, of course, of importance in some cases, and certainly in this case, to the interests of the patient herself, but it would be very surprising if their existence were allowed to determine whether or not the section 3 order could be made even in circumstances where the doctors consider, and in this case upheld by a Mental Health Review Tribunal, that such an order is necessary.

Section 29 proceedings can cause difficulties if they are unduly prolonged but, as my Lady has pointed out, first of all it is open to the parties to return to the court in order to see that those proceedings are progressed and secondly, as the House of Lords pointed out in the case of H, cited by my Lady at paragraph 30, it is open to those representing the patient to approach the Secretary of State to use his power under section 67(1) to re-refer a case of delay to a Mental Health Review Tribunal. That step has not been taken in this case, nor have the nearest relative or the patient returned to the county court; Mr Havers’ explanation of that being that, in effect, with the section 3 order having been made, such a step would be otiose. I did not understand that submission, because the whole point of saying that the section 29 proceedings ought to be resolved is in order to be clear what the position is of the nearest relative in considering whether a section 3 order should be made. If she succeeds in discharging the order under section 29 then she can make an application to a Mental Health Review Tribunal, and that is the step that Mr Havers said must be excluded for certain before the local authority contemplates a section 3 order. But the matter can, whether or not the nearest relative is involved, be referred to a Mental Health Review Tribunal, as indeed happened in this case. Therefore the role to be played by the nearest relative, although important, cannot possibly be regarded as crucial to the extent that her position must be finally sorted out before the section 3 order is made at all.

It was suggested to us that no grounds had been advanced for making a section 3 order in this case whilst the section 29 proceedings were still on foot. It is quite true that nothing has been specifically said about that; but my Lady has drawn attention to the serious aspects of this case which make it entirely understandable, looking at it from the outside and as a layman, therefore not with any authority, why the doctors took the view that they did; and the alternative that was proposed, which is that this lady should be under no order at all, which is the end sought in these proceedings, but should be a voluntary patient in a non-psychiatric hospital, perhaps understandably was not regarded either by the doctors or by the Mental Health Review Tribunal that looked at this matter on 7 August as being an appropriate course.

I therefore do not consider either that the law is as is urged on us or that the merits of the matter and the common sense of the matter drove in the direction of objecting to the section 3 order. At the beginning of her judgment, my Lady observed that she was unpersuaded that these proceedings served any useful purpose or indeed should have been pursued. I wish to say, because it may be of some importance in considering costs matters in a different forum from this one, that I would respectfully agree with her characterisation of this case.