M v South West London & St George's Mental Health NHS Trust [2008] EWCA Civ 1112

Case No C1/2008/1762[2008] EWCA Civ 1112
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE UNDERHILL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 7 th August 2008
Before
LORD JUSTICE MUMMERY,LORD JUSTICE RICHARDSLORD JUSTICE STANLEY BURTON
Between
MAppellantSOUTH WEST LONDON & ST GEORGE’S MENTAL HEALTH NHS TRUSTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr R Pezzani (instructed by Messrs Campbell Taylor) appeared for Appellant.Ms S Rahman (instructed by Messrs Capsticks) appeared for Respondent.
Judgment
[1]The appellant, Ms M, is a 44 year old woman with a long history of mental health problems. On 29 June 2008 she was detained for assessment under section 2 of the Mental Health Act 1983 for a period of 28 days. She was admitted to Queen Mary’s Hospital, Roehampton, but was subsequently taken on two occasions to accident and emergency units elsewhere because of abdominal pain, which turned out to be pancreatitis. On the second of those occasions, at St George’s Hospital, Tooting, she was admitted to a general surgical ward for diagnostic tests. She was still subject at that point to the section 2 detention.[2]The consulting psychiatrist responsible for her care at Queen Mary’s Hospital, Dr Howlett, had formed the view that the appellant ought to be detained for treatment under section 3 of the 1983 Act; and on 10 July, while she was still at St George’s in the general surgical ward, she was seen by another psychiatrist, Dr Keen, and by a social worker, Mr Kohli, for the purposes of a section 3 assessment. The appellant telephoned her solicitor, saying that she was very upset and did not feel well enough for an assessment given her current condition. The solicitor spoke to the social worker and asked him to defer the assessment since the appellant was unwell. However, the assessment proceeded on that day, the relevant forms were completed and the appellant was detained under section 3.[3]She subsequently applied for habeas corpus, contending that the procedural preconditions for detention under section 3 had not been met and that the detention was therefore unlawful. Underhill J dismissed that application. An appeal is now brought against his decision. The legislative framework[4]By section 3(1) of the 1983 Act a patient may be admitted to a hospital and detained there in pursuance of an application, referred to as an application for admission for treatment, made in accordance with the section. Such an application may be made on the grounds specified in subsection (2) and, by subsection (3), shall be founded on the written recommendations of two registered medical practitioners in the prescribed form and including specified matters. The Act lays down a detailed procedure which must be followed for such a detention to be lawful.[5]The first of the relevant procedural provisions is section 12. Subsection (1) of section 12 provides that the medical recommendations:
“…shall be signed on or before the date of the application, and shall be given by practitioners who have personally examined the patient either together or separately…”
Whether Dr Keen met the requirement as to examination of the appellant is one of the issues in this case.[6]By subsection (2) of section 12, at least one of the recommendations must be given by a practitioner approved for the purposes of the section by the Secretary of State as having special experience in the diagnosis of treatment of mental disorder. In this case both Dr Howlett and Dr Keen are approved for the purposes of section 12.[7]Section 13(1) imposes a duty on an approved social worker to make an application for admission to hospital in respect of a patient within the area of the local social services authority in any case where he is satisfied that such an application ought to be made and is of the opinion that it is necessary or proper for the application to be made by him. Subsection (2) provides that:
“Before making an application for the admission of a patient to hospital an approved social worker shall interview the patient in a suitable manner and satisfy himself that detention in a 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.”
Whether Mr Kohli met the requirement to interview the appellant is another issue in this case.[8]Those are the only statutory provisions to which I need to refer. I should also mention that there is a code of practice published by the Secretary of State under section 118 for the guidance of registered medical practitioners, approved social workers and others. That guidance is non-binding but should be given great weight (see R (Munjaz) v Mersey Care NHS Trust[2006] 2 AC 148 at paragraph 21 per Lord Bingham of Cornhill). The guidance is relied on here as informing the question of whether the statutory preconditions have been satisfied. In relation to that guidance, reliance is placed first on the general provisions of the code, emphasising the care that must be taken by professionals in the discharge of their responsibilities to ensure that detention is reserved only for those properly assessed as requiring it; and paragraphs 2(12) and 2(13), and 2(23) and 2(24), are singled out as dealing with what must be done by the social worker and the doctor respectively by way of interviewing and examining the patient. The documents[9]Dr Howlett had previous acquaintance with the appellant. Her medical recommendation made in the prescribed form is not the subject of any criticism. In the form she expressed the opinion that the appellant was suffering from mental illness and that the mental disorder was of a nature or degree which made it appropriate for the appellant to receive treatment in hospital. She stated that the opinion was founded on the following grounds:
“She has a diagnosis of bipolar affective disorder/schizo affective disorder. She has been extremely hostile and threatening to neighbours and staff. She exhibits thought disorder and persecutory beliefs about ourselves. Her language is sexually abusive and explicit.”
Dr Howlett also gave reasons why, in her opinion, detention for treatment under section 3 was necessary.[10]Dr Keen’s medical recommendation was also in the prescribed form. He recorded that he had examined the appellant on 10 July. He expressed the same opinion as Dr Howlett, saying that his opinion was founded on the following grounds:
“She has a well-established diagnosis of bipolar affective disorder and has recently been exhibiting characteristic signs of relapse: she has been hostile, abusive, intimidating neighbours who have had to call police, and threatening to kill her Consultant psychiatrist. She is aroused, irritable and hostile, refusing to engage in a mental health act assessment interview.”
[11]He concluded that detention for treatment under section 3 was necessary in the interests of the appellant’s own health and safety and that of others, giving these reasons:
“She has a substantial risk history of chaotic behaviour and violence when unwell. She has recently been intimidating and abusive and says that Dr Howlett will ‘lose her life’ because of her harassment of [her]. She appears to lack normal social judgment and is likely to put her self or others at risk of harm if not formally detained for appropriate treatment.”
[12]Mr Kohli, the social worker, completed an application in the proper form for the appellant’s admission for treatment. He filled in the section as to when he last saw the patient, stating that it was 10 July. The printed form he completed included the statement:
“I have interviewed the patient and I am satisfied 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.”
[13]It also included a statement that the application was founded on the two medical recommendations. Mr Kohli deleted the next section, which applied only if neither of the medical practitioners knew the patient before making their recommendations; in this case, as I have said, Dr Howlett did know the patient previously. Having shown in this way that he had applied his mind to the details on the form, Mr Kohli signed and dated the form. He also completed and signed a separate form -- referred to as an ASW (Approved Social Worker) assessment form -- which called for a fair amount of detail and included in particular a section headed “Details of Interview”, under which he wrote the following:
“Ms M was reluctant to talk to us. In fact, she was on the phone to her solicitor who was trying to persuade us from assessing her today given that she is feeling discomfort with her pancreatitis. She refused to speak to us and to be seen in the private room we had arranged for interview purposes. She then walked off the ward to have a cigarette, escorted by her RMN. During our brief interaction she was hostile and suspicious to both myself and the s.12 doctor.”
In a later section, in response to the question “How long did the assessment take?”, Mr Kohli wrote “one-and-a-half hours”. The proceedings before the judge[14]The case for the appellant before the judge was, in short, that it could be inferred from those materials that the second medical practitioner, Dr Keen, did not carry out an examination of the appellant as required by section 12(1), and the approved social worker, Mr Kohli, did not conduct an interview with the appellant as required by section 13(2). Particular importance was attached to the phrases in Dr Keen’s statement that the appellant was “refusing to engage in a mental health act assessment interview” and in Mr Kohli’s statement that the appellant “refused to speak to us” and his reference to “a brief interaction”. It was said that the overall message was that because of the appellant’s refusing to talk to them or otherwise to engage with them they felt unable to examine or interview her and did not do so. That was also said to derive some support from a witness statement of the appellant’s solicitor, which dealt with the telephone calls from the appellant that afternoon, both the timing of those calls and what the appellant had told her in the course of the conversations, and also dealt with what the solicitor had said to Mr Kohli, in effect asking for the assessment to be postponed because of the appellant’s physical condition and because the appellant felt too unwell to undergo an assessment.[15]The judge rejected the appellant’s case on the basis of the materials put in evidence by the appellant, without finding it necessary to take into account a late witness statement from Mr Kohli. He rejected a submission on the appellant’s behalf that he should adjourn the hearing so that there could be oral evidence with cross-examination of Dr Keen and Mr Kohli. He said in his judgment that he did not think it possible to infer from the records that Dr Keen and Mr Kohli were in breach of their duties as alleged. He set out his reasons for that conclusion in paragraphs 12-17 of his judgment in these terms: “12. It is fair to start with a presumption – of course a rebuttable presumption – that Dr Keen, as a doctor approved under section 12 of the Act, and Mr Kohli, as an approved social worker, would be aware of their statutory obligations and would not deliberately act in breach of them. I do not believe that it is necessary to read Dr Keen’s statement that the claimant was ‘refusing to engage in a mental health act assessment interview’ or Mr Kohli’s statement that she refused to go to an interview room or to ‘speak to us’ as meaning that no examination or interview within the meaning of the Act was possible or was performed or carried out. No doubt the claimant was indeed hostile and uncooperative, and refused to ‘engage with’ Dr Keen and Mr Kohli; but that does not in my view preclude an examination within the meaning of section12. A doctor can ‘examine’ a patient for the purpose of reaching an opinion as to her mental health by observing her conduct over a sufficient period of time, even if she refuses, for example, to answer questions or to submit to a physical examination. If that were not the case, section 3 would in practise be inapplicable in many cases of patients exhibiting florid symptoms of mental illness. Dr Keen, on the form which he completed, was required to and did state in terms that he had examined the claimant, and I see no reason whatever to doubt this.13. As to the length of the examination, if I were to regard myself as strictly bound by the contents of the contemporary records, Mr Kohli in fact states that the ‘assessment’ lasted 1½ hrs. In fact in his witness statement he very properly explains that that figure includes preparation and time for writing reports. As I said, he estimates the time actually spent with the claimant as about thirty minutes. But even if I were to ignore that, and to have regard only to his reference to a ‘brief interaction’, that does not in my view in any way mean that Dr Keen did not have a sufficient opportunity to observe the claimant’s behaviour and form a professional judgment about it.14. Likewise the contents of Mr Kohli’s report do not in my judgment mean that no ‘interview’ was carried out. I agree with the view expressed in the commentary to the act in Jones Mental Health Act Manual, 10th edition, at page 98 that: ‘It is submitted that, in the context of this Act, an attempt by an approved social worker to communicate with a patient would be sufficient to constitute an interview and that this would be the case even if the patient was either unable or unwilling to respond.’ If that were not the case, section 3 would be inoperable in many cases where it was most obviously needed. Such a construction may be somewhat strained on a literalist approach, but I do not think it is impossible. I note the requirement that the interview be conducted in a ‘suitable’ manner, which introduces a degree of inflexibility. It is also material that subsection (2) makes it clear that the purpose of the interview is to enable the approved social worker to ‘satisfy himself that detention in a 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’. That purpose is, of course, achieved in case where the approved social worker attempts to communicate with the patient but she fails to respond, or respond inappropriately, in a manner suggesting that she does indeed require treatment. […] 16. Mr Simblett submitted that, while that general approach to the obligations to examine or to interview might be acceptable, in the present case there was nothing in the claimant’s behaviour to justify the conclusions reached by Dr Keen and Mr Kohli: she was simply a non-cooperative patient, and that by itself did not justify the conclusion that she required admission under section 3. But whether that was so was a matter for the professional judgment of Dr Keen and Mr Kohli. I can see nothing in the descriptions of her behaviour that suggest they were not entitled to reach the conclusion that they did. She was, it is true, well enough to hold a conversation with her solicitor on the telephone, and indeed, on her encouragement, to protest that she felt too unwell to be interviewed. But she was also, on the same evidence, displaying abnormally hostile and suspicious and Dr Keen and Mr Kohli were entitled to take into account the other information about her recent conduct to which they refer in their respective recommendation and report. 17. Mr Simblett also referred me to the provisions of the Code of Practice issued under section 118 of the Act, but I can see nothing in the Code which is inconsistent with the view that I have formed on the effect of the statutory provisions.” ‘It is submitted that, in the context of this Act, an attempt by an approved social worker to communicate with a patient would be sufficient to constitute an interview and that this would be the case even if the patient was either unable or unwilling to respond.’ The appellant’s case before this court[16]The case before us has been advanced on the appellant’s behalf by Mr Pezzani, who has made clear that he does not seek to have the appellant released immediately but seeks to have the case remitted to the Administrative Court for oral evidence and cross-examination and a further determination. He listed three essential points: first that the case involves matters of disputed fact which could invalidate the lawfulness of the admission; second, that because there are disputed facts they should be tested by oral evidence, including cross-examination; and third, that the determination of the dispute on the evidence would determine the lawfulness of the detention. He expressly adopted in its entirety a written skeleton argument previously submitted to the court by counsel then acting for the appellant -- Mr Simblett -- and it is convenient to follow the order of the submissions contained in the skeleton argument whilst dealing with the further points and points of emphasis made by Mr Pezzani in the course of his oral submissions.[17]It is submitted first that the judge’s starting point, as he called it -- namely a presumption that the doctor and social worker would be aware of their statutory obligations and would not deliberately act in breach of them -- was an unsafe one, since the burden of proof in relation to the legality of the detention lies on the state or the detainer, both under Article 5 of the European Convention on Human Rights and at common law; and, in order to discharge the burden of proof, both the evidential and the juridical basis of the detention must be established. In support of that, various authorities are cited including R v Governor of Brockhill Prison ex parte Evans (no. 2) [2001] 2 AC 19 and O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.[18]It is further submitted that there was material before the court, in the first instance, which ought to have caused the judge at least to doubt that the statutory preconditions for detention had been complied with, and to have concluded that further investigation was necessary by way of oral evidence and cross-examination. Reference has been made to various cases in which it has been said that cross-examination may be required for the resolution of factual issues in the context of judicial review or habeas corpus proceedings. One example cited relates to the determination of a person’s status as an illegal entrant (see R v Secretary of State ex parte Khawaja [1984] AC 74 as considered in R v SSHD ex parte Rahman [1998] QB 136). A further example -- and one on which Mr Pezzani placed particular importance in his oral submissions -- is that of R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419, concerning the question whether the statutory grounds for the imposition of compulsory treatment on a mental health patient have been met. In relation to Wilkinson, Mr Pezzani drew our attention in particular to the judgment of Hale LJ at paragraph 61-63, dealing with the need for oral evidence and cross-examination in a context where fundamental human rights are engaged.[19]There is also a recent example to which we have been referred of cross-examination being ordered in a challenge to detention under section 3 itself. That is the case of BB v Cygnet Health Care and Others [2008] EWHC 1259 (Admin), in which King J issued a writ of habeas corpus on the ground that there had been a failure to meet the statutory condition as to consultation of the nearest relative under section 11(4). The evidence before the judge included the oral evidence of the approved social worker whom the judge described as having been rigorously cross-examined. Indeed, it is submitted that it is not uncommon in these cases to have cross-examination on witness statements or affidavits.[20]Mr Pezzani contends that there should have been such cross-examination in the present case. He has referred us to various features of the factual evidence, as dealt with by the judge, in support of that submission. He says that there were disputed issues of fact as to whether an interview took place within section 13(2), as informed by the code of practice, and whether a medical examination took place within section 12(1), again as informed by the code of practice. There is also, he says, an issue as to the length of the interview or examination. In that connection he has referred us to specific passages in the witness statement of the appellant’s solicitor and compared it with the other evidence. A further issue said to have been an issue of disputed fact is whether the assessment should have been postponed because the appellant was too unwell.[21]It is said that the judge was not in a position to deal with those matters simply on the written material before him and that it was not open to him to seek to reconcile, without the benefit of oral evidence and cross-examination, the material in the reports with the discharge of the responsibilities of the professionals involved. In any event, it is submitted that the judge was wrong to have found on the material before him that the statutory conditions were met. His approach is said to have involved a strained construction of the statutory language. It also involved consideration of the hypothetical situation of an extremely disturbed patient, where it is not possible to undertake an interview or examination because of the patient’s illness. That, it is submitted, is not this case. Discussion[22]In so far as Mr Pezzani advances any general proposition that there ought to be oral evidence with cross-examination in a case of this kind, I would reject it. Oral evidence with cross-examination should be ordered only if and to the extent that it is necessary for the fair determination of an issue that the court needs to decide. The approach taken in Wilkinson upon which, as I have said, Mr Pezzani has placed particular stress, depended very much on the particular context and the matters at issue in that case. Even in that context it is pertinent to have in mind the qualifications entered by Dyson LJ giving the judgment of the court in Regina (N) v M and others [2003] 1 WLR 562, in particular at paragraph 39:
“We suggest that it should not often be necessary to adduce oral evidence with cross-examination where there are disputed issues of fact and opinion in cases where the need for forcible medical treatment of a patient is being challenged on human rights grounds. Nor do we consider that the decision in Wilkinson should be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally. Much will depend on the nature of the right that has been allegedly breached, and the nature of the alleged breach. Furthermore, although in some cases (such as the present) the nature of the challenge may be such that the court cannot decide the ultimate question without determining for itself the disputed facts, it should not be overlooked that the court’s role is essentially one of review: see Lord Steyn in R (Daly) v The Secretary of State for the Home Department [2001] 2 AC 532, 547, para 27).”
[23]In the present context I would not generally expect there to be a need for oral evidence with cross-examination, though I am quite prepared to accept without considering the case in any detail that BB was a case where it was called for on the particular facts.[24]As to the present case, it seems to me that the judge was entirely correct to approach the matter on the basis that there was no need for oral evidence with cross-examination of the social worker or doctor if the materials put in evidence by the appellant -- the contemporaneous documents and the solicitor’s witness statement -- did not themselves raise a sufficiently cogent or arguable case of failure to comply with the statutory requirements or the code of practice. If those materials did raise such a case then it would have been necessary to take into account the witness statement of the social worker and, if that was to be done, it might well have been necessary in the circumstances to permit cross-examination. But in my view there was no error of approach in looking first at the materials put in evidence by the appellant in support of the application and refusing the request for an immediate adjournment so as to enable cross-examination to take place in any event.[25]As to the judge’s dismissal of the application on the basis that the materials put in evidence by the appellant did not disclose a failure to comply with the statutory requirements or code of practice, I take the view that he was entitled to reach that conclusion for the reasons he gave. It is clear that the appellant was a highly uncooperative patient and that she gave the doctor and social worker little or no assistance in the discharge of their responsibilities. The judge was correct, however, to consider that an examination within the meaning of section 12(1) can take place even under those very difficult conditions, and I see no reason to doubt that there was a sufficient examination for the purposes of the section, as the doctor evidently considered to be the case in completing and signing the medical recommendation. Equally, the judge was correct to note the flexibility inherent in the statutory requirement under section 13(2) as to an interview in a suitable manner by the social worker, and I see no reason to doubt that there was a sufficient interview for the purposes of the section, as again the social worker evidently considered to be the case in completing and signing the assessment form.[26]There is no set time that must be taken for an examination or interview to qualify under the statute. What is required, as with other aspects of the examination and interview, is a matter for the professional judgment of those concerned; and there is nothing in the evidence in my view to show that there was insufficient time here for a proper examination or interview to have taken place, whether one looks at the period of one-and-a-half hours stated on the form for the whole process of assessment, or the half hour for the interview itself indicated in Mr Kohli’s witness statement (if its permissible to look at the statement for this limited purpose), or the shorter period suggested by the description given in the various documents.[27]It is also a matter of professional judgment whether to proceed with an assessment at the time proposed (that is to say, in this case, on the afternoon of 10 July) rather than to accede to a request to postpone (in this case the request to postpone until the following week). It seems to me that there is no basis upon which it could be said that the judgement to proceed with the examination and interview in this case was unreasonable, or that the decision so to proceed somehow rendered the examination or interview other than an examination and interview meeting the requirements of the statute.[28]Perhaps more importantly than anything else, I do not accept that the material that was relied on by the judge did give rise to disputed issues of fact which could in any event have required oral evidence and cross-examination. There does not seem to have been a factual challenge to that material in the event before the judge; and from the way in which Mr Pezzani has put his submissions to this court, it seems to me that the actual averments of fact in the documents are not themselves in dispute. To my mind that reinforces the view taken by the judge that the case could properly be decided on the documents without the need for oral evidence and cross-examination.[29]Overall, I am satisfied that the approach taken by the judge was not only consistent with the statutory language but was also necessary and appropriate, as he indicated, to render the statute effective in relation to an uncooperative patient who simply refused to assist in relation to an examination and interview. I do not accept, as submitted by Mr Pezzani, that one is forced in those circumstances to have recourse to other ways of achieving the admission of an uncooperative patient, whether under the 1983 Act or at common law. I leave aside, as possibly raising different considerations, cases involving for example an unconscious or a highly intoxicated patient who is simply unable to participate in an examination or interview, or a case where the doctor or social worker are unable to gain access at all to the patient. In the present circumstances I am satisfied that the approach that was adopted by the professionals was in accordance with the statute.[30]I should add that I attach no great significance to the judge’s reference to a presumption that the doctor and social worker would be aware of their statutory obligations and would not deliberately breach them. As it seem to me, that amounts to no more than saying that in the absence of evidence to the contrary, the forms that the doctor and social worker completed and signed can properly be taken at face value. On the face of those documents, there was compliance here with the statutory requirements. The court is entitled to rely on that unless there is evidence to displace the effect of the documents. I think that was all that the judge was getting at, and in any event I am wholly unpersuaded that he was misdirecting himself on the burden of proof or impermissibly establishing some additional hurdle for the appellant to get over.[31]For those reasons, I take the view that the judge was correct in his approach and in his conclusion and that this appeal should be dismissed.[32]I entirely agree. I would only wish particularly to endorse what my Lord has said about the relative rarity with which cross-examination of professionals involved in the admission of patients under the Act should be required.[33]I agree.

Order

Appeal dismissed