Bukowicki, R (on the application of) v Northamptonshire County Council [2007] EWHC 310 (Admin)

Case No CO/7021/2006[2007] EWHC 310 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 9th February 2007
Strand
London WC2A 2LL
B E F O R E:
HIS HONOUR JUDGE MOLE
THE QUEEN ON THE APPLICATION OF PAUL BUKOWICKI
(CLAIMANT)
-v-
NORTHAMPTONSHIRE COUNTY COUNCIL
(DEFENDANT)
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MR M O'CONNOR AND MR C CARR appeared on behalf of the CLAIMANT
MR A LYNCH QC (instructed by Northamptonshire Council Legal Services Department) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
Bukowicki, R (on the application of)ClaimantNorthamptonshire County CouncilDefendant
[1]HIS HONOUR JUDGE MOLE: This is an application for permission to challenge by judicial review the decision of Northamptonshire County Council not to accept Paul Bukowicki into guardianship under section 37 of the Mental Health Act 1983. The matter arises because Mr Bukowicki appeared at Northampton County Court on 21st August 2006 to be sentenced for a charge of affray on 12th December 2005. To this charge he pleaded guilty. Mr Bukowicki is a man of 37 with a long history of mental health problems and he has been convicted of some 26 previous offences of like nature, offences which involved violence and criminal damage, much of it arising out of the abuse of alcohol.[2]The judge, HHJ Alexander QC, faced a very real problem in deciding upon the appropriate way of dealing with him. He had a pre-sentence report before him in which the Probation Service recommended a community order. It seemed to the judge that section 37 of the Mental Health Act might provide a good alternative disposal but section 37(6) requires that the relevant local authority, which in this case is the Northamptonshire County Council, the healthcare trust, agreed to accept Mr Bukowicki. Northamptonshire County Council were not prepared to do so and it is that decision, conveyed in a letter dated 17th August 2006, that is under challenge.[3]I shall start by looking at section 37 itself. As far as material, section 37 reads as follows:
"(1) Where a person is convicted before the Crown Court of an offence punishable 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."
Then the next subsection:
"(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 the character 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."
I pause to note that the terms "psychopathic disorder", "severe mental impairment" or "mental impairment" are all defined in section 1 of the Act. I note that each term means a state or disorder that is either associated with or results in "abnormally aggressive or seriously irresponsible conduct".[4]Section 37(2)(a)(i) and (b) deal with hospital orders. Section 37(4) deals with an order for the admission of an offender to hospital and imposes the condition that the order shall not be made 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 and for his admission to it within the period of 28 days beginning with the date of the making of the order. I refer to that passage because that makes it clear, in the case of a hospital order, that unless the statutory conditions are satisfied the judge is not to make such an order (and I remark that, if the conditions are satisfied, then he should make such an order; see R v Howell 7 Cr.App.R(S) 360.[5]Section 37(2)(a)(ii) deals with guardianship and it will be noted that the requirements are significantly different from the preceeding sub-subsection. The nature and degree of the mental disorder is likely to be much less serious to warrant a guardianship order and there is no requirement that the mental disorder should be capable of medical treatment if it was a psychopathic disorder or mental impairment. Section 37(6) reads:
"An order placing an offender under the guardianship of a local social services authority or of any other person (in this act referred to as 'a guardianship order') shall not be made under this section unless the court is satisfied that that authority or person is willing to receive the offender into guardianship."
[6]This subsection, it is argued on behalf of the defendant authority, gives the local authority what Mr Lynch describes as an untrammeled discretion. Clearly the section leaves a tension between the opinion of the judge and the willingness of the relevant authority to accept the offender into guardianship. Mr O'Connor for the claimant argues, in summary, that the section contemplates that the judge forms the opinions required by 37(2)(a)(ii) and (b) on the evidence and then refers the matter to the authority. He then says that at that stage it is not open to the authority to take a different view to the judge on the matters that the judge has needed to satisfy himself on. The authority cannot, for example, disagree that the most suitable method of disposing of the case is by means of an order. The authority might, he concedes, properly express its unwillingness on the basis of a lack of resources because that would involve no challenge to any of the findings that the judge had to make. Mr Lynch QC for Northamptonshire County Council, by contrast, says that Parliament meant the authorities to have a broad discretion, broad enough to allow it to form its own view of suitability of guardianship, whatever the judge and the two required medical practitioners might think. If the local authority thinks a guardianship would be unsuitable and is not willing to accept the offender, that is the end of it, says Mr Lynch. The judge cannot then reach the opinion that guardianship is the most suitable method of disposing of the case and I shall return to those arguments in a moment. The Code of Practice (Mental Health Act 1983)[7]Both counsel have referred me to passages in the Code of Practice for the Mental Health Act 1983. That Code is an important document. It is not binding like a statute but it is, though, something that those to whom it is addressed are expected to consider with care and to follow, unless they have good and cogent reasons for doing otherwise (see Lord Bingham in R v Ashworth Hospital Authority ex parte Munjaz [2005] UKHL 58 at paragraph 21). I was taken to the foreword of this document, which expresses the need for those with mental health problems to have good care and support and points out that they are often vulnerable. I was taken then to the guiding principles, from which I will simply refer to paragraph 1.1 bullet points 3 and 4. 1.1 reads:
"The detailed guidance in the code needs to be read in the light of the following broad principles, that people to whom the Act applies (including those being assessed for possible admission) should... • have their needs taken fully into account, although it is recognised that, within available resources, it may not always be practicable to meet them in full; • to be given any necessary treatment or care in the least controlled and segregated facilities compatible with ensuring their own health and safety or the safety of other people;"
[8]Guardianship is specifically dealt with in Chapter 13. Paragraph 13.1 reads:
"The purpose of guardianship is to enable patients to receive care in the community where it cannot be provided without the use of compulsory powers. It provides an authoritative framework for working with a patient, with a minimum of constraint, to achieve as independent a life as possible within the community. Where it is used it must be part of the patient's overall care and treatment plan."
[9]The Code, in paragraph 13.7, says that each local authority should establish a policy setting out the arrangements for guardianship. I interpose to say that in this case the Northamptonshire County Council has done so. It has a policy, the title of which I am not very clear about from the document: it appears to be simply called MF. It certainly sets out the powers of guardians and does so under a general view of the Government's purposes of guardianship, which is expressed in these terms:
"The Governmental view at the introduction of the 1983 Act was that Guardianship powers were needed for a very small number of mentally disordered people who do not require treatment in hospital, either formally or informally, but who need close supervision and some control in the community as a consequence of their mental disorder. These will include people who are able to cope provided that they take their medication regularly, but who fail to do so, and those who neglect themselves to the point of seriously endangering their health."
[10]The policy expressly says that it wishes to encourage the appropriate use of guardianship. Under section 3, the purpose of guardianship is expressed to be in terms which closely mirror paragraph 13.1, which I just read out. The Northamptonshire policy also sets out and discusses the powers of the guardian.[11]I come back to the Code of Practice. That deals with the powers of the guardian in section 13.8. It sets out the three powers of the guardian and, having done so, makes this comment:
"If the patient consistently resists the exercise of the guardian's powers it can be concluded that guardianship is not the most appropriate form of care for that person and the guardianship order should be discharged."
Paul Bukowicki[12]With that look at the law and the Code, I turn to the facts and start with the circumstances of Mr Bukowicki. He is well-known to the Northamptonshire County Council and to the courts. His offending is summarised in the pre-sentence report, dated 31st May 2006, thus:
"Police antecedent history indicates that Mr Bukowicki has seventeen convictions for twenty-six offences since 2001, offences include, Shoplifting, Criminal Damage, Being Drunk and Disorderly, Breach of Conditional Discharge, Use of Racially Abusive Language. Mr Bukowicki has previous convictions for Common Assault in July 2002 and March 2005. In interview Mr Bukowicki informed me that the charge in 2002 was brought against him after he assaulted two staff members at a residential care home in which he was living at the time. He informed me that he had had an argument with staff when they refused to give him any cigarettes, at which point he lost his temper and assaulted them. He was unable to recall any details of the offence in 2005. It is of note that no further convictions have been recorded against Mr Bukowicki since the commission of this offence in December 2005. He attributes the cessation of offending to the current level of support he is receiving from mental health practitioners, accommodation providers and the Jesus Army."
The report then notes that he had not previously been made subject to supervision by the Probation Service. The current offence of affray was also described in the pre-sentence report. At the time Mr Bukowicki was living at the Pendred Centre (which in effect is a hospital, as I understand), he appears to have been drunk and caused something of a nuisance of himself at the garage shop, which culminated in him being aggressive when not allowed to buy more cans of lager, whereupon he then started smashing up the product displays, pulling at the tills and throwing things at shop staff. In those circumstances, it is hardly surprising that most of those who prepared the reports I have seen have had contact with him over the years. In his letter of 7th January 2004, Dr Shapero says, after noting that he felt that the only appropriate disposal in the case he was then considering would have been a section 37 guardianship order, that this had been resisted by some of the workers at the hospital who know his reputation and it was not therefore possible. He continued:
"Mr Bukowicki has unfortunately behaved in a manner in the past which has made some workers very wary of him, and his capabilities, including acts of violence and aggression when under the influence of alcohol..."
There then is a passage that I am afraid is illegible, and I am in that way no worse off that anyone else in the courtroom, but Dr Shapero records that he and Dr Mondeh were meeting active resistance to his admission to the hospital and concludes that while the mental health services, "whom through his own actions he has alienated", continued to reject him he was unable to be of any further assistance.[13]Dr Al-Robb's report, dated 13th September, includes the following on the topic of his admissions to hospital and community placements:
"... his main management problem had been his repeated alcohol intoxication while on leave from the ward, usually associated and followed by threatening, aggressive behaviour, to public, staff and fellow patients. Management on the ward proved to be difficult and required lengthy and repeated deliberations with the Police until the Police accepted that Mr Bukowicki should be taken into custody while intoxicated until he was sober before he was returned to the ward. Mr Bukowicki was admitted to hospital on five occasions, at least, over the previous six years. On many occasions he broke his contract of no alcohol and good behaviour. He was arrested on several occassions whilst absent from the ward. Records include hostile and aggressive behaviour when challenged about boundaries. On 28th March 2004 Mr Bukowicki, whilst intoxicated, assaulted a patient when he threw a fire extinguisher and metal laundry skip. Staff documented repeatedly that the Police were slow to respond and were reluctant to charge Mr Bukowicki. Community Placements In the community, Mr Bukowicki has had several placements over the previous few years. All of these have been staff supported. He spent about eight months at his father's flat and was admitted to hospital for long term care in 2003. Community placements broke down repeatedly due to frequent incidents of alcohol abuse, violence towards the Police, ambulance crews and accident and emergency staff and violent incidents towards staff members, other residents or visitors. Incidents recorded included harassment and serious assaults. In 2002 Mr Bukowicki was sentenced to four months at Woodhill Prison in relation to a serious assault on female staff at Moray Lodge, social services residential placement. Mr Bukowicki has been denied for several times a place at the Night Shelter as well as the Jesus Army due to the history of aggression. At 1B East Street, Mr Bukowicki made a serious attempt to harm a female member of staff with a bread knife whilst intoxicated. In his last placement with Lumsden supported accommodation, Mr Bukowicki initially responded well and had a settled period. However, he relapsed into alcohol abuse with threatening and aggressive behaviour towards several residents. This placement eventually failed as well."
[14]There is in the papers before me a schedule of incidents and the claimant's comments which, of course, I have also read and considered. It is fair to say that he challenges the detail of some of those incidents and of others he has no or limited recollection. The court proceedings[15]When Mr Bukowicki was due to appear before the Crown Court, the question of the appropriate disposal arose. It appears that, in April HHJ Alexander raised the question of a possible guardianship order. On 25th April, the court wrote to the local authority enquiring if they were willing to accept him. The next hearing was to be 2nd June. Solicitors for Mr Bukowicki set about obtaining reports on that matter. They instructed Dr Shapero, who was supported at that time by Dr Mondeh. Dr Shapero had put forward the idea that Mr Bukowicki would be suitable for a guardianship order in his report of 5th November 2004. They also instructed Dr Lorna Duggan. There followed some correspondence between Mr Bukowicki's solicitors and Mr McAdam, who was the acting head of legal services for the defendant local authority. Dr Shapero reported on 17th April 2006. His conclusions where these:
"5. Despite these problems, in my opinion Mr Bukowicki does not suffer from a Mental Disorder within the meaning of the Mental Health Act 1983, of a nature or degree sufficient to merit his compulsory detention in hospital for assessment or treatment. 6. Any treatment Mr Bukowicki receives as an in-patient or out-patient should only be provided with his full knowledge, consent and co-operation. It is a pre-requisite for both alcoholism and Emotionally Unstable Personality Disorder that successful treatment involves the patient taking full responsibility for his acts and omissions. 7. In the past I have had extensive discussions with professional colleagues in the Northamptonshire Mental Health NHS Trust (who know the defendant well) about how we may best address Mr Bukowicki's needs. We have agreed that the Trust is running out of resources to help this man, and that at present he should be given psychiatric support when needed (ie at times of crisis), but that when he becomes involved in Criminal Justice matters, the Courts should deal with him as they deem appropriate."
He concludes in paragraph 10 by saying that, in the light of the above, he has no specific recommendation to make to the court in respect of plea, sentence or disposal in this case.[16]The Northamptonshire County Council consulted Dr Al-Robb, who responded briefly in a letter, which would appear to be dated 4th May 2006. He said:
"I do agree that Paul's pattern of binge drinking and the consequent disorderly behaviour is related to his lifestyle and personal choice. Paul himself has full insight into the matter and actually accepts this conclusion and his personal responsibility. He has adequate intelligence, ie. not subnormal. I do not think the grounds to recommend Guardianship are evident. I cannot see how the powers under Guardianship would target his behaviour or control it. I do agree with Mr McAdam that Guardianship would not be suitable for Paul Bukowicki and that LA should not consent to such an order."
This letter was addressed to the North West CMHT. This letter was passed on to the court clerk by a letter from Northamptonshire County Council dated 10th May 2006. The County Council said that in those circumstances the council was not willing to receive Mr Bukowicki into guardianship or recommend that anybody else should do so.[17]Dr Duggan prepared a report on instructions. Her opinion and recommendations, after recording her agreement with Dr Shapero as to the nature of Mr Bukowicki's disorder, concluded in these words:
"In my opinion he is not suffering from a mental disorder within the meaning of the Mental Health Act 1983 and therefore I have no formal psychiatric recommendation to make to the court. I support Lesley Martin's recommendation for a Community Order as outlined in her report."
That, I have to say, seems pretty clear on the face of it. Dr Duggan has sought to explain this in a letter of 8th August 2006. As I understand that, she seeks to clarify that what she meant was that, although Mr Bukowicki did not suffer from any mental disorder that would justify a hospital order, his mental disorder was of a nature or degree which would warrant his reception into guardianship. She says in that letter:
"In my opinion it is likely that Paul Bukowicki will be able to comply with a community order."
I think it is apparent from the context that she must mean will not be able to comply with a community order, but she leaves unexplained then why it was that she unequivocally said that she supported the probation officer's recommendation for a community order in her previous letter.[18]There is a further letter from Dr Shapero dated 28th July. In this letter, Dr Shapero confirmed that Mr Bukowicki's mental disorders were treatable and that he felt that he was being needlessly rejected by the mental health and social services in Northampton due to his history of alcohol abuse. Dr Shapero said he still considered that the most appropriate disposal was a guardianship order. His reason was expressed thus:
"This will provide Mr Bukowicki with a structure and statutory support within which he can work on his mental health problems."
[19]On 17th August, Mr McAdam, the acting head of legal services wrote to the clerk of the court at the Crown Court in these terms:
"I refer to the forthcoming sentencing hearing due to take place on Monday 21st August (time unknown). I also refer to correspondence received from the Defendants solicitors, Messrs McGanns, asking the County Council to reconsider its position in the light of further reports from Doctors Shapero and Duggan. Unfortunately, Dr Al-Robb, upon whose advice the County Council has relied, is currently on leave and is not available to attend court on Monday [I simply interpose to say that nobody suggests that this was anything other than an unfortunate accident]. In his absence the County Council has carefully considered the reports supplied but does not consider that either report addresses the issue of how Mr Bukowicki's behaviour is to be managed by staff in a way that does not endanger their or other resident's safety and how the limited powers of Guardianship are meant to address that difficulty. Further neither report gives credit to the considerable efforts over the years of the County Council to find a placement of Mr Bukowicki that would address these problems. In the circumstances therefore, I must advise that the Council remains unwilling to accept Mr Bukowicki into Guardianship under Section 37 of the Mental Health Act 1983."
[20]On 21st August, Mr Bukowicki appeared before HHJ Alexander. I have read the full transcript of that appearance. I note that Mr McAdam was present at that hearing. The judge, accurately in my view, saw that he could only make a guardianship order if the local authority were willing. Since they were not, the only thing for those representing the defendant to do would be to challenge the local authority's decision by judicial review. The judge wondered whether the local authority might be applying the wrong criteria and then considered his sentencing options in detail. He clearly found himself in a dilemma with which any other judge will be bound to sympathise. He considered deferring sentence and then decided to adjourn for seven days.[21]The matter came back before him on 25th August and, after further anxious consideration, the judge decided to make a supervision order for two years. However, he made it in these terms:
"I will make it clear to you that I do not consider this to be the correct sentence. In my view, the correct disposal would have been under Section 37 of the Mental Health Act. That matter is the subject of a judicial review, and no doubt if the judicial review results in a favourable decision for those on your behalf who are seeking it, those advising you will immediately lodge an appeal against my sentence, and the Court of Appeal can then correct the matter. Do you understand?"
Mr Bukowicki replied that did he.[22]I mention that because it seems to me that it was plainly in the judge's mind, and it has certainly been in mine, that a court considering an application for judicial review will be very reluctant to entertain the proceedings where the dispute has ceased to be of any practical significance. Not without some hesitation, however, I am prepared to proceed on the basis that this dispute is capable of retaining some practical significance to make the consideration of it worthwhile.[23]After that, Dr Al-Robb returned and prepared the report to which I have already referred, dated 13th September 2006. As I have read out, he recited his extensive knowledge of Mr Bukowicki. He expressed his agreement with the other reporters about the diagnosis of his mental illness. He considered the risk Mr Bukowicki posed and the care plans available and he ended by giving his judgment about the guardianship order in these terms:
"Although Mr Bukowicki could be considered suffering from mental disorder, particularly psychopathic disorder within the meaning of the Mental Health Act, I believe his mental disorder is not of a nature or degree which warrants his reception into Guardianship Order. Mr Bukowicki's care in the community has been provided over several years without the use of compulsory powers. There has been no history of self neglect nor any risk of vulnerability to exploitation by others. Mr Bukowicki has never refused to reside at any proposed community placement. All agreed placements have consistently failed because Mr Bukowicki had to leave them rather than he refused to stay. His attendance at all booked appointments with various professionals has been reasonable over the years and access to his residence by professionals has never been difficult."
He then set out the Code of Practice, paragraph 13.1, which I have read out and will not read again, and continued:
"In particular, I cannot envisage how any of the powers under Guardianship Order, if it were to be made, would prevent or even discourage Mr Bukowicki from conducting the pattern of his behaviour or willful self intoxication with alcohol in public, to be mostly followed by aggressive or disorderly behaviour."
Then he turned back again to consider the Code of Practice legislation with regard to guardianship. Dr Al-Robb continued:
"I believe that receiving Mr Bukowicki under Guardianship will be psychologically and behaviourally detrimental to Mr Bukowicki. Reception into Guardianship will reinforce his tendency to project responsibility on external factors and would undermine the likelihood of achieving any maturity and self responsibility. In view of all above mentioned, my opinion remains that Guardianship Order is not a suitable disposal of Mr Bukowicki and it will serve no purpose."
Submissions[24]Mr O'Connor for Mr Bukowicki makes the following points. First, he says that the defendant council took into account a factor that they are not entitled to consider, namely Mr Bukowicki's propensity to be violent and disruptive. Alternatively, he says the defendant placed a degree of weight on those factors that no reasonable authority could properly place.[25]The reason the defendant is not entitled to take this matter into account is to be found, he says, in a proper reading of section 37 and section 37(6) in particular. On a proper reading of the section, the question whether, under section 37(2)(a)(ii), the nature and degree of the mental disorder warrants offenders' reception into guardianship is a matter entirely for the judge he said. The same would be true for the similar questions asked under section 37(2)(a)(i). The word "nature" in the subsection must involve consideration of the consequences of the disorder. Therefore, that is part of the judge's consideration of the question he has to decide. Being so, it is not something that it is open to the local authority to consider, it is a matter exclusively for the judge. He submits that it would be bizarre if the local authority could substitute their own view as a basis for stating their unwillingness to accept into guardianship. He submits that Parliament cannot have intended such a result. He goes on to say that consideration of the nature of the mental disorder must also include propensity to commit further offences. All that is left to the local authority Mr O'Connor said, I think in reply to a question from me, would be questions of their available resources.[26]Secondly, Mr O'Connor submits that the view of Northamptonshire County Council about the limited role of guardianship is wrong. He says the Act contemplates that many seriously troubled and disruptive people may be subject to guardianship and points to section 37(2)(a) and the definitions of, for example, psychopathic disorder, mental impairment and severe mental impairment. He submits that it is evident that these can involve aggressive or seriously irresponsible conduct but they can also be the triggers for a guardianship order on the express words of the Act. Therefore, he submits, Parliament must contemplate that a guardianship order can be made for persons whose conduct is aggressive or seriously irresponsible. Therefore, the fact that a person's conduct is aggressive or seriously irresponsible cannot be a good reason for rejecting him. Furthermore, he adds, looking through the Code of Practice, it is for the local authority to balance the risk to their staff against the risk to the public and he finds no evidence that they have done so. Thirdly, he says that it is wrong for the local authority to rely upon Mr Bukowicki's history without noting that he has never been in guardianship before. He has never been tested and thus has never failed. In not considering that, or, if they considered it, in not giving sufficient weight to it, he says their conclusion is irrational.[27]Mr Lynch, in reply, makes a number of points, which I will simply summarise. His main point is that section 37 of the Act gives local authorities an untrammeled discretion to decide whether or not they are prepared to accept offenders into guardianship. The decision that they have to undertake is the classic operational decision by reference to every relevant factor such as their resources, their ability to cope, their knowledge of attempts to deal with the same offender in the past and so on. This is something where it would be quite inappropriate, submits Mr Lynch, to second guess the local authority and that is not what Parliament intended. He draws my attention to the Secretary of State's Code, which, he says, indicates that the approach that the local authority were taking to guardianship was, to put it at its lowest, one that was clearly open to them. He powerfully makes the submission that Dr Shapero and Dr Duggan recommended guardianship in general terms but without explaining how it could be made to work in practice, given the previous catalogue of difficulties. Those doctors do not say how the guardianship order could work, perhaps because they were not in any position to do so.[28]He goes on to submit that the Council gave reasons that were quite sufficiently clear for refusing to accept Mr Bukowicki, based on their long and detailed knowledge of it. Mr Lynch rejects Mr O'Connor's submissions on the law, saying that the statute plainly gives the local authority a broad discretion. That is quite consistent with the purpose of the Act and acknowledges the degree to which the proper judgment of the matter must be left in the hands of the local authority. Of course, he submits, the local authority is entitled to have regard to the violence and disruptive previous behaviour of the offender. It would be extraordinary if they were barred from taking that into account. If that were the intention of Parliament, it would have been expected that they make such an extreme result expressly clear. In fact, Parliament has made the opposite clear, submits Mr Lynch.[29]He further submits that the local authority is not bound by the judge's view, which can only be of a preliminary nature, given the statutory provisions. In summary, what took place here was a proper exercise of the local authority's discretion. On the facts of the case, he submits, there was ample evidence which they took into account and were entitled to take into account to support their decision. Consideration[30]In my judgment, section 37 is plain. The exercise a judge must perform, having satisfied himself that the requirements of section 37(1) are met, is to next turn to the conditions in section 37(2). The first step is to consider the written and oral evidence of two registered medical practitioners as to the existence of one of the specified forms of mental disorder. Next, the judge must consider either the rather more specific and serious requirements for a hospital order under sub-subsection (ii) or the more general requirements of a guardianship order under sub-subsection (ii). In the latter case, the judge must be satisfied that the mental disorder is of a nature or degree which warrants the offender's reception into guardianship. To satisfy himself as to that, the judge will look at all the relevant evidence and that will include any evidence that he has received from the local authority. If, in fact, the local authority is arguing that there is no mental disorder of that degree, then of course the judge must take that into account. In the same way, the local authority in their consideration should take into account all the evidence that they have, including the reports of the two registered medical practitioners or any other practitioners who support the offender, as well as reports prepared for the local authority. The local authority should also take into account and give proper weight to any provisional expression or opinion by the judge. It seems to me that that is what happened in this case. The local authority evidently considered carefully what Drs Shapero and Duggan had said.[31]The next stage for the judge then is found in subparagraph (2)(b). The court has to consider whether it is of the opinion, having regard to all the circumstances, that the most suitable method of disposing of the case is by means of an order under the section. To my mind, this provision, read with section 37(6), makes it quite clear that the judge's judgment must be subordinate to the willingness of the local authority to accept the guardianship. Subsection (6) says, I repeat, that an order "shall not be made" unless the court is satisfied that the authority is willing to receive the offender into guardianship. The matter could have been expressed in a quite different way, in a way that gave the judge the opportunity to take the final decision about the reasonableness of the authority's refusal, but the provisions were not worded that way. As they are worded, it seems to me that they are quite clear. As HHJ Alexander accepted, the judge cannot be satisfied that "the most suitable method of disposing of the case is by means of a [guardianship] order" as long as the loyal authority digs its heels in and says no. No method can reasonably be held to be suitable where the person who is to employ that method has the right to refuse to do so and does refuse to do so.[32]I do not find this a strange or unexpected result. It seems to me to be entirely understandable in the context of the Mental Health Act. It seems to me to be understandable that Parliament would not wish to enact a statutory regime where authorities or hospitals could be forced to accept people that they do not have the resources, using that word in its broadest sense, to cope with. Conclusion on the law[33]I therefore reject Mr O'Connor's reading of the Act. In my judgment, the local authority is fully entitled to have regard to the offender's propensity to be violent and disruptive. The argument based on the interpretation of different forms of mental disorder does not help Mr O'Connor in my judgment. Nobody doubts that, if the local authority were geared up to accept into guardianship an offender suffering from severe mental impairment who was abnormally aggressive or seriously irresponsible, they could lawfully do so but that does not mean for one minute that they must do so without taking into account a propensity to violence where, in their judgment, they are not prepared to do so safely or properly. The local authority may, indeed should, take into account every material consideration relevant to their ability to manage the offender in guardianship. I accept the submissions that Mr Lynch made to me as being an accurate view of the law.[34]One matter that the local authority is obliged to take into account is the Code of Practice and their own policy. In my view, the local authority is fully entitled to take the view that they should only accept those in guardianship who are not going to be able to achieve independent life with a minimum of constraint and are not going to be constantly challenging the exercise of the guardian's powers. Indeed, on a proper reading of the Code of Practice, that is what it intends. The Authority cannot be criticised for holding that view of the exercise of their guardianship powers. If that is their view, it is impossible to say that they were not properly able to come to the view they did about the suitability of Mr Bukowicki for guardianship. Nor is it possible to say that their judgment was not reasonably open to them. How they weigh the factors is for them. It is understandable that they put a lot of weight on Mr Bukowicki's long history of trouble. The authority were well aware that Mr Bukowicki had never been in guardianship before but were entitled to think that was of little or no significance in the balance. That was not an irrational conclusion in my judgment, it was a rational one.[35]The local authority took into account reports of Drs Shapero and Duggan but I think there is some force in the criticism that neither of those doctors really explain how it is that guardianship would help Mr Bukowicki in practice. When I put this to Mr O'Connor, he drew my attention to the letter of 28th July 2006, a passage I have already read out, and I will not read again. I simply remark that, although I understand what the words say, I do not understand what the words actually mean in practical human terms as relevant to guardianship. By contrast, I think it is fair to say that Dr Al-Robb does grapple with this point in his report and I can well see why the council reasonably found his approach to be the more persuasive.[36]To summarise my conclusions, the law gave the authority a wide discretion as to the factors that they were to take into account in deciding if they were willing to accept Mr Bukowicki into guardianship. They did not take into account any matter that they should not nor failed to take into account anything that they should. It is impossible to say that the decision was perverse and not reasonably open to them on the facts.[37]It follows that the claim must fail. As for the mechanics of the failure, it perhaps makes little difference whether or not I grant permission and then treat this hearing as being the substantive hearing and then dismiss the claim or simply refuse permission. On balance, it seems to me that I might have been prepared to grant permission. Therefore, I grant permission and, with the consent of the parties, treat this hearing as a substantive hearing and dismiss the application.[38]The only point I would add, on an optimistic note, is that I have been told that Mr Bukowicki is making promising progress with his supervision order. This must be good news for those who have had to deal with him in the past but particularly good news for Mr Bukowicki.[39]MR LYNCH: My Lord, we are extremely grateful for that very full and detailed judgment. My Lord, the fact that we are in fact now -- effectively having dealt with the judicial review application, I would, if I may, ask for an order for costs on the usual terms that apply for publicly funded individuals.

HIS HONOUR JUDGE MOLE: Yes, and you do not have any summary?

[41]MR LYNCH: I do not have a summary of costs, my Lord, no.[42]HIS HONOUR JUDGE MOLE: I see, right. What do you say about that? You cannot really resist the point.[43]MR CARR: My Lord, no, but I do have three matters that I would raise. I have been instructed to request permission to appeal in relation to the grounds relating to the interpretation of section 37.[44]HIS HONOUR JUDGE MOLE: Yes, I am not going to give you permission to appeal on that. The whole matter is tied up with the factual matters. In any event, it is a case where I think that the interpretation of section 37 is clear beyond reasonable argument. But, of course, if you manage to interest the Court of Appeal in the interpretation, they may give you a different answer but it is a matter for the Court of Appeal, as far as I am concerned.[45]MR CARR: The second matter is that I am instructed to ask for an expedited transcript of your judgment, if possible.[46]HIS HONOUR JUDGE MOLE: What is the difference between expedited and non-expedited in this court? I am afraid I do not know. Tell me why it is necessary to have it particularly expedited.[47]MR CARR: My only instruction on that point is that the expedited transcript ensures that it arrives in time for the deadlines for any application for permission to appeal to the higher court.[48]HIS HONOUR JUDGE MOLE: The only times I have come across an expedited transcript is when there is considerable pressure. I cannot ask the shorthand writer. What I am prepared to say is that the transcript should be expedited to a degree that will enable it to be ready in time for any appeal, if so advised.[49]MR CARR: And the third matter is to request the usual order in relation to public funding.[50]HIS HONOUR JUDGE MOLE: All right. I make the usual public funding order and I do make the usual order for costs, so far as the costs of the public body is concerned. Those costs will then be taxed, will they?[51]MR LYNCH: Should that become relevant.[52]HIS HONOUR JUDGE MOLE: Thank you. Pass on my thanks to counsel for your assistance to me in this matter.[53]MR LYNCH: Both parties thank you.