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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> H, R (on the application of) v Mental Health Review Tribunal [2000] EWHC 646 (Admin) (7 December 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/646.html Cite as: [2000] EWHC 646 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		Thursday, 7th December 2000

Thursday, 7th December 2000

1. MR JUSTICE LONGMORE: I have made an order, as everyone will be aware, that the applicant is not to be identified in any way.
2. On 14th February 1975 the applicant (whom I will call "H") was ordered by the Crown Court to be detained under the present equivalents of sections 37 and 41 of the Mental Health Act 1983. That is, he was made the subject of a hospital order and a restriction order without limit of time. His offence was the manslaughter of his parents. The basis of the sentence was a finding of diminished responsibility.
3. Under the provisions for the detention of persons subject to a hospital order and a restriction order, he is entitled to make application to a Mental Health Review Tribunal to be discharged. Acting, as it was thought, in accordance with the applicable rules contained in the Mental Health Tribunal Rules 1983, the responsible authority drew up what is known as a Schedule 1 Part A statement, paragraph 11 of which named H's nearest relative. The Tribunal has caused that person to be informed of the proceedings and invited representations.
4. Representations on behalf of the nearest relative were made in correspondence and the Tribunal would, in the ordinary course, have informed the nearest relative of the result of the hearing. H, however, objects to his nearest relative being informed of the decision of the Tribunal and has obtained permission from the court to issue a notice of application for judicial review. He has also obtained an interim order preventing the Mental Health Review Tribunal from disclosing any decision to his nearest relative. I now have to decide whether H is entitled to a permanent injunction in those terms and that means that I must set out the relevant statutory background.
5. Part 2 of the Mental Health Act 1983 deals with compulsory admission to hospital and guardianship of what may be termed "civil patients". Part 3 deals with patients concerned in criminal proceedings, or under sentence, who may be termed "criminal patients". Criminal patients are of two kinds: first, those in respect of whom no restriction order is made. These are detained for a six-month period but such detention is renewable at the instance of the treating psychiatrist. Such patients can be discharged by the treating psychiatrist; or by the managers of the hospital where they are detained; or by a Mental Health Review Tribunal; moreover, the nearest relative can apply to a Mental Health Review Tribunal for discharge of the patient but, otherwise, can, as will be seen, play only a limited, if any, role.
6. Secondly, there are those patients in respect of whom a restriction order is made. They can only be discharged by a Mental Health Review Tribunal or by the Home Secretary.
7. I should start the statutory provisions with section 37 of what I will call the 1983 Act. That section is headed "Powers Of Courts To Order Hospital Admission or Guardianship" and provides:

"Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law...or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified."

8. Subsection (2) then provides:

"The conditions referred to in subsection (1) above are that-

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either-

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or

(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act;

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."

9. I then go to section 41 where under the heading of "Restriction Orders" the statutory rubric is the "Power of Higher Courts to Restrict Discharge from Hospital". Section 41 provides:

"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as 'a restriction order'.

(2) A restriction order shall not be made in the case of any person unless at least one of the registered medical practitioners whose evidence is taken into account by the court under section 37(2)(a) above has given evidence orally before the court.

(3) The special restrictions applicable to a patient in respect of whom a restriction order is in force are as follows-

(a) none of the provisions of Part II of this Act relating to the duration, renewal and expiration of authority for the detention of patients shall apply, and the patient shall continue to be liable to be detained by virtue of the relevant hospital order until he is duly discharged under the said Part II or absolutely discharged under sections 42, 73, 74 or 75 below...

(b) no application shall be made to a Mental Health Review Tribunal in respect of a patient under section 66 or 69(1) below;

(c) the following powers shall be exercisable only with the consent of the Secretary of State, namely-

(i) power to grant leave of absence to the patient under section 17 above;

(ii) the power to transfer the patient in pursuance of regulations under section 19 above...and

(iii) power to order the discharge of the patient under section 23 above; and if leave of absence is granted under the said section 17 power to recall the patient under that section shall vest in the Secretary of State as well as the responsible medical officer;

(d) the power of the Secretary of State to recall the patient under the said section 17 and power to take the patient into custody and return him under section 18 above may be exercised at any time;

and in relation to any such patient section 40(4) above shall have effect as if it referred to Part II of Schedule 1 to this Act instead of Part I of that Schedule."

10. I then go to section 42 which is headed "Powers Of Secretary Of State In Respect Of Patients Subject To Restriction Orders", and I read the first three subsections:

"(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restriction set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.

(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant."

11. I then deal with the effect of a hospital order and go to section 40(4). Section 40(4) is headed "Effect Of Hospital Orders, Guardianship Orders And Interim Hospital Orders", and subsection (4) provides:

"A patient who is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, shall, subject to the provisions of this subsection, be treated for the purposes of the provisions of this Act mentioned in Part 1 of Schedule 1 to this Act as if he had been so admitted or placed on the date of the order in pursuance of an application for admission for treatment or a guardianship application, as the case may be, duly made under Part II of this Act, but subject to any modifications of those provisions specified in that Part of that Schedule. "

12. One then goes to Schedule 1 of the Act which is divided into two parts. Part 1 deals with patients not subject to special restrictions and Part 2 deals with patients subject to special restrictions. As far as patients not subject to special restrictions it is relevant to see that, in particular, section 23 (Discharge of Patients) and section 26 (Definition of "nearest relative") are referred to in Part 1 in the following way. Paragraph 1 of Part 1 of the section provides:

"Patients Not Subject To Special Restrictions

Sections...[25C] to 28...shall apply in relation to the patient without modification."

13. Paragraph 2 provides:

"Sections...23...shall apply in relation to the patient with the modifications specified in paragraphs 3 to 9 below."

14. I will return to that when I deal with sections 23 and 26.
15. As far as Part 2, "Patients Subject To Special Restrictions", is concerned there is no reference to section 26 which, therefore, does not apply but paragraph 2 says:

"Section...23...shall apply in relation to the patient with the modifications specified in paragraphs 3 to 8 below.

I shall return to paragraph 7.

Meanwhile, however, it is necessary to go back to section 23 of the Act which is headed "Discharge Of Patients"; this section is of course in Part 2 of the Act relating to civil patients. Section 23(1) provides:

"Subject to the provisions of this section and 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him from detention or guardianship (in this Act referred to as 'an order for discharge') is made in accordance with this section.

(2) An order for discharge may be made in respect of a patient-

(a) where the patient is liable to be detained in hospital in pursuance of an application for admission for assessment or for treatment [I pause there because both counsel agree that there should be a pause there as if there were a comma] by the responsible medical officer, by the managers or by the nearest relative of the patient;

(b) where the patient is subject to guardianship, [now there is a comma] by the responsible medical officer, by the responsible local social services authority or by the nearest relative of the patient."

16. So pursuant to that provision it is open in Part 2, a civil patient's case, for the nearest relative of the patient to discharge the patient. Section 25 then provides for certain restrictions on discharge by the nearest relative because he has to give notice in writing to the treating psychiatrist of the hospital and the managers of the hospital can object to the discharge taking place at the instance of the nearest relative.
17. Now, as I have said, as far as patients who are not subject to special restrictions are concerned, Part 1 of Schedule 1 applies section 23 and 26 with, in the case of section 23, a modification. That modification is that in section 23(2)(a) and (b) the references to the nearest relative shall be omitted so that the nearest relative cannot of his own motion discharge a patient who is not subject to special restrictions.
18. As far as Part 2 of the Schedule is concerned, as I have said, it is provided that section 23 is to take place subject to modifications. The relevant modification is in paragraph 7 of Part 2 of Schedule 1 and that provides that in section 23(2) in paragraph (a) the words "or by the nearest relative of the patient" should be omitted. Section 26 is not mentioned at all.
19. So far one has the situation that since sections 23 and 26 are applied only in that modified way, and in their different ways to patients who are not subject to special restrictions, and to patients subject to special restrictions one feels that there must be a respect in which the nearest relative does have relevance to criminal patients who are not subject to restriction orders (viz Part 1), but not to criminal patients who are subject to restriction orders, (viz. Part 2).
20. The only provision in the Act in which it does appear that the nearest relative does have such relevance is in section 69(1) of the Act; that provides, under the general heading "Applications and References concerning Part III Patients" and the specific rubric,
21. "Applications To Tribunals Concerning Patients Subject To Hospital And Guardianship Orders", as follows:

"Without prejudice to any provision of section 66(1) above as applied by section 40(4) above, an application to a Mental Health Review Tribunal may also be made-

(a) in respect of a patient admitted to a hospital in pursuance of a hospital order, by the nearest relative of the patient in the period between the expiration of six months and the expiration of 12 months beginning with the date of the order and in any subsequent period of 12 months;"

22. So we have the position that the nearest relative can apply to a Mental Health Review Tribunal for discharge of the patient where the patient is subject to a hospital order. Section 70, however, provides as follows:

"Applications To Tribunals Concerning Restrictive Patients

A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to a Mental Health Review Tribunal-

(a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order...or transfer direction; and,

(b) in any subsequent period of 12 months."

23. So it does appear that the nearest relative of a criminal patient who is not restricted can make such an application, but there is no provisions for the nearest relative to do so where the patient is a restricted patient.
24. Section 71 then requires the Secretary of State to refer the case of any restricted patient to a Mental Health Review Tribunal every 3 years. Section 72 makes provisions for the circumstances in which patients who are subject to a hospital order can be discharged. Section 73 makes provisions for the circumstances when a Mental Health Review Tribunal is to discharge restricted patients.
25. I have made no reference so far to the definition of the nearest relative; that is to be found in section 26 of the Act. It is agreed that pursuant to the provisions of that section in this particular case, the nearest relative is the brother of H.
26. I come to the Mental Review Tribunal Rules of 1983. There is an interpretation section and that provides relevantly a definition for the purpose of the Rules - which are made by the Lord Chancellor pursuant to the provisions of section 78 of 1983 Act - of the nearest relative, which is:

"...a person who has for the time being the functions under the Act of the nearest relative of a patient who is not a restricted patient."

27. The definition of the word "party" is:

"...the patient, the responsible authority, any other person to whom a notice under rule 7 or rule 31(c) is sent or who is added as a party by direction of the tribunal."

28. Part 2 of the Rules then deals with what are called preliminary matters. Rule 6 provides:

"The responsible authority [viz the managers of the hospital where the patient is detained] shall send a statement to the tribunal and, in the case of a restricted patient, the Secretary of State, as soon as practicable and in any case within three weeks of its receipt of the notice of application; and such statement shall contain-

(a) the information specified in Part A of Schedule 1 to those Rules in so far as it is within the knowledge of the responsible authority..."

29. I do not think I need read more of rule 6.
30. I turn to Schedule 1 Part A. Schedule 1 is headed, "Statements By The Responsible Authority And The Secretary Of State". Part A is headed, "Information Relating To Patients (Other Than Conditionally Discharged Patients)". There then follow 13 paragraphs starting with the full name of the patient then, secondly, the age of the patient and various other details. I then go to paragraph 9 and I will read the rest of Part A:

"9. The dates of all previous tribunal hearings in relation to the patient, the decisions reached at such hearings and the reasons given. (In restricted patient cases this requirement does not relate to decisions before September 30, 1983).

10. Details of and proceedings in the Court of Protection and of any receivership order made in respect of the patient.

11. The name and address of the patient's nearest relative or of any other person who is exercising that function.

12. The name and address of any other person who takes a close interest in the patient.

13. Details of any leave of absence granted to the patient during the previous 2 years, including the duration of such leave and particulars of the arrangements made for the patient's residence while on leave."

31. In the present case the responsible authority did complete a Part A Statement and the form of that Part A statement is that all 13 matters which are referred to in Part A are listed, and opposite those 13 the information is filled in. As far as 9 is concerned, previous tribunals, there is a list of previous tribunal hearings. As far as 10 is concerned, it not being applicable, the entry says not applicable. As far as 11 (the nearest relative) is concerned, the name of the nearest relative is given. As far as paragraph 12 is concerned, any other person who takes a close interest, the name of the applicant's social worker is given. Finally, as far as paragraph 13 is concerned, previous leaves of absence, again, the entry not applicable is inserted.
32. Going back to the Rules. We then have rule 7 headed "Notice To Other Persons Interested" and that provides:

"On receipt of the authority's or, in the case of a [conditionally discharged patient], the Secretary of State's statement, the tribunal shall give notice of the proceedings..."

33. Then six separate entities are indicated including (d):

"where any person other than the applicant is named in the authority's statement as exercising the functions of the nearest relative, to that person; and...

(f) to any other person who, in the opinion of the tribunal, should have an opportunity of being heard."

34. It is pursuant to that rule that the Tribunal did give notice to the person named as the nearest relative and enabled him to make representations. I should then refer to rule 20 which provides under the heading "Notice of Hearing":

"The tribunal shall give a least 14 days' notice of the date, time and place fixed for the hearing (or such shorter notice as all parties may consent to) to all the parties and, in the case of a restricted patient, the Secretary of State."

35. By this time the nearest relative had been given notice of the proceedings and he, therefore, had become a party and, so I am informed, he was given notice of the hearing. Then we come to rule 24 "Communication Of Decisions". 24(1) reads:

"The decision by which the tribunal determines an application may, at the discretion of the tribunal, be announced by the president immediately after the hearing of the case and, subject to paragraph (2), the written decision of the tribunal, including the reasons, shall be communicated in writing within 7 days of the hearing to all the parties and, in the case of a restricted patient, the Secretary of State."

36. As I say, the Tribunal was intending, before restrained, to communicate the decisions they made to the nearest relative.
37. Mr Gledhill submits that there is no scope for the nearest relative to have any part to play once the case is deemed to be a case of a criminal patient subject to a restriction order. The definition of nearest relative in paragraph 2 of the Rules expressly says that the nearest relative means the person who has the function under the Act of the nearest relative of a patient who is not a restricted patient. He submits, therefore, that rule 6 and the statement by the responsible authority in the form set out in Part A of Schedule 1 can legitimately name the nearest relative only when the patient is not subject to a restriction order and, therefore, the Part A statement in the present case had no business to name a nearest relative and should, as it has done in other parts, have said not applicable opposite item 11 in that statement.
38. As a matter of analysis that seems to me correct. Once one reads the interpretation paragraph's definition of nearest relative it does seem to me that that must follow. So not only is there no obligation on a responsible authority to nominate a nearest relative as such in a Part A statement when the patient is a criminal patient subject to a restriction order, but there is, in fact, an obligation on them not to do so because the legislation gives the nearest relative no part to play when the criminal patient is subject to a restriction order.
39. Of course, the responsible authority and the Tribunal have certain powers that they can exercise if they think it right to do so. The Tribunal can, for example, give notice of the proceedings pursuant to paragraph 7 of the Rules to any person who, in their opinion, should have an opportunity of being heard. In that context it is relevant to remind oneself that paragraph 12 of the Part A statement does specify the name and address of any other person who takes a close interest in the patient. So both the responsible authority and the Tribunal have powers that they can exercise under that paragraph of the Part A statement and paragraph f of rule 7. But, no doubt, they would not wish to exercise such powers in a case where the patient indicated that he did not wish, for reasons of confidentiality or other good reason, for a particular person to be named or given notice in that way.
40. Miss Nathalie Lieven has appeared for the Mental Health Review Tribunal and her submission has been that Mr Gledhill's submission is probably the right submission. She has informed me that in her experience different hospitals treat the Part A statement, and in particular paragraph 11 of that statement, in differing ways. There is no universal practice with regard to criminal patients who are the subject of restriction orders.
41. She, however, properly and correctly performs her duty to the court by pointing out the possibility that Mr Gledhill might be wrong in his submissions and that an alternative construction would be possible. In particular she submits that a court could conclude that the legislation should be given a purposive construction to mean that a responsible authority was entitled, and perhaps was even bound, to nominate a nearest relative in the case of a criminal patient subject to a restriction order, because it would almost invariably be to the benefit of the patient that the Mental Health Review Tribunal should give notice of the proceedings, notice of the date of hearing, and communicate the contents of the decision on the nearest relative.
42. She does not espouse that purposive construction with any very great enthusiasm because she recognises that there will be isolated cases where the patient's need for, or own view of, confidentiality should take precedence over the understandable anxiety of the state to give mental patients all the protection that the state can do. The truth is that the mental health patient does have considerable protection, not merely because the responsible authority and the Tribunal have the powers that I have already indicated, but also because every mental health patient has a social worker attached to him or her who it would be hoped will draw the attention of the responsible authority and the Tribunal to the desirability, if it exists, of any close relative being kept informed of the proceedings. So it does seem to me that it is no accident that the definition of nearest relative is defined in the Mental Health Tribunal Rules in the way that it is.
43. Miss Lieven further points out that in paragraph 9 of the Part A statement in Schedule 1 to the Rules there is a specific reference to restricted patient cases, where it is said that the dates of all previous tribunal hearings are to be given and in the case of restricted patient cases that is not required for decisions before 30th September 1983. But that specific reference is very understandable in the context of the fact that it was not until 1983 that applications could be made to Mental Health Tribunals on behalf of criminal patients, subject to a restriction order for an order that they be discharged. It seems to me that the new regime, brought in in 1983, was catered for as far as the nearest relative is concerned in the way I have described in the statutory framework, and that the definition in Part 2 of the Rules is intended to carry that over to the Rules themselves, so that is was not necessary for any reference to restrictive patients to be made when paragraph 11 was inserted in Part A of Schedule 1.
44. Be that as it may, it seems to me that Mr Gledhill's arguments on construction are correct. He had a second string to his bow if his construction was not correct; this was that if a Mental Health Tribunal was entitled, and perhaps bound, to communicate with the nearest relative contrary to the expressed wishes of the patient, that would be contrary to the Human Rights Convention, in particular the privacy part thereof. That is an argument into which I do not have to go, and in the light of the difficulties that Miss Lieven put in front of me in relation to subordinate legislation being declared to be ultra vires because of inconsistency with the Human Rights Convention that is perhaps as well.
45. But for the purposes of this case, I will continue the order of Sullivan J, unless counsel wish to put before me a declaration rather than an injunction. I make it clear, however, that since the nearest relative has in fact been communicated with by the Tribunal, I do think that the secretary of the Tribunal should now write to the nearest relative informing him in outline of the contents of my judgment and saying that if he wishes a full copy of the judgment to be sent to him that will be done.
46. MR GLEDHILL: My Lord, I certainly do not invite you to make a declaration instead of continuing the injunction, save to say that, as is often the case in Administrative Court matters, the judgment stands as a declaration.
47. MR JUSTICE LONGMORE: Well, I can see that. The order of the court will be then that the injunction will be continued.
48. MR GLEDHILL My Lord, in terms of the matter of costs, I will deal with that and then there are a number of points I picked up going through the judgment, your Lordship might just have misstated something.
49. My client has the benefit of legal services funding and, therefore, I would ask, first of all, for a detailed assessment order?
50. MR JUSTICE LONGMORE: Yes.
51. MR GLEDHILL: Secondly, to protect the legal services fund even----
52. MR JUSTICE LONGMORE: What is the legal services fund?
53. MR GLEDHILL: It is what used to be the Legal Aid Board it is now the Legal Services Commission. It is, essentially, the same as legal aid detailed assessment.
54. MR JUSTICE LONGMORE: So this is one pocket of the Treasury paying the other?
55. MR GLEDHILL: Yes. The problem is that of course to protect the budget of the Legal Services Commission, despite the fact that my learned friend and her clients have been helpful rather than in opposition to the application, I have to seek costs from them. So, as your Lordship says, it is, in effect, one public body to another.
56. MR JUSTICE LONGMORE: If it were a private matter I would be saying no order to costs, would I not, because Miss Lieven has come to be helpful to the court and she could have just stayed away and made my life more difficult?
57. MR GLEDHILL: I accept that, of course I do. But I have certainly been in front of colleagues of your Lordship who have said, 'Well I have to take the view that the Legal Services Commission has a limited fund and it has to be preserved' and when a public-funded case has been brought successfully then the Legal Services Commission, in reality, should not pay for it, even if it is against another public body. So it is a matter of, as it were, shuffling funds. I do not know if my learned friend has any views on that particular point.
58. MR JUSTICE LONGMORE: Is that the right order for me to make, Miss Lieven?
59. MISS LIEVEN: My Lord, in my submission it is. Much public litigation in this court is between two publicly funded bodies, in my respectful submission that would make no difference. Although, in my submission, it would not have been appropriate for my clients to concede in this case, but your Lordship has found that my learned friend's legal arguments are correct, and without wishing to argue my clients out of some money, I would have thought the normal course would apply.
60. MR JUSTICE LONGMORE: Very well, I will order a detailed assessment.
61. MISS LIEVEN: My learned friend has the equivalent of legal aid, it is not appropriate for a summary assessment to be carried out.
62. MR JUSTICE LONGMORE: I will order a detailed assessment and say that the respondent is to pay such sums as is found on the taking of that detailed assessment.