R (on the application of D.R.) v MERSEY CARE NHS TRUST [2002] EWHC 1810 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 1810 (Admin)Case No Case No: CO/1232/2002Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
R (on the application of D.R.)ClaimantMERSEY CARE NHS TRUSTDefendant
Before
Mr Justice WilsonMR STEPHEN SIMBLET, instructed by Messrs Jackson and Canter, Liverpool, appeared on behalf of the Claimant.MISS KRISTINA STERN, instructed by Messrs Hill Dickinson, Liverpool,appeared on behalf of the Defendant.Date 7 August 2002
[1]Mr Justice Wilson: SECTION A: INTRODUCTION The claimant, D.R., has the cruel misfortune to suffer from schizophrenia. On 12 September 2001 she was compulsorily admitted for treatment to a mental health unit in one of the defendant's hospitals pursuant to s.3 Mental Health Act 1983 ("the Act"). The result was that, unless discharged in the interim, she remained liable to be detained there for six months, namely until 11 March 2002: see s.20(1) of the Act. She was not discharged in the interim. On the contrary. In February 2002, with the approach of that expiry date, the defendant "decided" that authority for her detention should be renewed beyond 11 March 2002. Under s.20(2)(a) of the Act such a renewal would extend for a further six months in the absence, again, of discharge in the interim. The scheme of the Act is that such a "decision" on the part of the defendant is reached in two stages, conducted by different personnel.[2]The first stage of the "decision" is that of the responsible medical officer, i.e. the doctor in charge of the patient's treatment ("the doctor"). Section 20(3) of the Act provides that, within two months prior to any such expiry, the doctor must examine the patient and, if it appears to him that the conditions set by s.20(4) (see §20 below) are satisfied, he must furnish the managers of the hospital with a report to that effect in the prescribed form; and s.20(8) provides that, where a report is thus furnished, the authority for the detention shall be thereby renewed. On 5 February 2002 the doctor duly furnished the managers with such a report in the prescribed form; and the authority for the claimant's detention was thereby renewed so as to extend beyond 11 March 2002.[3]The second stage of the "decision" is that of the managers. Under s.23 of the Act they have power to order the patient's discharge from detention at any time. The provisions of s.20 are expressly made subject to those of s.23, with the result that, by ordering discharge, the managers can override the renewal secured by the doctor's report. Although the managers may at any time review a patient's detention with a view to deciding whether to order discharge, para. 23.7 of the Code of Practice, issued under s.118 of the Act, in effect requires them to conduct a review upon receipt of a doctor's report for renewal under s.20(3). In this case the managers conducted a review on 20 February 2002; it took the form of an oral hearing at which various people, including the claimant and her solicitor, spoke. At the end of the hearing the managers decided not to order her discharge, whether with effect from 11 March 2002 or otherwise. The renewal was therefore allowed to retain its effect.[4]The claimant attacks the "decision" to renew authority for her detention beyond 11 March 2002. She alleges that, at either one or other or both of its stages, it was reached unlawfully. She claims that on 5 February 2002 the doctor acted unlawfully in making his report to the managers. In this respect her case is that the conditions set by s.20(4) were not satisfied and that it could not have appeared to any reasonable doctor that they were satisfied. She also claims that on 20 February the managers acted unlawfully in declining to exercise their power to order her discharge from detention. In this respect her case is first that, as before, the conditions for renewal of authority for her detention were not satisfied, with the result that the managers had no option but to exercise their power to order discharge; or, second, that, even if the conditions were satisfied, it was irrational, and contrary to her right to liberty under Article 5 of the European Convention for the Protection of Human Rights 1950, for them to decline to exercise such power. She seeks orders quashing the "decision"; a declaration that her detention beyond 11 March 2002 was unlawful; and damages for her detention thereafter.[5]Beneath such battle-lines what is the real issue? It relates to the treatment plan for the claimant adopted by the defendant in February 2002 for the period beyond 11 March 2002; and, specifically, to the very extensive leave of absence from the hospital which it intended to continue to grant to the claimant under the powers in relation to a person liable to be detained given to it under s.17 of the Act. As I will explain, the primary objective of the defendant was, in her interests, to end the claimant's passage around what was described as the revolving door: namely around the circle of detention; of recovery; of discharge; of her refusal to take prescribed medication; of deterioration; of detention; of recovery; of discharge and etc. The defendant's belief was that, in the event of discharge, she would again refuse to take her medication; but that, upon renewal of her liability to be detained, she would, even if it was preferable for her to be given leave to live largely in the community, agree to take it. There was, as I will explain, an element of the treatment plan which required continued attendance at hospital. But, according to the claimant, that element was insufficiently substantial to justify a renewal of authority for her detention. Constructing his argument on terminology in the case-law (as opposed to in the Act), Mr Simblet for the claimant says that renewal is possible – or, if possible, appropriate – only when the plan is for the patient's treatment as an "in-patient"; and that here it was for her treatment only as an "out-patient". Miss Stern for the defendant concedes that, on the authorities, the criteria for renewal are satisfied only when a significant element of treatment in hospital is included in the plan (and not just in its provisions for the contingency of a refusal to take medication). She contends, however, that the terminology of "in-patient" and "out-patient" represents a gloss upon the criteria, which the Act does not sanction and which is inherently unhelpful; and that the plan for the claimant included a sufficient element of treatment in hospital to make the decision not only patently in the claimant's interests but also lawful. SECTION B: THE FACTS[6]The claimant is now aged 44. She lives in Liverpool, as a single parent, with a daughter now aged 14. Her first admission to hospital for schizophrenia was in New Zealand in about 1991. Prior to her admission to the defendant's mental health unit in September 2001, she was admitted there on five occasions; the pattern was of her successful treatment with medication within that climate of compulsion; but of her failure, following discharge, to take medication, born of a refusal to accept that she was ill and needed it.[7]The claimant's compulsory admission on 12 September 2001 followed painful events in which she had refused to take medication on the footing that it was poison; had been suffering auditory hallucinations; had been screaming; had severed the light fittings in the ceilings of her home; and had been violent to her daughter and locked her out of the house.[8]Following admission and resumption of medication, which was by injection, the claimant's condition improved. But she did not engage with hospital staff. The doctor soon came to the conclusion that, if her passage through the revolving door was to be halted, a mechanism had to be found whereby staff could engage with her and thereby enable her to develop an insight into her condition, which, following ultimate discharge, would lead her to continue to take medication voluntarily. He considered that her self-imposed isolation in the ward did not conduce to such engagement. So he quickly developed a plan of granting her leave of absence from the hospital under s.17 of the Act in the hope that, at such times as she remained required to attend hospital and indeed at such times as the Assertive Outreach Team of the social services department visited her at home, she would be more receptive to engagement in a therapeutic relationship in which, essentially, her insight into her illness and need for medication could be developed. Thus, late in October 2001, home leave was granted at all times save between 9:00 am and 5:00 pm on three days each week; and the injections of medication were to be administered at home.[9]Following her admission under section on 12 September 2001 the claimant was quick to apply for discharge to the Mental Health Review Tribunal. On 5 December 2001, however, the tribunal, aware of the extensive leave of absence granted to her, declined to direct discharge.[10]On 31 January 2002 there was a setback to the treatment plan. The claimant's daughter had reported her as saying that she was waiting for a stairlift to go to heaven, which was interpreted as suicidal ideation. The visiting social workers found her screaming. She was required to – and did – return to the hospital for four full days and nights.[11]On 5 February 2002, following examination of her on the previous day, the doctor wrote his report on the claimant in the prescribed form (Form 30) for the purpose of renewal of the compulsory powers under s.20(3) of the Act. He certified that the conditions set by s.20(4) were satisfied. When requested to explain why it was necessary for her to continue to receive treatment and why such could not be provided without her continued detention, he wrote:
"She suffers from a mental illness namely schizophrenia. She harbours numerous delusional beliefs and has recently expressed suicidal ideas to the nurses who visit her. She has no insight into her illness. She has been reluctant to take medication. She needs to be detained in hospital in order to administer medication and observe her progress by trained staff."
[12]At the time when he wrote that report and furnished it to the managers, and fifteen days later when he commended it to them at the hearing, the doctor's treatment plan was as follows, namely that:(a) she should attend occupational therapy at the hospital between 9:00 am and 5:00 pm each Friday;(b) she should attend the ward round at the hospital each Monday morning so that the multi-disciplinary team could monitor her progress, seek to engage with her and review the plan;(c) subject to (a) and (b), she should continue to have leave of absence from the hospital;(d) a community psychiatric nurse should visit her at home every fortnight in order, by injection, to administer 60 mgs of Depixol; and(e) members of the Assertive Outreach Team should visit her at home each Tuesday and Thursday.[13]At the hearing on 20 February the managers had before them a variety of material additional to the doctor's report dated 5 February. He himself attended the hearing, spoke at it and presented a further report dated 19 February in which he offered his opinion of the claimant in the following unequivocal terms:
"If she were to be discharged in her current mental state, she will stop taking the medication and her condition will rapidly deteriorate."
The doctor did not in terms address the question whether, in the event of discharge, the claimant would voluntarily attend hospital on Fridays and on Monday mornings. But he reported her as having told him as recently as 11 February that she was unhappy to spend even a day at the hospital; and I think that it is proper to infer that, like the nurse (see §15 below), he doubted whether in that event she would do so.[14]The approved social worker for the claimant also wrote for the managers an updating report dated 15 February 2002, attended the hearing and spoke at it. In the report he concluded:
"Everybody involved with [D.R.] recognises that compliance with medication is the issue. [D.R.] has no insight into her illness and I feel masks her symptoms because she is aware we feel they indicate illness. She has promised to accept the depot injection for two years. I am not convinced she will be able to keep this promise. It may be wise to keep [D.R.] on s.3 a little longer, as this will ensure that she is treated and perhaps the revolving door cycle can be broken."
[15]A staff nurse at the hospital also wrote a report dated 15 February 2002 for the managers; and another nurse attended the hearing and spoke at it. In the report the staff nurse said that the claimant did not believe that she was ill and was currently accepting medication only with reluctance. Under the heading "LIKELY OUTCOME IF PATIENT WAS TAKEN OFF CURRENT SECTION" the staff nurse wrote:
" ? Compliance with treatment is an area of concern with [D.R.]. It is felt she would become non-compliant if discharged. ? [D.R.] would not remain as an informal patient on the ward if taken off current section. ? [D.R's] mental health state would deteriorate and she would be a risk to herself/others."
[16]At the hearing the claimant told the managers that, if discharged, she would cooperate with the treatment plan. She then however stated categorically that she was not ill; and, when the chairperson of the managers asked her whether she accepted that she needed treatment, she responded that she was not playing – or perhaps would not play – a game with the doctors. The managers concluded that she was in denial.[17]After receiving submissions from the claimant's solicitor, the managers reached their decision and the chairperson announced and briefly explained it. She recorded the following reasons for it:
"We are convinced the patient is suffering from a mental disorder which requires treatment. If she were not detained, we doubt her compliance. Given the recent past history and the social worker's evidence about "revolving door", we think a longer period of detention is necessary."
[18]There is a depressing but significant footnote to the history. On about 6 March 2002 the present claim was launched and on 11 April 2002 the doctor changed his mind and decided to order the claimant's discharge from detention under s.23 of the Act. Miss Stern assures me that the two events are not linked. On 9 June, however, the claimant had to be compulsorily readmitted for assessment under s.2 of the Act because she had again refused to take the medication. SECTION C: THE LAW[19]There is no doubt that, in furnishing his report on 5 February, the doctor was required to address the conditions for renewal set by s.20(4) of the Act. An academic point has arisen as to which conditions the managers were required ( inter alia ) to address when on 20 February they considered whether to order discharge. Mr Simblet argues that the question for them was whether the conditions for initial admission for treatment set by s.3(2) of the Act remained satisfied. The point is academic because the only difference between the conditions set by s.20(4) and those set by s.3(2), namely a difference relating to the second condition in each case, has no bearing upon the outcome of this application. ... Nevertheless my view is that, where managers are considering whether to order discharge on expiry of the initial period of liability to detention notwithstanding the doctor's renewal, it is the conditions for renewal set by s.20(4) which logically they should address. As para. 23.11 of the Code of Practice suggests, "the essential yardstick in considering a review application is whether the grounds for admission or continued detention under the Act are satisfied". The grounds for continued detention beyond six months are set by s.20(4).[20]The conditions set by s.20(4) are as follows:
" (a) the patient is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment, and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) such treatment is likely to alleviate or prevent a deterioration of his condition; and (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and that it cannot be provided unless he continues to be detained; but in the case of mental illness or severe mental impairment, it shall be an alternative to the condition specified in paragraph (b) above that the patient, if discharged, is unlikely to be able to care for himself, to obtain the care which he needs or to guard himself against serious exploitation."
[21]It was held by the Court of Appeal in B v Barking Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 106 , overruling on this point the decision of McCullough J. in R v Hallstrom ex p. W , R v Gardner ex p. L [1986] 1 QB 1090, that the words at the end of (c), namely "unless he continues to be detained", mean "unless he continues to be liable to be detained" and not "unless he continues actually to be detained"; and that accordingly the conditions for renewal can be satisfied even in relation to a patient who is no longer actually detained but has been granted leave of absence under s.17 of the Act. It is clear to me that that particular objection is thus not open to Mr Simblet.[22]In my view this case is centrally an enquiry into the words "medical treatment in a hospital" set out in(a) and repeated, by reference, in (b) and (c). The claimant clearly suffers from mental illness so the enquiry at (a) was whether it was of a nature or degree which made it appropriate for her to receive "medical treatment in a hospital". The enquiry at(b) (and here for convenience I ignore the alternative in the last lines of the subsection) was whether "such" treatment was likely to alleviate or prevent a deterioration of her condition. The enquiry at(c) was whether "such" treatment could not be provided unless she continued to be liable to be detained and unless it was necessary for the health or safety of herself or (for example) her daughter. To crystallise the point further: was it open to the doctor and the managers to conclude that his treatment plan for the claimant was for "medical treatment in a hospital"?[23]In arguing the negative Mr Simblet relies heavily upon the Hallstrom and Gardner cases which, on their facts, were held in the Barking case to have been correctly decided. In arguing the positive Miss Stern relies heavily upon the Barking case; but Mr Simblet submits that even in that case there are dicta which help him. There is no doubt that in both cases there are comments which represent a movement (or, as Miss Stern would say, a gloss) from focus on "medical treatment in a hospital" to "in-patient treatment". At all events Mr Simblet picks up the adjective "in-patient" and submits that on no rational view could the treatment plan for the claimant be categorised as "in-patient". In conclusion he says that all roads lead back to whether the plan for his client was for "in-patient" treatment.[24]It is important to note the stark facts of the Hallstrom and Gardner cases. In neither of them did the plan which formed the basis of (in the former) the compulsory admission for treatment and (in the latter) the renewal of the authority for detention include any element of treatment in hospital. In both cases the plan of the defendant doctors was for the claimants to remain entirely in the community (apart, in the former, from the very first night, such being a cosmetic provision with no therapeutic purpose); and the motive behind the invocation of compulsory powers in each case was to be able to require (or to threaten to require) the claimants to take medication in the community, without which they were considered unlikely to do so.[25]McCullough J. held that both the defendants had acted unlawfully in their invocation of compulsory powers. At 1097D and 1098E he summarised the arguments for the claimants as being that the powers of admission and renewal under ss.3 and 20 could be used in respect only of patients whose condition is believed to require detention for treatment in a hospital (his italics). In such language the learned judge was entirely loyal to the terminology of ss.3(2)(a) and 20(4)(a). The difficulty lies in the fact that, in addressing such arguments, he chose to reach beyond the easy conclusion that the plan for the claimants was not in any way for treatment in a hospital. In particular he equated "treatment in a hospital with "in-patient treatment". At 1105E-G, he said:
"The phrase "his mental disorder . . . makes it appropriate for him to receive medical treatment in a hospital" in section 3(2)( a ) also leads to the conclusion that the section is concerned with those whose mental condition requires in-patient treatment. Treatment in a hospital does not mean treatment at a hospital, as [leading counsel for the defendants], in effect, contends. If his construction were correct there would be a distinction between the patient who could appropriately be treated at home and the patient who could appropriately be treated at the out-patients' department of a hospital. Such a distinction would be without reason. When it is remembered that the section authorises compulsory detention in a hospital it is at once clear why a distinction should be made between those whom it is appropriate to treat in a hospital, i.e. as in-patients, and those whom it is appropriate to treat otherwise, whether at the out-patient department of the hospital or at home or elsewhere."
At 1109B the judge inevitably reached an identical conclusion about the meaning of s.20(4)(a).[26]In relation to the Barking case my preference again is to concentrate initially upon its facts. Both at first instance and in the Court of Appeal the claimant was unsuccessful in her challenge to the lawfulness of each of the two stages of the decision to renew her liability to detention. The treatment plan upon which the doctor made his report and the managers made their decision was for the claimant to administer the medication to herself and to be given leave of absence from the hospital on five days each week and for four hours in each of the remaining two days each week. She was therefore to be in hospital only for two nights and the majority of two days each week; and during that time she was to be assessed, monitored and tested (in particular for the use of illicit drugs) and to attend occupational and art therapy.[27]If, as I apprehend, the word "in-patient" (which, though used in s.5 of the Act, is not there defined) suggests the allocation and use, albeit not at all times, of a hospital bed, it could properly be used to describe the claimant in the Barking case. So, not surprisingly, the word was used by Lord Woolf, then the Master of the Rolls, in his exposition of why, notwithstanding the vast preponderance of time absent from hospital, the renewal was lawful. At 113G he held that the proposed treatment should be considered not atomistically but as a whole. He proceeded:
"It is the treatment as a whole which must be calculated to alleviate or prevent a deterioration of the mental disorder from which the patient is suffering. As long as treatment viewed in that way involves treatment as an in-patient the requirements of the section can be met." [my italics]. In his concurring judgment Thorpe L.J. did not use the word "in-patient", save in presenting an argument which he rejected. But at 118A-B and D-E he used words upon which each counsel relies. He said: "
But her home base remained the hospital despite the fact that she slept many more nights out than in and despite the fact that she had a daily leave of absence for 4 hours on each of the 2 days per week when she returned to the hospital. It seems obvious to me that those 2 days of detention each week were an essential ingredient of the treatment … Her presence in the hospital each Tuesday and Wednesday was an essential part of the treatment package, it could only be provided in the hospital and could only be effectively provided if the appellant continued to be detained." [my italics].[28]Mr Simblet's submission is predictable: it is that in the cases of Hallstrom and Gardner McCullough J. said that the plan had to be for in-patient treatment and that, far from being doubted in the Barking case, that part of his decision was there echoed. He says that the plan in the present case was not for any element of in-patient treatment; and that the other test allegedly reflected in the judgment of Thorpe L.J., namely whether the hospital was to be the patient's "home base", is also unsatisfied in the present case.[29]I reject Mr Simblet's submission. The test is what is laid down in s.20(4)(a) (and s.3(2)(a)), namely whether the plan is for the patient to receive medical treatment in a hospital. There was no need for McCullough J, in the two plain cases of Hallstrom and Gardner , where there was no plan for any treatment in hospital, whether in-patient or out-patient, to hold that the test embraced only in-patient treatment. His remarks, though entitled to very great respect, are obiter ; and his distinction between treatment at hospital and treatment in hospital is too subtle for me. When I eat at a restaurant, I eat in a restaurant. In the Barking case, where the limited proposed treatment in hospital happened to be of an in-patient character, it was natural that that word might again be deployed. But that does not make it become the test, any more than the reference of Thorpe L.J. to a "home base" renders that concept the test. The significance of the Barking case is that the renewal was lawful notwithstanding that only part of the plan was for treatment in hospital. It sufficed if that part of the plan was, to borrow another phrase from the judgment of Thorpe L.J., an essential ingredient. In my view it would be an impermissible – indeed an illogical – gloss upon the Act to make lawfulness depend upon a plan to put the patient at times into a hospital bed. There is no magic in a bed; indeed the facility for treatment at night, when the patient is in bed, must be much less than for treatment during the day.[30]The question therefore in my judgment is whether a significant component of the plan for the claimant was for treatment in hospital. It is worth noting that, by s.145(1) of the Act, the words "medical treatment" include rehabilitation under medical supervision. There is no doubt, therefore, that the proposed leave of absence for the claimant is properly regarded as part of her treatment plan. As para. 20.1 of the Code of Practice states, "leave of absence can be an important part of a patient's treatment plan". Its purpose was to preserve the claimant's links with the community; to reduce the stress caused by hospital surroundings which she found particularly uncongenial; and to build a platform of trust between her and the clinicians upon which dialogue might be constructed and insight on her part into her illness engendered. Equally, however, the requirement to attend hospital on Fridays between 9:00 am and 5:00 pm and on Monday mornings was also in my judgment a significant component of the plan. The role of occupational therapy as part of the treatment of mental illness needs no explanation. But the attendance at hospital on Monday mornings seems to me to be likely to have been even more important. Such was to be the occasion for the attempted dialogue; for monitoring; for assessment and for review. In the Barking case both Lord Woolf at 114E and Thorpe L.J. at 118B stressed the importance of the arrangements for weekly monitoring and assessment in the hospital.[31]I therefore hold that a significant component of the plan for the claimant was treatment in hospital and that the conditions for renewal set by s.20(4) were satisfied.[32]Mr Simblet ventures a late, subsidiary argument which is constructed upon the proposition that, even if the conditions for renewal are met, the managers have a discretion under s.23(2) of the Act to order discharge. Miss Stern accepts the validity of the proposition, which was confirmed in R v Riverside Mental Health Trust ex p. Huzzey [1998] 43 BMLR 167. Mr Simblet's argument is that, before declining to order discharge, the managers should at least have considered with the doctor whether a preferable course would be for him to apply to the claimant's local health authority for it to supervise her following discharge pursuant to ss.25A-H of the Act. He submits that, in the absence of consideration of that option, the deprivation of her liberty inherent in the renewal, albeit in the light of the treatment plan largely contingent, was irrational and, in particular, exceeded any proportionate infringement of her right to liberty under Article 5(1)(e) of the Convention of 1950.[33]I reject the subsidiary argument. It is a central feature – and regarded by many as a central deficiency – of the provisions for after-care under supervision in ss.25A-H of the Act that, although under s.25D (3(b)) and (4) a patient can be required to attend the place where he is due to receive the medication and to allow himself to be conveyed there, he cannot be required actually to take the medication. If he refuses to take it, the power to administer it to him compulsorily arises only once he has again been made liable to be detained by the properly cumbersome procedures set by s.3 of the Act. In the present case the doctor, the social worker and the nurse were unanimous in discerning the major problem to be that, were she to cease to be liable to be detained, the claimant would refuse to take the medication. Invocation of the statutory system of after-care under supervision would have represented a failure to address the major problem.[34]The Department of Health is currently engaged upon a process of consultation referable to a proposed replacement of the Act whereby, among other things, a tribunal would have power to authorise the provision of medical treatment for mental disorder to a patient as a hospital non-resident; and whereby, if the patient failed to comply with its requirement to submit to treatment, the clinician would have power to effect the immediate conversion of his status to that of a hospital resident subject to compulsory admission and detention. Unless and until this reform is enacted, the law will remain (if my interpretation of it be sound) that the compulsory administration of medication to a patient can be secured only by making him liable to be detained or renewing such liability; that such may be achieved only if a significant component of the plan is for treatment in hospital; and that, in such an enquiry, the difference between in-patient and out-patient treatment is irrelevant.[35]I dismiss the claim. I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic. The judgment is being distributed on the understanding that in any report the anonymity of the claimant must be strictly preserved. The judgment has been anonymised accordingly. COSTS FOLLOWING A HANDED DOWN JUDGMENT NB Transcribed without the aid of documents MR JUSTICE WILSON: I here by hand down the judgment in this case and it follows from it that the claim will be dismissed. I have, to my irritation, noticed a tiny error on page 9 of the judgment. I have altered it in certain copies just delivered to the Press. Of course where it says "Section - The Law" it should be "Section C - The Law". I would be grateful if learned counsel could amend their copies as necessary. ( There was a discussion regarding receipt of documents ) MR PATEL: Given the judgment that you have handed down we would ask for our costs of this application. The claimant has the benefit of the funded certificate from the Legal Services Commission. We would, in this unusual case, ask for the costs to be paid by the Legal Services Commission themselves. Can I pass up some correspondence between my solicitors and the Legal Services Commission? At the back of that bundle are the relevant regulations one has to assess in order to decide whether an order should be made. Can I take you to the letter of 16th April. This is a letter from my solicitors to the Legal Services Commission. I think it might be appropriate if you just read the correspondence right the way through and then I will make the submissions that I intend to make. MR JUSTICE WILSON: Very well. In the meantime unless you are giving me copies of everything that is relevant, do I need a textbook for this? MR PATEL: I do not. MR JUSTICE WILSON: Fine I will read these letters. ( pause ) Yes, I have read the correspondence. Take me to the regulations, please, Mr Patel? MR PATEL: They are at the very end. The appropriate one is Regulation 5 which is headed "Costs order against the Commission." ^^Quote unchecked "The following paragraphs apply (...read into the words...) cost protection applies." Costs protection is set out at Regulation 3. It does apply because the funded client receives help at the court, on this occasion support. MR JUSTICE WILSON: Costs protection is defined where? MR PATEL: Regulation 3. MR JUSTICE WILSON: Costs protection means the protection that the publicly funded party has and is it section 11 of the Act? MR PATEL: It is the Access to Justice Act 1999. MR JUSTICE WILSON: Costs protection does apply. She has that protection. We then proceed where? MR PATEL: So 5(1) applies in full. Then you have 5(2). She says: ^^Quote unchecked "The court may, subject to the following paragraphs, make an order for the payment by the Commission to the non-funded." You have a discretion. Section 5(3) you can only exercise that discretion if all of the conditions set out below are satisfied. Going through them in order, a section 11(1) costs order is made against the client. That will be made given the judgment that you have given. The non-funded party makes a request. MR JUSTICE WILSON: What if the amount, if any, which the client is required to pay under that costs order is less than the amount of the full costs. Are you asking me to assess her liability at nil? MR PATEL: I think her liability is nil in respect of the costs because I do not think she is required to contribute to her costs-- MR JUSTICE WILSON: There is a difference between what she has to contribute to her own costs under her certificate, and what she might be assessed to contribute under section 11 if ordered to pay another party's costs. We are dealing with the second matter here and I am simply asking you whether, having asked me to order her to pay the costs, you are proceeding to ask me to assess her liability at nil? MR PATEL: I think in her circumstances that must be right. MR JUSTICE WILSON: I see. Then the amount which she is required to pay would be less than the amount of the full costs and if I go down that route you have satisfied 3(a). MR PATEL: I have satisfied that subsection, yes. MR JUSTICE WILSON: Then? MR PATEL: Subsection (b) we have made a request within three months of the making of a section 1(1). You will see from the correspondence that I have taken you to that implicit in that correspondence is a request that they need to cease public funding-- MR JUSTICE WILSON: Is it a request under regulation 10(2), Mr Patel? MR PATEL: My Lord, I am afraid I do not have regulation 10(2) in front of me. MR JUSTICE WILSON: How are you going to get around Regulation 5(3)(c), namely that I have to be satisfied that you suffer severe financial hardship unless the order is made. MR PATEL: You have to take the view on that. I can give the circumstances of how I would suggest that severe financial hardship would be suffered. You have to take a view on whether or not, in your view, that does constitute severe financial hardship. MR JUSTICE WILSON: You have a job on to persuade me of that. Have a go, briefly? MR PATEL: Briefly it is this: the defendant in this case is NHS Trust and you know ( inaudible ) goes out of the central NHS Fund, in this particular circumstance, because it is not a clinical negligence matter but a judicial review matter. The matter has to come out of the particular NHS Trust budget. Those costs, I am told, amount to some £10,000 in this case. That will be money that would have been spent on clinical care/patient care. In those circumstances, unless you were to ask or order the Legal Services Commission to pay part or all of those costs, the trust would suffer severe financial hardship in that way because they have not been able to use that £10,000 on treatment for care of its patients. That is the way I put it, my Lord. MR JUSTICE WILSON: It is a good effort, Mr Patel, but it does not amount to severe financial hardship. You would fail on (c) even if you come within (b). I am going to refuse your application for costs against the Commission. You still persist in your application against the claimant? MR PATEL: I do, yes. MR JUSTICE WILSON: You ask that that be assessed at nil. MR PATEL: In those circumstances I would not. I just ask for the Football Pools order which is the usual order. I think it is that the claimant's pay the defendant's costs not to be enforced, subject to an assessment - I think your clerk knows the wording. It is the usual order. MR JUSTICE WILSON: Is it something like this: any assessment of her liability hereunder not to be undertaken without the leave of the court? MR PATEL: I think it used to be that. It has become a little bit more refined. It used to be along the lines of the claimant's entitlement or assessment to pay those costs not to be enforced without leave of the court. MR JUSTICE WILSON: It is now focusing upon the assessment which is necessary. MR PATEL: I think it is. MR JUSTICE WILSON: My words did attempt to focus on that. There has to be an assessment of the amount and I am simply saying there should not be an assessment of the amount without the leave of the court. MR PATEL: I am more than happy to adopt that. MR JUSTICE WILSON: Before I go over to Miss Sergides on this, I will check with the associate that the wording is appropriate. ( pause ) Miss Sergides, you have heard the application it is that your client, although publicly funded, should be the subject of an order to pay the costs but that no assessment of her liability under section 11 be made without the leave of the court. MISS SERGIDES: I was just going to add that I have something that goes "the determination of the claimant's liability to be postponed" which effectively-- MR JUSTICE WILSON: Postponed until when, Miss Sergides? MISS SERGIDES: Effectively it is the same thing: until there is an application made with the leave of the court. MR JUSTICE WILSON: That would amount to the same thing. MISS SERGIDES: It amounts to the same thing. If I am not mistaken it is the CLS Costs Regulation 2000, which, in addition to that, we seek, that there be a detailed assessment for the purpose of public funding, in any event. MR JUSTICE WILSON: You do not oppose the order that Mr Patel is seeking? MISS SERGIDES: In the circumstances, given that the claimant has lost, I believe that in a situation like this the defendant's costs be paid by the claimant, and then the paragraphs thereafter. MR JUSTICE WILSON: I agree, but I am giving you the opportunity to oppose that. MISS SERGIDES: In the circumstances I cannot oppose that. MR JUSTICE WILSON: I think that is realistic. Then I order the claimant to pay the defendant's costs of the claim, notwithstanding that she is publicly funded and I make that embargo in the terms I have already articulated. Very well any other matters? No. Thank you very much. Note 1 There is no such troublesome difference between these subsections as there is between s.3(2) and s.72(1)(b), relating to the power of the M.H.R. Tribunal to direct discharge, which was addressed in Reid v Sec. of State for Scotland [1999] 2 AC 512 .

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