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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 >> T-T, Re [2002] EWHC 2803 (Admin) (09 December 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2803.html Cite as: [2002] EWHC 2803 (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
		9 December 2002

1. MR JUSTICE FORBES: In these proceedings there is an application for a writ of habeas corpus ad subjiciendum and a linked application for appropriate relief by way of judicial review of the decision of the hospital managers of The Park Royal Centre for Mental Health ("the hospital") not to discharge the claimant, made at a hearing held on 8 October 2002 at which the managers had conducted a review of the claimant's detention under section 3 of the Mental Health Act 1983 ("the 1983 Act"). It is common ground that the original detention under the 1983 Act was lawful.

The facts

2. The claimant suffers from paranoid schizophrenia and is currently detained under section 3 of the 1983 Act. He is receiving medication and currently has no insight into his condition. He has admitted that he would not take medication if he were to be discharged from hospital. On 8 October 2002 the claimant's request for a review of his detention was heard by a panel appointed by the managers. The hearing was held before a panel of three members. After considering the material that was before the panel, two members were in favour of discharging the claimant from detention, whilst one member was opposed to such discharge. The panel decided not to discharge the claimant on the basis of its interpretation of section 23(4) of the 1983 Act. It is this decision which is the subject of the present challenges.
3. The relevant decision of the managers was set out in the body of a pro forma written document dated 8 October 2002 and was expressed in the following terms:

"The Patient SHALL NOT be discharged from Section."

That was one of two possible orders available for deletion by the panel. The other pro forma order, to the effect that the patient should be discharged, had been deleted. Beneath the wording of the order appeared the handwritten name and signature of each of the three members of the panel who had conducted the review. It is therefore common ground that the decision in question was unanimous. However, in the section of the form that is headed "REASONS FOR DECISION - MUST BE COMPLETED" appeared the following:

"Having considered the medical evidence regarding whether the patient continues to suffer from a mental disorder of a nature and degree that requires medical treatment in hospital and whether it is necessary for his own health and safety or the protection of others that such treatment is received, and considering whether there is a continuing lack of insight such that for the time being treatment can only be provided if he continues to be detained, the panel were unable to decide unanimously that the patient did not meet the criteria for continued detention and therefore the appeal is rejected."

4. Having read the managers' decision, and in particular the reasons given for that decision, the solicitors acting for the claimant wrote to the managers on 11 November 2002 and complained (among other things) that the reasons given for the decision were unsatisfactory, as follows:

"4. Issue

(i) the failure of the managers to give adequate reasons for their decision: the claimant cannot know whether there was a majority in favour of his discharge. The decision is expressed only in terms of a failure to reach unanimity.

(ii) the application of the incorrect burden of proof by the managers: the managers stated in their written reasons for their decision that they 'were unable to decide unanimously that the patient did not meet the criteria for continued discharge ....' (our emphasis). They have thereby recorded placing the burden of proof upon the Claimant which, following R (on the application of H) v Mental Health Review Tribunal, North East London Region [2001] EWCA Civ 415, is a violation of the Claimant's rights under Articles 5(1) and 5(4) of the European Convention of Human Rights.

5. Expected Action:

(i) The Defendant is expected to inform the Claimant's representatives where the majority fell in the decision. If the majority fell in favour of the Claimant's discharge from liability to detention, the Defendant is expected to discharge the Claimant from liability to detention forthwith.

(ii) If the majority fell in favour of the Claimant continuing to be liable to be detained the Defendant is expected to arrange a further full hearing of the Claimant's application for a review of his detention wherein the correct burden of proof will be applied."

5. On 22 November 2002 the solicitors acting on behalf of the hospital wrote to the claimant's solicitors, as follows:

"Mr T-T was detained under section 3 of the Mental Health Act 1983, following an assessment on 3rd July 2002, and was transferred on 30th August 2002 to the Pond Ward at the Park Royal Centre for Mental Health, where he currently resides. Mr T-T having requested a review of his detention, a hearing of the hospital managers took place on 8th October 2002. The panel comprised three members, namely Marlene Ryder, Patrick Andrews, and Anthony Longaretti. The panel considered reports from Mr T-T's Responsible Medical Officer, Dr Henrich, Approved Social Worker, Mrs Joseph, and a nursing report from Gabriel Bahinga. The appeal against Mr T-T's detention was rejected.

In paragraph 4(i) of your letter of 12th November, you state that the managers failed to give adequate reasons for the decision in that your client was not informed whether there was a majority in favour of his discharge. Whilst we do not accept that the reasons provided were inadequate, we can confirm, that there was a majority of two to one in favour of his discharge.

The panel's decision states that the appeal was rejected as a result of the panel's failure to decide unanimously that the patient did not meet the criteria for continued detention. We would contend that this is a relevant factor in the panel reaching its decision: The power of discharge under Section 23 Mental Health Act 1983 may (at section 23(4)) '.... be exercised .... by any three or more members.... ' of such a panel or committee formed to exercise the function of the hospital managers. The power of discharge may therefore be exercised by a majority, with a minimum of three members deciding in favour. Accordingly, the failure of the panel to reach a unanimous decision, in view of the fact there were only three members on the panel, frustrated the exercise of that power."

6. As to the relevant subsequent events, I quote from the witness statement of Miss Juliet Oliver, the solicitor having the conduct of this matter on behalf of the defendant, dated 2 December 2002:

"4. .... on Thursday 28th November, I received a telephone call from the Applicant's Solicitor stating that he intended to attend at Court for a Writ of Habeas Corpus that afternoon. The Judge adjourned the matter to a substantive hearing to take place the following week, at the first available fixture between 3 and 6 December. The Court was informed that a Manager's hearing was due to take place at 10.30 for 11.00 the following morning.

5. I was contacted by my client at approximately 10.30 am on Friday 29 November and informed that the Applicant had decided not to attend the hearing. Nonetheless, this proceeded in his absence, and a unanimous decision was reached by the four panel members that the Applicant's detention should continue. I attach at pages 16 to 19 the decision of the Managers and at pages 20 to 27 Dr Henrich's fresh report, and addendum to the social report referred to therein, which was considered by the panel."

As indicated by Miss Oliver, the relevant documents were attached to her witness statement.

7. On behalf of the the claimant, Mr Pezzani submitted that the apparent majority decision made by the panel members on 8 October 2002 (ie the two in favour of discharge) should have resulted in the claimant's discharge from continued detention. He submitted that the purported decision not to discharge the claimant was therefore invalid, that the claimant's continued detention was unlawful and that the further purported decision of the managers on 29 November 2002 could not and did not correct the invalidity of the 8 October decision, and could not and did not render the claimant's continued detention lawful.
8. It is common ground that, throughout the country, there are a very large number of managers' hearings under the 1983 Act every year and that the vast majority of those hearings take place with a panel consisting of three members. The point of principle that arises in this case (ie whether, in the event that a majority of two out of three managers at such a hearing favour the discharge of the patient, the managers are then obliged to make an order for that patient's discharge) is of considerable public importance and is apparently free of authority.
9. It is therefore common ground that the principal issue in these linked applications turns on the proper construction of section 23 of the 1983 Act which, so far as material, provides as follows:

"23(1) .... a patient who is for the time being liable to be detained .... under this Part of this Act shall cease to be so liable .... if an order in writing discharging him from detention .... (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 a hospital in pursuance of an application for admission for assessment or for treatment by the responsible medical officer, by the managers ....

(4) The powers conferred by this section on any authority, trust or body of persons may be exercised .... by any three or more members of that authority, trust or body which has been authorised by them in that behalf."

10. It is also common ground that section 23 of the 1983 Act provides the managers with a general discretion to discharge a patient who has been duly detained under the relevant provisions of the Act: see the judgment of Latham J (as he then was) in the Crown v Riverside Mental Health Trust ex parte Huzzey (1998) 48 BMLR 167 at page 173, where he stated:

"In my view, this argument fails to address the fact that s 23 provides, inter alia, a general discretion in the managers to discharge a patient. No criteria are set out as to what should or should not be taken into account by managers when considering a decision as to whether or not to discharge. The question of what are the relevant considerations has to be answered by looking at the general scheme of the Act. Clearly, the criteria set out in s 3 of the Act are of fundamental importance. If the criteria for admission no longer exist, I cannot see how any decision by managers not to discharge could be other than perverse hence my conclusion on Mr Gledhill's first point. But that does not mean that the managers are restricted to considering those criteria. Section 23 implicitly recognises that managers have a discretion to discharge, even if those criteria have been met."

11. Mr Pezzani submitted that it was important to realise that the managers' discretion to make an order to discharge a patient under section 23 necessarily involves making a decision as to whether or not to make such an order. He pointed out that by two to one in this case the managers on the 8 October panel decided that the criteria for further detention did not exist in the claimant's case. He therefore submitted that the managers should have decided by a majority to discharge the claimant. Not to do so, he argued, was perverse according to Huzzey and an affront to common sense.
12. In support of his submissions (see paragraphs 7 and 14 above), Mr Pezzani referred to and relied upon a general rule of law often referred to as the rule in Grindley v Barker (1798) 1 B & P 875. The rule is succinctly stated by Eyre CJ at page 879 of that report, as follows:

"With respect to the first question, I think it is now pretty well established, that where a number of persons are entrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole. The case of corporations go further: there it is not necessary that the whole number should meet; it is enough if notices be given; and a majority, or a lesser number, according as the charter may be, may meet, and when they have met, they become just as competent to decide as if the whole had met .... There is nothing then in the general rule of law to prevent this finding from being held good. But the question is still open, whether on the construction of this particular statute, it does not appear that not only all the persons must be assembled, but that every one of them should concur, or at least that one of each class should concur. There was something very plausible in that last argument, but I am now clearly satisfied, either that all must concur, or that a majority may decide for the whole."

13. As Mr Pezzani pointed out, it is clear that the rule in Grindley v Barker has been followed in a number of cases and is most conveniently restated in the judgment of Priestly J in Bruce v Cole and Others (1998) 45 NSWLR 163 at page 205E onwards, where he stated as follows:

"Even if schedule 3 [the majority provision] were to be left out of account altogether on the construction point, there would still be a common law rule to deal with, sometimes called the rule in Grindley v Barker .... The case concerned the interpretation of a statute which provided for the appointment of a number of persons to carry out public duties, but which did not say whether those persons should be unanimous in carrying out their duties. The court seems to have accepted that the ordinary meaning of the words governing the appointments of the persons would require, if the question were one of private law, that they should act unanimously. However, relying on a sentence in Coke's notes upon Littleton, the court took the view that in regard to public law, and where public duties were concerned, convenience required only that a majority would be sufficient, in the public interest. The court also recognised that the words of a statute could be sufficiently clear to require unanimity, but did not think they were of that necessary clarity in the instant case."

Priestly J then went on to observe:

"Although Grindley v Barker is not in itself a particularly persuasive decision, it has from time to time been followed by courts of high authority. The report of the Privy Council decision In the matter of an Arbitration and Award between the Province of Ontario and the Province of Quebec (vol IV, Cases Decided on the British North America Act 1867 (ed Cartwright 1892) at 712) although rather muddled, makes it clear that the rule was there followed (see in particular Lord Selbourne (at 721)); also, many of the cases referred to in argument, reported (at 716-717), are on the point, and lend it considerable support. Since then the rule has been followed by the New Zealand Court of Appeal, Atkinson v Brown [1963] NZLR 755; by a three member Divisional Court of the Queens Bench Division in England, Picea Holdings Ltd v London Rent Assessment Panel [1971] 2 QB 216, and by this Court in Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457. I think this Court must accept it as an established common law rule."

Mr Pezzani referred me to each of the authorities referred to by Priestly J and demonstrated to my satisfaction that Priestly J's summary of those cases is entirely accurate, as one would expect.

14. It is convenient to mention at this stage that, on behalf of the defendant, Mr Weisselberg accepted that two principles emerge from the case law to which Mr Pezzani referred, as follows: (1) the managers have a general decision under section 23 of the 1983 Act to make an order for the discharge of a patient and (2) if there is a general rule of law that the majority binds the whole where public duties are concerned, that general rule is subject to the intention of the legislature, as collected from the scope and provisions of the statute in question.
15. Mr Weisselberg expressly reserved his position as to whether there was such a general rule of law and founded his principal submissions (as to which see below) on the proposition that any such general rule was subject to the will and intention of the legislature as expressed in the relevant statute. As I will indicate later in this judgment, he then went on to demonstrate that the general rule was in fact supplanted by the intention of the legislature in this particular case.
16. As already indicated, it was Mr Pezzani's submission that the discretion of the managers as to whether to discharge a patient under section 23 of the 1983 Act subsumes a duty to exercise that discretion in a proper case. He referred to In re Baker (1890) 44 Ch D 262, where Cotton LJ said this at page 270:

"I think that great misconception is caused by saying that in some cases 'may' means 'must'. It never can mean 'must,' so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word 'may,' it becomes his duty to exercise it."

17. Mr Pezzani pointed out that this approach had been adopted in a case where a statute provided that the county court may make an order for possession in proceedings by a landlord against a tenant. It was held that, on proof of the relevant facts, the court was bound to make the order sought: see Sheffield Corporation v Luxford (1929) 2 KB 180.
18. Mr Pezzani submitted that, in this case, the managers had been empowered to make a decision to discharge under section 23 of the Act (ie the Act uses the word "may"), but that when the panel in question had heard all the relevant facts that discretion became a duty to make the appropriate order, which in this case would have been one of discharge. He submitted that the members failed to discharge that duty because they did not make the order that was required by the findings that the majority had actually made. He suggested that the majority of the managers had made findings that favoured the discharge of the claimant and that the whole panel of the managers was then bound to order his discharge in the proper exercise of the managers' discretion. By failing to do so, he submitted, the managers acted in breach of duty and the resulting decision, although unanimous, was therefore unlawful. Furthermore, he submitted that it was both unjust and absurd that the managers had failed to give effect to the clear statutory intention that they should discharge a patient where the evidence before them did not warrant continued detention, ie because two of the members were of the opinion that the necessary criteria for detention under the Act were no longer satisfied.
19. Mr Pezzani also submitted that his arguments were supported by the editor of the Mental Health Act Manual 7th edition, Richard Jones, who, when considering section 23, observed:

"This Act does not require a committee that exercises functions under this provision to reach a unanimous decision": see page 132, paragraph 1-250.

20. Mr Pezzani then went on to develop what he submitted would be the strange consequences if the respondent's construction of section 23 were to be held to be correct. He pointed out that it was conceded that most managers' hearings are constituted by a panel of three, which is, of course, permitted by subsection by section 23(4). It follows, he argued, that where, as is invariably the case, the patient's Registered Medical Officer argues for continued detention and the patient argues for discharge, the RMO need satisfy only one of the panel, whereas the patient must satisfy all three in order to obtain a discharge. He argued that, wherever the burden of proof lies in such a hearing, that result cannot be described as either fair or just, especially when the issue is one involving the lawfulness of the deprivation of liberty of the subject.
21. Mr Pezzani submitted that another unacceptable consequence would be that in such a three-person panel, if the split is two to one in favour of continued detention, the majority view prevails, whereas on the respondent's construction, if it is two to one in favour of discharge, the minority view will prevail.
22. He went on to submit that a further consequence would be that, when there is a four-person panel, if the split is two/two, the matter is also resolved in favour of continued detention or, in other words, against the patient, despite the fact that the view formed by the panel as a whole is evenly divided. He suggested that this construction of the section, therefore, would effectively place the burden of proof upon the patient which, following the decision in R (on the application of H) v Mental Health Tribunal (supra), produces a result incompatible with Articles 5(1) and 5(4) of the European Convention on Human Rights. Mr Pezzani went on to submit that, on any view, the position of the patient was more onerous than that of the hospital and thus was an unfair one.
23. Mr Weisselberg submitted that the short answer to Mr Pezzani's carefully constructed submissions was to be found in the clear and unambiguous terms of section 23(4) of the 1983 Act. He reserved his position with regard to Pepper v Hart [1993] AC 593, having regard to the timescale involved in bringing and hearing these two linked applications.
24. It was Mr Weisselberg's submission that on a natural and proper construction of section 23(4), the power to make an order for discharge does not come into existence at all until there are at least three people on the panel who are willing and able to make an order for discharge and thus empower the managers to make such an order.
25. Mr Weisselberg submitted that the effect in law of that construction is that, where three to one members of the panel vote in favour of discharge, the statutory requirements and the common law rule, if it exists, are both satisfied and the managers can then take the decision to make an order for discharge. However, he submitted, if the voting is four against and three in favour, although the statute is ostensibly satisfied, in these circumstances it would not be the will of the managers that the order for discharge should be made and therefore no such order would be made. He submitted that, in the present case, quite simply there were not enough people on the panel in favour of making an order of discharge and so the power under section 23(4) never came into existence. He suggested that the decision that was then made was a unanimous decision not to exercise the power because the necessary conditions for doing so did not exist and that, for those reasons, the decision in question was correct in law. However, he did go on to accept that if the decision in question was wrong in law for the reasons advanced by Mr Pezzani, then it would have to be quashed as unlawful.
26. So far as concerns the Human Rights point, Mr Weisselberg submitted that section 23(4) of the 1983 Act merely requires that three members must be satisfied before an order for discharge can be made and questions as to the burden and standard of proof simply do not arise for the purposes of exercising such a power. He went on to argue that Parliament has required there to be at least three people who are satisfied that such an order should be made before it can be made. He suggests that there is no evidence that this is a disproportionate approach to the exercise of such a discretion and that, therefore, any construction argument based on an alleged infringement of Article 5 of the European Convention must necessarily fail.
27. After having given this matter much anxious thought, I have come to the conclusion that Mr Weisselberg's submissions are correct. In my view it is clear from the words of section 23(4) of the 1983 Act that, before the powers conferred by that section can be exercised by those members who have been authorised by the hospital to exercise any such powers, there must be three or more members who are prepared to exercise the power in question. In my opinion that is the clear meaning of the words of section 23(4). In so far as the rule in Grindley v Barker is potentially one to be applied to the decisions of public bodies such as the members of managers' review panel under the 1983 Act, it must give way to the expressed intention of the legislature as set out and contained in the provisions of the Act in question. In this case, the clear meaning of section 23(4) is such that I am satisfied that the rule in Grindley v Barker has no application to the decision-making of the panel of members who had been convened to carry out the necessary review of the claimant's detention which was the subject-matter of the hearing on 8 October 2002.
28. Accordingly, Mr Pezzani's submissions, which were almost entirely dependent upon the applicability of the rule in Grindley v Barker must, for the foregoing reasons, fail. Furthermore, I accept Mr Weisselberg's submission that this case is not concerned with questions of the burden or standard of proof, nor is there any evidence to support any suggestion that the requirement of a minimum of three members for the purposes of making an order of discharge under section 23 is in some way disproportionate. In my view there can be no question here of incompatibility with Article 5 of the Convention, and I reject Mr Pezzani's submissions to the contrary effect.
29. For all the foregoing reasons, I have therefore come to the firm conclusion that these applications must be and are hereby dismissed.
30. MR WEISSELBERG: My Lord, Mr Harris appears on behalf of the claimant. I simply ask for my costs, subject to the ordinary Legal Services Commission proviso.
31. MR JUSTICE FORBES: Have you anything to say about that, Mr Harris?
32. MR HARRIS: No, I cannot.
33. MR JUSTICE FORBES: Very well. In that case I make the normal order as to costs. I make an order for costs subject to the normal proviso with regard to community legal aid costs. Is there anything else?
34. MR HARRIS: Yes. I am instructed to ask for permission to appeal. As you identified, my Lord, in the substance of the judgment this is a matter which is free of authority and which is of general public importance. As you pointed out, my Lord, there are a large amount of these hearings conducted throughout the country every year and this judgment does have serious implications for the way in which they are conducted and the constitution of the bodies that carry out these decisions. Additionally, the question of detention by the state is always a matter in which great caution must be exercised and, as Article 5 is of potential importance in this area, it is submitted that it is appropriate for this matter to go to appeal.
35. MR JUSTICE FORBES: Yes, thank you. I need not trouble you. No, this is not a case where I am prepared to give permission to appeal. I am satisfied that there are no reasonable prospects of success. However, I will say this: I accept that the matter is free of authority and I also accept that it is a matter of significant public importance. Those may be matters which the Court of Appeal may wish to take into account when considering whether this is a case in which to grant permission to appeal, if for no other reason but for the reason that they consider there to be exceptional circumstances for doing so.
36. MR WEISSELBERG: There is one other matter that I should raise out of fairness to my friend. Because it is a habeas corpus application, there is an automatic right of appeal.
37. MR JUSTICE FORBES: Yes, of course. Those observations of course apply only to the judicial review. As for the application for habeas corpus, there is an automatic right of appeal. The two applications are inextricably linked. (Pause)
38. So you know what I have written on the form, Mr Harris, Mr Weisselberg, I have written "Permission refused" and then in the reasons part of the document I have made it clear that this relates only to judicial review:

"Permission to appeal refused because no reasonable prospects of success. However, the automatic right of appeal in habeas corpus and the absence of authority/public importance of the point may, if the Court of Appeal think it appropriate, constitute exceptional circumstances."

On that basis I suspect that you will not have too much difficulty persuading the Court of Appeal to grant you permission.