IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW THE QUEEN (1) EAST LONDON & THE CITY MENTAL HEALTH NHS TRUST (incorrectly sued as TOWER HAMLETS HEALTHCARE NHS TRUST) (2) DAVID STUART SNAZELL, APPROVED SOCIAL WORKER v Ex parte COUNT FRANZ VON BRANDENBURG (aka Nicholas Hanley) [2001] EWCA Civ 239

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr Justice Burton
[2001] EWCA Civ 239Case No Case No: C/2000/2513 C/1308/2000Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Wednesday 21st February 2001
Between
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW THE QUEEN (1) EAST LONDON & THE CITY MENTAL HEALTH NHS TRUST (incorrectly sued as TOWER HAMLETS HEALTHCARE NHS TRUST) (2) DAVID STUART SNAZELL, APPROVED SOCIAL WORKERRespondentsEx parte COUNT FRANZ VON BRANDENBURG (aka Nicholas Hanley)Appellant
Before
Lord Justice BuxtonLord Justice SedleyMr Richard Gordon, QC and Mr Paul Bowen (instructed by Lucy Scott-Moncrief) for the AppellantMiss N. Davies, QC and Miss Kristina Stern (instructed by Messrs Le Brasseur J Tickle) for the First RespondentMr Stephen Knafler (instructed by London Borough of Tower Hamlets) for the Second RespondentDate 21 February 2001

LORD PHILLIPS M.R: This is the second of two interrelated appeals which we heard consecutively. The nature of the relationship between the two appeals is explained at the start of my Judgment in the first appeal - R v Camden and Islington Health Authority ex parte K.

[2]This appeal challenges not merely the decision below of Burton J., but an earlier decision of Laws J. in R v South Western Hospital Managers ex parte M [1993] QB 683, which Burton J. followed. The Facts[3]The following facts summarised at the outset of Burton J's judgment are not in dispute:
"1. The Appellant, Count Franz Karl Wilhelm Von Brandenburg, otherwise known as Nicholas Brendan Hanley, applied to Burton J. for judicial review of the decision of the First Respondent, The Tower Hamlets Health Care NHS Trust as managers of the Royal London Hospital (St. Clements) to admit him to that hospital for treatment under Sections 3 and 6 of The Mental Health Act 1983 ("
MHA") and of the decision of the Second Respondent, David Stuart Snazell, an Approved Social Worker (as so defined within Section 145(1) of the MHA) to make an application for such admission…. 2. The Applicant was for some two years provided with accommodation at a Salvation Army Hostel in the Whitechapel Road, London E.1. On 9 th February 2000 the project manager at that hostel referred the Applicant to HHELP (Health and Social Care for Single Homeless People) and on 15 th March there was, at the hostel, a mental health assessment of the Applicant by the Second Respondent and a Dr Oviasu; the Applicant was on that day admitted to St. Clements Hospital by emergency application under Section 4 MHA (to the lawfulness of which there has been no challenge), on the recommendation of Dr Oviasu and the application of the Second Respondent. On the same day, as a result of a second medical recommendation, given by a Dr Bapna, the Section 4 admission was converted to an admission under Section 2 of the MHA, being an admission for a period not exceeding 28 days for assessment (again there is no challenge to the lawfulness of this admission). On the 22 nd March the Applicant applied for a tribunal hearing pursuant to Section 66(1)(a) of MHA which was fixed for 31 st March. Reports were supplied for the Tribunal by a Dr Roy, the staff grade practitioner working with Dr Bhui, the Applicant's Responsible Medical Officer ("RMO"), and by the Second Respondent, and oral evidence was given by Dr Bhui, all advising against discharge. 3. The Tribunal ordered discharge of the Applicant, with effect from 7 th April 2000, i.e. after a period of deferment of 7 days. Its reasons concluded as follows: The Tribunal are satisfied that [there] may be evidence of mental illness, but do not believe that it is of a degree which justifies detention. Moreover, having heard [the Applicant's] own account of the episodes of alleged aggression, we do not consider that his own health or safety requires detention, nor do others need to be protected from him. In the light of our concern, however, that [the Applicant] may continue to suffer from a mental illness, it is appropriate for accommodation in the community to be found for him and a care plan be made including possible medication. The discharge has therefore been delayed to enable this to happen. 4. On 6 th April 2000, the Applicant was further detained under Section 3 of MHA. This was based, as is statutorily required, upon two medical recommendations. That from Dr Bhui stated, in the relevant form (Form 11) dated 4 th April 2000, as follows: He is over-active, agitated, hostile, has delusional beliefs about conspiracy, Germans, Bengalis - feels persecuted, has a manic mental state, refusing medication, unable to consider treatment plan as he does not think he is ill. Has no insight, has refused medication, refuses any out patient contact - out patient care failed - has no insight into his illness. " 5. The second medical recommendation, also in Form 11, dated 6 th April 2000, was from Dr Bapna, and read as follows: This man who is agitated, aggressive, with pressure of speech, and does not want to communicate with doctor and social worker. He has grandiose delusions and does not want to stay in hospital. He does not want any medication and is very uncooperative. He has no insight. This agitated, aggressive man who is uncooperative and denying for medication and to stay in hospital. He has no insight. He has no fixed abode. He has psychotic illness with previous history. He does need to stay in hospital for further assessment and treatment. 6. On the basis of those recommendations, the Second Respondent, as the Approved Social Worker, made the application and the Applicant was admitted."[4]The following points are noteworthy:(1) The recommendation for admission under Section 3 of the MHA was made in the face of the order of the Tribunal for the discharge of the Appellant from his detention under Section 2 of the MHA, which had been made only 6 days before.(2) The Second Respondent who, as the Approved Social Worker, made the application, had appeared before the Tribunal and advised against the Appellant's discharge.(3) One of the two medical recommendations which led to the Appellant's admission was made by his RMO, who had appeared before the Tribunal and advised against the Appellant's discharge.(4) Neither of the medical recommendations referred to the Tribunal's decision or indicated that there had been any change in circumstances since the Tribunal's order was made 6 days earlier.[5]Because of time constraints and with the agreement of the parties, Burton J. dealt with only one of a number of issues raised before him, which was a seminal question. When a Mental Health Review Tribunal has ordered the discharge of a patient, is it lawful to re-admit him under S.2 or S.3 of the MHA where it cannot be demonstrated that there has been a relevant change of circumstances?[6]Mr Gordon, QC, who has appeared for the Appellant both before us and below, submitted to Burton J. that the answer to this question was no. Before us he modified his position, in that he advanced the following proposition:
"The relevant professionals (including Hospital Managers) exercising functions under the admission provisions of the MHA are bound to respect the Tribunal's decision to discharge except where they have satisfied themselves that there has been a relevant change of circumstances since the Tribunal's decision and, where they are so satisfied, given reasons for their conclusion unless , having followed the guidance in the Code of Practice, it is not reasonably practicable for them to follow the Tribunal's decision."
The Statutory Provisions[7]Burton J. adopted the helpful summary of the relevant provisions of the MHA prepared by Counsel for the First Respondent and I shall do the same:
" Admission for Assessment An individual can be admitted for assessment under MHA under either Section 2 or Section 4. The grounds upon which an individual can be so detained are those set out in Section 2: s.2(2)(a) The patient is suffering ' from mental disorder in a nature or degree which warrants the detention of the patient in a hospital for assessment (or assessment followed by medical treatment) for at least a limited period;' and s.2(2)(b) The patient ' ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons'. Mental Disorder is defined in Section 1(2) of MHA as: 'Mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind and " mentally disordered" shall be construed accordingly.' An application under Section 2 must be based upon the written recommendations of two registered medical practitioners, including a statement that the conditions set out above are made out (Section 2(3)). It is effective for a period not exceeding 28 days, beginning with the date upon which the patient was admitted. A patient shall not be detained after the expiration of that period, unless before it had expired he has become liable to be detained by virtue of a subsequent application, order or direction under MHA (Section 2(4)). This is subject to Section 29(4) which enables an extension of this period under certain circumstances. In the case of a Section 4 admission, i.e. a detention of ' urgent necessity' , the application for admission can be made by either an approved social worker or by the nearest relative of the patient, and must include a statement that: 'It is of urgent necessity for the patient to be admitted and detained under Section 2 above, and the compliance with the provisions of this Part of this Act relating to applications under that section would involve undesirable delay' (Section 4(2)). The Section 4 application procedure differs from that in Section 2 in that: it is sufficient if it is based upon only one medical recommendation rather than two, however, that medical recommendation must verify the statement required by Section 4(2); and unless a second medical recommendation required by Section 2 is received by the managers within 72 hours, the application ceases to have effect after 72 hours. Admission for Treatment Applications for compulsory admission for treatment are made under Section 3 of MHA. The grounds for such an application are: (a) He is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of such a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) in the case of a psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained by this section. (Section 3(2)). An application under Section 3 must be founded upon written recommendations in the prescribed form of two medical practitioners, including a statement that the conditions in sub-section (2) are complied with and particulars and reasons for the opinions (Section 3(3)). The following are relevant in respect of the written recommendations: the recommendations must be based upon a personal examination of the patient, either together or separately and if the practitioners examined the patient separately, not more than five days must have elapsed between the days on which the separate examinations took place (Section 12(1)). One of the recommendations shall be by a practitioner approved by the Secretary of State, and if that practitioner does not have previous acquaintance with the patient, the other recommendation shall, if practicable, be by a practitioner who has such previous acquaintance (Section 12(2)). Section 5(1) provides that there can be an application for the admission of a patient to a hospital under this part of the Act, notwithstanding that he is already an in-patient, subject to various provisos. Formal requirements for application for admission under ss.2, 3 and 4. The formal requirement for applications under these Sections are set out in Sections 11, 12 and 13. So far as relevant they are as follows: The application may be made either by an approved social worker or by the nearest relative of the patient (Section 11(1)), and must be addressed to the managers of the hospital (Section 11(2)). Section 11(4) provides that the nearest relative should be consulted in relation to an application for admission for treatment (" unless it appears to the social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay") . The application should not be made if the nearest relative objects. In this case the Applicant has no such relative. An application must not be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application (Section 11(5)). The approved social worker must interview the patient prior to making an application for admission and " satisfy himself that detention in hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need (Section 13(2)). The Social Worker's duty to make application for admission Section 13(1) provides that an approved social worker is under a duty to make an application for admission to hospital in respect of a patient within the area of the local social services authority by which he is appointed " in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him . Admission to Hospital An application for the admission of a patient to hospital in accordance with Sections 2, 3 or 4 duly completed in accordance with MHA is sufficient authority: for an authorised person to take a patient and convey him to the hospital within the specified period (Section 6(1)). If the patient is already in the hospital he is treated as being admitted on the date when the application is received by the managers (Section 5(1)). For the managers to detain the patient in the hospital in accordance with the provisions of MHA (Section 6(2)), an application for such admission which " appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it" (Section 6(3)). The effect of admission to hospital under those Sections is that "any previous application under this Part of this Act by virtue of which he was liable to be detained in a hospital … shall cease to have effect"
Section 6(4)). Mental Health Review Tribunal A patient or his nearest relative is entitled to apply to such Tribunal where he has been admitted for assessment (within 14 days: Section 66(2)(a)) or for treatment (within 6 months: Section 66(2)(b)). In addition the Secretary of State may refer the case of any patient who is liable to be detained to the Tribunal (Section 67) and at the expiration of six months after admission the hospital managers are obliged to refer a patient's case to the Tribunal where the patient was admitted for treatment and has not exercised his right to apply to the Tribunal and the Secretary of State has not referred the case to the Tribunal (Section 68(1)). The constitution and the procedure of the Tribunal are statutorily regulated: its powers on an application to it are set out in Section 72 of MHA. The Tribunal may in any case direct the discharge of a patient liable to be detained (Section 72(1) and (Section 72(1)(a)) shall direct the discharge of a patient liable to be detained under Section 2 if they are satisfied- "(i) that he is not then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by a medical treatment) for at least a limited period; or (ii) that his detention as aforesaid is not justified in the interests of his own health and safety or with a view to the protection of other persons. There are similar provisions in respect of direction of the discharge of a patient liable to be detained under Section 3. By Section 72(3) a Tribunal may direct a deferred discharge." The Issue[8]Mr Gordon's submissions were not founded on the particular facts of this case. He did not submit, as he might have done, that where the Tribunal had ordered the patient's discharge only six days earlier it was irrational to make an application for admission which appeared to pay no heed at all to the Tribunal's decision. He submitted that, as a matter of interpretation of the MHA, it is unlawful once a Tribunal has ordered the discharge of a patient to apply to re-admit the patient, or to accede to such an application, unless it is demonstrated that there has been a relevant change of circumstances. Mr Gordon submitted that this interpretation was implicit both to give effect to the scheme of the MHA and to interpret the MHA in a way that gives effect to the obligations imposed by Article 5 of the European Convention on Human Rights (ECHR). Mr Gordon further submitted that there is an implied exception to the implied statutory obligation to show a change of circumstances where this is impractical or will involve excessive delay. He drew a comparison with the express proviso to the duty to consult the nearest relative in S.11(4) MHA.[9]The Respondents contended that there had in fact been a relevant change of circumstances in the course of the six days between the Tribunal's decision and the application for admission. They joined issue, however, with the Appellant's contention that such a change of circumstances was a condition precedent to the power to admit the Appellant. It was that issue which Burton J. resolved against the Appellant and it is that issue with which we are concerned on this Appeal. There have been a number of decisions relevant to this issue. The Law[10]In R v Secretary of State for the Home Department, Ex p. K. 1 WLR McCullough J. had to consider the circumstances in which the Secretary of State could exercise the power conferred on him by Sections 42(3) and 73(4) of the MHA to recall a restricted patient who had been conditionally released by a Mental Health Review Tribunal. In the course of his judgment the Judge made the following observations about a situation which was purely hypothetical. "I come now to the only point which has caused me any real difficulty. It was made most tellingly by Mr Newman when he asked if it could be lawful for the Secretary of State, a week after a patient had been released from hospital on conditional discharge by a mental health review tribunal, to exercise his power of recall under section 42(3) in the absence of some fresh development. The answer is plainly not, and it does not matter whether one castigates such an action as irrational or illegal, as frustrating the objects and policy of the Act…. I accept it would be unlawful for the Secretary of State to recall a restricted patient to hospital when only the previous week or month he had been conditionally discharged from hospital by direction of a tribunal, unless meanwhile something has happened which justified the belief that a different view might now be taken about one of the factors on which his release had depended."[11]McCullough J's decision was upheld on appeal, but no comment was made on the observations quoted above. They were, however, considered by Laws J. in Ex p. M.[12]In Ex p. M an application was made for a Writ of Habeas Corpus on behalf of a patient compulsorily detained under S.2 of the MHA. The relevant facts and decision, which I have extracted from the headnote of the report (pp.683-4), were as follows:
"The applicant was admitted to St. Thomas's Hospital under section 4 of the Mental Health Act 1983 and subsequently compulsorily detained under section 2. She applied under section 66 to a mental health review tribunal who, on 14 December 1992, concluded that she was suffering from mental disorder but not of a nature or degree which warranted her detention in hospital for assessment, and directed her discharge pursuant to section 72(1)(a)(i) but deferred it for three days to enable arrangements for a suitable support programme to be made. L., a consultant psychiatrist, saw the applicant on the same day and recommended that she be admitted to South Western Hospital for treatment under section 3 on the ground that she behaved in a way which endangered the health and safety of herself and others. The next day, the applicant's general practitioner also made a section 3 recommendation. The applicant was referred to an approved social worker, who interviewed her and read the medical recommendations….. On 17 December the managers of the hospital accepted an application for admission for treatment under section 3, made in a form filled out by the social worker."
[13]Laws J., at p.694, concluded that the principal argument for the applicant turned on the proposition that on true construction of the MHA the hospital managers had not the power to order or direct a detention under Section 3 of the Act if a tribunal had recently decided that the patient should be discharged and there had been no change of circumstances since that decision. This he identified as a question of pure statutory construction.[14]Laws J. accepted as correct the following submission:
"Section 13 imposes a duty on an approved social worker to make a section 3 application in the circumstances which that section specified; the duty is not abrogated, or qualified, in a case where there has been a recent tribunal decision directing discharge; if it were to be abrogated or qualified, section 13 would say so. That being the case, the hospital managers must be obliged to consider on its merits an application made by the approved social worker in pursuance of his or her duty, and the existence of a recent tribunal decision can no more fetter this obligation than it can the social worker's own express duty under section 13."
[15]Laws J. went on at p.694-5 to comment that to make the power to admit a patient under S.3 contingent upon the extent to which time had elapsed and circumstances changed since the Tribunal's earlier decision to discharge that patient would be to make legality turn on criteria which were subjective and elastic:
"Honest and responsible doctors and other experts will differ upon such questions as the significance of any apparent change in a patient's condition - even when there has been a change; to make the legality of a detention depend upon issues of that sort would be to abandon any claim in this area to a reasonable degree of legal certainty and would, likely as not, put the experts involved in individual cases in an invidious if not impossible position. More specifically, there is nothing whatever that I can find in the statute to suggest that such a state of affairs was an intended function or aspect of the regime of interlocking controls which the Act contains."
[16]Laws J. was referred to the decision of McCullough J. in Ex p.K. As to this he commented at p.696:
"There is a plain nexus between the Secretary of State's power under section 42(3) and the tribunal's function under section 73(2); and it may be - I express no conclusion on the point, which does not arise for decision in the case - that the legality of an order for recall under section 42(3) depends upon the Secretary of State's having had regard to the basis of the earlier tribunal decision so as to avoid any frank inconsistency with it. However that may be, in my judgment no such reasoning can apply to the relationship between the section 3 regime and the tribunal's functions under sections 66 and 72(1). There is no cross-reference between them; and, as I have indicated, I can see no basis for construing the statute so as to produce the result that the duty and discretion of the approved social worker to make the section 3 application, and the function of the managers in considering it, are to any extent impliedly limited or abrogated by the existence of an earlier tribunal decision to discharge under section 72."
The Appellant's Contentions[17]Before Burton J., and before us, Mr Gordon attacked Laws J's conclusion that there was no cross-reference between the section 3 regime and the Tribunal's functions under sections 66 and 72(1). He submitted that the decision of the House of Lords in Reid v Secretary of State for Scotland [1999] 2 WLR 28 , which relates to provisions of the Mental Health (Scotland) Act 1984 which are essentially identical to those of the MHA, demonstrates that the criteria for admission under Section 3 and discharge under Section 72 mirror one another.[18]This is plainly correct. A finding by a Tribunal pursuant to Section 72 that a patient must be discharged amounts, in terms, to a finding that one or more of the criteria necessary to found admission under Section 2 or Section 3 are not present. In the present case the Tribunal found that(i) the Appellant was not suffering from mental illness of a degree which justified detention and(ii) detention of the Appellant was not required in the interests of his own health or safety or with a view to the protection of others. Thus two pre-conditions to admission, each of which had to be satisfied, were found by the Tribunal to be absent.[19]Mr Gordon submitted that if the relevant professionals could procure the readmission of a discharged patient without any change of circumstances, this robbed the Tribunal of the status that it ought to enjoy as a 'court' and reduced it to a mere advisory body. In X v United Kingdom (1981) 4 EHRR 188 the European Court of Human Rights had held that the advisory function that the Tribunals then performed did not suffice to satisfy the United Kingdom's obligations under Article 5(4) of the European Convention on Human Rights. It was for this reason that the MHA had given Tribunals the power to order the discharge of patients where the criteria necessary for detention were no longer present. If the relevant professionals could override a Tribunal's decision to discharge, Article 5(4) would be violated. To avoid this result it was necessary to give the MHA the interpretation for which Mr Gordon contended.[20]As to Laws J's finding that the test of change of circumstances would introduce criteria that were subjective and elastic, Mr Gordon submitted that subsequent authorities demonstrated that the test was a valid one, both in the field of mental health and in other fields. Thus in R v Secretary of State for the Home Department, Ex p. Danaie [1988] 1AR 84 at p.92 the Court of Appeal had accepted that the Secretary of State could only reach a conclusion of fact about an applicant that differed from that of the Adjudicator in certain specified circumstances, one of which was where 'fresh material has since become available to the Secretary of State such as could realistically have affected the Adjudicator's finding'.[21]In R v Home Secretary, Ex p. Harry [1998] 1 WLR 1737 at p.1745 Lightman J. had held that this principle applied equally where the Secretary of State was considering whether to comply with a recommendation made by a Mental Health Review Tribunal in relation to a patient subject to a restriction order.[22]Before us Mr Gordon accepted that on occasion it would not be practical for the relevant professionals to determine whether there had been a change of circumstances, but submitted that this situation was met by implying a proviso that the test need not be applied where its application was impractical. Burton J's Decision[23]Burton J. rejected Mr Gordon's submissions and followed the decision of Laws J. in Ex p. M. His principal reasons can be summarised as follows:(i) The question of whether grounds exist for admission under Sections 2 and 3 of the MHA will fall to be assessed at a date subsequent to that of the Tribunal's decision to discharge.(ii) The professionals considering the question of admission will be bound to comply with the statutory criteria and to do so objectively. Their task is to be contrasted with that of the Secretary of State exercising a broad discretion, as in Danaie and Harry .(iii) While the criteria for admission under Sections 2 and 3 and discharge under S.72 are mirror images, the decisions in relation to each will not necessarily match because they will be taken at different times.(iv) The professionals must not be irrational and must give reasons for their decisions. They will be subject to the sanctions of judicial review and liability for damages under Section 139 of the MHA if they act 'in bad faith or without reasonable care'.(v) Application of the change of circumstances test will sometimes not be practical - e.g. when making an emergency admission. If a requirement for change of circumstances is to be read into the statute, it must be clear and cannot be subject to unspecified or unparticularised exceptions.(vi) The patient is protected by: The right to seek a further Tribunal hearing; The availability of judicial review.(vii) The test of change of circumstances does not appear in the MHA; is uncertain; would lead to a proliferation of judicial review applications; may not be a helpful concept.[24]Burton J. concluded his judgment with the following summary:
"Doctors performing their obligations in respect of Sections 2, 3 and 4, the social worker if appropriate in respect of his obligations under Section 13, and then the hospital managers, having satisfied themselves as to the performance by the professionals of their duty, are not required to inject any further question of being satisfied that there has been change of circumstances since a previous Tribunal. I would content myself with agreeing with the words of Laws J. at 696F-G and ' hold that there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier Tribunal decision. The doctors, social worker, and managers must, under the statute, exercise their independent judgment, whether or not there is an extant Tribunal decision relating to the patient. "
The Respondents' Submissions to us[25]Miss Davies, QC, on behalf of the First Respondent, did not contend that a previous discharge order by a Tribunal had no relevance to consideration by the relevant professionals of the case for admission under Sections 2 and 3 of the MHA. She focussed her submissions on the Appellant's case that the 'change of circumstances' test fell to be implied into the MHA as a matter of statutory interpretation. The First Respondent's position was summarised by this paragraph from its outline submissions:
"The First Respondent fully accepts that there may be circumstances where an admission (or any of the steps leading to admission) under sections 2, 3 or 4 would be unlawful where there is an earlier decision by a Tribunal to discharge the patient. The lawfulness of the admission must, however depend upon a whole raft of matters including, in particular, what was or ought reasonably to have been apparent to those involved in the subsequent admission given the time constraints within which they were acting. No one matter, such as demonstrable change of circumstances can properly be abstracted from the overall factual context within which such decisions are made"
[26]Miss Davies put at the forefront of the First Respondent's case the practical problems that would be created if professionals had to attempt to investigate the precise circumstances of a previous discharge order before making recommendations or an application for admission of a patient under S.2 or S.3 of the MHA. She submitted that the professionals' task was to consider the statutory questions posed by Section 3(2) (a) and (c) of the MHA having regard to the circumstances prevailing at the time of consideration. She further submitted that in answering those questions the professionals would be constrained both by public law principles and by their professional responsibilities and ethics. It was not correct to suggest that they would set out deliberately to thwart the decision of the Tribunal, or that if they did so, their actions would not be open to judicial review. In support of this submission she referred us to a passage in the judgment of Judge L.J., when considering the provisions of Section 13 of the MHA, in St. George's Healthcare NHS Trust v S [1998] 3 All ER 673 at p.694:
"These provisions make clear that the social worker must exercise her own independent judgment on the basis of all the available material, including her interview and assessment of the 'patient', and personally make the appropriate decision. When doing so she is required to take account of the recommendations made by the medical practitioners. Indeed the application must be 'founded' on their written recommendations (s2(3)). The doctors too are required to make their recommendations on the basis of their best judgment of the relevant facts and, while eschewing the prohibited reasoning, decide whether the conditions provided in s 2(2) are satisfied. An application made for an improper or collateral purpose ( R v Wilson, ex p Williamson [1996] COD 42), or flawed in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 , [1948] 1 KB 223 ) ( R v South Western Hospital Managers, ex p M [1994] 1 All ER 161 at 176, [1993] QB 683 at 700) would be susceptible to judicial review; so would similarly tainted recommendations by the medical practitioners."
[27]For the Second Respondent, Mr Knafler, emphasised, correctly, that the case he had to meet was that, on the 6 th April 2000, he had no legal power under Section 13 of the MHA to apply for the Appellant to be admitted to hospital under Section 3 because the discharge order of the Tribunal made on the 31 st March had abrogated that power. Mr. Knafler submitted that on the clear wording of the statute he had not merely a power but an unqualified duty to apply for the Appellant's admission to hospital provided that he was satisfied that an application 'ought to be made' and that it was 'necessary and proper', having regard to all the relevant circumstances for the application to be made.[28]Mr Knafler following in the footsteps of Miss Davies in submitting that the suggested requirement for a change of circumstances before an application could lawfully be made, would often be unworkable in practice. It was not realistic to expect an Approved Social Worker to obtain and scrutinise copies of all the material before a Tribunal which had previously discharged the patient in respect of whom he was minded to make an application for admission.[29]At the same time Mr Knafler submitted that, in accordance with his duty to act competently, rationally and in good faith, an Approved Social Worker would be bound to have regard to an earlier Tribunal decision of which he had knowledge. While it was unrealistic to expect him to apply a test of change of circumstances in relation to a distant Tribunal decision, the position was very different where there had been a recent discharge. In most, if not all, cases an Approved Social Worker could only make an application for admission after a recent Tribunal discharge if he considered that the facts relevant to the admission criteria had changed. If there had been no change, the Social Worker's decision to apply would be likely to be irrational. It might, nonetheless, be justified by matters other than a change of circumstances, such as the discovery of information which had not been considered by the Tribunal. My Conclusions[30]The nature of mental illness is such that the severity of the symptoms and the need for treatment will often fluctuate over time. A sequence of discharge, readmission, discharge and readmission is not uncommon. Normally a sensible period is likely to elapse between discharge and readmission. In such circumstances the implied statutory requirement of change of circumstances for which Mr Gordon contends is neither necessary nor sensible. If the professionals concerned are acting objectively and bona fide, the application for readmission is likely to be triggered by behaviour of the patient that is, at least in part, a reaction to life in the community. This will almost certainly constitute a change of circumstances when compared with the patient's reaction to the hospital regime that was prevailing when the Tribunal discharged the patient. To require the professionals involved to investigate and attempt a comparison between the two sets of circumstances in order to decide whether or not there has been a relevant change of circumstances would not be helpful or even meaningful.[31]The position is very different where an application for readmission is made within days of a Tribunal's decision to discharge, which carries the necessary implication that the criteria for admission are not present - the more so if the patient has remained under the hospital regime because discharge has been deferred, so that there has been no change in the patient's environmental circumstances. In such a situation there is likely to have been, as Mr Gordon pointed out, a difference of view between the patient's RMO and the Tribunal as to whether or not the criteria justifying detention were established. Under the statutory scheme, were such a conflict exists, it is the opinion of the Tribunal that is to prevail.[32]In such circumstances I do not see how an Approved Social Worker can properly be satisfied, as required by Section 13, that 'an application ought to be made' unless aware of circumstances not known to the Tribunal which invalidate the decision of the Tribunal. In the absence of such circumstances an application by the Approved Social Worker should, on an application for judicial review, be held unlawful on the ground of irrationality.[33]In conclusion I agree with Burton J. that Mr Gordon has failed to establish the premise upon which he has based his case, namely that as a matter of statutory interpretation of the MHA an application and admission of a patient under Sections 2 or 3 of the Act cannot lawfully be made after the patient has been discharged by a Tribunal unless either the relevant professionals have satisfied themselves that there has been a relevant change of circumstances or it is not reasonably practicable for them to do so.[34]This leaves unanswered the question of whether on the facts of this case the Appellant's readmission, which took effect even before he was discharged, was unlawful on the ground of irrationality. It is the Respondents' case that the Appellant's mental condition had, in fact, significantly deteriorated in the 6 days between the Tribunal's order that he be discharged and the order for his detention under Section 3, so that they were in a position to demonstrate, if so required, that there had been a relevant change of circumstances. This raises the question of the significance of the fact that the reasons upon which the Appellant's readmission was founded gave no explanation as to why admission was said to be justified despite the Tribunal's decision that the Appellant should be discharged and, indeed, made no mention of that fact. Neither of these matters were explored before Burton J. and they are not matters upon which it would be appropriate for this Court to express a view. Human Rights[35]For the reasons that I have given I do not consider that the statutory scheme leaves it open to professionals effectively to overrule a decision to discharge taken by a Tribunal. The Tribunal has sufficient of the attributes of a Court to satisfy the requirements of Article 5(4) and there is no incompatibility between the sections of the MHA that provide for compulsory admission of a patient to hospital and Article 5(1) of the Convention.[36]This appeal has turned on a narrow point of law on which I have found in favour of the Respondents. Accordingly, I would dismiss the appeal.

LORD JUSTICE BUXTON:

[37]I agree with the order proposed by the Master of the Rolls for the reason that he gives.

LORD JUSTICE SEDLEY:

[38]This case has taken a peculiar and in some ways unsatisfactory shape. Mr Gordon QC has (I agree) succeeded in his challenge to the decision of Laws J in Ex parte M that 'there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision', but has failed in his endeavour to introduce in its place, as a matter of law, a change of circumstances criterion for readmission. What has been confirmed in the space between the two is the set of private law and public law controls which Burton J described and which Lord Phillips MR in paragraphs 31 and 32 of his judgment endorses, as I would.[39]In a great many cases, especially those where readmission comes hard on the heels of discharge by the tribunal, there may in the light of this be little practical difference between what Mr Gordon has sought and what he has achieved. Any decision made in the exercise of statutory powers and affecting a person's liberty must not only be made in good faith but must, among other things, have proper regard to any relevant facts.[40]The need for good faith in this context is well illustrated by Mr Knafler's correct concession on behalf of the second respondent that an application to readmit will not be lawful if the approved social worker believes that an MHRT will thereupon order the patient's discharge; and the same, in my view, is true of the recommending doctors.[41]A recent - and often a not so recent - order of a tribunal for discharge will always be a relevant fact. If so, it is the duty of the subsequent decision-maker to take it into account; a failure to do so, albeit through ignorance, will vitiate a subsequent decision to seek admission. The principle that the weight to be given to such facts is a matter for the decision-maker, moreover, does not mean that the latter is free to dismiss or marginalise things to which the structure and policy of the Act attach obvious importance. Thus a recent MHRT decision to discharge a patient, if the circumstances have not appreciably changed, must be accorded very great weight if the second decision is not to be perceived as an illicit overruling of the first. Put another way, there will have to be a convincing reason, in such a case, for readmission. This is particularly so if the United Kingdom's Convention obligations are to be respected. But neither the Act nor the Convention inhibits the detention by a proper decision-making process of those who, although recently discharged, have deteriorated or whose mental wellbeing otherwise requires admission.[42]In this sense (reverting to the formulation of Laws J in Ex parte M ) it can be said that, while not legally bound in the absence of a change of circumstances by a recent MHRT decision in favour of discharge, those concerned in a section 3 application cannot lawfully ignore it. They must have due regard to such a decision for what it is: the ruling of a body with duties and powers analogous to those of a court, taken at an ascertainable date on ascertainable evidence. The second decision must be approached with an open mind, but it is not necessarily going to be written on a clean slate.[43]What has come before us, however, is an appeal confined to the construction of sections 2 and 3 of the Act. On this footing I agree that it fails; but the argument has achieved a significant movement in the law as it has thus far been understood.

ORDER

(Order does not form part of approved Judgment)

Cited in 8 later judgments