Oldcorn, R (on the application of) v West London Mental Health NHS Trust [2005] EWHC 604 (Admin)

Case No CO/3650/2004[2005] EWHC 604 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16th March 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF OLDCORNClaimant-v-
Between
WEST LONDON MENTAL HEALTH NHS TRUSTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR K GLEDHILL instructed by Stuart Miller & Co Sols for claimantMR J HYAM instructed by Capsticks Sols for defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: The claimant, whom I shall call O, was born in July 1978. Unfortunately, he suffers from paranoid schizophrenia and has been admitted to a mental hospital on a number of occasions since 1998. He is what is sometimes described as a 'revolving door' patient; he has been admitted and treated and has been discharged but, sadly, a relapse has taken place. In his case relapses have been due to a combination of a failure to take the necessary medication and an abuse of substances such as cannabis.[2]This case concerns an admission to the West Middlesex Hospital in the early part of 2004. He was admitted in fact in January 2004. He was then transferred to Ealing Hospital. In April his father wrote a letter to the hospital saying that he had been advised to ask the hospital to release his son. The hospital responded by indicating that he was not, in their view, his nearest relative, the nearest relative being his mother, the father and mother being separated. As a result, on 20th April, his mother wrote the hospital a letter indicating that she assigned her rights as nearest relative to the claimant's father. The hospital, very properly, treated that as valid and accepted the request by the claimant's father as an application that there should be a discharge, in accordance with section 23 of the Mental Health Act 1983.[3]Section 23 enables the nearest relative to require discharge. Discharge will be granted unless the RMO exercises his power, under section 25, to bar the discharge of the patient. Section 25 is the key section with which this case is concerned. It provides as follows:
"(1) An order for the discharge of a patient who is liable to be detained in a hospital shall not be made by his nearest relative except after giving not less 72 hours' notice in writing to the managers of the hospital; and if, within 72 hours after such notice has been given, the responsible medical officer furnishes to the managers a report certifying that in the opinion of that officer the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself- (a) any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect; and (b) no further order for the discharge of the patient should be made by that relative during the period of six months beginning with the date of the report."
I need not read subsection (2). The important words in section 25 are that "if discharged the patient would be likely to act in a manner dangerous to other persons or to himself". That is the important additional test that has to be met in deciding whether a barring order should prevail.[4]There is a process of review by the managers of the hospital in question. That was taken up and the matter came before the relevant review panel on 30th April 2004.[5]The government has issued guidance in the form of a Code of Practice relating to the Mental Health Act generally. It deals with reviews, such as are relevant in this case. In Chapter 23 of the guidance in paragraph 20.19, this is set out:
"The Hospital Manager's decision following the review, and the reasons for it, should be recorded. The decision should be communicated immediately, both orally and in writing, to the patient, to the nearest relative with the patient's consent, and to the professionals concerned. At least one of the members of the panel should see the patient to explain in person the reasons for the decision. Copies of the papers relating to the review, and the formal record of the decision, should be placed in the patient's records."
A note is appended to that:
"REASONS. It is not sufficient for the managers merely to reiterate the statutory grounds: the reasons must deal with the substantial points that have been raised at the review."
[6]The West London Mental Health NHS Trust provide, very helpfully, to the chairman of the review panel a proforma document which sets out a number of matters which have to be covered and provides tick boxes to indicate whether the matters have been considered and properly referred to. At the end of the report there is a space for the reasons for the decision and any recommendations that may be made. I assume that this checklist is before the chairman and that he will tick the relevant boxes as he deals with the matters they refer to. For example, box No 1 states:
"Explain purpose of meeting. Welcome all present. Chair and panel members introduce themselves."
Then there is a 'yes' or 'no' to be ticked. "Yes" is ticked. As I say, one assumes that that is done as the introduction takes place and so on. Then there are boxes which deal with who was present and what discussions there may or may not have been with various of the persons concerned. There is then an important page which is headed "CONDITIONS NECESSARY TO CONTINUING DETENTION". The reference we are concerned with is to section 3, because this was a patient who was in hospital, pursuant to section 3 of the 1983 Act. That sets out the criteria for such detention. The 'yes' boxes are ticked to indicate that the relevant criteria have been considered. Then there is at the bottom of that page, a heading "CRITERIA". Those set out the matters that had to be decided upon in order to justify continuing detention. First is this:
"Is the patient still suffering from a mental disorder?" "yes" is ticked. Secondly, "
If so, is the disorder of a nature or degree which makes treatment in a hospital appropriate?" That is ticked. Thirdly, "Is detention in hospital still necessary in the interests of the patient's health and safety, or for the protection of other people?" That is ticked. The fourth is headed "FOR SECTION 29 ONLY". That is a mistake, it should read 25, but unfortunately, for whatever reason, it refers to an irrelevant section 29. The question which is of the key question, as I say, for the purposes of section 25, certainly so far as this witness is concerned, is:
"Would the patient, if discharged, be likely to act in a manner dangerous to other persons or to him or herself?"
Neither box is ticked. It is perhaps to be noted that on the previous page there is a box 10 in which this appears:
"Did the Panel satisfy itself that it had sufficient information about the patient's past history of care and treatment, of any history of violence or self-harm, and of any risk assessment which has been conducted?"
Neither of the boxes has been ticked."[7]The reasons for the decision are as follows:
"Although there has been considerable improvement in the last 2/3 weeks with the change in medication, we still feel the illness is of a nature to warrant detention for safety of the patient and others. We believe...[O] really intends to take his medication and cease taking illicit drugs but it is likely he has not been on Dozapine [which was the drug he was taking] for a sufficient period to capability of carry out this intention(sic)"
Clearly it means, and should have read: 'It is likely he is not been on Dozapine for a sufficient period to indicate that he is capable of carrying out his intention' or some such words. It concludes: "We hope his intention can be tested in the meantime." There is nothing in those reasons, as set out, which indicates that danger to the public, or to himself, if he were released, has specifically been taken into account. Certainly no reference to it is made and the absence of any tick in the two relevant boxes, to which I have referred, is consistent with a failure to have had proper regard to the question of danger. It is obvious that danger was the key issue.[8]In the circumstances of this case, it is quite plain that the claimant would become a danger if he failed to continue his medication and thus relapsed whilst he was not in hospital. That, sadly, is the case with many schizophrenics. In many cases there is a lack of insight into the condition and lack of appreciation that there is a need to keep to medication or to avoid the abuse of other substances. In the case of the claimant there was evidence either way. The panel had before them a number of reports. There was one from the nurse, which indicated that there was lack of insight. There was one from the RMO, which pointed in the same direction, but the RMO had only been RMO for a very short time indeed. So, as will become apparent from what was said later by the chairman, her evidence was not entirely helpful. They relied upon her predecessor who was able to give much clearer evidence in respect of the attitude of the claimant. But there was also a report from another psychiatrist which did indicate that he was aware or appeared to be aware of the need to take his medicine and the fact that he was ill and that this would alleviate his illness. Thus, as I say, as it seems to me, insight was an important consideration and the reasons that I have read out suggest, very strongly, that the panel accepted that he had the necessary insight. They said in terms that they believed that he really did intend to take the medication and cease taking illicit drugs. What worried them was the consideration that the effect, I suppose, of the Dozapine had not really had a chance to apply properly.[9]There has been produced some notes, made by the claimant's solicitor, of what was said towards the conclusion of the hearing and some questions which were raised by the panel. This is noted: that he had been I think on Dozapine for some three weeks. The maximum effect of the drug would be six weeks. They wanted to see that it was tested and thought that the present time was a few weeks too early. They felt that it was a fraction too soon, as the note indicates, and that they hoped that he would be discharged shortly. That, as I say, seems to be consistent only with the acceptance that he had the necessary insight which was contrary to the views expressed by the RMO, whose decision was under attack.[10]On 29th June the claimant's solicitors wrote to the defendants, raising the concern that the panel had not dealt with dangerousness, as they should have done, and that therefore there would be a claim that the decision was unlawful.[11]On 14th July, which was the date by which the solicitors indicated they required a reply, the defendants responded, refuting the claim, but including a further statement from the chairman of the panel. This was -- I think the best word I can use -- a supplementation of the reasons which had been given. It reads as follows:
"We fully considered the matter of danger to other persons and/or himself at the time of the hearing. Evidence was given on the day by [the previous RMO] regarding the damage done to [some place, I do not think it matters] at Lakeside which led to his transfer to [a relevant] ward. Both [his present RMO and the previous] gave evidence of their concerns of damage to others in view of his past action. Although the change in medication appeared to be working, it was still very early days to make a judgment on improvement being maintained. Consequently the panel were of the opinion that if discharged [O] would be likely to be a danger to himself and others. I have [illegible] ticked the box which was intended to be ticked on the day but overlooked."
That is dated 2nd July 2004.[12]The challenge was mounted and has been maintained on the ground that the attempt to supplement the reasons was not sufficient to validate the decision that was reached on the 30th April. Reliance is placed on the line of authority which commences with R v Westminster Council, ex parte Ermakov [1996] 2 All ER 302, a decision of the Court of Appeal. Before I come to that, I must just conclude an indication of the relevant facts because there has been further supplementation of the reasons, first, in a note attached to the acknowledgment of service, which was served after the proceedings were lodged. I say a statement from the chairman Mr Richard Collins. He says, in that statement, that they did apply their minds to the issue of dangerousness, that he recalled that the panel spent a long time (at least 20 minutes) discussing this very issue and they were concerned by the evidence from the previous RMO, including her account of his damaging his room. He then indicates why a greater weight was placed on the previous RMO because the current RMO had been in charge for such a short period of time. They took into consideration his past record as a 'revolving door' patient, who had a persistent history of violence and was always pushing the limits. He then refers to concerns about where he was going to live: he was going to live with his mother, but would be looked after or controlled by his father. But there was at least half a mile between the two addresses and, as the chairman put it, a lot of harm could be inflicted in that time. He went on to say that they were quite satisfied that the patient was likely to act in a manner dangerous to himself or particularly others if discharged at that time. He then said:
"I should also emphasise we announced our decision at the time and explained our reasons orally in the presence of his father, the nearest relative as well as patient and his lawyer. We explained that we had weighed up the evidence, including that from the previous RMO, and we felt that he would be a danger to others if discharged at that time."
[13]Mr Wilson, who was the solicitor, has, as I have said, produced the notes that he made at the time of what was said. There is nothing in those notes to indicate that there was any reference to danger when the announcement was made. Certainly, in the written reasons, which I have already cited, nothing is said about danger.[14]I am bound to say that, in those circumstances, I do have some real difficulty in accepting Mr Collins' assertion that he did specifically mention the danger when giving the oral decision. It is indeed strange that Mr Wilson's notes do not record that. He says in a statement which he has lodged:
"There was no mention of the dangerousness criteria or any concept of danger or dangerousness. If there had been any talk of dangerousness whatsoever I would certainly have written it down, as it was central to my application at the hearing."
I entirely accept, indeed it is clear, that dangerousness was raised as an issue before the panel. As Mr Wilson himself indicates, he recognised that that was indeed the key issue, because it may well be that the claimant was liable to be detained within the necessary criteria, independently of section 25. But when section 25 had to be considered and the issue of dangerousness had specifically to be taken into account, extra considerations applied. That that is the position is clear from a decision of Latham J (as he then was) in a case decided now some time ago in R v Riverside Mental Health Trust ex parte Huzzey (29th April 1998). I do not need to go into any detail of it. Suffice it to say that the learned judge indicated that the issue of dangerousness within the terms of section 25 had specifically to be considered in a case where a barring order had been sought by an RMO. Dangerousness was an extra factor which had specifically to be addressed. In Huzzey's case, the panel had not considered the question of dangerousness and so their decision was quashed. Incidentally, in that case, that led to a successful claim for damages and an award of a relatively substantial sum in due course.[15]In this case, the claimant was in fact released very shortly after the decision in question as a result, I gather, of a change of heart by the RMO and so was detained for a very short period, resulting from what was said to have been a flawed decision of the panel. Nonetheless, as Mr Gledhill submits, if he was unlawfully detained then he may have a claim for damages based at least upon section 7 of the Human Rights Act, because his detention would have been contrary to Article 5 of the Convention, if it was not justified by law. I am not, at this stage, concerned with any question of damages. That will follow or may follow if I find in favour of the claimant.[16]I go back therefore to the Ermakov line of authority. Ermakov itself was a homelessness case, in which a decision had been made that the claimant was intentionally homeless. The reasons given for that were that it was believed that he had left his native country unnecessarily; he had no good reason to leave and, therefore, should not be regarded as homeless within the relevant criteria. Perhaps the matter can be summarised clearly in the judgment of Nourse LJ, who said this, at page 317H:
"The true reason for the council's decision in this case was that although they accepted the applicant's account of harassment he had experienced in Greece, nevertheless it could not be said that it was not reasonable for him and his family to continue to occupy the accommodation he rented there. However, in a decision letter of 18 January 1994 it was stated that the council were not satisfied that the applicant and family experienced harassment; in other words, that they did not accept the applicant's account. As Hutchinson LJ has pointed out, there is a stark contrast between the true reason and the reasons stated. More particularly, the reason stating, having been based apparently on the applicant's credibility, a matter is essentially for the council, was one which was inherently likely to discourage him from challenging the decision by way of proceedings for judicial review. The true reason, being one which gave rise to a mixed question of fact and law, would not have had that effect or, at all events, would not have had it to the same extent."
Thus, it was decided that the attempt to give the true reason ex post facto was not something which the Court would permit to prevail in order to find that the decision was a lawful decision. Hutchinson LJ set out the matters of principle at page 315 of the report. I do not need to cite them extensively, but what he said briefly at later J at 315 was this:
"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."
He goes on to indicate at page 316C that there are good policy reasons for adopting this approach. As he says:
"The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reverse of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties."
This has been considered in a number of subsequent cases. I have been referred to a decision of Stanley Burnton J in Nash v The Chelsea College Of Art and Design [2001] EWCH Admin 538. The learned judge, in that case, sought to derive principles from the various authorities which were cited to him including of course Ermakov. He cited observations of Laws J (as he then was) in R v Northamptonshire Council ex parte D [1998] EDCR 14. That was an exclusion from school case. Laws J said this at page 24A:
"There are some classes of case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which will arise if the original reasons were inadequate."
He then went on to say the case before him was not such a case. He then refers to Ermakov, and he continues:
"I think it is important to notice the learned Lord Justice was dealing with a case where the real reasons were wholly different from the stated reasons I would emphasise also his deprecation of the wholesale amendment or reversal of the reasons. I accept even where the court is confident the later evidence represents the actual reasons given at the time, it will not automatically receive the later material. Whether it would do so will be a matter for the court's discretion case by case. Broadly speaking the court will have in mind the great importance to be attached to the giving of legally sufficient reasons for the time they are supposed to be given."
[17]There is no statutory obligation here to give reasons. But the Court of Appeal has recently considered the question of circumstances in which reasons ought to be given in R (Wooder) v Feggetter and Mental Health Act Commission [2002] EWCA Civ 554. That case concerned the medication without the consent of the patient in circumstances in which consent could properly be overridden. So it was not exactly the same situation as here but the principle is set out in paragraph 24 in the judgment of Brooke LJ. He said this:
"...the Divisional Court held in that case - [that was a reference to R v The Higher Education Funding Council ex parte Institution of Dental Surgery [1994] 1 WLR 242] - and I know of no later decision which impugns its approach - that one of the classes of case where the common law implies a duty to give reasons is where the subject-matter is an interest so highly regarded by the law (for example, personal liberty) that fairness requires that reasons, at least of the particular decision, be given as of right."
It is clear that this case is indeed one which involves personal liberty because the decision in question is one which maintains the detention of the claimant in hospital. Accordingly, it is one which is directly affected by the principle applied in the Wooder case. Therefore, as it seems to me, I must approach this on the basis that reasons are required to be given as of right. That can be translated into there being a duty to give reasons.[18]That is of some importance, because it immediately brings it into the category of cases which fall within the terms of the observations of Laws J, to which I have already referred. This is a case in which the adequacy of the reasons is itself made a condition of the legality of the decision. Mr Hyam submits that there is a distinction to be drawn between a case such as this even though the common law requires that reasons be given and a case where there is a statutory requirement, because the statute may indicate, and perhaps normally does the time at which, and the circumstances in which the reasons have to be given. But the guidance, which I have already cited, states quite clearly that the reasons must be given at the time that the decision is made. It seems to me that it is consistent with the approach of the Court of Appeal in R Munjaz v Merseyside Care NHS Trust [2003] EWCA Civ 1036, that the guidance can be treated as part and parcel of what the law requires. Therefore, there is here not only a duty to give reasons but a duty to give reasons at the time the decision is made. Those reasons must be both oral and in writing. Indeed, that is precisely how the panel in this case operated. They did give those reasons. Once those reasons are given they will stand or fall on their own merits. These ones undoubtedly fall, because they are defective, in that they do not deal with the key issue of dangerousness. However, there has been the subsequent supplementation.[19]It is not a question of giving different reasons in this case and so the situation which applied in Ermakov is not directly in point. Nonetheless, it is, as it seems to me, somewhat more than elucidation. One must bear in mind the concern that reasons given later, particularly when challenges are intimated or are made, must be looked at with some care. This is not because there is any suggestion of bad faith but because there is an obvious concern by the decision- makers to defeat the claim that is made. There is no question here but that danger was raised as an issue in the hearing. The problem is whether danger was properly considered at the conclusion. As I have said, the two relevant boxes were not ticked. It is, as it seems to me, a surprising oversight in the light of the issues, if it really was the case that the panel was focusing, as it should have been, upon a danger. It may be, I know not, that the reference to section 29 on the form, as it were, took the panel's eyes off the ball. But the absence of the ticking, coupled with the failure to mention danger in the reasons is worrying.[20]Equally worrying is the assertion, in the later statement, that danger was indeed referred to when oral reasons were given. As I have already said, that is entirely inconsistent with the recollection of and the notes made at the time by the claimant's solicitor who was present at the hearing. It was also inconsistent with the written reasons, since, if danger was such an important issue, one would have expected that it was in the forefront of the panel's mind and therefore would have found its way into the written reasons.[21]Mr Hyam submits that there was ample evidence before the panel which would have justified them being satisfied that there was indeed a likelihood of danger. He points to the use of the word "likelihood" in the reasons originally given. There was indeed evidence which could have justified the conclusion. But, one of the important factors, indeed perhaps the most important, when considering whether there was a likelihood of relapse was the question whether there was insight into the condition from which the claimant suffered. As I have already said, the panel's findings are consistent, as it seems to me, only with an acceptance that there was such an insight. That immediately removes a large part of the concerns expressed in the statements by the nurse and by the current RMO.[22]One comes back, therefore, to the only matter which justified the finding that there was a likelihood of danger, namely that he had not been on the particular drug Dozapine which appeared to be working for a sufficiently long time. But that really did need to be dealt with in the reasons. It was not sufficient and could not have been sufficient simply to assert that there was a danger. That would not have been giving reasons, it would merely have been echoing the wording of the Act. There has been, one can only note, an expansion of the reasons on two occasions, once in July, in answer to the letter before action, and subsequently in August in filing of the acknowledgment of the service.[23]While I am not in any way seeking to impugn the good faith of Mr Collins or the panel, it does seem to me that this is a case where it would not be right to accept that the reasons subsequently given should prevail. There are too many questions and it is, after all, of considerable importance that proper reasons are given at the time. Of course, it may well be proper to explain or expand in certain circumstances. But where a key issue has not properly, or indeed at all, been dealt with in the original reasons, it becomes very difficult to accept that it should be possible to supplement those matters subsequently when a challenge is raised.[24]In all the circumstances, I am persuaded that this is indeed a case where it would be right for me to say that this decision was unlawful. It is not saved by the subsequent evidence which is put before this Court and, accordingly, I will so declare. That, I think, is the proper order at this stage.[25]MR GLEDHILL: My Lord, the only concern I have about it being a mere declaration is whether I need to have the decision formally quashed to raise the argument that I have under Article 5. I suppose -- I was thinking on my feet -- if it was a decision that was declared not to have followed proper that should be adequate.[26]MR JUSTICE COLLINS: I would have thought so. I mean if you need it formally quashed, I suppose, subject to Mr Hyam's views, I would be prepared to do that. I am not sure it is necessary but I am not sure it....[27]MR GLEDHILL: There is no harm done by quashing it either.[28]MR JUSTICE COLLINS: The only thing is this. I suppose if it is quashed it goes out of his record, because it is to be treated as if it was never made.[29]MR GLEDHILL: I suspect that it will stay in his record.[30]MR JUSTICE COLLINS: It ought to stay in his record probably, albeit, this -- I do not think you need more than a declaration.[31]MR GLEDHILL: No, I am happy to leave it without a formal quashing. I do not need declaration. The declaration, it succinctly encapsulates what really the Court's decision is.[32]MR JUSTICE COLLINS: That is right. The decision itself is spent now, and I do not think there is any real need to quash it. If anyone were to seek to raise a technical point -- I do not think they will -- then you can come back to me and I will kick that into touch. No, a declaration is all you need.[33]MR GLEDHILL: Just one factual matter, your Lordship mentioned West Middlesex where he was admitted at the outset but he was then removed to Ealing Hospital where all the events occurred albeit it is part of the same.

MR JUSTICE COLLINS: I will correct that on the transcript, I am sorry.

[35]MR GLEDHILL: My Lord, I make an application for the costs in any event to be awarded. Costs to be awarded in any event.

MR JUSTICE COLLINS: I do not think you can resist that, Mr Hyam, can you?

[37]MR HYAM: No.

MR JUSTICE COLLINS: You are legally aided.

[39]MR GLEDHILL: I am legally aided.

MR JUSTICE COLLINS: You need the usual order for that.

[41]MR GLEDHILL: The usual order for that and then perhaps it is normal in cases of this nature, where there is a damage claim, which potentially may go further, for the quite often directions hearing to be the matter transferred from the Administrative Court.[42]MR JUSTICE COLLINS: You want it to be Queen's Bench or County Court. It is actually within the County Court, is it not? It would be cheaper to go to the County Court. It is pretty unusual, it makes more sense on a costs basis to go to the County Court.[43]MR GLEDHILL: I would have thought so, which would probably be West London. Or does that not matter.[44]MR JUSTICE COLLINS: You can be sorted -- Yes, I transfer it to whatever County Court, under CPR 30, is it not?[45]MR GLEDHILL: Yes, I think it is 30. My Lord thank you.

Cited in 2 later judgments