Modaresi, R (On the Application Of) v Secretary of State for Health & Ors [2011] EWHC 417 (Admin)

[2011] EWHC 417 (Admin)Case No CO/416/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/03/2011
Before
MR JUSTICE EDWARDS-STUART
Between
The Queen on the application of ELHAM MODARESIClaimantSECRETARY OF STATE FOR HEALTHDefendantFIRST-TIER TRIBUNAL (MENTAL HEALTH)DefendantWEST LONDON MENTAL HEALTH NHS TRUSTDefendant
Matthew Stockwell (instructed by Peter Edwards Law) for ClaimantsPaul Greatorex (instructed by DWP/DH Legal Services) for 1 st DefendantsOwain Thomas (instructed by Capsticks Solicitors LLP) for 3 rd DefendantsHearing Hearing dates: 22 FEBRUARY 2011
Judgment

Introduction

[1]This is an application by the Claimant for judicial review arising out of her detention under section 2 of the Mental Health Act 1983 (“the Act”). She claims that as a result of the wrongful acts of the Third Defendant she was prevented from making an application to the First Tier Tribunal within 14 days of her admission to hospital on 20 December 2010 as permitted by section 66(1) of the Act. Alternatively, she claims that the Second Defendant, the First Tier Tribunal, wrongly declined to accept her claim on the ground that it was out of time. As against the First Defendant, she complains that on 7 January 2011 he wrongfully refused to refer her case the First Tier Tribunal under section 67 of the Act (by which time the basis of her detention had changed from section 2 to section 3).[2]It can therefore be seen at once that the claims against the First and Third Defendants and the claim against the Second Defendant are mutually exclusive.

The facts

[3]The Claimant suffers from schizophrenia. On 20 December 2010 she was admitted to hospital for assessment under section 2 of the Act. By virtue of section 66(1)(a) of the Act she had 14 days within which to make an application to the Tribunal and so, on the face of it, this period expired on 2 January 2011, which was a Sunday.[4]Under the Mental Health Act Code of Practice, chapter 32, and by virtue of section 132 of the Act, hospital managers are under a duty to take steps to ensure that patients understand their rights to apply for a Tribunal hearing when they are first detained in hospital. Further, unless the patient requests otherwise, the information should normally also be given to their nearest relative. It is not suggested that in this case the Claimant was not given this information shortly after she was admitted to hospital.[5]It seems that at some time on 30 or 31 December 2010 the Claimant asked for a Mental Health Review Tribunal application form so that she could make an application to the Tribunal within the prescribed 14 days. At any rate, she completed an application form on 31 December 2010, probably around the middle of the afternoon. She gave it to a Mr Stephen Urry, a member of staff on her ward, for onward transmission to the Tribunal.[6]In accordance with the prevailing procedure within the Third Defendant Mr Urry faxed the form to the Mental Health Act Administration Office, from where it would be sent on to the Tribunals Service. The fax transmission header on the application form and attached cover sheet shows that it was sent to the Administration Office at 16:41 hours on Friday, 31 December 2010. The message on the cover sheet, which was marked urgent, read:
“Dear All Happy New Year, please find attached an appeal form for E C of Mary Seacole Ward Thanks” please find attached an appeal form for E C of Mary Seacole Ward Thanks”

please find attached an appeal form for E C of Mary Seacole Ward

[7]There is no direct evidence of what happened next, but what is said by the Third Defendant is that the Administrator was not present in the office at the time when this fax must have been received (apparently she was away for the day) and that the fax was not seen by the member of staff who was covering for her on that day. That, of course, was the Friday before New Year. The office was then closed until Tuesday, 4 January 2011, when the fax was picked up and brought to the attention of the Administrator. It was then forwarded by fax to the Tribunals Service.[8]On 5 January 2011 the Tribunals Service wrote to the Claimant’s solicitors to advise them that the application made by their client on 31 December 2010 had been confirmed as invalid because it was received in that office outside the 14 day time limit. They said that they had closed the file and that no further action would be taken.[9]This letter was received by the Claimant’s solicitors on 7 January 2010. That day they sent an e-mail to the First Defendant. I should set out its contents in full: “Please find attached a completed (but unsigned and undated) referral form for a First Tier Tribunal. Our above-named client was detained under s.2 MHA 1983 on 20.12.10. We understand that our client completed an application form for a First Tier Tribunal in relation to her s.2 detention within the 14 day time limit. Unfortunately, due to this form being completed over a bank holiday weekend, the form was not faxed over to the Tribunals Service until 4.1.11 when the Mental Health Act Administrator returned to work which was then outside the 14 day limit. We have received notification from the Tribunals Service that the application is, therefore, considered invalid and that they have closed the file and will be taking no further action. We are writing to ask that the Secretary of State refer to our client’s case for a Tribunal in accordance with s.67 MHA 1983. We make this application on the basis that, through absolutely no fault of our client, the application was not sent to the Tribunals Service in time. Although our client completed the form in time, due to no procedures being in place at the hospital for applications to be submitted when no Mental Health Act administrator is on duty, she was not facilitated in ensuring that the application was sent immediately to the Tribunals Service. While our client is now detained under s.3 and therefore is eligible to submit a new application for a First Tier Tribunal, to do this would deprive our client of her hearing to which she was entitled as a s.2 patient. Should the Secretary of State agree to make the requested referral, this will ensure that our client will retain her right of application under s.3 in due course. We would be obliged this request could be considered as a matter of urgency." We would be obliged this request could be considered as a matter of urgency."[10]The Department of Health replied on the same day in the following terms: “Thank you for your e-mail of today's date asking the Secretary of State for Health to exercise his discretionary powers under section 67 of the Mental Health Act 1983 ("the Act") to refer the case of your client, Elham Modaresi (aka Elham Chogani) to the First Tier Tribunal. The Secretary of State does not take the view that a reference must invariably be made where a patient has failed to exercise the right provided in the Act to apply for a hearing within 14 days of being admitted under section 2 of the Act. The 14 day limit exists for a purpose. The Act makes no special provision for Public or Bank Holidays or other non-working days. The Secretary of State has noted that Ms Modaresi was originally detained under section 2 of the Act on Monday, 20 December 2010. Accordingly, Ms Modaresi had until Sunday, 2 January 2011 in which to apply to the First Tier Tribunal for a hearing against her detention under the Act. You have advised that although Ms Modaresi duly completed an application form during that weekend, there were no arrangements in place for applications to be dealt with in the absence of the mental health act administrator. For this reason, the application form was not faxed to the Tribunals Office until 4 January 2011 when the mental health act administrator returned to work. Ms Modaresi was subsequently detained under section 3 of the Act on Thursday, 6 January 2011. The Secretary of State has considered all the information before him and has decided on this occasion not to exercise his discretionary powers under section 67 of the Act to refer the case of Ms Elham Modaresi aka. Elham Chogani to the First Tier Tribunal. In reaching his decision, he took into account that as Ms Modaresi is now detained under section 3 of the Act, she can make her own application to the First Tier Tribunal. In the event that Ms Modaresi did not make an application, the hospital managers would have to make a reference under section 68 of the Act as of 20 June 2011, when Ms Modaresi would have been detained under the MHA for more than 6 months. However, should Ms Modaresi make an application to the First Tier Tribunal and the tribunal panel were to uphold her detention under the Act, the Secretary of State would consider any further request for a section 67 reference submitted during her current period of detention."[11]As this letter makes clear, on 6 January 2011 the Claimant ceased to be detained for assessment under section 2 of the Act but instead became detained for treatment under section 3 of the Act. That gave her a fresh right to apply to the Tribunal within the next 6 months. However, it is important to note that the Claimant could only exercise this right once during that 6 month period.[12]If the Claimant’s application, which she made whilst she was still detained under section 2 of the Act, had been submitted in time, her application would have been heard by the Tribunal within 7 days, because that is what Rule 37(1) of the Tribunal Procedure Rules requires where an application is made by a person detained under section 2. In practical terms, this would have meant that the Tribunal would probably have heard her application on 7 January or, possibly, since the 7 day period would have expired at a weekend, on the following Monday, 10 January 2011. In any event, it appeared to be common ground that by the time the hearing took place the Claimant would have been detained under section 3, and not under section 2.[13]It is now settled law that where a patient who is detained under section 2 of the Act makes an application to the Tribunal and, by the time when the application is heard the patient has become detained under section 3, the Tribunal will proceed to hear the application under section 2 but will apply the criteria relevant to an application under section 3 of the Act, not those applicable to section 2: see R v South Thames Mental Health Review Tribunal, ex parte M, 3 September 1997, Collins J (unreported). The importance of this is that the patient can have his or her application heard without having to use up the right to make a further application as a section 3 detainee: this preserves his or her right to make a further application during the following 6 month period which he or she acquired on becoming detained under section 3.[14]The preservation of this right to make a further application may be of some importance to a detainee because it is in the nature of those detained under the Act that their mental condition can fluctuate or respond to treatment. For example, it would be quite possible for an application by a person recently detained made in, say, January to fail, whilst a further application made after three or four months of treatment may succeed. However, if by making an application in January the detainee has used up his or her right to make an application during that 6 month period he or she is then reliant on any further application being by way of referral by the Secretary of State (by section 67 of the Act the Secretary of State may, if he thinks fit, refer to the Tribunal at any time the case of any patient who is liable to be detained).[15]The Claimant did not make an application as suggested by the Department of Health in its letter of 7 January 2011, but instead issued proceedings for judicial review against all three Defendants on 17 January 2011. In a brief witness statement served in support of her claim she said this: “I am now detained under s.3 Mental Health Act 1983. My section 3 started on 6 January 2011. I have not exercised my right of appeal since the s. 3 was implemented as I am instructing Peter Edwards Law to challenge the Tribunal's refusal to accept my application, the Secretary of State’s refusal to refer the case under s. 67 and also pursue a claim against the Hospital."[16]By an order made on17 January 2011, Lloyd Jones J abridged the time for lodging Acknowledgements of Service to 4 pm on Monday, 24 January 2011. He also directed that the application for permission should be considered on Tuesday, 24 January 2011. In fact, the application was considered by Cox J on 26 January 2011 and she gave permission, noting that in spite of the order of Lloyd Jones J of 17 January 2011, the First Defendant had not lodged an Acknowledgement of Service.[17]Cox J said that she considered the Claimant’s grounds were arguable and that the matter required urgent consideration because the Claimant was currently compulsorily detained under the Act. She said also that on the basis of the material before her she was not persuaded that the claim could properly be characterised as academic, given that it concerned access to the Tribunal by a person who had been detained under section 2 of the Act. In other words, she was inclined to reject the suggestion that the Claimant could be said to have an effective alternative remedy by virtue of her right to make a fresh application since the basis of her detention had changed. She considered that Article 5 was plainly engaged.[18]On 1 February 2011, following Cox J's order giving permission to apply for judicial review, the First Defendant made a referral under section 67 of the Act on the Claimant's behalf. In the light of that, the First Defendant submitted that the Claimant's claim against the First Defendant was academic.[19]Thereafter the case was listed for hearing on 22 February 2011, when it came before me. However, in the meantime there had been another development. On 18 February 2011 the Claimant became the subject of a Community Treatment Order, with the result that she was released from detention. The First and Third Defendants submitted that this was a further factor that made the present proceedings academic.

The application

[20]It is important to keep in mind precisely what this application for judicial review is about and, more importantly, what it is not about. As against the First and Second Defendants the position is reasonably clear. I will take them in chronological order.[21]As against the Second Defendant, the Claimant seeks an order quashing the decision of 4 January 2011 not to accept the Claimant's application as valid and, further or alternatively, a mandatory order directing the Second Defendant to accept the Claimant's application and to arrange a hearing as soon as practicable and, in any event, within 7 days. Alternatively, there is a request for a declaration that the decision was unlawful and should be reconsidered.[22]As against the First Defendant, the Claimant seeks an order quashing the decision in the letter dated 7 January 2011 refusing to refer the Claimant's case to the Tribunal for review. Alternatively, there is again a request for a declaration that the decision was unlawful and should be reconsidered.[23]As against the Third Defendant, the Claimant seeks a declaration that the Third Defendant acted unlawfully. Further or alternatively, there is a request for "a declaration that the Claimant’s right under Article 5(4) ECHR has been infringed/she has been unlawfully deprived on (sic) her liberty". In addition, she seeks damages at common law and/or under Article 5(5).[24]However, in the Statement of Facts and Grounds submitted with the application, there is no claim against the Third Defendant that the Claimant's initial admission to detention under either section 2 or section 3 was unlawful. In the Summary, the claim is put in this way: “34. In the circumstances, the Claimant maintains that she has already been unlawfully deprived of her liberty under Article 5(4) of the ECHR since 7 January 2011 (or 11 January 2011 at the very latest) and this state of affairs is continuing. 35. The collective effect of the respective failures/decisions of the Defendants, is that the Claimant has been deprived of a timely review of her detention in accordance with r37(1) of the Tribunal Rules (within 7 days of receipt of her application to the Tribunal). This is clearly an infringement of her right under Article 5(4) of the ECHR."[25]I find the claim, as put in this way, to be confusing. I take the reference to the dates of 7 or 11 January 2011 to be the dates on or by which a Tribunal would have heard (or, at least, started to hear) the Claimant's application if it had been made in time, or accepted as being in time. However, I am not clear how it could be said that the Claimant was thereafter deprived of her liberty unlawfully unless it is assumed that the Tribunal would have allowed the application and directed her release. There is no case to this effect. Indeed, it would be a difficult case to establish.[26]It seems to me that the Claimant’s real case against the Third Defendant is that, in breach of Article 5(4), it wrongfully deprived her of her right to take proceedings by which the lawfulness of her detention could be decided speedily. There is no question but that if the Claimant's application had been made in time, there would have been a speedy hearing. It is also not in dispute that after 6 January 2011 she could no longer make an application that would have to be heard by the Tribunal within 7 days: it appeared to be common ground that the likely delay in hearing an application made by or on behalf of a person detained under section 3 would be of the order of 6-8 weeks. In fact, I was told that the application made on the Claimant's behalf by the First Defendant on 1 February 2011 had been listed for hearing on 11 March 2011.[27]Effectively, the case against the Third Defendant is that instead of having her application to review her detention heard on 7 January 2011, alternatively 11 January 2011 at the very latest, it cannot now be heard until about two months later. As a result, she submits, effect has not been given to her right to take proceedings for the speedy review of her detention. Put in this way the claim is at least coherent, even if it is not obvious how any claim for damages would be assessed.[28]So in spite of the reference in the Claimant's Claim Form to the Claimant being unlawfully deprived of her liberty, there is no reference to any breach of Article 5(1), either in the Claim Form itself or in the supporting grounds. Thus this claim is not about unlawful detention in breach of Article 5(1). It is about the right provided by Article 5(4) by which any person who is deprived of his liberty by arrest or detention "shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court".[29]It is against this background that the First and Third Defendants have submitted that the claims against them are misconceived. The First Defendant submits that since the basis of the Claimant's detention changed from section 2 to section 3 of the Act, the Claimant has had the right to challenge that detention by way of an application to the Tribunal without any intervention by the First Defendant and that, the basis of the Claimant’s detention having been changed to section 3 before the impugned decision of 7 January 2011, there was nothing that the First Defendant could do to provide her retrospectively with a hearing in relation to her detention under section 2. Further, the First Defendant submits that having made an application on the Claimant’s behalf on 1 February 2011, the claim has become academic.[30]On behalf of the Third Defendant it is pointed out that no ground of challenge is raised which calls into question the lawfulness of the Claimant's detention from 31 December 2002 to 6 January 2011 under section 2 of the Act, or thereafter under section 3 of the Act. It is submitted that the conduct of the Third Defendant that is complained of is properly characterised as one of clerical error or oversight, in respect of which there is no public law remedy. The Third Defendant also submits that the claim is in any event hypothetical and academic.[31]In opening the application Mr Matthew Stockwell, who appeared for the Claimant, submitted (if I understood him correctly) that if the First Defendant had exercised his discretion in the Claimant's favour on 7 January 2011 there would have been an early hearing before the Tribunal within the 7 day period. This is a submission which, it is now clear, cannot be sustained on the facts. He made it clear, in response to a question from the court, that no complaint was made about the advice given to the Claimant on her admission in relation to her right to apply to the Tribunal. The complaint against the Third Defendant was, in effect, that it could not be right that the Claimant’s entitlement to make an application to the Tribunal within the 14 day period could be lost in such a trivial way as a result of maladministration by the Third Defendant.[32]After Mr Stockwell had been on his feet for about 20 minutes, Mr Paul Greatorex, who appeared for the First Defendant, intervened to protest that the claim against his client was being entertained when it was in truth academic. First, he submitted, at all times since 7 January 2011 the Claimant had had a fresh right to make an application to the Tribunal to review her detention under section 3. Second, the First Defendant had in any event subsequently made a referral on her behalf to the Tribunal under section 67 of the Act, as requested by the Claimant’s solicitors on 7 January 2011, thus providing the relief that she had claimed. He submitted that it was not the practice of the Administrative Court to entertain issues that had become academic. The whole purpose of the First Defendant's decision to make the referral on 1 February 2011 was to avoid these proceedings and save unnecessary expenditure on costs.[33]Mr Greatorex also pointed out that the application for permission had been granted before the First Defendant had had the opportunity to lodge an Acknowledgement of Service, since he had not received from the court the order of Lloyd Jones J dated 17 January 2000 abridging time for doing so.[34]Mr Greatorex accepted that the Claimant might, in theory, have a claim for damages against the First Defendant if it could be shown that the decision of 7 January 2011 was unreasonable, but that in order to succeed on such a claim the Claimant would have to show also that the breach of duty was one that gave rise to a remedy in damages, leaving aside the further question of whether the Claimant had in fact suffered any loss at all. These issues, submitted Mr Greatorex, were not appropriate for determination at an expedited hearing of an application for judicial review.[35]The Second Defendant, the First Tier Tribunal, who was not represented before me, had lodged an Acknowledgement of Service briefly setting out its position on the question of whether or not the Claimant’s application was in time. Mr Owain Thomas, who appeared for the Third Defendant, supported the position taken by Mr Greatorex.[36]Mr Stockwell's response to these submissions was that the Claimant had a bona fide claim, had been given permission to bring it and was entitled to have it heard. It seemed to me that there was some force in the submissions made on both sides. I therefore indicated to the parties that I proposed to adopt the following procedure. First, I would decide the short question of whether or not the Claimant's application to the Tribunal was in time. If that question was determined in the Claimant's favour, then the claims against the First and Third Defendants would fall away. If that issue was determined against the Claimant, then I would consider the case against the First Defendant.[37]In relation to the latter, I indicated to counsel that I would hear the argument and, if persuaded that the First Defendant was right, I would decide the issue. However, if I considered that the Claimant had a reasonably arguable case against the First Defendant, I would not determine it at this expedited hearing but would adjourn it so that the First Defendant could put in any evidence if it wished and that all the claims against the First Defendant could be heard and determined at the same time.[38]Counsel for both the Claimant and the First Defendant indicated that they did not object to this course and so that is what I did. As far as the Third Defendant was concerned, I indicated that after dealing with the First and Second Defendants I would hear the Claimant's claim against the Third Defendant if it was still live (in the light of my conclusion on the question of whether or not the Claimant's application to the Tribunal was in time).[39]Having heard argument from both the Claimant and the First Defendant, I held first that the application to the Tribunal was out of time, with the result that the claim against the Second Defendant failed and, second, that the decision of the First Defendant by its letter of 7 January 2011 was not capable of being impugned as unreasonable. Accordingly, the claim against the First Defendant failed also. I said that I would give my reasons later, and that I do in this judgment .[40]This judgment also deals with the claim against the Third Defendant.

The claim against the Second Defendant

[41]Section 66(1) of the Act provides as follows:
“(1) Where (a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or (b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; an application may be made to [the appropriate tribunal] within the relevant period (i) by the patient . . . (2) In subsection (1) above "the relevant period" means - (a) in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned; (b) in the case mentioned in paragraph (b) that subsection, six months beginning with the day on which the patient is admitted as so mentioned . . .” (a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or (b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; (i) by the patient . . . (a) in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned; (b) in the case mentioned in paragraph (b) that subsection, six months beginning with the day on which the patient is admitted as so mentioned . . .”
[42]It is common ground that neither the Act nor the Interpretation Act 1978 contains any relevant provision about the calculation of periods of time.[43]However, Mr Stockwell referred me to paragraphs 12 and 32 of the Tribunal Procedure Rules 2008. These provide as follows:
“12 Calculating time (1) . . . (2) If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. 32 Procedure in mental health cases (1) An application or reference must be- (a) . . . (b) . . . (c) sent or delivered to the Tribunal so that it is received within the time specified in the Mental Health Act 1983 or . . .” (1) . . . (2) If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. (1) An application or reference must be- (a) . . . (b) . . . (c) sent or delivered to the Tribunal so that it is received within the time specified in the Mental Health Act 1983 or . . .”
[44]Mr Stockwell submitted that the jurisdiction of the Tribunal was governed by the Tribunal Rules with the result that, since the 14 days expired on a day other than a working day, the application could be submitted in time if it was received by the Tribunal on the next working day which, in this case, it was.[45]In my view, the short answer to this is that paragraph 12 of the Rules has no application to the time limit specified in section 66(1) of the Act because that time limit is not one “specified by these Rules, a practice direction or a direction", but is one specified in the Act. Paragraph 32 makes it clear that an application under section 66 must be sent or delivered to the Tribunal so that it is received within the time specified in the Act. The time specified in the Act is "14 days beginning with the day on which the patient is admitted". Unless compelled by authority to decide otherwise, I consider that those words mean what they say.[46]Mr Stockwell referred me to a passage in a judgment of Lord Denning MR in Pritam Kaur v S Russell and Sons Ltd [1973] QB 336, which was cited by the Court of Appeal in Barnes v St Helens Metropolitan Borough Council [2007] 1WLR 879. The passage in Lord Denning's judgment was as follows:
"The defendants can say: "
The plaintiff has three years in which to bring his action. If the last day is a Saturday or Sunday, or other dies non, he ought not to leave it until the last day. He ought to make sure and issue it the day before when the offices are open" . . . The plaintiff can say:
"The statute gives me three years in which I can bring my action. If I go in to the offices on the last day, and find them closed, I ought not to be defeated on that account. I should be allowed to go the next day when the offices are open. Otherwise I shall be deprived of the three years which the statute allows me"."
The court accepted the argument for the plaintiff. But in my judgment that case does not assist here because a patient can send an application to the Tribunal by fax so that it is received almost instantaneously irrespective of whether the office is open or closed (a form of delivery that was not, I think, available in 1973). The court in Barnes referred also to the case of Van Aken v Camden London Borough Council [2003] 1 WLR 684, a case concerning the requirement for a party to bring an appeal against a housing authority's review decision "within 21 days" of notification of that decision. The appellant’s solicitor delivered the appellant’s notice to the court after it had closed on the last day. The notice was held to be in time. The Court of Appeal pointed out that delivery to an office involves a unilateral rather than a transactional act. There is no need for anyone in the office to do anything. Accordingly, there is no need to extend the time to the next working day if it would otherwise expire on a weekend or bank holiday because the application can be delivered during the non working days by fax.[47]Since the Tribunal’s rules do not require the Tribunal to perform any administrative act upon receipt of an application in order to validate its delivery, there is no reason to construe the time period in section 66(2)(a) as extending to the next working day if the expiry of the time limit would otherwise fall on a weekend or bank holiday.[48]I therefore conclude that the Claimant’s application to the Tribunal, which was received by or on behalf of the Tribunal on Tuesday 4 January 2011, was out of time. Accordingly the claim against the Second Defendant fails.

The claim against the First Defendant

[49]I have already set out above the exchange of correspondence between the Claimant’s solicitors and the Department of Health on 7 January 2011. It is the decision of the First Defendant contained in the Department of Health’s letter that is the subject of the challenge.[50]As Mr Greatorex pointed out, it is undeniably correct that, by 7 January 2011, there was nothing whatever that the First Defendant could do to restore the Claimant’s right to make an application for review of her detention under section 2 of the Act. Accordingly, the right to make an application that would be heard within 7 days was lost for ever. It was not suggested that any referral by the First Defendant under section 67 of the Act would be heard and determined any sooner than an application made by the Claimant herself under section 66(1)(b) of the Act, being an application which she herself had a right to make on 7 January 2011.[51]Accordingly, as Mr Greatorex submitted, the decision of the Secretary of State not to make an application on behalf of the Claimant on 7 January 2011 did not affect the Claimant's entitlement to take proceedings by which the lawfulness of her detention could be decided speedily by a court. It therefore did not adversely affect the Claimant's rights under article 5(4). That, he said, is sufficient to dispose of this claim against the First Defendant.[52]However, this was not the thrust of Mr Stockwell's submissions as made at the hearing or, so far as I read them, in the Claimant's Statement of Grounds. The case as put by Mr Stockwell was that the refusal of the First Defendant to make an application under section 67 caused prejudice to the Claimant because, if she wished to make an application, she would be forced to use her one and only opportunity in circumstances where she had been deprived, through no fault of her own, from making her application under section 2 (even though it would have fallen to be judged by reference to the section 3 criteria). In effect, the Claimant is saying that the First Defendant should have exercised his discretion so as to minimise the adverse effect on the Claimant of having lost her right to apply under section 2 (albeit not as a result of anything done by the First Defendant).[53]The claim is also put in a rather more subtle way. By refusing to make a referral under section 67 the First Defendant has deprived the Claimant of the opportunity of retaining the right to make a further application for the review of her detention under section 3 during the six months beginning on 6 January 2011. To that extent, therefore, there has been a diminution of the Claimant’s rights under article 5(4).[54]In answer to this point, Mr Greatorex relied on the last paragraph of the Department of Health’s letter of 7 January 2011, in which it was stated that should the Claimant make an application to the Tribunal and have it rejected, the First Defendant would consider any further request for a section 67 reference that was made during her current period of detention. Mr Greatorex submitted that the Claimant would not have a claim for breach of her rights under Article 5(4) - if she had a claim at all - unless and until the First Defendant was asked to make that reference under section 67 and declined to do so.[55]In my view, that is a good answer. So long as the Claimant has a right to bring a claim herself under section 66(1)(b), her right under Article 5(4) remains unimpaired. It is not until she loses that right by making an unsuccessful claim for review that there can be any possibility of a decision taken by the First Defendant in the future as to whether or not to make an application on her behalf under section 67 having an adverse impact on the Claimant’s Article 5(4) rights.[56]So far, I have considered the claim by the Claimant only in the context of causation. I now turn to the reasonableness of the decision made by the First Defendant in the letter of 7 January 2011.[57]Mr Stockwell criticised the decision as unreasonable because the First Defendant did not take into account the Claimant's loss of the right to make an application under section 2 and took into account only the fact that the Claimant could then make an application for a review of her detention under section 3. Mr Stockwell submitted that that was too narrow a consideration.[58]Mr Stockwell referred me to the opinion of Baroness Hale in R (H) v Secretary of State for Health [2006] 1 AC 441. The issue in that case was whether the procedure under section 29 of the Act resulted in a situation that was incompatible with the patient's right to take proceedings for a speedy determination of the lawfulness of her detention. The patient in that case was admitted for assessment under section 2 of the Act. Her mother, as her nearest relative, gave notice to the hospital authorities of her intention to discharge her daughter under section 23 of the Act. The day before the expiry of the 28 day I suggest limit for a detainment for assessment, an approved social worker applied under section 29 of the Act to the County Court for an order directing that the functions of the nearest relative should be exercised by the social worker, rather than by the patient's mother. By virtue of section 29(4) of the Act the period for which the claimant was to be detained was accordingly extended until the social worker's application was finally disposed of by the County Court. Whilst Parliament may have contemplated at the time when the Act was passed that such actions would be heard and determined fairly speedily, the position in practice was that they could drag on for a considerable time. This was most unsatisfactory from the patient's point of view because she had no right of review whilst the section 29 application was pending. The House of Lords held that English law did provide a means of securing that the lawfulness of the patient's detention could be subject to judicial determination in the form of the procedure under section 67 of the Act. The Secretary of State could use her power under section 67 to refer the case to the tribunal at any time.[59]Rather than provide support for Mr Stockwell's case, it seems to me that this decision reinforces the First Defendant's submission that the refusal to make an application whilst the Claimant still had the right to do so, and to say that it would consider a request to make a further application thereafter under section 67 if the application was unsuccessful, was a reasonable response.[60]I was referred also to a Department of Health Guidance document, which contained the following:
"Requests for references under section 67 Anyone may ask the Secretary of State for Health to make it a reference for any reason at any time. In practice, requests are most commonly made in cases where: • a patient detained under section 2 misses the 14 day deadline for applying to the Tribunal through no fault of their own and that there is still time for a hearing to be arranged before the section 2 is due to expire; • . . . These examples do not preclude references being made under section 67 in other situations."
[61]In the letter of 7 January 2011 the writer said that "the Secretary of State does not take the view that a reference must invariably be made where a patient has failed to exercise the right provided in the Act to apply for a hearing within 14 days of being admitted". I did not understand the Claimant to raise any objection to this (although the implication that the failure might have been the Claimant’s fault was challenged). It was also noted that the basis of the Claimant’s detention had changed from section 2 to section 3 on the previous day, Thursday 6 January 2011.[62]It seems to me that it was well within a proper exercise of the Secretary of State’s discretion to decline to make a referral on behalf of the Claimant for so long as she had the right to make that application herself. If the application was unsuccessful and circumstances subsequently changed, the Secretary of State could always be asked to make a referral on the Claimant's behalf at that stage. The Secretary of State had specifically said that he would consider any such application if and when it was made.[63]It is for these reasons that I consider that the claim against the First Defendant must fail, as indicated in my ruling on 22 February 2011.

The claim against the Third Defendant

[64]Mr Stockwell submitted that there was clearly an overriding public interest in ensuring that there was a proper system in place for giving effect to a detainee's Article 5(4) rights. He stressed, rightly I think, that any patient in the position of the Claimant who is suffering from some form of mental illness may need all manner of help, so that the exercise of rights has to be both practical and effective. If, as the Third Defendant submitted, there was no public law or private law responsibility, the claimant would be left without any redress.[65]Whilst Mr Stockwell conceded, very properly in my view, that an isolated failure by an employee of the Third Defendant would not give rise to a remedy by way of judicial review, he submitted that on this application the onus was on the Third Defendant to show, first, what its system was for ensuring that applications made by patients were promptly forwarded to the Tribunal and, second, its justification for that system. Mr Stockwell submitted that the Third Defendant had done neither.[66]Mr Stockwell also submitted that the patient’s Article 5(4) rights would have been adequately protected if the Third Defendant had had a system for ensuring that application forms that were filled out by patients and given to members of staff outside normal office hours were transmitted directly from the ward to the Tribunal. As I shall explain below, it appears that this is the current system.[67]Paragraph 3 of the Third Defendant’s Detailed Grounds (omitting references) was as follows: “She [the Claimant] completed a form on Friday 31.12.10. It was faxed to the Mental Health Act Administrator's office on that day but the administrator was not present at the time and the form was not seen by the member of staff covering for her on that day. The [Third] Defendant understands that the form was faxed at about 4 pm to the Administrator's office. It was not picked up until a member of staff brought it to the attention of the Administrator on 4.1.11. The form was faxed to the Tribunal who refused to accept the application as it had been received by them out of time."[68]In support of its defence the Third Defendant submitted a witness statement by a Mr Kevin Towers. He is the Head of Mental Health Law & Clinical Records, a post that he has held since September 1990. His responsibilities included the overseeing of the running of the Metal Health Act administration offices for the Trust. He confirmed that the Third Defendant maintained at the position set out in its Detailed Grounds.[69]Paragraphs 6 and 7 of his witness statement are of particular relevance and so I will set them out in full: “6. In respect of Tribunal procedure, I may add that it had been their practice to calculate the time limits from the date on which applications were made. We have only recently been informed that in or around September or October 2010 the practice changed, to calculate time limits from the date of receipt. My belief is that our staff proceeded on the assumption that the pre-existing practice continued to obtain, and accordingly that the Claimant’s application was not regarded by us as being received, or transmitted, out of time. 7. We do apologise for the inconvenience to which the Claimant has been put, and may confirm that there is unlikely to be any recurrence of what happened, by inadvertent oversight, in the course of that New Year period. We have taken steps to ensure that wards submit s. 2 applications by fax directly to the Tribunal over weekends and public holidays."[70]It seems to me that the following propositions can be drawn from the Third Defendant’s Grounds and the witness statement of Mr Towers:(1) Prior to this incident the Third Defendant had no system in place for dealing with applications made by patients at weekends and public holidays in a different manner.(2) The reason for this was the belief that the Tribunal’s practice was to calculate time limits from the date when applications were made. Mr Towers does not explain precisely what he means by "the date on which applications were made", but in the context I assume that he must mean the date when the application form was signed by the patient (because if the application was not made until it was faxed to the Tribunal, the situation would have been no different to that which exists now).(3) Paragraph 3 of the Third Defendant’s Grounds contains a correct summary of the Third Defendant’s case as to what happened on the afternoon of Friday, 31 December 2010. In other words, that the Administrator's office was manned by a member of staff who was on duty (or meant to be on duty) that day who did not see the application form when it was received on the fax machine.(4) Since it is not suggested the Administrator’s office would ordinarily have been closed by the time that the fax was sent by Mr Urry at 4.41 pm on 31 December 2010, it can be inferred that the office should have been open - I presume until at least 5 pm.[71]It is unclear, and indeed may not matter, whether the member of staff who was covering for the Administrator on 31 December 2010 had left the office early that afternoon, being New Year's Eve, or whether he or she was in the office until the usual time but simply did not notice the arrival of the fax.[72]Whatever the true position as to what happened in the Administrator's office, there can be little doubt that the fax was sent to the office at about 4:40 pm on that Friday. As I have said, I assume, because no one has suggested otherwise, that that was during normal working hours. Accordingly, in the ordinary course of events the application form should have been seen when it appeared on the fax machine and then forwarded on the same day to the Tribunals Service. For some reason it was not. Given that it was after 4.30 pm on New Year’s Eve, it might perhaps have been prudent of Mr Urry to ring the office and warn them that an urgent fax was on its way, but since no complaint has been made to this effect and there is no evidence from Mr Urry, it would be wrong of me to reach any conclusion adverse to him.[73]But, however the failure occurred, there is no evidence to suggest that this was the result of anything other than an oversight by one or more members of the Third Defendant’s staff or, possibly, the unauthorised early departure from the office of that member of staff who was meant to be on duty there that afternoon. It is accepted that such “one off” conduct by one or more employees of the Third Defendant does not of itself give rise to a public law remedy.[74]If, as Mr Stockwell suggested, the Third Defendant should have had in place arrangements such as those described by Mr Towers by which, during weekends and public holidays, applications to the Tribunal were sent directly from the ward, it is unlikely in my judgment that this would have made any difference to what happened on the afternoon of Friday, 31 December 2010. This is for the simple reason that the policy would not have applied where an application form was given to a member of the ward staff during normal working hours. In that situation, the procedure would have been for the form to be sent to the Administrator's office in the usual way as in fact happened.[75]In the light of this conclusion any claim for damages against the Third Defendant based on the failure to have such a system in place could not succeed.[76]In my view, the only system that would have averted the effects of the failure that occurred on this occasion would have been a system by which the Administrator’s office was checked daily for the receipt of any applications under the Act from the wards. This would involve someone going into the office on a daily basis on weekends and public holidays in order to check the fax machine or for any other form of delivery. It was not suggested that this is what the Third Defendant should have done and, even if it had been, I would not be prepared to hold that the failure to have such a system was in any way unreasonable.[77]The allegation by the Claimant is that the Third Defendant failed “to implement or maintain an appropriate system for prompt onward transmission of applications to the Tribunal on behalf of patients in its care". In her Grounds the Claimant states that it is unclear whether the Third Defendant had no appropriate system for dealing with applications in the absence of the person who typically processed them or whether a system existed, but broke down. The Claimant does not say, perhaps understandably, what that system should have been.[78]Mr Stockwell reminded me, rightly I think, that it would be wrong to approach this case on the basis that the patients detained under the Act could be expected to behave in a reasonable manner. The fact that they may not behave in a reasonable manner could well be the very reason why they are there. Whilst it could be said with some force that any reasonable person who leaves it until 4:30 pm on New Year's Eve to submit an application that has to be lodged over the following public holiday is asking for trouble, that is not a criticism that should be directed to a person detained under section 2 or 3 of the Act: they are the very sort of people who are likely to need protection from their own imprudent or ill considered behaviour. I accept these submissions.[79]However, patients are not presumed to have no idea of what they are doing, otherwise there would not be a statutory duty on managers of a hospital to inform patients as soon as they are admitted of their rights to apply to a tribunal to review the lawfulness of their detention. They should be told of the period in which they must make an application and how to make it. Since, as I have found, the 14 day period applicable to a patient detained under section 2 of the Act can expire on a Saturday, Sunday or a public holiday, one would expect patients to be told that in those circumstances any application should be submitted on the last working day of the period. If this was done, I would be prepared to accept Mr Thomas’s submission that such arrangements would not be unreasonable. Indeed, I think that Mr Stockwell accepted this. In that situation I do not see how there could be a cause for complaint by a patient who decided to submit an application over a weekend on which the 14 day period was due to expire.[80]Mr Stockwell submitted that the 14 day period is a relatively short one and should not by whittled down by administrative procedure. I accept this submission up to a point, but I consider that when Parliament set the 14 day limit in 1983 it must have had in contemplation that it might not always be possible to deliver an application to a court or tribunal on a weekend or a public holiday.[81]On the assumption that the Third Defendant had in place a suitable procedure for informing patients of their right to apply to a tribunal to review the lawfulness of their detention and for explaining how to exercise those rights (and there is no suggestion that it did not), it seems to me that if, as Mr Towers has said, the Third Defendant believed that the Tribunals Service would accept applications that were made, as opposed to received, within the time limit, it was not unreasonable for the Third Defendant to adopt a system which did not provide for applications made outside normal working hours to be transmitted without delay to the Tribunals Service.[82]On that basis, I conclude that the system adopted by the Third Defendant was one which a reasonable Mental Health Trust in its position could properly adopt. However, once it became aware of the fact that the Tribunals Service would calculate time by reference to the date on which an application was received by the Tribunals Service, not when it was signed, such a system would not have been reasonable. However, Mr Towers’ evidence is to the effect that the Third Defendant did not know this by the end of 2010.[83]Even if, contrary to the evidence of Mr Towers, on 31 December 2010 the Third Defendant had no reasonable grounds for believing that the Tribunal's Service would treat applications as made in time by reference to the date of the application, I consider that the Third Defendant would not have been acting unreasonably in adopting the system that it did provided that it explained to patients on admission that any application would have to be made during normal working hours. Unfortunately, there is no evidence either from the Claimant as to what she was told on admission or from the Third Defendant as to what patients were meant to be told on admission. Therefore the Third Defendant cannot justify its system in 2010 on this basis.[84]I certainly do not consider that any system which did not involve a daily check of the Administrator's office could be said to amount to an unreasonable system. Whilst the medical facilities of a hospital are expected to work round the clock, the same is not true of the administrative facilities. I accept that the system that was in place was one in which could not guarantee that an application whenever made would be transmitted to the Tribunals Service on the same day but, for the reasons that I have given, I do not consider that this was an unreasonable state of affairs. It is easy to be critical with the benefit of hindsight, but the conduct of the Third Defendant has to be considered prospectively: that is to say, from the point of view of a reasonable hospital administrator considering the position in, say, mid 2010.[85]For these reasons, the Claimant has not persuaded me that the Third Defendant’s system for dealing with applications that may be made by patients detained under section 2 of the Act was one that it was unreasonable of the Third Defendant to adopt. Further, even if the Third Defendant had implemented a system for ensuring that applications made outside normal working hours were sent direct from the ward to the Tribunal's Service, I consider it unlikely that such a system would have prevented the failure that occurred in this case.[86]That there was a failure in the manner in which the Claimant's application was dealt with is not in doubt, and I can well understand that the Claimant feels justifiably aggrieved that she was deprived her entitlement to make an application for a review of her detention within the 14 day period. It should not have happened.[87]However, I accept the submission of the Third Defendant that the reason for it was oversight or neglect by one or more of its employees during the afternoon of 31 December 2010. Since it is accepted that, if there was a reasonable system in place, such oversight or neglect does not constitute a breach by the Third Defendant of its obligations owed to the Claimant under Article 5(4), this of itself does not enable this claim to succeed.[88]Accordingly, the claim against the Third Defendant for judicial review fails also.

Other remedies

[89]Nothing that I have said in this judgment is intended to suggest that the Claimant may not have a private law claim against the third Defendant for breach of contract or other breach of a duty owed to her. The existence or otherwise of such a duty is not a matter that I have had to consider on this application.

Cited in 1 later judgment