BB v CYGNET HEALTH CARE [2008] EWHC 1259 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH
DIVISION THE ADMINISTRATIVE COURT
[2008] EWHC 1259 (Admin)Case No Case No. CO/1199/2008Venue Royal Courts of Justice, Strand, London WC2A 2LL
Between
BBClaimantCYGNET HEALTH CAREDefendantTHE LONDON BOROUGH OF LEWISHAMInterested Party(AND IN AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM)
Before
Mr Justice KingMr S Simblett (instructed by Campbell Taylor Solicitors, London N16 8JN)appeared on behalf of the ClaimantMr G Clarke (instructed by Radcliffes le Brasseur, London SW18 3SJ)appeared on behalf of the DefendantMr Carr (instructed by the Legal Department for the London Borough of Lewisham)appeared on behalf of the Interested PartyDate 4 March 2008
[1]MR JUSTICE KING: This is an application for a Writ of Habeas Corpus ad Subjiciendum directed to the hospital managers of the defendant. The application relates to the detention of the claimant since 30 January 2008 at the Cygnet Wing Blackheath purportedly authorised under section 3 of the Mental Health Act 1983 ('the Act') at the Cygnet Wing, Blackheath, which is the defendant's hospital.[2]Under section 11(1) of the Act, subject to the provisions of the section, application for admission for treatment under section 3 may be made by an approved social worker. It is not in dispute that late into the afternoon of 29 January 2008 an approved social worker employed by the Interested Party, the London Borough of Lewisham, namely Mr O.A., made application to the hospital managers for the admission of the claimant for treatment, pursuant to section 3(2) of the 1983 Act. A copy of the form of application is in the papers before me. The application was supported by two medical recommendations in the required form, namely one from a Dr Gafoor of 27 January 2008 and one from a Dr Mateola, dated 28 January 2008.[3]The sole issue before me has been whether the requirements of section 11(4) of the Act, relating to consultation with the nearest relative, have been complied with. It is common ground that in the circumstances of this case if in fact that section has not been complied with, the continuing detention of the claimant is unlawful and in principle habeas corpus should follow.[4]Section 11(4) provides as follows in the parts material to this application:
"Neither an application for admission for treatment …shall be made by an approved social worker if the nearest relative of the patient has notified that social worker, or the local services authority by whom that social worker is appointed, that he objects to the application being made and, without prejudice to the foregoing provision, no such application shall be made by such a social worker except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay."
[5]It thus can be seen that there are two separate sets of circumstances under which by reason of section 11(4) an application may turn out to have been unlawful. One is where the nearest relative positively communicates his objection to the social worker or the local authority. It should be noted, however, that communication of positive consent is not required. The other is where there has been no consultation with the nearest relative as required by the section.[6]As regards the purposes of such a consultation, I had my attention drawn to the observations of Philips LJ (as he then was) in In Re Whitbread (Mental patient: Habeas Corpus) (1998) 39 BLMR 94, where he said this of the statutory consultation:
"…it must place the nearest relative in a position if so minded to object to that application. Provided that the social worker explains to the nearest relative that he or she is considering making an application and why, the nearest relative will be afforded the opportunity for objecting to the application that the Act requires."
[7]This application has centred on the question of consultation with the nearest relative. It is common ground that the nearest relative of the claimant at the material time was his father, CSB and that at the material time there had been no delegation by the father of his functions as the nearest relative to his daughter, the claimant's sister, HB, although this was subsequently effected as from 2 February 2008. Such delegation is provided for under regulation 14 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983. Nor does the defendant suggest that the required consultation was not reasonably practical, or rendered unnecessary by reason of it involving unreasonable delay.[8]The case for the defendant before me based on the evidence of the approved social worker, Mr O.A., is that such consultation, as required by the section, did in fact take place during the afternoon of 29 January 2008, albeit through his talking on the telephone with an intermediary, namely with the daughter of the nearest relative: the sister of the claimant, HB, to whom I have already referred. The problem was that the father did not speak, or understand, English in any effective way.[9]As a matter of law, there is nothing wrong with a consultation with the nearest relative via an intermediary. However, as Laws J (as he then was) said in R v Managers of South Western Hospital, ex-parte M [1993] QB 683; [1994] 1 All ER 161, what is important is that the consultation be full and effective to ensure that the nearest relative has the opportunity to play his full part in the process. The observations of Laws J discussing this question of consultation through the medium of another, which I adopt for the purposes of this judgment, merit setting out (1994 1 All ER at 175, 176):
"ordinarily, it will clearly be desirable for the consultation to be carried out directly by the approved social worker. But there may be circumstances in which that will be difficult, or even nigh impossible. What is important is that the consultation be effective, to ensure that the nearest relative has the opportunity to play his full part in the process…I do not suggest that an approved social worker has a wholly free hand to appoint, as it were, a delegate for the purposes of consultation. It remains throughout the approved social worker's responsibility."
[10]What has been strongly in issue before me is what took place in that telephone conversation. On this question at a hearing on 21 February I heard oral evidence from both HB, the claimant's sister, and the approved social worker, Mr O.A..[11]By the time of that hearing there was before the court two witness statements from Mr O.A.. The first was in the form of an affidavit, which although sworn on 21 February, the day of the hearing, was in fact made in unsworn form on 7 February 2008. This unsworn copy was supplied to the claimant's representatives shortly before the hearing before F.J. on 11 February. His further statement, dated 20 February 2008, was made following disclosure of the telephone records from the service provider applicable to the claimant's sister's mobile phone, which she had been using at the time.[12]I have also had placed before me three witness statements, dated 4, 11 and 18 February 2008, respectively, from the claimant's sister, HB. She is a solicitor practising in family law, currently on a temporary assignment at a firm of solicitors in Tunbridge Wells in Kent. The family home is in Berkshire, some 60 miles away, which meant that during the week, as on the day of the telephone call, she was staying away in temporary accommodation, and only returning to Berkshire and the family home at weekends, and hence only seeing her father then. Her final statement was also made following sight of the telephone records.[13]The significance of the records arises from the different stance as to timings taken by the approved social worker and HB in their original statements. The original account of HB was that the telephone call from the social worker, who had introduced himself as O, had been received at about 3 o'clock in the afternoon and had lasted no more than ten minutes. According to her, she had been in the bank at a cashier when the call came through and she had had to go out, while the social worker was waiting on the line, to find a convenient place to take the call. Not long after that call, just after she had walked back to her office, a 10 to 15 minute walk away, and as she got into the office building, the social worker had telephoned her back to say he had sectioned her brother "based on his history." This second telephone call, therefore, according to this initial account of HB, was only some 15 minutes after the first call.[14]The evidence of the approved social worker, Mr O.A., in his first unsworn affidavit, was that he had waited on line for about 10 minutes so HB could get a place to discuss the situation with him, and had spent some two hours on the telephone with HB explaining procedures and the process of assessment under the Mental Health Act, and that it had been some one-and-a-half hours after that that he had returned to the Cygnet Wing to interview the claimant and subsequently telephoned HB to inform her of his decision.[15]In the event, the telephone records show that both witnesses were wrong as to the timings of the initial call. The material call to HB's mobile phone is recorded as being at 14.31 and lasting just over 46 minutes: 46 minutes, 39 seconds. As to the subsequent call in which the social worker informed HB of the decision to section, this is recorded at a time far more consistent with Mr O.A.'s account, namely at 17.38.[16]In his second statement Mr O.A. explained that he had made the original call from the Cygnet Wing. He had then left for a meeting with a Dr Mohan at Lewisham Hospital some 10 to 15 minutes drive away, and as stated in his original statement, he had "returned some time later to the Cygnet Ward" where he had resumed the Mental Health Act processes, including his assessment of the claimant, resulting in the completion of the application under section 3.[17]The detail of the social worker's meetings at the Lewisham Hospital, deposed to in his second statement exhibiting a letter from Mr Mohan, confirms that he was still at Lewisham at 4.40pm. Hence it is likely that at least one-and-a-half hours must have passed from when his conversation with HB ended to when he returned to the Cygnet Wing to assess the claimant.[18]To understand the dispute which has arisen as to the content of the material call, it is necessary to state something of the background history leading to the application completed by Mr O.A..[19]The claimant suffers from paranoid schizophrenia. He has in fact been detained under the Mental Health Act 1983 on numerous occasions. In June 2007 he was made subject to section 3 and detained at a hospital in Berkshire near the family home, namely the Heatherwood and Ascot Hospital. As Miss HB explained in her third witness statement, the symptoms and delusions described by Dr McIvor in a letter, dated 1 February 2008, produced to the court by the first defendant as a background to the section 3 application, are of long-standing and (to quote HB):
"are always present in some shape or form despite being on the top dose of Olanzapine, an anti-psychotic"
She says: "[the claimant] has always enjoyed extensive leave with these symptoms".[20]So it was that on occasion between July 2007 and December 2007 the claimant was given extended leave pursuant to section 17 of the Mental Health Act. Evidently his responsible medical officer, Dr Macaulay, considered the claimant required a placement in the community. Much to the upset of the family none was forthcoming.[21]Unfortunately the claimant did not return after one extended period of leave and was absent without leave from 3 December 2007 when, according to a confirmatory letter from Dr Macaulay, dated 21 December, his section lapsed on 17 December 2007. At this time no one seems to have known exactly where the claimant was and he appears to have been sleeping rough. What also seems to have occurred is a disagreement within the hospital about the discharge of the claimant. There is a letter of 8 January 2008 from Berkshire Healthcare Trust purporting to inform the claimant's father that the claimant had had his detention renewed.[22]It seems that on 27 December 2007 two police officers attended the B family home with a psychiatrist and forced entry. The claimant, however, was absent, but he was eventually tracked down and removed back to the Heatherwood Hospital on 6 January. The lawful basis of this detention is unclear and is not strictly relevant to the present application, save that it is clear that HB herself took objection and made a formal complaint to the trust about it.[23]Then on 23 January 2008, during weekend leave purportedly granted on 19 January, there was an incident which resulted in the claimant being transferred on 24 January 2008 to the Cygnet Wing, Blackheath (the private hospital run by the first defendant) with which this application is concerned.[24]The incident involved the police being called out by a member of the public to arrest the claimant, who was accused of brandishing a knife in the hospital grounds. The claimant was subsequently released from the police station, on bail.[25]The rights and wrongs of the knife incident are a matter of debate, although it is clear that HB believes her brother has been the victim of a false accusation. Be that as it may, the claimant was then transferred the next day to the Psychiatric Intensive Care Unit at Cygnet Wing purportedly because of renewed concerns about his behaviour and mental state. It was at this point that the process began to put the claimant's detention on a proper legal footing. Dr McIvor, the consultant psychiatrist, decided to have the claimant reassessed for admission under section 3 of the Act. This gave rise to the two assessments, to which I have already referred.[26]On 29 January Dr McIvor, appears to have exercised holding powers to detain the claimant under section 5(2) of the Act pending the completion of the section 3 processes. Under section 5(2) that detention was limited to 72 hours and hence was due to expire on 31 January 2008 at 5pm. It was in this context that Mr O.A., the approved social worker, set about consulting with the nearest relative, the father, to the rival versions of which consultation I am now about to turn. However, I should add, as part of the background history, that HB who had visited the claimant at the Cygnet Wing on 27 January describes herself in her first witness statement as having been heartbroken by the surroundings in which the claimant had been placed, and by the distance of the unit from the family home which made it too far away for regular family visits. It is clear, in my judgment, from the letters of complaint written on the claimant's behalf to the authorities in October 2007 and from a similar letter of February 3 written by HB, that the principal complaint of HB and her father over the months has been the failure of the Slough Community Mental Health Team to provide for the claimant a package of long-term community aftercare.[27]I turn to the social worker's evidence. The gist of that evidence, according to his witness statements and confirmed in oral evidence to me, was as follows: on 29 January 2008 he was called to complete a Mental Health Act assessment on the claimant at the Cygnet Wing. He checked through the hospital notes and ascertained that the two required medical recommendations had been made out. Before setting about interviewing the claimant for the purposes of assessment he contacted the father, CSB, as the nearest relative, to consult with him in accordance with the Act to see if he had any objections for an assessment of his son under section 3. He was, it seems, unable to have any conversation with the father due to language difficulties. The father's responses, according to the social worker, were unclear. All he, the social worker could make out was, "No English talk Hadeb" before the father twice put the phone down. Mr O.A. discovered from inquiries with the staff at Tyler Ward in Cygnet Wing, which was the ward where the claimant was being kept, that the father must have been referring to his daughter, HB. He then called HB on her mobile phone.[28]I do not, at this stage, go into the social worker's version on timings, which I have already set out. He says he introduced himself and explained that he had called the sister because her father was mentioning her name when he was contacted as the nearest relative. HB, according to the social worker, informed him that she normally dealt with all issues relating to her brother's mental health and was the one to communicate with on behalf of the family in respect of her brother's mental health issues. He says he enquired if the power of the nearest relative had been delegated to her under the regulations, but she was unsure so he says he continued to treat her father as the nearest relative. He then spent the long time he described, on the telephone with HB explaining the procedures and process of assessment under the Mental Health Act, to which she stated she had some understanding. He says:
"She clearly expressed the family's dissatisfaction with the treatment and care that her brother had been receiving to date and that they were unhappy for him to be 'sectioned again for the alleged offence for which he was brought to hospital'."
[29]However, what next occurred is set out in two crucial passages in paragraphs 7 and 8 of his affidavit: "7. I explained to [HB] that my assessment was not about the alleged offence, but about his mental state and I had to ascertain if the Nearest Relative was objecting to an assessment under Section 3. I explained to her that I understood she was expressing that the family was unhappy for him to be on Section again, but I need to know if there was an objection from the Nearest Relative for me continuing with the assessment and making an application if this was deemed necessary. [HB] responded that I should "go ahead with my assessment and make whatever professional judgment I need to make".[8]I told her that she should communicate this to her Father and to call me to advise if he was not in agreement. I told her I would wait to interview [HB] for another 40 minutes to 1 hour, to give her an opportunity to properly discuss this information with the Nearest Relative and relay his views if he was in disagreement. In doing so, I considered [HB] to be acting as a translator for her father."[30]That was the end of the call. Mr O.A. explained that he then went about his other business leaving the hospital to go to Lewisham. In his second witness statement he explains that on return to the Cygnet Wing, some one-and-a-half hours later, he checked with the staff when he arrived and they confirmed that they had not received a message from HB or her father, so he went ahead with his interviewing of the claimant. There had, in his view, been ample time for the family to revert to him if the nearest relative had objected. It is of note, however, that when he returned to the wing he discovered the claimant was at that very time on the phone to his sister, but he, Mr O.A., made no attempt himself then to contact, or to speak with, the sister.[31]When he ultimately called HB to inform her of his decision that the brother had now been detained, he says she told him that the family were not happy for the brother to be detained so far away from them. So he explained that her family could make representations to their local authority for him to be moved. He says he explained the rights of the nearest relative to apply to the Mental Health Tribunal and requested that she relay this matter to her father.[32]In the course of cross-examination before me, Mr O.A. made clear that the objection emanating from HB at this stage was not to the sectioning as such, but to the placement. His oral evidence before me, in effect, confirmed his written evidence, although he was rigorously cross-examined about it, in particular, as to the arrangements he had made with the office staff for receiving messages coming from HB during his absence, and his general failure to follow correct procedures under the material Code of Practice.[33]His attention was drawn to paragraph 11.13 of the Code of Practice under the Mental Health Act, which provides that the approved social worker should leave an outline report at the hospital when the patient is admitted giving reasons for the admission, and any practical matters about the patient's circumstances which the hospital should know; and where possible, the name and telephone number of a social worker who can give further information. The Code states that Social Services Department should consider the use of a form on which the approved social worker can make this outline report, and a that full report should also be prepared for the formal Social Services Department record. It is common ground that no outline report was made in this case.[34]As far as consultation within the meaning of the Act is concerned, given there is no suggestion that Miss HB had delegated power to speak on behalf of, or to exercise the functions of, the nearest relative, the crucial part of Mr O.A.'s testimony must be his evidence that having explained matters, in some detail, to HB as to why an assessment under section 3 was required, he told HB to communicate this to her father and to call him, Mr O.A., to advise if father was not in agreement, and that he, Mr O.A., in effect, had allowed considerable time for this consultation, via this intermediary, to take place, before proceeding with the section 3 application.[35]Given there is no requirement under section 11 that the nearest relative should expressly consent, I can see the force of the submission that, in the round, if the evidence of Mr O.A. is accepted, there has been here a consultation, albeit via an intermediary, within the meaning of the Act. As I understand it, this was the thrust of a preliminary ruling made by F.J. at the earlier hearing on 11 February, although this court has yet to receive any transcript of that ruling.[36]However, the crucial question must be the credibility of Mr O.A.'s evidence on these crucial aspects of the telephone conversation. On this I should add this: his evidence about HB in effect agreeing, albeit reluctantly, that he should go ahead with "his assessment and make whatever professional judgment he needed to make" is relevant primarily on the question of his credibility, rather than on whether the requirements of section 11 had been satisfied. As I have already stated, HB had no delegated authority to speak on behalf of the Nearest Relative or to exercise his functions.[37]I turn to HB's evidence. Her evidence could not be more different on the crucial matters. As I have already set out, according to her initial statement the conversation with the social worker was very short. She describes how she received the call on her mobile phone from the person named 0, who had said he was the approved social worker who would be assessing her brother to see whether he should be detained under section 3 of the Mental Health Act 1983. HB says that 0 told her that he had called her father, the nearest relative, but that her father had not been able to understand him, so he was calling her instead.[38]I turn to two crucial paragraphs in her initial witness statement, namely paragraphs 13 and 14:
"13. He asked me about the events of the 23rd January 2008 to which I explained nothing was found on [BB] as above. I tried to explain what [BB] has been going through and that for the past 8 months he has been through various assessments and that his previous RMO was happy to discharge him and in fact discharged him in December 2007, subject to aftercare accommodation which Slough CMHT have to date not made arrangements for. I explained there has been a conflict for the past 8 months between Slough CMHT and the hospital over providing accommodation. 14. Olu was not to keen to listen to what Slough CMHT have not done, and interrupted me saying I have read the notes he doesn't wash, clean himself, he ate in a restaurant and did not pay, he doesn't engage in activities. 0lu said that he felt that my brother would actually benefit from being sectioned. I said no please don't section him again as it will be like a double sentence on him and you will simply be going back 8 months. I told Olu that I accepted that my brother needs care but that he had already been assessed and decided that he needed a care home. I said that it would be unacceptable to the family that he be sectioned again. 0lu said that he would call me back. I at no time had said to him that I or my family would be content to leave the decision to the professionals."
[39]On her evidence the next thing which occurred was that 0lu called her back to say he had sectioned BB based on his history. I have already explained how initially HB put this return call as occurring within 15 minutes of the first, which it is now known cannot be correct. The gap in time was in fact considerably longer. According to HB, the social worker in this second call told her that BB had become very upset and had said that he did not want him as his social worker. HB says she protested at length in this second conversation not only about the unit her brother was in, but about the sectioning itself. I quote her written words: "I said the only persons who will benefit from the re section will be Slough CMHT as they will once again now have no urge to provide aftercare for [BB]".[40]For present purposes, the key parts of this evidence on the question of consultation, which again in principle HB confirmed in oral evidence, are that:(1) she never said to the approved social worker that he should go ahead with the assessment and make whatever professional judgment he needed to make; and(2) the social worker never asked her to communicate this to her father and to call him to advise if her father was not in agreement. It is common ground that after that initial call from the social worker HB did not call her father. This may well be because she was concerned about his health. There is evidence he was suffering from the effects of increased blood pressure.[41]What she did, however, do is that she called her brother, the claimant. It is clear from the claimant's own evidence, and I refer to his witness statement of 11 February 2008, that his sister, that is HB, told him that the social worker would be arriving to undertake an assessment to see if he should be detained under section 3 of the Act.[42]I turn to my conclusions. I have carefully considered the totality of the evidence, which has been placed before me, and the cogent submissions of counsel on both sides. I have to say I found the evidence of both principal witnesses, that is to say both HB and the approved social worker, unsatisfactory in many ways, not least over the timings asserted in their original statements. There were aspects about HB's evidence under cross-examination which certainly gave me concern, in particular, over her initial description in her witness statement of how she received the second call from the social worker just after arriving back at the office. She described it in some graphic detail, but on the disclosed records that timing just cannot be correct.[43]I have to say that HB came over as an emotional witness who on occasion would allow her feelings to fuel her answers, which were not always consistent. However, on one matter I am quite satisfied, namely it is highly unlikely that she ever said words to the effect that the social worker should go ahead with the assessment and make whatever professional assessment he decided to make. I say this because, in my judgment, one piece of her evidence under cross-examination had the ring of truth about it, given the history of this case and HB's views on the way the claimant had been treated in the past, namely her repeated assertion that she had kept saying to the social worker, "Please don't section him."[44]Further, in my judgment, HB's behaviour immediately after discovering her brother had been sectioned is really consistent only with a person who had made clear her objections to the sectioning as such, rather than as suggested by the defendants to be the behaviour of a person who had guilty feelings over her original stance of reluctant compliance, brought on (it was suggested) by her acceptance that there really was no alternative other than sectioning, to the brother sleeping rough, absent a community care package.[45]I have no reason to doubt the truth of paragraph 9 of her final statement where she says this:
"Following the second call from Olu shown at 17.38.41 …when he informed me that he had sectioned my brother, I phoned my brother's Solicitor Rheian Davies, from the work land line. I explained what had gone on and she advised me that my brother could not be placed on s 3 of the Mental Health Act 1983 without proper consultation of the nearest relative, unless there was an emergency or it was not practicable. She advised me to phone back the ward immediately to see if the social worker was still there and check whether my brother had been placed on s 2 (which does not need the same consultation) or whether there had been some kind of misunderstanding."
[46]This evidence ties in with her evidence in paragraph 16 of her initial statement, where she says that she phoned the Tyler Ward and spoke to a staff nurse and asked if it was true that her brother had been sectioned, and asked who had been put down as the nearest relative. The nurse confirmed that the brother had been sectioned, but she could not give the requested information because the papers had already gone to administration. HB says in that paragraph: "I made clear that neither I nor my father had consented to his being sectioned" and I accept that. It is also significant, in my view, in this context that the letter before action in this case from the claimant's solicitors was dated, as I understand it, and sent the next day on 30 January.[47]In these circumstances I have reached the conclusion that I just cannot accept the reliability of the approved social worker's evidence to this court, that HB said what he says she said about leaving it to his professional judgment. This finding, in my judgment, also inevitably goes to the core of the reliability of his further crucial piece of evidence (crucial to the issue of consultation under section 11) that he told HB to communicate this to her father and for her to call him if the father was not in agreement.[48]In my judgment, in the absence of any other corroborative evidence that this was said, I am driven to find that his evidence on this aspect is not reliable. I cannot accept in the circumstances that it has been established by the defendant, on the balance of probabilities, that consultation within the meaning of the Act here took place. I am fortified in this view by some other aspects of the evidence. In particular, I find it incredible if Mr O.A. had said what he says he said to HB, the sister, that on his returning back to the ward, and discovering the sister was on the phone, he did not make an effort to speak to her again.[49]Nurse B. was called in the course of the hearing before me by the defendant. Her evidence was that when this approved social worker left the ward that afternoon, that is to say after, on the evidence, he had already spoken to HB, he said to her, Nurse B. he would return later that day to make further attempts to contact the nearest relative. That is a statement hardly consistent with someone who considered the contact had already been made, albeit through the intermediary of the sister. His failure to complete an outline report at the hospital, in accordance with the Code of Practice, in itself did not give me any confidence in his overall ability properly to discharge his responsibilities under the Act.[50]Ultimately, however, I stress the aspect of the burden of proof. The burden must be on the defendant to justify the detention of the claimant by establishing that the consultation within the Act did occur. It is not for the claimant to establish that it did not. I have no hesitation in holding that on the evidence before me his burden has not been discharged. In this context I cannot leave this application without reference to the contents of the letter from the defendant's solicitors of 1 February 2008. This was written to the solicitors acting for the claimant at the time. "Dear Sirs, .... As you know, we act for Cygnet Healthcare, the proprietors of Cygnet Wing Blackheath where [BB] is currently detained under Section 3 of the Mental Health Act. The validity of this detention has been questioned on the basis that it is alleged that [B's] nearest relative, [CS] objected to that detention. As far as our clients are concerned, the hospital managers at Cygnet Wing Blackheath are obviously entitled to rely upon detention papers which appear valid on their face, as here. However, we have raised the point that you make with the ASW who applied for admission, Mr O.A.. He has confirmed to us that he discussed this admission at length with [CS] through his daughter (acting as interpreter) as [CS] does not speak good English. [CS] expressed through her the view to the ASW that he was not happy about [BB] being detained "on section". The ASW explained that he needed to know whether [S] was therefore consenting or objecting to detention. [CS] stated via his daughter that it was up to the ASW to make a professional decision as to whether [BB] needed to be detained or not and if so, he (the ASW) would do what he needed to do. The ASW explained to [CS] that he would therefore be proceeding with an interview to assess and if necessary seek a detention under the Act. The ASW called the daughter after the assessment to let [CS] know that detention of [BB] seemed necessary and to notify the nearest relative rights. Again no objection was made."[51]In my judgment this letter gives a version of events wholly inconsistent with the proposition that the approved social worker's consultation took the form of explaining things to the sister about the claimant, and then asking her to communicate with her father, the nearest relative, and to call him back after she had had an opportunity over time to speak with him and if the father objected. The letter suggests the social worker, was communicating with the father through the daughter acting as interpreter at one and the same time. No explanation has been offered to the court for the mystery of the contents of this letter. There may well be an innocent explanation. However, it is not for me to resolve these matters.[52]All I need state, which I do, is that on the evidence before me on the issue of establishing proper consultation within the meaning of the Act, the defendants have, in my judgment, failed to discharge the burden which is upon them. In those circumstances, in principle, my judgment is that habeas corpus should follow.[53]MR SIMBLETT: My Lord, a few matters arise out of the judgment. First, and this is, I doubt, going to be controversial, your Lordship gave a very full judgment in which your Lordship referred to the main actors involved. It would appear as a consequence of the anonymity order they have asked for in relation to that that the claimant be known as BB, that everybody, in so far as his family, who gave evidence has the same inserted. Could they also be known by their initials?

MR JUSTICE KING: Certainly.

[55]MR SIMBLETT: In terms of what your Lordship said about the substantive application, and your Lordship finished his judgment by saying that in principle habeas corpus should follow, I would invite your Lordship to make an order of habeas corpus. The claimant is here. He is sitting next to his sister. I have instructions that so far as he is concerned they are happy to take him home with them today and seek proper community care assistance, as it were, from the family home, rather than the inconvenient route that would follow if he were to be in South East London.[56]Your Lordship may be reassured in relation to the feasibility of that in this case by knowing that yesterday there was a meeting at the hospital to discuss care planning, and so on, which occurs quite often with patients who are detained just to work out where they are going with them, in which the hospital did consider the possibility that the claimant would succeed in his application before your Lordship. Although they have not, as it were, put measures in place, they have not, as I understand it, supplied any reason or objection to the possible consequence of your Lordship's judgment, which was that your Lordship orders habeas corpus, being implemented.[57]As I understand it, there is no clinical problem with that. It is not suggested that there is anything about the claimant that would make that an undesirable cause of action. On the last occasion Mr Carr mentioned a case called Briscoe in which he invited your Lordship to follow an approach from the report in Briscoe , apparently having--[58]MR JUSTICE KING: Shall I await any application from counsel for the defendant? Obviously I have in mind the factors you have laid before me.[59]MR SIMBLETT: I obviously also have submissions on costs. Perhaps I will return to those after my learned friends have made their submissions on the substantive point.[60]MR CLARKE: I have no application to make. Can I explain that the professional opinion of the responsible medical officer at the hospital is that BB fulfils the statutory criteria for compulsory admission under section 3 of the Act. However, it is not for my client to exercise any relevant power. My client has here no applicable statutory power.

MR JUSTICE KING: You represent the hospital?

[62]MR CLARKE: The hospital, yes. My client does not have any role to play in applying for, or making, a decision under the Act, which leads to compulsory admission to hospital. I simply indicate that the professional opinion of the RMO remains that BB does need to be admitted to hospital on a compulsory basis in his own interests and those of others. I simply say that, but I have no application to make. I will have something to say about costs. My Lord may not be surprised to see which direction I will be looking in due course.[63]MR CARR: We are in a particularly slightly invidious position. The situation is I have no application to make, and the information that I have received is that the medical opinion is that continued attention is appropriate. We seem to have, I will be totally frank about it, fallen between two stalls. Lewisham's only role happened to be because the Cygnet Wing, to which he was transferred, with arrangements entirely beyond their control, are following the incident on the 23 and under whatever powers those sought the transfer which brought him within their catchment area. They then became the approved social worker. There is no background history with this claimant at all. Their position is that they are therefore entirely dependent upon what the first defendant's medical view was. I have seen emails which seem to imply that the view is very similar to what my friend has said, which is namely that the view is that he should continue to be detained, but the feeling of Cygnet Wing is they are not going to apply. If that is right that that is our catchment area, there would be no locus for us to apply.[64]The position is that it is worth going on the record that the notes I have seen do have real concerns about this claimant not being under section 3. Those with the real responsibility for it are the one health authority not in front of this court, namely Berkshire, who will simply be told he has been released as of now. They will take whatever steps under section 29, or section 3, they think are applicable.[65]MR JUSTICE KING: The history of this case is one where he has been on extended leave for considerable periods of time.[66]MR CARR: Yes, certainly, sometimes resulting in the incident of the 23rd, of which I know there is no dispute. I take it no further. I think it is appropriate for the record that certainly the information I have is that those treating him believe compulsory attention is appropriate.[67]MR SIMBLETT: Since there is, as it were, grousing, there is not actual application to oppose it.[68]MR JUSTICE KING: Just so that I fulfil my duty, however, as I have a certain public duty as well, remind me what Briscoe said. Do I have it in my bundle?[69]MR SIMBLETT: Yes it is. Briscoe was a case in which in fact I appeared. I can tell your Lordship what happened? I hope that in fact means that probably we are going down a bit of a false trail with it. You have Briscoe reported only in the Crown Office Digest. It is in the back of your Lordship's bundle, I think. I will tell your Lordship what happened in Briscoe . I can hand up a copy if your Lordship wants to check it. In Briscoe there was an application for habeas corpus. Nobody showed up at all to oppose it. All the court had was a letter from the health trust saying we oppose it. The judge made the sorts of findings your Lordship has made that there had not been consultation based on the very jejune material. He did not have oral evidence, or anything like that. He did not immediately issue habeas corpus, but put it over for a couple of days to see if there were any further representations.[70]That, as I understood it, was the course that Mr Carr was half inviting your Lordship to go down on the last occasion. In my submission it is not a course that is any sense comparable, because in that case it was: has in fact the information that the court has been given correct?[71]Essentially that was what the judge was concerned with here. Your Lordship has heard very detailed factual evidence and legal submissions and reached a judgment. I hope that that is not something that would deflect your Lordship from turning your Lordship's course in principle to a course in practice. I can also reassure your Lordship in terms of knowing that the claimant is going to be properly looked after. I have mentioned the meeting that took place yesterday. There were representatives from the relevant Berkshire Health Trust present at that meeting and in the opinion of my solicitor, whose representative was at the meeting and has a great deal of experience in matters of this sort, she does not expect it to be particularly complicated to sort matters out in relation to helping the family and the claimant receive the treatment that they want him to receive.[72]MR JUSTICE KING: In the circumstances of that which has now been laid before me, I see no reason why habeas corpus should not follow and therefore it will.[73]MR SIMBLETT: Thank you. I come to the question of costs. This has been a heavily contested application. The claimant was forced to make the application after a detailed letter before claim, that your Lordship has seen. He has come to court, he has obtained the remedy that he sought and he should have his costs. However, in my submission, this is a case in which those costs should not merely be on a standard basis, but should be on an indemnity basis.[74]I say that for these reasons: your Lordship has already adverted to the letter from the defendant, which essentially gave what might very charitably be described as a misleading version of events. It was not a letter that should, in my submission, have ever been written by the defendant's solicitors. It invited the claimant to pack his backpack up and go home, as it were, with the application and it was the first in a range of similar correspondence.[75]Your Lordship may remember that on the last occasion I told your Lordship that there had been difficulty in the claimant's solicitors getting access to the medical notes. I have a variety of pieces of correspondence, which I am happy to hand up if your Lordship wants to explore the topic that illustrates that. This is a case where, as it were, obstruction was placed in their way in looking at matters that would be clearly relevant to the application that has been made. Also in addition to it being sent at least one misleading letter, the one your Lordship has referred to in evidence, was placed before the court by the defendant's solicitor again inviting the claimant to withdraw his application and saying that the telephone call had been in fact much longer than the 45 minutes it turned out to be. Misleading what happened was that--[76]MR CLARKE: I am going to object to this. This is really quite wrong. My Lord does not have the correspondence. Please hear me on this. A perfectly honest mistake was made by the solicitor looking at the phone records, which was immediately corrected and explained. There has been an awful lot of fury and heat in the claimant's correspondence about this. They seem to be very angry about the case. It is quite right that the case is important. It concerns the liberty of the subject. My Lord has made an order. There is no complaint about that. Clearly the claimant must have his costs, but all this emotion and passion about matters really have no bearing upon the substance of the case. I would invite my learned friend to perhaps slightly moderate his address.[77]MR JUSTICE KING: It is a slightly dangerous ground the bit about the time, Mr Simblett, because HB herself got it hopelessly wrong.[78]MR SIMBLETT: Of course, it is not just being wrong about it. It is how it was presented. Again, that said, this is how long the call was, "You should withdraw your application if you do not--[79]MR JUSTICE KING: To get indemnity costs, as I remember the principles now, you have to show that it takes it out of the ordinary. There must be some feature which takes it out of the ordinary case.[80]MR SIMBLETT: Matters of conduct can be taken--

MR JUSTICE KING: It is not confined to conduct, but it can be.

[82]MR SIMBLETT: These are matters of conduct.

MR JUSTICE KING: I understand.

[84]MR SIMBLETT: It is not simply being wrong about the times. I can hand your Lordship the letter. I have copies for other people if people want to look at them. It is not only that a mistake is made, it is coupled with, "You should be withdrawing your application and if you do not we shall draw it to the court's attention on costs". That is what they said.[85]I am drawing it to your Lordship's attention on costs. If they thought it was a suitable point to be drawn to the court's attention on costs, so do I. I draw it to the court's attention on the question of costs to invite your Lordship to say that this is a case where it is not simply that the defendants turned up because they happened to have custody of the claimant, and happened to feel because they are charged with the statutory responsibility of looking after him and detaining him, that they ought to see the matter through. They have gone beyond that and stepped very much into the ring to oppose it. They have opposed it vigorously and, in my submission, obstructively. It is a matter for your Lordship to take into account. That is as much as I want to say about it.[86]MR JUSTICE KING: The fact is if the court had accepted the evidence of AO, notwithstanding the timing difficulties which could have done on the submissions made by the defendant, you could not begin to make the submissions.[87]MR SIMBLETT: I could not. I accept all of that.

MR JUSTICE KING: The fact is the timings were wrong on all sides.

[89]MR SIMBLETT: They were. That is the submission I make. I am reassured that there is no objection, in principle, to the claimant having his costs. So I am not addressing your Lordship at all on the principle as to whether I should have costs, just on what measure they should be on. I invite your Lordship--[90]MR JUSTICE KING: It is not the measure of costs. The indemnity basis is about burden of proof when it goes to assessment.[91]MR SIMBLETT: Yes, all of that is right, my Lord. I have made my application. That is how I put it.

MR JUSTICE KING: I should say at once that I am not going to award you indemnity costs.

[93]MR SIMBLETT: The other aspect of the costs matter is that because the claimant is publicly funded in addition to an order for his costs there ought to be an order that his publicly funded costs be assessed for the purposes of his public funding. Different courts put it in different ways, depending on which regulations.[94]MR JUSTICE KING: I am going to ask someone to make sure the order is properly drawn up, in any event. You certainly may have that order.[95]MR CLARKE: Our position on costs, it may not surprise you to hear, is that all of the costs, that is the claimant's costs and my client's costs, should be paid by the London Borough of Lewisham. The reason for that is that my Lord has found that a procedural irregularity occurred here. That was the fault, if I can use that term, of an employee of the London Borough of Lewisham. The local authority has made an error which has led to the illegality of detention, my Lord. My client here fulfils the role of custodial. Effectively in habeas corpus terms we are the jailer. We had a due warrant for the detention. We were presented with the correct paper work. We were the only defendant. The point had to be tested. We had to come here.[96]We were given evidence by Lewisham that suggested that there was a valid issue. There clearly was. My Lord has determined it. We do not dissent from my Lord's conclusion. My Lord has heard the evidence and made a judgment. However, we say the proper order here (I do not say there is any heat or venom directed towards Mr Carr's client, it is simply that one of his people made a mistake) is that the public authority should pick up the tab, rather than me. I am effectively a private subcontractor for the NHS situation.

MR JUSTICE KING: What order are you seeking?

[98]MR CLARKE: I am asking for an order that the claimant's cost and the defendant's costs be paid by the interested party, which is Lewisham. It would be, I suppose, in ordinary civil litigation terms, a Sanderson --

MR JUSTICE KING: I was going to ask, "Was it a Sanderson ?"

[100]MR CLARKE: It is a Sanderson , not a Bullock . I thought it might be. It is one or the other. Where effectively the party which is to blame (without using the term pejoratively) should pick up everybody's tab.[101]MR CARR: The way I approach it is simply this: the finding is that the error lays with the approved social worker. I do not attempt to go behind that. What I ask your Lordship to do when considering costs is to step back and take a realistic view. There are two elements: the first is that if orders like this are made the simple position is that the London Borough of Lewisham will not apply to be joined as an interested party, thereby denying the court the assistance and representation. The Local Authority will say "If we are at risk as to costs you are on your own".[102]Therefore, any incentive in these cases for the appropriate people to be before the court is completely negated. The situation is that the London Borough of Lewisham will simply say to Cygnet, as they could have done, "Here is our witnesses. Do your best with them. You are the defendant. You are the person with detention." Anything which undermines the assistance of the London Borough actually being present and guaranteeing a social worker's attention, guaranteeing documentation, I would hope, should not be taken lightly.[103]The second point really flows on from that: the position is right under section 6(3) under the Mental Health Act that the Cygnet Wing, or any other hospital, has the power to say, "We have proper paperwork. We are therefore ok". That is true right up to the point evidence is put before them, but it is not ok. It is not a blank cheque. It is not a situation where they can say, "We have paperwork. We know evidence has been put in front of us to show it is completely wrong. We can still stick with the paperwork." I do not think there is any dispute that that is what the authority say. That is what my friend has indicated the position is, that were the order made they would obviously release the paperwork as defining.[104]The situation is, as your Lordship said in your judgment, within 24 hours they had a letter saying, "This is all wrong". They then promptly put out a response letter which, with the greatest respect (again this is not done with any animosity) cannot begin to be explained, on any version of the evidence which has been given, which has completely misled or misdirected people at a very early stage resulting in a slant being put on the case, which was never justified by the evidence and has never been explained.[105]The third thing that comes from that is that they are a body responsible for the compulsory detention of individuals. It is really in my submission is right that when they are presented with evidence they are entitled to take a step back and analyse it, I would respectfully say, in the same way as your Lordship has analysed it and say, "Can we continue to do this?" There are ways of rectifying the problem, at any stage, over the last four or five weeks. It could have been a section 29 to remove what was the sister as the nearest relative and a new section 3.[106]In those circumstances, firstly, not dissuading people from being joined who can assist the court. Secondly, the letter and thirdly the responsibility of a body who is paid to detain people compulsory they are to make their own assessment. The appropriate way looking at it in the round is clearly the claimant is entitled to his costs, but as regards the defendant's costs they should bear their own.

MR JUSTICE KING: Who pays the claimant's costs?

[108]MR CARR: The order will be against both the defendants.[109]MR SIMBLETT: My Lord, I do not mind which of those courses is taken as long as somebody pays the claimant's costs. There is something that I should have raised in submissions earlier that does not relate to costs and it is this: one consequence of the order your Lordship has made, and the finding your Lordship has made, is that the claimant has been may well have been unlawfully detained. Since one is supposed to present all aspects of one's claim in one set of proceedings, rather than duplicate them, I would invite permission from your Lordship to amend the claim form to include a claim for damages for false imprisonment. But I do not invite any submission or determination of that aspect of the claim at this stage.[110]MR CLARKE: On that procedural, I would suggest, it would be neater for my learned friend to issue a claim form under Part 7. Can I say that no Sanderson point can conceivably be taken. It is true that under Part 4 a judicial review case can be converted to what used to be a writ action. I am not sure that the same procedure can be applied to habeas, which is a free-standing and unique animal. It would be better to conclude these proceedings with the issue of the writ of habeas corpus and with my learned friend, if he so chooses, to issue proceedings under Part 7 of the CPR. I am not saying that to run away from any such proceedings. If proceedings are to be made plainly they will have to be dealt with. I am not sure it is appropriate to amend.[111]MR SIMBLETT: In the light of what has been said and the indication from counsel to your Lordship that no point is going to be taken if fresh proceedings are brought, I will not persist with that application.[112]MR CLARKE: Briefly on costs. My learned friend Mr Carr says the local authority will not get involved. They can be made to get involved because under the procedure for habeas corpus the court has power to direct that relevant parties be brought in. The local authorities would not volunteer in these circumstances. The hospitals would invite the court to have those parties before the court. Certainly we would have done so in this case if my learned friend's clients had not voluntarily participated. In any event, the court has power in this jurisdiction, as in all others, to award costs against non-parties in appropriate cases. Even if they are not formerly a party as here an interested party, the court would have power, where appropriate, to exercise that power to grant cost.[113]We would say, in principle, this is a case where it would be appropriate if that were the situation. The letter, we say, really leads nowhere. My Lord has not made a ruling on that. He has said no explanation has been offered. More tellingly in this case the letter did not mislead anyone effectively. The claimant press on and was not deterred. It issued the proceedings. It did not divert the proceedings in any way. The evidence when it came out was clear all along. The evidence never changed. Regarding my learned friend's last point, my client is not a High Court judge; my Lord is. We were presented with startling conflicting evidence. We were charged by a responsible public authority to detain this patient in circumstances where there is a background of forensic conduct. It was not for us to decide in a case in circumstances where the evidence plainly had to be tested and a judicial review taken.[114]I would suggest that we cannot really be criticised for acting effectively upon the evidence, which was put forward by my learned friend, and argued by the borough as acceptable and reliable evidence. That is why I would say that a Sanderson order is the right one.[115]MR JUSTICE KING: In the circumstances of this case I am not going to make a Sanderson order. I am going to make an order that the claimant is entitled to his costs. The order be against both defendants and as between the two sets of defendants they should bear their own costs. Everything depends on the court's view of individual claims, but here it seems to me that the hospital chose to adopt the evidence of the approved social worker. They persisted notwithstanding the material which has been provided by the claimant, as much as by anybody else. In all those circumstances, it seems to me that costs should follow the event in the way I have described. That is the order I make.[116]I ought to say I do have in mind, notwithstanding submissions, the contents of the letter, to which I have referred.

Cited in 1 later judgment