C, R (on the application of) v Mental Health Review Tribunal

J U D G M E N T

1. THE JUDGE: There is before the court an application for urgent interim relief made in respect of the authority to detain the claimant in a mental hospital and the extent to which that authority had or should have been speedily reviewed by the second defendant, the Mental Health Review Tribunal. The application was issued on Friday and Mr Justice Silber directed that the oral application for interim relief be heard today at 2 o'clock. I have had the benefit of full submissions from Mr Seligman for the claimant, from

Mr Sachdeva for the first defendant and from Mr Forsdick for the second proposed defendant. I have had the chance to read skeleton arguments and been taken to at least the pertinent part of a number of authorities. For those reasons it appears to me to be appropriate and proportionate that I also deal with the underlying question of the permission to proceed for judicial review in this case, as well as dealing with the interim relief that would essentially depend upon the strength of the claim for permission.

2. The history of this matter for relevant purposes is as follows. On 19th September 2003 a social worker, Mr Wheeler, made an emergency application by an approved social worker for admission of the claimant to a mental hospital for assessment pursuant to section 4 of the Mental Health Act 1983. For present purposes it is sufficient simply to note that section 4 is a short-term emergency procedure alternative to the full procedure specified under section 2. Section 4(1) provides:

"In any case of urgent necessity, an application for admission for assessment may be made in respect of a patient in accordance with the following provisions of this section, and any application so made is [to be referred to] as 'an emergency application'.

(2) An emergency application may be made either by an approved social worker ... and every such application shall include a statement that it is of urgent necessity for the patient to be admitted and detained under section 2 above, and that compliance with ... this Part of this Act relating to applications ... would involve undesirable delay.

(3) An emergency application shall be sufficient in the first instance if founded on one of the medical recommendations required by section 2 above, given, if practicable, by a practitioner who has previous acquaintance with the patient and otherwise comply with the requirements of section 12 below so far as applicable to a single recommendation, and verifying the statement referred to in subsection (2) above.

(4) An emergency application shall cease to have effect on the expiration of a period of 72 hours from the time when the patient is admitted to hospital unless -

(a) the second medical recommendation required by section 2 above is given and received by the managers within that period;"

Pausing there, what Mr Wheeler did was make an emergency application on the basis of one medical practitioner. He had the recommendation of a medical practitioner - that was Mr Pierce - who, it is undisputed, was statutorily competent to give a recommendation as an approved person for that purpose.

3. The social worker filled in part of the prescribed form dealing with the medical practitioner whose recommendation he was relying upon as follows. The prescribed form spells out:

"Q. If the medical practitioner did not know the patient before making his recommendation, please explain why you could not get a recommendation from a medical practitioner who did know the patient."

I observe that that is the form trying, in practical language, to make sense of the statutory term, namely, "if practicable a practitioner who has previous acquaintance". The social worker filled in the part of the form as "not currently known to a GP". As events have transpired that was accurate and clearly well believed by the social worker as it appears that the claimant had not been registered with a GP for some six months before the date in September when these events took place. Secondly, the social worker continued, "Not known to any psychiatrist at this centre today". It is that assertion which has been the foundation of the application that I have heard this afternoon.

4. Mr Pierce, the medical practitioner, completed the form at 12.30 pm on 19th September and he did not delete the alternative "I had previous acquaintance with the patient before I conducted that examination". It is common ground that he was approved under section 12 of the Act. He gave his reasons for why the admission for assessment was necessary. Mr Seligman essentially says that on the basis of those two forms - Mr Wheeler the social worker suggesting that the claimant was not known to a psychiatrist, and Mr Pierce the medical practitioner not deleting part of the form and therefore positively averring that he had previous acquaintance with the patient before he conducted the examination - there was a fatal inconsistency that undermines the whole legality of the claimant's admission and it continued because within the 72 hours a second medical opinion was obtained from someone who was an approved medical practitioner but was not someone who claimed to have been acquainted with the claimant. The submission continues that since one of the altervatives given by the form has to be struck out in compliance with the regime for applications for admissions to a mental health hospital, any failure to strictly comply with the requirements of the statutory regime renders the subsequent detention unlawful and that has impact for the function of the second defendant (the Mental Health Review Tribunal) who, he submits, are a public authority whose functions include the legality of the detention within the meaning of Article 5.4 of the European Convention on Human Rights and they were under a duty to declare that that detention was unlawful as soon as practicable.

5. I will deal with the facts relating to the second defendant as follows. An application for release was referred to the tribunal within the statutory period and the tribunal had a day listed for hearing that application, and that was 30th September of this year. It seems that the application did not start at 10 o'clock as anticipated, but because there were various problems with documentation and discussion between those appearing it started I think later in the afternoon. Seven witnesses were heard, which I take it would include expert psychiatrists, and at 5 o'clock it appeared that submissions had not been completed although counsel for the claimant thought that he was close to completing those submissions. The tribunal decided that it had to adjourn. The full reasons for its decisions have not yet been made available to us but it concluded that it would not be able to comfortably finish immediately and adjourned to the first available date, which was seven days after 30th September, namely, this Wednesday, 8th October. The challenge to the tribunal is that they should not have adjourned at all or for so long a period given the urgency of the situation, the distressing fact that this was the first detention of the claimant and she was being separated from her children. As I indicated in argument, it appeared to me that the cogency of the claim against the tribunal may in part depend upon the cogency of the initial submissions that this was ex facie an unlawful detention by reason of the apparent inconsistency in the claim forms indicated.

6. In my judgment any inconsistency "in the admission" forms may be more theoretical than real. The social worker is the applicant for the section 4 procedure. The social worker may not be fully informed as to any previous knowledge that the medical practitioner has with the claimant and may wish to err, certainly on the side of caution, in explaining why it is that the particular medical practitioner is being relied upon whose previous knowledge may be great or slender.

7. Further, the social worker may not have been assisted by the fact that the prescribed form asks the question if the medical practitioner "did not know" the patient before making the recommendation whereas the statutory test is whether he is "previously acquainted". In cases of uncertainty it may well be that there is greater ambiguity introduced by the words "did not know" than "previously acquainted". If the words "do not know" in the prescribed form are not a term of art defined by the statute and not a strict black and white question, it is quite possible that a person honestly and reasonably applying his mind to the question, particularly on the basis of perhaps limited facts known to him, may come to a different conclusion than a responsible medical practitioner as to whether that practitioner was known to the patient. It is commendable that whoever makes the application puts as much information as is honestly believed to be the truth before the responsible authority.

8. It appears to me that either the social worker may have been unaware of any previous dealing that the psychiatrist had with this patient, or he may have been uncertain as to whether that previous dealing was sufficient to be "known to" for the purpose of the recommendation. It is equally possible that, by looking at the second limb of the form ("not known to any psychiatrist") and comparing it to the first ("not currently known to a GP"), he was primarily asking whether there was a GP who was available to make the recommendation rather than an expert psychiatrist.

9. In my judgment, however, either lack of knowledge of primary facts, or uncertainty as to interpretation of the scope of the section, in no way undermined the application for admission and was not inconsistent or destructive of the medical practitioner's assertion that he had previous acquaintance. On the information before the court it seems that the medical practitioner had examined this claimant on the 18th and 19th personally for a period of time as well as conducted some enquiries with her former GP. Suffice it to say that on the 19th, if there had been a prior professional examination of the claimant, that would certainly be an occasion for which an acquaintance with the claimant could have taken place.

10. I am assisted in reaching the conclusion that there is no inconsistency between the forms filled in by the social worker and the medical practitioner from a decision of this court given on 4th October 2001 by Mr Justice Scott Baker, as he was, in the case of AR v Bronglais Hospital, PembrokeshireNHS Trust Ltd[2001] EWHC Admin 792. At paragraph 10 of his judgment his Lordship referred to the fact that the code of guidance issued under paragraph 2.29 of the 1999 Mental Health Act says:

"Unless there are exceptional circumstances the second medical recommendation should be provided by a doctor with previous acquaintance with the patient, (that is one who knows the patient personally in his or her professional capacity)."

His Lordship continued at paragraph 11:

"It is pointed out that the code of practice is really guidance and no more and does not have the force of a statute. In so far as it refers to personal knowledge of the patient it seems to me that one should have in mind that the words in the section are 'previous acquaintance with the patient' and that the word 'personal' is not included so that it is not necessary to establish previous personal acquaintance with the patient. Nevertheless it seems to me that the purpose of the vision is clear, namely, that the person making and signing a recommendation as the second doctor in this case must have some previous knowledge of the patient and must not be coming to him or her cold as it were."

It is unnecessary for me to consider whether that decision, which was a decision on a habeas corpus application, means that one can have an acquaintance without any previous examination by the medical practitioner.

11. The flavour of some previous knowledge of the patient and not coming to him or her cold must be a strong pointer to the purpose of the section and to its ambit in a particular case and I certainly see no reason at all for doubting that a medical practitioner who on the previous day had a personal opportunity to examine the patient fell outside the scope of someone who had previous acquaintance of her for the purpose of section 4. Moreover, in my judgment section 4 does not make it mandatory as a condition precedent of the legality of admission that a section 4 application is only made by a medical practitioner who has previous acquaintance. It is the best practice directed by the section but there is the exception of practicability. Practicability itself is not a black and white concept and lends itself to questions of judgment, fact and degree.

12. Thirdly, even if there were some uncertainty as to whether the social worker's application using section 4 was arguably flawed when a second medical opinion is provided, then in my judgment there seems to be no duty on the social worker to go through a further application and explaining the practicality or otherwise, or the extent to which either the first or the second medical practitioner is acquainted "with the patient". In my judgment it is sufficient that the second medical practitioner examined the certification of the first medical practitioner and would there see that the first medical practitioner claims to have the previous acquaintance by prior medical examination; and of course if the contents of the examination depose to the fact of the prior examination on the 18th, then that might have given greater comfort and certainty to the second practitioner. But in any event it is sufficient for the second practitioner to have regard to the status of the first practitioner in deciding whether he has the qualifications or experience to give the recommendation.

13. I therefore conclude that, notwithstanding the submissions attractively presented on behalf of the claimant by Mr Seligman in his written claim form and renewed orally before me today, there is no arguable basis for concluding that this was not a proper and lawful application for the claimant to be detained in the hospital for assessment pursuant to section 4; that the period of that detention became legitimate beyond the 72 hours by reason of section 2; and that there was no hidden defect that required to be corrected in order to give foundation or continuing validity to the detention within 14 days under the slip rule to which my attention has been drawn. This was simply an abundance of caution of two people applying their mind to the same question but with different knowledge of facts or a different degree of assertion of what acquaintance or knowledge was. Indeed one has the fact that the medical practitioner was saying he was previously acquainted whereas the social worker was referring to whether he was known to the other person.

14. On that basis the whole question of whether the claimant ought to continue to be detained is not a matter to be determined by this court on habeas corpus application, which is in essence what this amounts to although the form of it is by way of judicial review. The question of her continued detention would fall to the Mental Health Review Tribunal looking at the medical necessity for continued detention under section 72 of the Mental Health Act.

15. At one stage in reply Mr Seligman submitted that, in addition to looking at the medical necessity of detention under section 72, the Mental Health Tribunal had as it were concurrent jurisdiction by way of habeas to challenge and strike down, or to secure the release of any person who ought not to have been brought to detention in the first place. That submission would appear not to be supported by authority according to the commentary on that section in the Mental Health Act manual to which I have been referred, namely, the case of the Crown v Hallstrom, ex parte W[1985] 3 All ER 775 per Ackner LJ at 784, and R v Mental Health Review Tribunal, ex parte Cooper, unreported, 14th February 1990, Rose J, as he then was. I have not penetrated those authorities more than the citation but I can well see the sense in which those authorities deal with the question.

16. In my judgment the primary function, perhaps the exclusive function, of the tribunal is to look at the medical necessity of continued detention under section 72 and not to act as a substitute court for reviewing the legality of the original admission. A speedier mechanism is of course available right from the very first day of admission (19th September) if the challenge is to be made out in the terms that Mr Seligman has sought to make it, by habeas corpus application to this court - and no permission is required - and either there is authority to detain or there is not. It is clear that that application will in certain circumstance look behind the apparent deposition of facts in the claim form, to look at the facts in the application forms to secure admission, and will look behind them to see whether those facts were in fact properly supported. The authority for that is Re S-C (mental patient: habeas corpus) [1996] 1 All ER 532.

17. It appears to me that that has a significant impact upon the strength of the criticism of the tribunal (the second defendant) for the second part of this application. Originally it was being sought that I issue a mandatory order not only that the claimant be released but secondly that the tribunal reconvene within 12 hours. As it happens we are now on Monday and 12 working hours in the day would bring us to the Wednesday, which is the date that the tribunal had already fixed for the adjourned hearing of this application.

18. Of course I accept, and it has been pointed out, that the tribunal must exercise its jurisdiction and determine cases that concern the legality of the detention as soon as reasonably practicable and promptly within the terms of Article 5.4 of the European Convention of Human Rights. But it must not be forgotten that the single question of legality referred to in Article 5.4 is, in the British system, divided into two questions: first, the legality of a jurisdiction to detain; secondly, the necessity, on the facts, of continued detention. It is really the tribunal's role, and important role it is too - to examine the latter; to be the independent authority forming the necessary opinions of fact as well as law as to the necessity of continued detention. That must be done speedily and promptly.

19. However, since it is not the court looking primarily, if at all, at the legality of the initial admission, it is not simply a question of hearing some legal submissions and ruling upon them, there being only one obvious answer. It is a question of fairly considering a mass of complicated factual material, it is hearing submissions upon it and giving a fair assessment and fair ruling. In those circumstances the idea that an adjournment for seven days is so wrongful an exercise of the discretion to adjourn as to be unlawful whether under purely domestic law or domestic law, seen in the light of Article 5.4 appears to be somewhat fanciful. What precisely "promptly" means in the circumstances of the case is a matter of fact and degree.

20. It embarked upon a day's hearing, only halfway through that day and finding, in the judgment of the chairman, that there are real difficulties to concluding the day's hearing after 5 o'clock, it would seem very difficult to suggest that the tribunal was bound to continue although no doubt they took into account all factors urged upon them. If an adjournment was regrettably necessary because it could not complete its work as carefully and as thoughtfully as it needed, then there is no basis in my judgment for saying that the adjournment was excessive when it was to the first available date that that tribunal could reconvene and it was within seven days; and in any event within the 28 days of the section 2 procedure. The alternative it appears to me would have been to start from all over again a de novo hearing with fresh experts, fresh witnesses, possibly fresh advocates, and even then there is no guarantee that the tribunal would have been able to complete its business within the time-scale.

21. Therefore on the important and interesting legal questions that have been advanced before me, I conclude first that there is no basis at all for any interim relief to require the claimant to be released from the custody of the first defendants pursuant to alleged defects in the procedures for her admission on 19th and 21st September. Secondly, there is no basis for judicial review of either the certification by the social worker or the claim by the doctor as to whether or not the doctor was previously acquainted with the claimant. For the reasons I have already given that alleged inconsistency does not undermine the legitimacy of the application as a whole.

22. I therefore refuse permission for judicial review of the legality of the detention, the legality of the averrals as to previous acquaintance by either the social worker or the second doctor and, having regard to those two conclusions, I equally refuse permission to seek judicial review of the tribunal's decision to adjourn on 30th September until Wednesday 8th October. Of course it follows that the second limb for interim relief falls away as well.

23. Is there anything else I need to do or can do this evening? No? Thank you very much. No other applications?

24. MR SELIGMAN: My Lord, can I have a legal services assessment of my costs?

25. THE JUDGE: Yes, you can have a legal services assessment of the claimant's costs.