DB, R (on the application of) v Nottinghamshire Healthcare NHS Trust [2008] EWCA Civ 1354

[2008] EWCA Civ 1354Case No C1/2008/1207
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2008] EWHC 986 (Admin)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Foskett
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/12/2008
Before
LORD JUSTICE LAWSLORD JUSTICE LONGMORELORD JUSTICE STANLEY BURNTON
The Queen on the application of
Between
DBClaimant/ AppellantNottinghamshire Healthcare NHS TrustDefendant/Respondent
Stuart Brown QC and Alexander Ruck Keene (instructed by Cartwright King) for Claimant AppellantDavid Lock and Nageena Kalique (instructed by Mills & Reeve) for Defendant RespondentHearing Hearing date: 20 November 2008
Judgment

Introduction

[1]This appeal, from the order of Foskett J dated 7 May 2008 dismissing the Appellant’s claim for judicial review, raises a short but important point as to the effect of a hospital order made under section 37 of the Mental Health Act 1983: does such an order cease to have effect if the offender who is the subject of the order is not admitted to the hospital named in the order within the period of 28 days from the date of the making of the order, as stipulated by it? The importance of the point is all the greater if the offender is sufficiently dangerous for a restriction order to have been made under section 41, since a restriction order has no effect if there is not an effective hospital order.[2]In view of the importance of the point, the Court required the Appellant’s solicitors to notify the Ministry of Justice of the pending appeal. The Ministry chose not to intervene or to make any representations.

The facts

[3]The Appellant is now aged 28. On 1 September 2003 he was convicted before the Crown Court of an offence of affray and sentenced initially to a community rehabilitation order. He was then, and continued to be, a patient of the community mental health team and was receiving anti-psychotic medication. He committed breaches of the community rehabilitation order. His behaviour gave cause for concern and, whilst in custody pending the return of the case to court, he was examined by a forensic psychiatrist who recommended that he should be made the subject of a hospital order. Another consultant forensic psychiatrist confirmed that view. They considered that he should be admitted to a medium secure unit, namely Arnold Lodge Medium Secure Unit in Leicester.[4]The Appellant was before the Crown Court on 17 December 2004. HH Judge Teare duly made a section 37 order providing for his admission to a hospital unit within 28 days of the date of the order (i.e., by 14 January 2005). However, for reasons that are not entirely clear, the order provided for his admission and detention in the Wells Road Centre, which is not a secure unit.[5]Whilst awaiting transfer from prison to the Wells Road Centre, the mistake was noticed. In consequence on 21 December 2004 the Appellant returned to Court. HH Judge Teare amended his order of 17 December to provide for his admission and detention at Arnold Lodge. The transcript of the proceedings includes the following exchange: [The Appellant]:
“… [W]hen is the 28 days gonna start from? Do you know?”

Judge Teare:

“It should start from the 17th.”
The Appellant: “The 17th?” Judge Teare: “Yes. That is when I made the order that you were going to a hospital and you should go within 28 days from then. All right?” The Appellant: “What month was that?” Judge Teare: “17th December. All right? So you should be there by 15th January.” The judge’s calculation was incorrect: the 28 days expired on 14 January, but his mistake is immaterial. [The Appellant]: “… [W]hen is the 28 days gonna start from? Do you know?” The Appellant: “The 17th?” The Appellant: “What month was that?”[6]The hospital order form completed by the court officer on 21 December 2004 was based on a standard form, which is annexed to this judgment. The order as drawn up on 21 December 2004 was headed in manuscript “Order varied from 17.12.04” and in the body of the order it stated that “On 17 December 2004 the court … ordered that, within 28 days from the date of this order, [the Appellant] should be admitted to and detained in Arnold Lodge and that he should be conveyed to that hospital by [the] prison service.” The provision in the order dealing with the conveyance to a place of safety in the meantime was deleted. No point is taken on that deletion on this appeal, but I shall refer to it below. The date at the foot of the order was, of course, 21 December 2004.[7]It seems that the amended order was interpreted by those responsible for its implementation as requiring the Appellant to be admitted to Arnold Lodge within 28 days from 21 December. That was what was achieved: the Appellant was admitted there on 17 January and has since that date been detained under Part III of the Act (although he was transferred to the Wells Road Centre on 27 February 2006). The Responsible Medical Officers with care of the Appellant have regularly completed the forms required under section 20(3) of the 1983 Act, purporting to renew the authority for his detention. His case has twice been considered by a Mental Health Review Tribunal most recently on 14 March 2008, following his application for discharge made on 17 December 2007. On both occasions, the Tribunal declined to order his discharge. The Claimant cannot apply again to the Tribunal for discharge until 17 December 2008.[8]Foskett J held, and it is now common ground, that the order of 21 December 2004 when correctly construed ran from 17 December, and in terms required the Appellant to be admitted within 28 days of that date, i.e., by 14 January 2005. It follows that if the validity of the order expired on the latter date, there was no lawful authority for the admission of the Appellant by Arnold Lodge on 17 January 2005 or for his detention under the 1983 Act thereafter.

The applicable legislation

[9]Sections 37 and 40 of the Mental Health Act 1983 are, so far as relevant, as follows: Powers of courts to order hospital admission or guardianship. 37. —(1) Where a person is convicted before the Crown Court of an offence punishable with imprisonment other than an offence the sentence for which is fixed by law, or is convicted by a magistrates' court of an offence punishable on summary conviction with imprisonment, and the conditions mentioned in subsection (2) below are satisfied, the court may by order authorise his admission to and detention in such hospital as may be specified in the order or, as the case may be, place him under the guardianship of a local social services authority or of such other person approved by a local social services authority as may be so specified. … (2) The conditions referred to in subsection (1) above are that—(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either— (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and thecharacter and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section. (3) … (4) An order for the admission of an offender to a hospital (in this Act referred to as “a hospital order”) shall not be made under this section unless the court is satisfied on the written or oral evidence of the registered medical practitioner who would be in charge of his treatment or of some other person representing the managers of the hospital that arrangements have been made for his admission to that hospital in the event of such an order being made by the court, and for his admission to it within the period of 28 days beginning with the date of the making of such an order; and the court may, pending his admission within that period, give such directions as it thinks fit for his conveyance to and detention in a place of safety. (5) If within the said period of 28 days it appears to the Secretary of State that by reason of an emergency or other special circumstances it is not practicable for the patient to be received into the hospital specified in the order, he may give directions for the admission of the patient to such other hospital as appears to be appropriate instead of the hospital so specified; and where such directions are given— (a) the Secretary of State shall cause the person having the custody of the patient to be informed, and (b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order. (6) … (7) […] (8) Where an order is made under this section, the court shall not pass sentence of imprisonment or impose a fine or make a probation order in respect of the offence or make any such order as is mentioned in paragraph (b) or (c) of section 7(7) of the Children and Young Persons Act 1969 in respect of the offender, but may make any other order which the court has power to make apart from this section; and for the purposes of this subsection ‘sentence of imprisonment’ includes any sentence or order for detention. Effect of hospital orders, guardianship orders and interim hospital orders. 40. —(1) A hospital order shall be sufficient authority— (a) for a constable, an approved social worker or any other person directed to do so by the court to convey the patient to the hospital specified in the order within a period of 28 days; and (b) for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act. (2) … (3) Where an interim hospital order is made in respect of an offender— (a) a constable or any other person directed to do so by the court shall convey the offender to the hospital specified in the order within the period mentioned in section 38(4) above; and (b) the managers of the hospital shall admit him within that period and thereafter detain him in accordance with the provisions of section 38 above. (4) A patient who is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, shall, subject to the provisions of this subsection, be treated for the purposes of the provisions of this Act mentioned in Part I of Schedule 1 to this Act as if he had been so admitted or placed on the date of the order in pursuance of an application for admission for treatment or a guardianship application, as the case may be, duly made under Part II of this Act, but subject to any modifications of those provisions specified in that Part of that Schedule. (5) Where a patient is admitted to a hospital in pursuance of a hospital order, or placed under guardianship by a guardianship order, any previous application, hospital order or guardianship order by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect; but if the first-mentioned order, or the conviction on which it was made, is quashed on appeal, this subsection shall not apply and section 22 above shall have effect as if during any period for which the patient was liable to be detained or subject to guardianship under the order, he had been detained in custody as mentioned in that section. (a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either— (i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or (ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and (b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and thecharacter and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section. (a) the Secretary of State shall cause the person having the custody of the patient to be informed, and (b) the hospital order shall have effect as if the hospital specified in the directions were substituted for the hospital specified in the order. (a) for a constable, an approved social worker or any other person directed to do so by the court to convey the patient to the hospital specified in the order within a period of 28 days; and (b) for the managers of the hospital to admit him at any time within that period and thereafter detain him in accordance with the provisions of this Act. (a) a constable or any other person directed to do so by the court shall convey the offender to the hospital specified in the order within the period mentioned in section 38(4) above; and (b) the managers of the hospital shall admit him within that period and thereafter detain him in accordance with the provisions of section 38 above.[10]It is also necessary to refer to sections 138 and 139: Retaking of patients escaping from custody. 138—(1) If any person who is in legal custody by virtue of section 137 above escapes, he may, subject to the provisions of this section, be retaken — (a) in any case, by the person who had his custody immediately before the escape, or by any constable or approved social worker; (b) if at the time of the escape he was liable to be detained in a hospital within the meaning of Part II of this Act, or subject to guardianship under this Act, by any other person who could take him into custody under section 18 above if he had absented himself without leave.(2) A person to whom paragraph (b) of subsection (1) above applies shall not be retaken under this section after the expiration of the period within which he could be retaken under section 18 above if he had absented himself without leave on the day of his escape unless he is subject to a restriction order under Part III of this Act or an order or direction having the same effect as such an order; and subsection (4) of the said section 18 shall apply with the necessary modifications accordingly.(3) A person who escapes while being taken to or detained in a place of safety under section 135 or 136 above shall not be retaken under this section after the expiration of the period of 72 hours beginning with the time when he escapes or the period during which he is liable to be so detained, whichever expires first.(4) This section, so far as it relates to the escape of a person liable to be detained in a hospital within the meaning of Part II of this Act, shall apply in relation to a person who escapes — (a) while being taken to or from such a hospital in pursuance of regulations under section 19 above, or of any order, direction or authorisation under Part III or VI of this Act (other than under section 35, 36, 38, 53, 83 or 85) or under section 123 above; or (b) while being taken to or detained in a place of safety in pursuance of an order under Part III of this Act (other than under section 35, 36 or 38 above) pending his admission to such a hospital, as if he were liable to be detained in that hospital and, if he had not previously been received in that hospital, as if he had been so received.(5) In computing for the purposes of the power to give directions under section 37(4) above and for the purposes of sections 37(5) and 40(1) above the period of 28 days mentioned in those sections, no account shall be taken of any time during which the patient is at large and liable to be retaken by virtue of this section.(6) … Protection for acts done in pursuance of this Act. 139. —(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions. (3) … (4) This section does not apply to proceedings against the Secretary of State or against a health authority within the meaning of the National Health Service Act 1977. (a) in any case, by the person who had his custody immediately before the escape, or by any constable or approved social worker; (b) if at the time of the escape he was liable to be detained in a hospital within the meaning of Part II of this Act, or subject to guardianship under this Act, by any other person who could take him into custody under section 18 above if he had absented himself without leave. (a) while being taken to or from such a hospital in pursuance of regulations under section 19 above, or of any order, direction or authorisation under Part III or VI of this Act (other than under section 35, 36, 38, 53, 83 or 85) or under section 123 above; or (b) while being taken to or detained in a place of safety in pursuance of an order under Part III of this Act (other than under section 35, 36 or 38 above) pending his admission to such a hospital,[11]The power of the Crown Court to vary or to rescind its sentence or other order on an offender is contained in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000, but section 154 is also relevant: 154. A sentence imposed, or other order made, by the Crown Court when dealing with an offender shall take effect from the beginning of the day on which it is imposed, unless the court otherwise directs. 155 (1) Subject to the following provisions of this section, a sentence imposed, or other order made, by the Crown Court when dealing with an offender may be varied or rescinded by the Crown Court within the period of 28 days beginning with the day on which the sentence or other order was imposed or made or, where subsection (2) below applies, within the time allowed by that subsection. … (5) …where a sentence or other order is varied under this section the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs. (Section 155 has been amended, with effect from 14th July 2008, by the Criminal Justice and Immigration Act 2008, so as to extend the period of 28 days in subsection (1) to 56 days (see section 47 and Schedule 8, Part 3, paragraphs 28(1) and (2)(a)), but the amendment is of course irrelevant to this appeal.) …

The judgment below

[12]Foskett J’s judgment is reported under the title X v An NHS Trust [2008] EWHC 986 (Admin). The judge referred to the description of the nature and effect of a hospital order given by the Court of Appeal in R v Birch (1989) Cr.App.R(S) 202, 210-211, and to the difficulties that arise when a hospital place cannot be found for an offender for whom a hospital order is appropriate. He referred to Home Office Circular 66/1980 (addressed to magistrates’ courts) and set out the relevant part of its contents: I am directed by the Secretary of State to draw your attention to a problem which can arise when a hospital order is made … and the defendant is committed to a place of safety for up to 28 days … pending admission to hospital, but the hospital subsequently withdraws its undertaking to take him. There may on occasions be little or no prospect of arranging an alternative placement within the 28 days currency of the ‘place of safety’ direction. In the absence of the intended admission to hospital the prison must release the person on the 28th day, and the court order … is frustrated. The purpose of this Circular is to inform you of a change of procedure introduced last year in the Crown Court, which attempts to deal with this problem, and to suggest that, in consultation with the Chairman of the Bench, consideration might be given to adopting a similar procedure at Magistrates’ Courts. The Crown Court has power … to vary sentence on a defendant within 28 days, and the purpose of the new procedure is to ensure that the court is forewarned of the possible frustration of the hospital order and so has the opportunity to pass an alternative sentence before the authority to detain a person is extinguished. Last year, after consultation with the Home Office, the Department of Health and Social Security and the Lord Chancellor’s Department, the Lord Chief Justice directed that an additional direction be given by the court … addressed to the Governor of the prison which is to hold the person pending admission to hospital, which reads as follows:
“But if at any time it appears to the person in whose custody the defendant is detained in a place of safety that the defendant might not be admitted to hospital in pursuance of this order within 28 days of this date, that person shall within 21 days of this date (or at once if it becomes apparent only after 21 days that the defendant might not be admitted to hospital) report the circumstances to the Chief Clerk of the Court and unless otherwise directed by the Chief Clerk shall bring the defendant before the court forthwith so as to enable it within 28 days of this date to make such order as may be necessary.”
Attention was drawn in that Circular to the equivalent powers of the Magistrates to re-sentence if such a situation should occur when a magistrates’ court would like to make a hospital order, but the kind of practical problem referred to in the Circular arise. As can be seen, the Circular refers to a direction given by the Lord Chief Justice. However, the researches of counsel and the judge have failed to discover it. “But if at any time it appears to the person in whose custody the defendant is detained in a place of safety that the defendant might not be admitted to hospital in pursuance of this order within 28 days of this date, that person shall within 21 days of this date (or at once if it becomes apparent only after 21 days that the defendant might not be admitted to hospital) report the circumstances to the Chief Clerk of the Court and unless otherwise directed by the Chief Clerk shall bring the defendant before the court forthwith so as to enable it within 28 days of this date to make such order as may be necessary.”[13]The judge’s reasons for finding that the hospital order in this case remained valid on 17 January 2005, more than 28 days after the original order had been made, are set out in paragraphs 41 and 42 of his judgment: 41. … There was in this case a valid order under section 37 made on 21 December 2004. Its effect was to order that, within 28 days from 17 December 2004 (see paragraph 34 above), the claimant should be admitted to and detained in the Y Unit. The intention of the order plainly was that in the meantime the “place of safety” for the claimant should be prison and that the authority to keep him in prison was confirmed by that order. (As I have previously indicated, in my view, that should have been spelled out expressly in the order, but no complaint is made about it.) He was not admitted to the Y Unit within that period. That rendered his detention for the relevant three days unlawful. However, the authorisation for his admission to and detention in the Y Unit still existed after 14 January: the order directing it had not been set aside or varied in the meantime. 42. In my judgment, it cannot be said that the order simply ceased to exist and have no effect on the expiration of the 28 day period. Under the general law an order remains a valid order (even if not complied with) until it is set aside on appeal or by some other means. The obligation to comply with it, albeit late, still exists. Indeed, whilst the analogy with situations within the civil jurisdiction may not be wholly apt, it is well established that even a consent order which, in effect,(a) has penal consequences and(b) has been made without jurisdiction to make it, remains valid and enforceable until set aside: see, e.g., IRC v Hoogstraten [1985] QB 1077; Isaacs v Robertson [1985] AC 97; Nicholls v Kinsey [1994] QB 600.

The submissions of the parties

[14]For the Appellant, Mr Stuart Brown QC submitted that the legislation, read as whole, makes it clear that the authority conferred by a hospital order expires after 28 days. He did not dispute that the order, as made on 17 December and varied on 21 December 2004, was a valid order; but it expired 28 days after it was made.[15]For the Respondent, Mr Lock relied on the reasons given by the judge for his conclusion, and emphasised that section 37(1) imposes no time limit on the validity of an order made under it. It follows, he submitted, that such an order is not subject to a 28-day time limit. He submitted that the purpose of section 40, which includes the 28 day period, is to ensure that a hospital and its staff acting pursuant to what appears to be a valid hospital order incur no liability to a patient.

Discussion

[16]I am unable to accept the Respondent’s submissions. The effect of a hospital order is set out in section 40, which expressly limits the authority conferred by an order made under section 37 to the period of 28 days from the date of the making of the order. It follows that, once the period of 28 days from 17 December 2004 had expired, the hospital order relating to the Appellant ceased to have effect and ceased to provide authority for his conveyance to Arnold Lodge (section 40(1)(a)) or for his detention in that hospital thereafter (section 40(1)(b)). It is immaterial that the period of 28 days is not mentioned in section 37(1), which deals with the making of the order, not its effect. There is nothing in section 40 to limit its purpose in the manner contended for by Mr Lock, and no good reason for the references to the 28-day period to have been included if his submission as to its purpose were, contrary to my view, correct. The provision that protects those acting pursuant to what purports to be a hospital order is section 139; but that would not protect someone who detained a patient after the expiration of an express 28-day time limit.[17]In my judgment, section 40, in Part III is the equivalent of section 6 in Part II. Both sections limit the time during which a patient may be lawfully conveyed to hospital and detained there. In the case of an admission under Part II, the time runs from the period beginning with the date on which the patient was last examined. Under section 40 the period runs from the date of the order, but the offender will already have been examined in order to provide the court with the medical evidence required by section 37(2). Doubtless one of the considerations taken into account by Parliament was the undesirability of a patient being detained in an inappropriate environment, i.e. prison, for more than a short time, before being transferred to a hospital where he can be appropriately treated.[18]It is because a hospital order expires after 28 days that section 37(4) requires the court to be satisfied that there are arrangements for the offender’s admission within that period. Section 37(5) is even more telling: it is impossible to see why the power conferred on the Secretary of State by that subsection is restricted to the period of 28 days from the making of the order under subsection (1) if a hospital order remains effective after the expiration of that period. Similarly, the provision of section 138(5) would be quite unnecessary if a hospital order did not expire after 28 days.[19]Mr Lock accepted that the court has no power under section 37(4) to authorise the detention of an offender pending his admission to hospital for more than 28 days, and that it follows that if he is not admitted to the named hospital within that period he cannot lawfully be detained in prison or other place of safety after the expiration of that period. The judge so held. However, with respect to the judge, it would be quite illogical for Parliament to have limited the authority to detain an offender in a place of safety to the 28-day period, so that the offender would then be entitled to walk free, but to have authorised his admission and detention in hospital thereafter. Moreover, the Respondent’s case does not explain how an offender can lawfully be conveyed under compulsion from prison to the hospital after the 28 days have expired.[20]Parliament’s insertion, by the Criminal Justice Act 1991, of section 54A into the 1983 Act indicates that it appreciated the importance of compliance with the 28-day time limit. It is difficult to see why the power to shorten the period should have been conferred on the Secretary of State if Parliament’s understanding of the existing statutory provisions were that contended for by the Respondent, i.e. that an offender could be lawfully admitted and detained after the expiration of the statutory time limit.[21]Lastly, the Respondent’s case ascribes to Parliament the intention to authorise the making of a hospital order of indefinite and uncertain duration. Even without the assistance of Article 5 of the European Convention on Human Rights, I am unable to ascribe such an unreasonable intention to the legislature.[22]In my judgment, the standard form of hospital order correctly reflects the provisions of the Act. Moreover, the order made on 17 December 2004 clearly, and the amending order of 21 December 2004 properly construed, expressly required the Appellant to be admitted to hospital within 28 days of the former date. It did not in terms authorise his admission and detention after the expiration of that period. I also consider that the Home Office Circular referred to above correctly reflected the provisions of the Act. I note, however, that the standard form of order does not include the direction referred to in Home Office Circular 66/1980.[23]It follows that I accept Mr Brown QC’s submission that the judge asked the wrong question. He asked, “Was the hospital order valid”. The authorities to which he referred in paragraph 42 of his judgment were relevant to this question. However, the validity of the hospital order was not in issue. The judge should have asked, “What was the effect (and in particular what was the duration) of the order made on 17 December 2004 as amended on 21 December?”

Practical considerations

[24]Any strict time limit has practical consequences. I can see that difficulties may arise if at a late date the hospital place specified in a hospital order becomes unavailable at a late date, or if physical illness or the deterioration in the mental condition of the offender make that place unsuitable. Those difficulties cannot justify ignoring what to my mind are the clear provisions of the Act.[25]It would I think be preferable for the standard form of order to specify the date when the 28 day period expires. In addition, it would be sensible for orders made under section 37 to include a direction or recommendation (for it has no statutory force) on the lines of that set out in the Circular. All parties should bear in mind the power of the sentencing court under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to vary or, if necessary, to rescind an order. If an order is rescinded, a hospital order may be made subsequently; but the court should consider rescission of an order as a last resort, since the consequence will usually be to prolong a patient’s detention in prison.[26]In the present case the orders made by the Crown Court did not make provision for the detention of the Appellant pending his transfer to hospital: the direction “that pending admission to a hospital within the 28 day period, the defendant should be conveyed to and detained in a place of safety, namely ….” had been, in each case, deleted. The result was that there was no lawful authority for his detention during that period. The exercise by the sentencing court of the power conferred on by the last part of section 37(4) to direct conveyance to and detention in a place of safety pending admission to hospital is not automatic or mandatory. Unless the offender is to be immediately conveyed from the court to the hospital, the court must ensure that the power is expressly exercised.

Conclusion

[27]The only relief sought by the Appellant before the Court of Appeal is a declaration. Mr Lock, for the Respondent, has not suggested that he is not entitled to a declaration if he has been unlawfully detained since 17 January 2005.[28]It follows that I would allow this appeal, and would make a declaration that the admission and subsequent detention of the Appellant on and after 17 January 2005 were not authorised by the hospital order made by Nottingham Crown Court on 17 December 2004 as varied by that Court on 21 December 2004. Whether this will result in his detention under Part II of the Mental Health Act 1983 is, in the first place, a matter for the Respondent.[29]If section 37 of the 1983 Act had stood alone it might be arguable that the 28 day period within which a defendant in criminal proceedings is to be admitted to a mental health unit was not itself one of the conditions for making an order under section 37. Section 37(1) provides for only two conditions to be met and the 28 day period is not one of them.[30]But even in that situation it would still be the case that the authority to detain a defendant in a place of safety (normally in prison) pursuant to section 37(4) only lasts “pending his admission within that period”. Once that period lapses, his detention in a place of safety pending admission to a hospital is unauthorised. In other words he has to be released, although no doubt consideration can rapidly be given to the question whether the defendant can be compulsorily admitted to a hospital pursuant to Part II of the Act rather than Part III. Both counsel accepted that this was the position with regard to detention pending admission to a hospital.[31]There would be a surprising disparity between the prison system and the mental health system, if a defendant had to be released from prison but could, at any time thereafter, be apprehended and taken to a mental health hospital merely because a hospital order had been made. I much doubt if Parliament intended any such disparity to exist.[32]Section 40 of the 1983 Act puts the matter beyond doubt. That provides authority for a constable or social worker or other person to convey a defendant to a hospital specified in the order pursuant to section 37 “within a period of 28 days” and for the managers of the hospital to admit him “at any time within that period and thereafter detain him.” The authority of these persons to convey admit or detain only lasts for 28 days from the date of the order.[33]There would be an even more serious disparity than the disparity identified in para 3 above if the managers of a hospital only had authority to admit and detain for a period of 28 days but the defendant could still be lawfully admitted to a hospital by reason of a court order made more than 28 days earlier.[34]It is not without interest that, as Stanley Burnton LJ points out in para. 17 above, by section 27(2) of the Criminal Justice Act 1991, a new section 54A was added to the 1983 Act enabling the Secretary of State to reduce the 28 day period specified in section 37(4) and (5). The effect of Mr Lock’s argument for the respondent is that the 28 day period can be increased if it is administratively necessary to do so. That is hardly consistent with Parliament’s intention in 1991.[35]I cannot therefore agree with the judge’s construction of the statutory provisions and I further agree with Stanley Burnton LJ that this appeal should be allowed and relief be given as set out in para 28 of his judgment.[36]It would obviously be desirable that Crown Court orders varying earlier hospital orders should make it clear on their face that the 28 day period operates from the date of the original order. That would be most easily achieved by stating the date of expiry on the face of the order as Stanley Burnton LJ suggests in para. 25 above.

Laws LJ:

[37]I agree with both the judgment of Stanley Burnton LJ and that of Longmore LJ. ANNEX TO THE JUDGMENT OF STANLEY BURNTON LJ THE STANDARD FORM OF HOSPITAL ORDER IN THE CROWN COURT Case No: AT Court Code: Hospital Order [(with restrictions ordered under section 41 Mental Health Act 1983)] The defendant.....................................................................Date of Birth was, [on................................convicted of][indicted for][an offence][punishable with imprisonment, namely [and it appeared to the court that it was impractical or inappropriate to bring the defendant to court]. [The Court was satisfied hat the defendant was suffering from the following form(s) of mental disorder within the meaning of the Mental Health Act 1983: [mental illness], [psychopathic disorder],[mental impairment],[severe mental impairment] On................................the Court:• . ORDERED that, within 28 days from the date of this order, the defendant should be admitted to and detained in a hospital, namely• . ORDERED that, within 28 days from the date of this order, the defendant should be admitted to and detained in a hospital unit, namely 40. [and that the defendant should be conveyed to that hospital by................................]• . [DIRECTED that, pending admission to a hospital within the 28 day period, the defendant should be conveyed to and detained in a place of safety, namely................................]• . [FURTHER ORDERED that the defendant should be subject to the special restrictions set out in section 41 of the Mental Health Act 1983 [for......years from the date of this order][indefinitely]] The Court• . [heard oral][considered written] evidence given by 2 medical practitioners, [each][one] having been approved by the Secretary of State under section 12(2) of the Mental Health Act 1983.• . [heard oral][considered written]evidence given by [the medial practitioner who would be in charge of the defendant’s treatment] a person representing the managers of the hospital specified in this order] that arrangements had been made for the defendant’s admission to the hospital specified in this order within 28 days from the date of this order.• . Was satisfied that all other conditions required by section 37(1)(51) of the Mental Health Act 1983 for the making of a hospital order had been fulfilled.• . [heard evidence as required by section 41(2) of the Mental Health Act 1983].• . [had regard to the matters specified in section 41(1) of the Mental Health Act 1983 and it appeared to the Court that to protect the public from serious harm a restriction order should be made]. .................................................................................... An Officer of the Crown Court 48. Date: .........

Cited in 1 later judgment