Mersey Care NHS Trust, R (on the application of) v Mental Health Review Tribunal

MR JUSTICE SULLIVAN: The claimant is responsible for the management of Ashworth Hospital. Ashworth is a special hospital where patients are cared for in conditions of high security. The interested party, D, is a patient at the hospital.

In this application for judicial review, the claimant challenges a decision of the Mental Health Review Tribunal, Liverpool (the Tribunal), given on 27th March 2003. In that decision, the Tribunal discharged D from liability to be detained under section 3 of the Mental Health Act 1983, with effect from 12 noon on 28th April 2003.

The claimant set out its concerns about the Tribunal's decision in letter before action dated 7th April. In the absence of a substantive response, these proceedings were filed on 23rd April with a request for urgent consideration and an application for a stay of the Tribunal's decision.

The application was considered on the papers by Ouseley J the following day. He granted permission to apply for judicial review and ordered that the Tribunal's decision should be stayed until the hearing of the action. He gave liberty to the Tribunal and the interested party to apply to discharge the stay.

The matter came back before Keith J on 29th April on the application of the interested party to remove the stay. Keith J did not accede to that application but he gave directions for an urgent hearing, so that the matter has come before me today, Friday, 9th May. Keith J ordered that the defendant file evidence by Tuesday, 6th May, and the claimant and the interested party file any evidence in reply by Wednesday, 7th May. In response to that order, the defendant has filed witness statements from the three members of the Tribunal: Mrs Martin, a solicitor, and the legal member of the Tribunal; Dr Khan, a retired consultant psychiatrist, the medical member; and Mrs Mitchell, a psychologist, the lay member of the Tribunal. There is also a witness statement from Mr Kenny, the solicitor who represented D at the hearing.

Having considered the submissions made by Mr Kovats, on behalf of the claimant, Mr Strachan, on behalf of the Tribunal, and Mr Southey, on behalf of D, I indicated that I had come to the conclusion that the application should be refused. In the normal course of events, I would have wished to take a little time to prepare my reasons but since D is still detained, it is imperative that judgment is given today. In the circumstances, my reasons will be relatively brief and I do not propose to recite matters of background history.

The claimant contends that the Tribunal's decision was unlawful for three reasons: firstly, that it was irrational because it was against the weight of the evidence; secondly, that it was inadequately reasoned; and thirdly, that there was procedural unfairness.

The first observation I would make relates to the conflict of evidence between D's Responsible Medical Officer (RMO), Dr Swinton, on behalf of the claimant, and the account of the proceedings before the Tribunal that is given in the defendant's evidence and confirmed by the evidence of Mr Kenny. It is unnecessary to rehearse the detail. It is sufficient to note that there are substantial differences of recollection between the parties as to what actually occurred at the hearing. The burden is, of course, upon the claimant to establish that there has been an error on the part of the Tribunal. Where there is a conflict between Dr Swinton's account of what happened at the Tribunal and the account given by the three members of the Tribunal and Mr Kenny, I prefer the evidence given on behalf of the defendant. I mention that at the outset because there were a number of complaints relating to procedural irregularity which are no longer pursued.

Against the background of events as described by the members of the Tribunal, Mr Kovats submits that there were two procedural flaws. Firstly, it is said there was unfairness because Dr Swinton was not allowed to "cross-examine" Ms Linton. Ms Linton is a senior social worker at Ashworth Hospital. Secondly, it is said that the Tribunal was unfair because it refused to allow Dr Swinton to sum-up the hospital's case. According to Dr Swinton's account of the matter, at the conclusion of the cross-examination of Ms Linton by Mr Kenny on behalf of D, he told the Tribunal that he wanted to ask her some questions. His request was refused. According to the Tribunal, during the course of Mr Kenny's cross-examination of Ms Linton, Dr Swinton tried to interrupt and ask questions. The Tribunal told Dr Swinton that since he was simply appearing as a witness rather than a representative, he was not allowed to ask questions of another witness. In her witness statement, Ms Martin explains that she was, understandably, concerned "to prevent friendly-fire questioning by one witness of another appearing for the authority".

In the light of that response, Mr Kovats submitted that it was unfair for the Tribunal simply to refuse to allow Dr Swinton to ask questions. It should have elicited what questions he wanted to ask: if they were irrelevant they could have been ignored; if they were relevant, then perhaps the Tribunal could have asked the questions itself. However, it appears that Dr Swinton did not challenge Ms Martin's statement that he was appearing before the Tribunal simply as a witness rather than as a representative. The relevant procedure is prescribed by the Mental Health Review Tribunal Rules 1983 (the Rules). Rule 22(1) provides that:

Dr Swinton's witness statement does not make it clear whether he informed the Tribunal that he was appearing not merely as a witness, but as a representative of the hospital. In any event, he did not challenge the Tribunal's ruling in respect of Ms Linton, that is to say, that as a witness he could not ask questions of another witness.

The ground of challenge in the claim form, however, does not complain of the Tribunal's refusal to allow Dr Swinton to ask questions of Ms Linton. It contends that there was procedural unfairness because of "the refusal to allow Dr Swinton to question D or to make final submissions." However, the facts in support of the grounds make it clear that Dr Swinton did not ask for permission to cross-examine D, so there is no question of the Tribunal refusing to allow him to do so. He apparently took the view that having been refused permission to ask questions of Ms Linton, there was no point in his seeking permission to ask questions of D. In any event, the complaint that the Tribunal refused to allow him to question D is unjustified because there was no request from him to question D.

So far as a refusal to allow him to make a final submission is concerned, which is the second alleged procedural flaw, it seems to be accepted that he did not ask for permission to make such a final submission, again apparently because he was discouraged by the fact that he had not been allowed to cross-examine Ms Linton. The RMO is not entitled under the Rules to make any final statement. There is no indication as to what the Tribunal's attitude might have been if he had merely sought to "correct" any new points that had been mentioned by Mr Kenny in his closing submissions that had not hitherto emerged in evidence. It would appear that the "new evidence" related to the possible timescale as to when a medium security facility might become available. There was no information before the Tribunal as to when it would be available. The Tribunal, using its own experience, took the view that the opening of new units is often subject to delay, but beyond that it is not clear what Dr Swinton would have wished to say in his closing submissions.

If there is a lesson to be learnt from this unhappy sequence of events, it is that if an RMO is indeed representing a hospital and not merely giving his or her own evidence, then that should be made clear to the Tribunal at the outset. If one stands back, it cannot sensibly be suggested that there was unfairness in "refusing" to allow Dr Swinton to make a closing submission, when he had never asked for permission to do so. Equally, it cannot possibly be suggested that there was unfairness in the Tribunal "refusing" to allow him to question D when he had never asked to question D. He had asked permission to question a fellow employee at the hospital, and it is readily understandable that for "friendly-fire" reasons the Tribunal declined that particular request, whether it was made by way of interruption or at the end of Mr Kenny's cross-examination.

Against this background, I turn to the other two grounds of challenge: the rationality challenge and the reasons challenge. Underlying the rationality challenge is the proposition that the evidence was all one-way, that is to say, it all supported the proposition that D should continue to be detained. In amplifying that submission, Mr Kovats drew attention to the written reports that were available to the Tribunal.

There was a report from Dr Swinton, dated 17th December 2002. There was an earlier report from Dr Lomax, who had been instructed on behalf of the interested party. In his report of 25th October 2002, Dr Lomax had expressed the view that "at the present time [D] requires nursing in conditions of maximum security." He was of the view, in October 2002, that the claimant was appropriately detained at Ashworth. There is a further letter from Dr Lomax, dated 30th January 2003, which corrects one error of fact in his earlier report, but which does not purport to be a reappraisal of the position.

The most up-to-date psychiatric report was a report from Dr Barkley, the Director of Women's Forensic Mental Health Services in the South Birmingham NHS Mental Health Trust. In her report, she expressed concerns as to how well D would cope with being moved from conditions of high security at Ashworth to a less structured hospital environment. Thus, her report dated 3rd March 2003 was of the view that D still required to be detained in hospital. However, she noted that "[D] has made a substantial clinical improvement." She expressed the view that "she is appropriate to move to Ardenleigh [a medium secure hospital] in the Autumn of this year."

There was a report from Mr Houlders, a social worker, dated 7th February 2003, that said inter alia that D was not representing any management problems on the ward:

The senior social worker at Ashworth, Ms Linton's, report was dated 16th December 2002. That concluded under "Future Aims":

There was also a report from Dr Aitkin, a clinical psychologist with Ashworth's Women's Service. That report was dated 24th November 2002. It recommended, amongst other things, "a referral for psychological therapy/intervention:

Against this background, Mr Kovats submits that all the written evidence before the Tribunal was to the effect that D should continue to be detained. The Tribunal was entitled to form its own judgment but where, as here, all the medical evidence was one-way, it was irrational for the Tribunal to order the discharge of the patient unless it could point to its own evidence, for example from the medical member of the Tribunal, to justify discharge. In the present case, there had been no evidential input from Dr Khan, the medical member. He had not, for example, examined D and formed a provisional view which he had communicated to the Tribunal.

At this point, it is convenient to set out the Tribunal's reasons for its decision. For convenience I have numbered the paragraphs:

By way of background explanation, the Reaside Clinic is a medium secure unit which had on previous occasions cared for D. She had been referred there as long ago as 1992 for aggressive behaviour. There was then a sequence of releases into the community, and readmissions into hospital following relapses. Most recently, in May 2000, D had been discharged from the Hatherton Centre and returned to the care of the Reaside Clinic's outpatient services. In July 2001, D had been admitted to Reaside Clinic because she had stopped her medication and was clearly unwell. She was then detained under section 3. She had been discharged in January 2002, then readmitted again to Reaside in May 2002. She had again failed to continue taking her prescribed medication. In due course, because of problems experienced with D at Reaside, she was referred to Ashworth and was admitted there in July 2002. There was to have been a Mental Health Review Tribunal hearing at an earlier date, but that was cancelled at D's request due to a family bereavement. Thus it was that a number of the written reports before the Tribunal were not entirely up-to-date.

It is plain from the decision of Latham J, as he then was, in R v London South and South West Region Mental Health Review Tribunal (ex parte Moyle) [2000] Lloyd's Rep 143, that the Tribunal has an original jurisdiction. It has to exercise its own judgment based upon the evidence before it. It is open to the Tribunal, provided it acts rationally, to disagree with the views of any psychiatrist whose evidence is put before it.

In addition to the written reports, the Tribunal also heard oral evidence. Dr Swinton gave evidence, as did Ms Linton and the ward manager, Mr Marriot. In addition to these three staff from Ashworth, D herself gave evidence before the Tribunal. As the witness statements of the members of the Tribunal make clear, they considered that the oral evidence was of particular importance in this case because the written reports were not up-to-date. They were anxious to see how much progress had been made since the end of 2002.

It is plain from the written reports that there had been considerable progress. When admitted to Ashworth, D had been very ill indeed, but as a result of taking the medication prescribed for her, there had been "substantial clinical improvement". Thus, it was common ground that the improvement had been such that she no longer required nursing in conditions of high security. Clearly, it was a matter of degree and judgment as to just how far she had progressed and whether she had progressed to the extent that the hospital could establish, the burden being upon the hospital to do so, that she had to remain in hospital and could not be discharged into the community. It is plain that the Tribunal recognised that it was dealing with a moving target and was anxious through its questioning to establish the up-to-date position.

To that end, the members of the Tribunal asked questions of the three witnesses from the hospital. The Tribunal formed the view that Dr Swinton was reluctant to update his December report. In so far as he was prepared to update it, he did so only in terms of generality. Thus, and I paraphrase a great deal of evidence in the witness statements of the Tribunal, the Tribunal paid particular regard to those witnesses who had day-to-day contact with D: Ms Linton, the social worker, and Mr Marriot, the ward manager. It was plain from their evidence that there had been a significant improvement in D's condition.

The history demonstrated that problems arose when D failed to take her medication. She would fail to take her medication, have to be admitted to hospital, then become sufficiently well to be released into the community, and then the cycle would begin again. So a question of particular importance before the Tribunal was whether D would be likely to cease taking her medication and thus relapse. As Dr Khan explains in his witness statement, in the Tribunal's view:

Pausing there, it is impossible to say that this unanimous decision of the Tribunal was one which was not open to them upon the totality of evidence, which included not merely the written reports but also the oral evidence, including in particular the oral evidence of those who had day-to-day care of the patient, and the evidence of the patient herself. This was not a case where there was any dispute that the patient was ill or any dispute about the nature of the patient's illness. There is no doubt that D is ill. The question is whether her illness was such that she had to remain in hospital. The Tribunal's decision was taken against the background of it being accepted that there had been significant improvement in her condition, such that she no longer needed to be nursed in high security conditions. It was pre-eminently a matter for the Tribunal's judgment as to whether her improvement by March 2003 was such that she needed to be in hospital at all, or whether she would now be able to be released with support into the community.

Against that general background, I turn to the specific complaints of irrationality made on behalf of the claimant. It is said that it was irrational for the Tribunal to conclude that D "is as well as she can be in terms of her mental state". It was irrational to so conclude because further drug treatment had been intended and further psychological input was required: see the report of Dr Aitkin. But the Tribunal's view that D "is as well as she can be in terms of her mental state" has to be considered in the context of the reasoning as a whole. The Tribunal was in no doubt that D was ill, but it had noted that she was not receiving any treatment at Ashworth, save medication and nursing, and so far as psychological input was required, there was oral evidence before the Tribunal to the effect that it could be provided within the community. Hence the Tribunal's observation that a suitable care package could include, in particular, Anger Management.

It is said that the Tribunal was irrational to say that D had "coped in the community in the past with a support package and did engage with the professional support workers." The real complaint here appears to be that the Tribunal did not acknowledge that whilst this had happened in the past, there had also been a number of occasions before when D had relapsed by reason of non-compliance with her medication.

Again, if one reads the decision as a whole, it is clear that the Tribunal were well aware of these past relapses. In paragraph 2, it had noted that the most recent admission had been brought about by D seeking help at a time when she was acutely psychotic and disturbed, and refusing medication. However, she had been very quickly persuaded to restart Clozapine and that had had a rapid effect on her mental state. The Tribunal was not obliged to rehearse in its reasons matters of background. Whilst I acknowledge that the reasons are not written simply for an informed audience, the Tribunal does not have to set out in extenso the background material which essentially is the cause of the Tribunal having to consider the matter. D was detained precisely because of this series of relapses. The question for the Tribunal was the likelihood of a further relapse. In considering that issue, the Tribunal was entitled to observe that in addition to the fact that D had refused medication in the past, there had been occasions when she had coped in the community with a support package and that she had engaged with professional support workers.

The next complaint is that the Tribunal expressed the view that with the support of a community psychiatric nurse, social worker and doctor, D could cope in the community. The Tribunal did not presume to identify a suitable care package but hoped that it could include appropriate therapies, in particular Anger Management. It is said that this conclusion was not supported by any evidence at all. Mr Kovats in this context refers to the judgment of Dyson LJ in R v Ashworth Special Hospital Authority (ex parte H) [2003] 1 WLR 127, in particular to paragraph 68 on page 148. Dyson LJ in that case said:

In the present case, the Tribunal questioned Ms Linton about the possibility of a package being arranged. In answer to questions, she stated that the Reaside clinic would be able to provide a support package in the community, but she was unable to say how long it would take to put such a package together. Notes of the proceedings have been exhibited and they record:

It will be remembered that this is not a case where the Tribunal directed immediate discharge. It considered how long it might take to put together a package, and took the view that discharge should be deferred for a month to enable an after-care package to be put in place. That was not the only consideration because in the present case, unlike the H case, D had her own accommodation. So the Tribunal explained that in setting the timetable it was mindful of the importance of D retaining the tenancy of her flat. Far from being irrational, that would seem an eminently practical approach to the matter.

Although Mr Kovats relied upon the report of the social worker, Mr Houlders, for the proposition that it was not possible to put forward a package, if one looks closely at Mr Houlders' report of 7th February, he does not say that it would not be possible to put forward a package. He says that he has "no real confidence that such arrangements [ie a community care package], are feasible at the present time." Whilst not particularly encouraging, that does not amount to a clear statement that it would not be possible to put together a community care package within the space of one month. Indeed, although there has been an opportunity for the claimant to adduce evidence that it is not in fact possible to arrange a care package within the timescale, no such evidence has been adduced. There is a letter from Mr Houlders in which he, albeit somewhat reluctantly, acknowledges that it will be possible to put a community care package in place. He describes who will be involved and who will prescribe and monitor medication, and says that he proposes to undertake a further assessment. It is also fair to point out that in a meeting held at the Reaside Clinic on 23rd April, at which he was not present, the view of the meeting was that a community care package "cannot guarantee her safe management". Whether a "guarantee" can ever be offered in these circumstances must be open to question, but on any basis, a fair reading of the letter does not indicate that it is not possible to put forward an appropriate community care package within the space of one month from the Tribunal's decision.

Then the Tribunal's reasoning is criticised as being irrational because it said that:

The proposition is plainly not irrational. The criticism is that having stated the obvious, the Tribunal did not make any findings as to whether D would in fact comply with medication requirements. In my judgment, although this trespasses into the reasons challenge, that is simply to pluck a phrase in the Tribunal's reasons out of context, and to ignore the fact that the Tribunal had expressed the view that D could cope in the community with the support of a community psychiatric nurse, social worker and doctor. Plainly, if it had formed the view that D would not comply with medication, then it would have concluded that she could not cope within the community. The Tribunal's evidence deals with this at some length. I have mentioned some of the relevant passages. The Tribunal heard D give evidence. She had said that she would continue to take her medication. Whilst in very many cases the Tribunal might well reject such an assurance given by a patient, in the present case it felt able to rely upon it. It explained why it felt able to do so. Its reasons included the progress that she had made at Ashworth, and the fact that she had continued to take her medication there.

A particular issue had been raised and relied upon by Dr Swinton; that is to say that the claimant had said she would refuse to take her medication. That was an issue that was explored by the Tribunal in its questions. Those with the day-to-day care of D made it clear that they thought those threats by D were not to be taken seriously, that she would sometimes say she would not take her medicine, but in fact she did.

The further criticism is made that the fact the claimant was taking her medication whilst in a hospital environment did not mean that she would continue to take her medication when outside a hospital environment. Again, that is to ignore the totality of the reasoning. This was a matter, if not the matter, which was the determining issue for the Tribunal. The Tribunal was persuaded that D, who presented extremely well at the hearing, and had good insight into how ill she had been and her current needs, would be able to cope with support in the community.

Standing back and looking at the matter in the round, in very simple terms this was a case of someone who had been very ill indeed on admission to Ashworth, who had made substantial progress, and where there was no doubt that she no longer required nursing in a high security environment. The only issue was whether she still required nursing in a hospital in conditions of lesser security, or whether she was sufficiently well to go out into the community with support. In answering that question, the Tribunal had to consider the extent to which she would comply with her medication. If she did so, then all would be as well as it could be given the fact that D would continue to be ill. Against this background, the Tribunal's decision cannot be categorised as irrational.

I turn very briefly to the criticisms of the adequacy of the Tribunal's reasons, because I have dealt with a number of the issues under the heading of irrationality. It is submitted by Mr Kovats on behalf of the claimant that the reasons are inadequate because there is no recognition that all the written reports said that D should continue to be detained. There is no recognition that in the past D had failed to take her medicine when discharged into the community and thereby had to be readmitted into hospitals. There is no suggestion that the written reports are out of date. It is submitted that the very extensive explanations in the witness statements only serve to illustrate the inadequacy of the reasons in the decision letter.

Dealing with that last point first, it is true that the witness statements are very extensive, but in large part they are concerned with what actually happened before the Tribunal. In response to the very sweeping allegations of irrationality they are concerned to point out what evidence was or was not available to the Tribunal. So far as the standard of reasoning is concerned, Mr Kovats submits that the appropriate guidance is to be found in paragraphs 77 to 81 of the Dyson LJ judgment in the H case. Given the time, I do not set out those passages in full, but Dyson LJ said in that case:

As I have mentioned, this was not a case where there was a conflict of expert evidence in the sense of a conflict, for example, as to whether or not the patient was ill, or as to the nature of her illness. The issue was a relatively simple but important one: given the agreed nature of her illness, had she improved sufficiently to be able to go back into the community? I do not accept that this required the sort of "intellectual exchange" in reasoning that Mr Kovats submitted was necessary. The starting point was the written reports, but since they were not up-to-date, the question was how far had things moved on since they had been written?

I have mentioned the very extensive witness statements provided by the members of the Tribunal. Mr Kovats submits that in so far as they deal with factual questions, such as what occurred at the hearing, they are admissible; in so far as they seek to amplify the Tribunal's reasoning, they are not admissible.

In my judgment, the reasons, although relatively brief, are adequate for their purpose. They explain why the Tribunal took the view that with support D could cope in the community and, therefore, did not have to remain detained in hospital. However, even if I am wrong about that, I would be prepared to have regard to the amplification of the Tribunal's reasoning, which is set out in the witness statements. Whilst in most cases when tribunals are required to give reasons, it may not be appropriate to allow them to amplify those reasons, in the present case, the Tribunal decided that D should be released from detention under section 3. It seems to me that it would be most unfortunate if persons were kept against their will in hospital upon the basis that inadequate reasons had been given by the Tribunal for ordering their release, if adequate reasons had subsequently been supplied by way of amplification of the original reasons in witness statements from members of the Tribunal, particularly where the Tribunal had reached a unanimous decision and was agreed upon the reasons as amplified. The granting of relief in judicial review proceedings is in the discretion of the court, and it would be very difficult to justify the continued detention of an individual on the basis that inadequate reasons had been given for their release, if in truth witness statements containing perfectly adequate reasons were before the court.

I am reinforced in this approach to the matter by the observations of Dyson LJ in paragraph 72 of the H case. In that paragraph, Dyson LJ referred to the recent case of English v Emery Reimbold & Strick Ltd [2001] 1 WLR 2409 and said that case "summarised the present state of the law, at any rate as regards appeals lower courts to higher courts". The passage cited is concerned with the obligation to give reasons and the extent to which they will be adequate. In English the court made it clear in paragraphs 22 to 25, that rather than granting permission for an appeal on the basis that inadequate reasons had been given, the proper course might be to invite the judge at first instance to give further reasons. It seems to me that this approach applies with particular force where otherwise the consequence will be the continued detention of an individual against his will. It is fair to note that in the H case, the court did consider the further evidence adduced on behalf of the Tribunal, but concluded that it was an inadequate answer to the challenge: see paragraph 81 of Dyson LJ's decision.

For these reasons, I am satisfied that the three grounds of challenge to the Tribunal's decision are not justified. I bear in mind that the practical consequence of a successful challenge would be that the claimant would continue to be detained against her will. In these circumstances there is a heavy onus on an authority challenging a Tribunal's decision. I do not suggest that it is appropriate to depart in any way from the normal civil standard of proof, but the more serious the allegation, the more stringent the court will be in requiring proof on the balance of probability. Given that the liberty of the subject is involved here, I am not satisfied that the claimant has discharged the burden of persuading me that the Tribunal's decision was unlawful.

So for those reasons, expressed I fear at too great a length, given the time, this application for judicial review is refused.

MR SOUTHEY: My Lord, can I rise first. For the sake of the transcriber, there were two points I picked up in your Lordship's judgment.

MR JUSTICE SULLIVAN: Yes, of course.

MR SOUTHEY: My Lord, they may be minor. I picked up at one stage that your Lordship referred to Dr Lomax as having been instructed by the claimant. In fact, Dr Lomax was instructed on behalf of the interested party. My Lord, secondly, at one stage your Lordship referred to a passage in the judgment in H having been delivered by Latham LJ; in fact, it was Dyson LJ.

MR JUSTICE SULLIVAN: Thank you very much.

MR SOUTHEY: My Lord, as I am on my feet, I may as well raise my issues as to costs first. I am obviously conscious of the normal rule in judicial review proceedings that as an interested party I would be in difficulties obtaining my costs. Having said that, my Lord, there was the recent decision in the Court of Appeal in similar circumstances -- I can hand that up to your Lordship -- in December 2002, in which the Court of Appeal noted, of course, that in circumstances like this, where liberty is at issue ... My Lord, for that reason I certainly seek my costs, both for this hearing and for the stay application, from the claimant in this matter.

I recognise in saying that that I was not, obviously, successful in the stay application. Having said that, my Lord, one of the reasons why the stay application was important was because of the timing. Ousley J, when he considered the matter on the papers, had not had any opportunity to consider the submission from the interested party, when clearly it was important when the interested party's liberty was at stake. There needed to be an urgent review of the arguments, at least to decide whether or not at this stage the state criteria were met.

Secondly, I should say that the stay proceedings were hampered by the fact that the evidence was not perhaps as complete as it might have been from the claimant. From the interested party's point of view, the interested party had to proceed on the evidence as it was, and had a legitimate interest in having their arguments heard before a judge as soon as possible to determine whether or not in fact stay was appropriate. For these reasons, I would submit it is appropriate we receive our costs both for the stay and this hearing today.

MR JUSTICE SULLIVAN: Yes. Do you have any applications, Mr Strachan?

MR STRACHAN: My Lord, my application is rather shorter. I do apply that the claimant pay for the defendant's costs on the normal principles.

MR JUSTICE SULLIVAN: Yes.

MR STRACHAN: My Lord, could I just say, there is a summary schedule of costs, which was given to the other side today. My Lord, if you are with me on the principle of costs, given the lateness of the hour, I am content to go to detailed assessment if they cannot be agreed.

MR JUSTICE SULLIVAN: Thank you. What do you want to say about that, Mr Kovats?

MR KOVATS: My Lord, I will be as brief as possible. In essence, I seek that the defendant pay the claimant's costs, and in so far as I am not successful on that, I seek anything short of that, such as a partial order for no costs, or orders for part of the proceedings, as I hope will emerge from the points I make.

I wish to make seven points, but they are all relatively brief. First, as your Lordship is aware, the letters were actually written on 7th April, the claimants having received the Tribunal's decision on 3rd April, as the letter before action makes clear. That letter requested a response within seven days because of the urgency of the matter. In any event, as your Lordship knows, the protocol requires a response within 14 days anyway (it is page 37). There was no substantive response within seven days, within 14 days, or indeed at all. My Lord, in those circumstances, the claimant was, in my submission, justified in bringing these proceedings and in assuming that there was no challenge to the facts set out in the claim form. The defendant had been given ample opportunity and said nothing.

Your Lordship will also be aware that in English v Emery, the Court of Appeal put forward its suggested procedure for requesting further reasons in order to allow reasons appeals to be disposed of at the permission stage. Clearly, the object is not that everybody turns up for the final appeal and then at the last minute further reasons are put in. The whole point of the guidance in English v Emery is that this is all sorted out before the application for permission is dealt with.

The second point is that the defendants are in breach of the order of Keith J, at page 105. The order required that the defendant serve any evidence by 4.00 pm on 6th May. What they did was serve the statements at 6.45 pm that night, and they served the exhibit just after 1.00 pm the following afternoon. They served a further statement from Mrs Mitchell at about 3.45 pm yesterday. The direction also required that they serve a skeleton argument by noon yesterday. My Lord, I do not know whether they did that or not, but it did not reach me until 5.00 pm last night. I have no idea when it was received in my chambers. My conference started at 3.00 pm and it certainly had not reached me by then.

My Lord, in my submission, the claimant was entitled to a reasonable period to consider the content of the evidence served by the defendant. Indeed, we have sought in response to that to put in further evidence, but in the time available we have not been able to do so. Having taken a view on the matter, we have not applied for an adjournment, conscious very much of the fact that the claimant is being detained. In my submission, if the defendants had acted as they should have done and had responded timelessly to the letter before claim, it may well be that these proceedings would never have been brought.

MR JUSTICE SULLIVAN: That submission might have been made with a little more force if you had stood up at the start of today.

MR KOVATS: I anticipated your Lordship would say that. My response is that given that we have been trying right up until this morning to obtain evidence in response and clarification from our own clients on the contents of the witness statements, there was effectively nothing to be saved by throwing in the towel at the last minute. All the costs had already been incurred.

MR JUSTICE SULLIVAN: Apart from those who sit on hourly rates; for the bar, that is not so, but for some, yes.

MR KOVATS: Thirdly, your Lordship's judgment does make extensive reference to the witness statements that were served and indeed to the very extensiveness of the evidence that was served by the defendant.

Fourthly, while your Lordship has said that there is a significant difference in the recollection of Dr Swinton and the recollection of the defendant's witnesses and Mr Kenny, there is no suggestion that Dr Swinton's was given in bad faith.

Fifthly, as regards the patient, the interested party, she brought the application for the stay. She fought it, she lost it, and under the normal course of events she should pay the costs for that unsuccessful application. If there is to be any departure from the normal order for costs in respect of the stay application, it should, in my submission, be that the costs of the interested party and the defendant in respect of the stay should be paid by the defendant, because in the absence of the evidence from the defendant, the stay application challenge stood no real prospect of succeeding.

Finally, at the very least, the claimant should be entitled to its costs of its successful resistance of the stay application to be set off against any costs awarded against it.

In making those points, I hope I have made it clear that your Lordship may think that the true order lies somewhere in the middle; may be no order for costs, or costs up to a certain date, and so on.

MR JUSTICE SULLIVAN: Thank you very much. Yes?

MR STRACHAN: My Lord, can I just deal briefly in response. First of all, the general principle of applying for costs in such a case where the claimant has clearly been unsuccessful, I submit, is completely inappropriate. If it is submitted to your Lordship on the basis of the anticipation that it may fall somewhere in between, my Lord, I submit that is also inappropriate. The normal rule should apply. The claimant has pursued this case before your Lordship in its entirety, save for one perceived impropriety point, regardless of the witness statements, which had been before them now for some considerable time.

My Lord, quite apart from the witness statements, your Lordship's judgment is that the reasons are sufficient without the witness statements. That is a matter which the claimant obviously has sought to challenge by bringing this claim that your Lordship has found was incorrect on their part. The witness statements are neither here nor there as to the overall outcome of the proceedings.

Could I just pick up on very brief points. My Lord, the letter before action written on 7th April, I have been trying to take instructions as to when it was received. There was a response on 17th April. My Lord, we do not have copy on file but are trying to track down precisely what was said in response. It matters not, in my submission, what happened in that very abbreviated timetable because at the hearing before Keith J, although I was not there myself, it is clear that the defendant was defending proceedings and the timetable was arranged for the service of evidence, so the claimant was under no illusions as to the defendant's position, although it inevitably takes some time to track down the various Tribunal members to give evidence.

Secondly, the point as to the fact that we did not dispute the facts in the claim form, my Lord, that is clearly not right. The claim form was not submitted until 23rd April. It was dealt with by way of Ouseley J, the day after, by way of expedition. So, my Lord, that is a bad point.

The third point, that this could have all been sorted out at the permission stage, my Lord, that is not borne out by the subsequent procedural evidence and the seat of the case in the light of it. They have had it since Tuesday and they have had a full legal team to take a proper view on the merits.

I think it was the fourth point, the suggestion that we are in breach of the order of Keith J. That is the first time that point has been raised as causing the claimant any prejudice. Certainly, from the outset there was no suggestion that they had been hampered unduly in producing further evidence. We hear now for the first time that they were trying to adduce further evidence. No explanation is provided as to why they have not been able to provide it. My Lord, I submit that you cannot attach weight to that.

Fifthly, it was said that they might as well have proceeded today on the basis that it was not going to save any significant costs. That is a gross waste of court time if that genuinely is the reason. My Lord, it is entirely inappropriate to claim costs against us on that basis. Indeed, many of us here are on hourly rates, including counsel instructed by the Treasury Solicitor. There plainly are costs at this stage.

Fifthly, sixthly and seventhly, suggestions of Dr Swinton not being guilty of bad faith, I have already made my points to your Lordship as to the inadequacy of the claim that was produced. There was a duty upon the claimant, not the defendant, to produce witness statements to supplement the case. The case should have been made clearly at the outset, particularly since a stay was being sought of the Tribunal's decision.

My Lord, as to the stay application and whether the interested party should pay, I do not make any submissions upon that my Lord, but clearly the defendant is entitled to its costs from someone in relation to that application because we were neither unsuccessful nor successful.

MR JUSTICE SULLIVAN: Yes, what was your position on the stay?

MR SOUTHEY: My Lord, I was the only person who was present. The Tribunal's position was that it was neutral, in its own words. It was interested in directions because it knew the issue of directions would be likely to be raised, but it was neutral in terms of the outcome of the stay application.

MR JUSTICE SULLIVAN: Thank you, yes.

MR STRACHAN: My Lord, I have not dealt with other points such as when my detailed grounds were submitted but I am assured that they were sent, if not by 12.00 pm, certainly by 1.00 pm. My learned friend from the other side received them.

I do strongly resist the principle that our costs in any way should be deducted by reference to the points made by the claimant. I apologise if I have taken some time at this late hour, but there is no possible basis, in my submission, for the points now being taken by the claimant.

MR KOVATS: My Lord, can I just assist on the response to the letter before claim. The letter of 17th April from the Treasury Solicitor merely said that the regional chairman was on holiday and was unable to provide a response before, at the earliest, 24th April.

MR STRACHAN: I am grateful for that, my Lord.

MR SOUTHEY: My Lord, in relation to the suggestion that the stay had no realistic prospect of success, there are two points I would make in relation to that. Certainly, before Keith J, he acknowledged that this was a legitimate application on behalf of the interested party because, among other things, the timing of the claimant's application meant that the interested party's arguments as to why the stay should not have been granted were not before Ouseley J when he originally made that stay order. So (several inaudible words) judicial consideration of the stay at which the interested party had an opportunity to put forward their arguments. Given that liberty was at issue, it had to be legitimate. That essentially is one of the consequences that flows naturally, in my submission, from the claimant bringing these proceedings.

Secondly, in my submission, it is a fairly difficult position for the claimant to take to say that the stay proceedings had no realistic prospect of success, when one of the reasons why the claim may have appeared stronger to Keith J than it did to your Lordship was the fact that the claim did not include all the particulars it might have included. It is, in my submission, wrong for the claimant to say, "Well, because you lost because all the particulars were not before the court, we can now rely on that in terms of costs".

Thirdly, my Lord, I should express my concern that the claimant proceeded on the day on the basis that "We have reached this point, we may as well proceed and see what happens." When liberty is at stake, that approach must give rise to a certain amount of concern and, in my submission, should probably be reflected in costs. Where liberty is at stake, as it was in this case, the matter ought to be resolved as soon as possible

MR JUSTICE SULLIVAN: Thank you very much.

I am satisfied that there is no good reason for depriving the defendant of its costs. I do not accept the points made on the claimant's behalf by Mr Kovats. It seems to me that some of them might have had force if the claimant had not pursued matters today in the light of the evidence. I think a number of the other criticisms are unrealistic given the very short timescale which was effectively imposed on everyone by virtue of the fact that the interested party was due to be released. It seems to me that the defendant has responded reasonably promptly and the claimant did not abandon matters even when it had the full response. Thus, I see no reason to deprive the defendant of its costs.

So far as the interested party is concerned, whilst again the general rule is that there should not be two lots of costs, it seems to me where liberty is the subject at stake, the person who is actually detained must be entitled to be represented. It would be singularly unjust if they were to be deprived of their costs of so doing. In principle, it seems to me that the claimant should pay both the defendant's and the interested party's costs.

The only outstanding issue of today is what should happen about the costs of the application for a stay. While it is perfectly true that the application for a stay was not successful, that is against the background that there were, in my judgment, quite significant deficiencies and omissions in the version of the facts presented in the claimant's evidence that may well have affected the court's decision as to whether or not it would grant stay. The second factor is this: that a stay having been granted by Ouseley J, it is quite plain that an application for procedural directions of some sort had to be made in order to obtain an early hearing date and early service of the evidence. Thus, to that extent the interested party was not unsuccessful, in the sense that the case was brought forward so that it could be heard today. So whilst the interested party was not released, matters were nevertheless accelerated.

For these reasons, I consider that so far as the application for stay is concerned, the claimant should pay the costs of the defendant and the interested party in respect of that application as well this hearing today. In reality, they have been part of a chain and, as I say, the stay application has led to this early hearing as a result of the procedural direction to that effect. So the claimant is to pay the costs of the defendant and the interested party.

MR SOUTHEY: My Lord, there is one other slight matter: can I ask for assessment for the purposes of the Community Legal Service?

MR JUSTICE SULLIVAN: Yes. Given the time, I am not going to go into the question of summary assessment. You should have assessment but you should have assessment for the purposes of leeway.

MR SOUTHEY: My Lord, one final matter. I just want clarification that the claimant's representatives will notify the claimant as soon as possible this afternoon of the outcome, because obviously there is no longer any legal basis for the interested party being detained.

MR JUSTICE SULLIVAN: I do not know if you are able to give that assurance, Mr Kovats? There is nodding. The fact of the matter is that she must obviously be released. Can I just check something is being done on the part of those who instruct you? Mr Southey, is she simply going to be released without any ...

MR SOUTHEY: My Lord, as I understand it, my instructing solicitors, who were not, as your Lordship is aware, the instructing solicitors who actually represented the interested party at the Tribunal, have contacted the solicitors at the Tribunal, because they are effectively the interested's party's continuing representatives. Those solicitors are making efforts to ensure that the release is handled in a sensitive and appropriate manner.

MR JUSTICE SULLIVAN: They will have to do the best they can. Thank you all very much.