PTA 1999/7726/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EDMONTON COUNTY COURT
(HIS HONOUR JUDGE RIDDELL)
Royal Courts of Justice
                                         The Strand
                                         London
Friday  7  April  2000
B e f o r e:

LORD  JUSTICE  BUXTON

and

LADY  JUSTICE  HALE
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B E T W E E N:

B. S.
Respondent/Claimant

and

K. W.
Applicant/Defendant

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(Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4A 2HD
Telephone 0171 421 4040
Official Shorthand Writers to the Court)
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MR KRIS GLEDHILL (instructed by Messrs Stuart Miller & Co, London N22 4HF) appeared on behalf of THE APPLICANT

MISS L TAPSON (instructed by Haringey Council Services, London N22 8TB) appeared on behalf of THE RESPONDENT
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J U D G M E N T
Friday  7  April  2000
1.	LORD JUSTICE BUXTON:  I will ask Lady Justice Hale to give the first judgment.
2.	LADY JUSTICE HALE:  This an application for permission to appeal from the decision of His Honour Judge Riddell made on 9 September 1999 in the Edmonton County Court. He made an order under section 29 of the Mental Health Act 1983 that the applicant be displaced as the nearest relative of his son G.W. on the ground that the applicant was unreasonably refusing to agree to his son’s admission to hospital for treatment under section 3 of the Mental Health Act 1983. 
3.	The background is that in December 1991 G.W. was sentenced to 12 years’ imprisonment for attempted murder. He had previous convictions for offences of violence. Some consideration was given at that time to whether a Mental Health Act order would be appropriate, but he himself made it difficult for that to continue by attempting to escape from the hospital where he was sent for assessment. During his time in prison some consideration was given to his transfer to hospital under the Mental Health Act, including a temporary transfer to Rampton Hospital for assessment, but he was then returned to prison.
4.	His release date was 25 January 1999. Shortly before this, on 14 January, he was transferred to hospital again. The effect of such a transfer was that it became an ordinary hospital order under section 37 of the Mental Health Act 1983 once the date of release from prison had passed. The responsible medical officer, Dr de Taranto, has consistently been of the view that G.W. suffers from mental illness, namely schizophrenia; that he needs to be in hospital because he needs medication (which he will not take if he is outside hospital); and that if he does not take his medication there will be a risk to the safety of other persons.
5.	G.W. then exercised his right to apply to a Mental Health Review Tribunal. There was an independent medical report from a Dr Knynenburg, which confirmed the diagnosis of schizophrenia in detail but made no specific recommendations about discharge.
6.	The matter first came before the Tribunal on 10 May 1999. It was adjourned because there were no plans for aftercare. There is a duty on the health and social services authorities to provide such aftercare under section 117 of the 1983 Act. The Tribunal gave directions for the Haringey Local Authority to put together a package and report back. The matter came back to the Tribunal on 14 June. Again there were no plans and the matter was adjourned with directions to enforce the attendance of the responsible community psychiatrist.The next hearing was on 5 July 1999. Again there were no plans. The local health professionals did not consider that it was appropriate for G.W. to be discharged from hospital. The Tribunal heard evidence from the hospital, from G.W. and from other members of his family, and they ordered his discharge from hospital, delayed for four weeks to 2 August 1999 in order to allow an aftercare package to be put in place.
7.	Their reasons are recorded on the usual decision form. Under paragraph 6, headed “the Legal Grounds for the Tribunal’s Decision”, they are asked two questions:
“A.Is the Tribunal satisfied that the patient is not now suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?”  
8.	The Tribunal answered “Yes” to that question. The second question reads:  
“B.Is the Tribunal satisfied that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment?”  
9.	The Tribunal answered “Yes” to that question also. 
10.	Pursuant to section 72(2)(b) of the Mental Health Act 1983, if the answer to either of those questions is “yes”, the Tribunal is obliged to discharge the patient. They have no discretion in the matter. There is also a residual discretion to direct discharge but the Tribunal was not in a position to exercise that residual discretion. Under paragraph 9, headed “The Reasons For The Tribunal’s Decision”, the Tribunal said:
“Mr W. has a history of violence and has served his prison term. There was no suggestion of a psychiatric disposal and throughout his term in prison he was not transferred to a psychiatric hospital or given psychiatric treatment. During his six months in Camlet Lodge he has shown no clear psychiatric symptoms or displayed any aggression. Although he does not believe he suffers from a mental illness the Tribunal accepted Mr W.’ assurances that he will continue to take medication if advised to do so and will comply with all aspects of a care package. His family gave evidence that they will fully support him. The discharge has been deferred for four weeks as despite two previous adjourned hearings and Tribunal directions a care package has not been offered by Haringey Healthcare Trust and Haringey Social Services.”  
11.	The hospital was most dissatisfied with that decision. Dr de Taranto arranged for fresh assessments to be made by Dr Kennedy, who is also a doctor at Camlet Lodge, and an independent doctor, Dr Pierzchniak. There was also an interview by Miss Smirek, an approved social worker. The two doctors recommended that G.W. be admitted to hospital under section 3 of the Mental Health Act 1983, and Miss Smirek made the application. Such application may not be made if the nearest relative objects. G.W.’ father was known to object, hence an application was made to the County Court under section 29 for his replacement. Interim orders were made until the hearing before His Honour Judge Riddell on 9 September 1999. He heard evidence and he gave a long and extremely careful judgment in which he made various findings of fact, but in particular he said:  
“Looking at the Tribunal’s reasons it seems to me plain that a vital factor was their acceptance of the assurance that G.W. will continue to take his medication, and that there has either been a significant change of circumstances since the Tribunal’s decision or significant further evidence on that issue which must throw, in my judgment, very considerable doubt as to whether that assurance can now be accepted with any confidence at all. As I have said, there is no doubt at all that G. recently has told four different people ‑‑ three consultant psychiatrists (Dr de Taranto and two others) and the social worker ‑‑ that he is not going to take the medication.”  
12.	In those circumstances the learned judge reached the conclusion that a reasonable nearest relative, placed as G.W.’ father was, would agree to an application for admission to treatment and therefore it was appropriate that he be displaced. His Honour Judge Riddell was clearly concerned about this decision. He was minded to give permission to appeal, but was eventually persuaded to leave it to this court. 
13.	Shortly after that, an application was made for judicial review of the Mental Health Review Tribunal’s decision. We are told that it did not reach the stage of obtaining permission, but was withdrawn by consent. We have also been told that G.W. has since made another application to a Mental Health Review Tribunal (as he is entitled to do during the course of his admission under section 3) and that the second Mental Health Review Tribunal has accepted that he should remain subject to detention while a phased rehabilitation process takes place. G.W.’ father now seeks permission to appeal against his replacement.
14.	I am bound to say that this case illustrates several aspects of the mental health law which give rise to the greatest possible sense of injustice on the part of patients and from time to time their families. First, it illustrates the late transfer to hospital of a prisoner just before he is due to be released from prison, thus securing the benefit of open‑ended incarceration on medical grounds (which were not thought compelling enough to transfer him to hospital during his sentence). Secondly, it involves the subversion of a decision of a Mental Health Tribunal by an immediate fresh application to admit him for treatment. It was held by Laws J (as he then was) in R v The Managers of South Western Hospital, ex parte M [1993] QB 683 that they were in law entitled to do that, so that habeas corpus was not available, although there would be circumstances in which judicial review would strike such a decision down.
15.	Thirdly, it illustrates the overriding of the views of the nearest relative, and in practice how difficult it is for the nearest relative to avoid being found unreasonable if his views differ from those of the hospital. In this particular case, even more will there be a sense of injustice as his views are the same as those of a Mental Health Review Tribunal. Relatives must in those circumstances wonder why they have any role at all.
16.	Fourthly, it may also demonstrate the capacity of the community mental health services to frustrate the wishes of the Mental Health Review Tribunal by declining to put a suitable care package in place, as is their legal obligation under section 117.
17.	The Court of Appeal in W v L [1974] 1 QB 711 laid down what has since been accepted as the test for the unreasonable withholding of agreement to admission. It was said that it is equivalent to the test of a patient whose parent is unreasonably withholding agreement to adoption. It is an objective test: what would a reasonable parent do?  It is not: what would the judge have done?  If a reasonable parent might have done what this parent did, then he cannot be characterised as unreasonable and the court cannot interfere. In my view, it cannot possibly be outside that band of reasonable decisions for the parent to agree with, and rely upon, a recent decision of a Mental Health Review Tribunal unless there has since been a change in the circumstances leading to that decision.
18.	Mr Gledhill, who appears for the applicant, has put his case with great subtlety because he is bound to meet the argument that the Tribunal accepted the assurances of G.W. that he would take his medication, whereas, as the judge found, there was clear evidence that he had said consistently, frankly and clearly to four professionals that he was not going to take his medication. Is that not then a change in the circumstances which led the Tribunal to reach its decision?  Mr Gledhill says, “No, it is not such a change”, and that is because, perhaps unusually, this was a case in which the Tribunal had been satisfied that G.W. was not now suffering from mental illness, psychopathic disorder, severe mental impairment, mental impairment or from any of those forms of disorder “of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment”. So, argues Mr Gledhill, there had been no change in G.W.’ mental condition; he continued to be in hospital; he continued, under the express or implied duress of being in hospital, to take his medication; and his mental condition had not deteriorated. That finding was, argued Mr Gledhill, dispositive of the issue and he relies for that proposition on the decision of Kay J in R v Pathfinder NHS Trust, ex parte W (CO/893/98, 12.7.99). In that case it was held that, unless there had been a relevant change in circumstances, a responsible medical officer could not reclassify a patient, contrary to a decision of a Mental Health Review Tribunal as to the appropriate classification.
19.	Mr Gledhill’s argument depends upon the proposition that where one has a patient suffering from a mental illness, which would be of a nature or degree making it appropriate for the patient to be liable to be detained in hospital for medical treatment if he did not take his medication, that condition is nevertheless not fulfilled while he is taking his medication. Thus, unless he is let out, fails to take his medication and deteriorates in his condition, that condition is not fulfilled. I find that, for my part, an impossible proposition to accept. There are of course mental illnesses which come and go, but where there is a chronic condition, where there is evidence that it will soon deteriorate if medication is not taken, I find it impossible to accept that that is not a mental illness of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital for medical treatment if the evidence is that, without being detained in hospital, the patient will not take that treatment. If that is so, then there has been a clear change in the circumstances which persuaded the Tribunal to reach the decision that it did.
20.	It was, in my view, open to His Honour Judge Riddell to hold that, in the light of that clear change in the circumstances, G.W.’ father was being unreasonable in withholding his agreement to the application, although I reach that conclusion having well in mind the unsatisfactory nature of what took place in this case. I find it particularly unsatisfactory that the hospital chose to go about matters in this way rather than by making a prompt application to seek judicial review of the Mental Health Review Tribunal’s decision. I would refuse this application.
21.	LORD JUSTICE BUXTON:  I also would refuse this application. Mr Gledhill in his admirable submissions originally appeared to be minded to argue that the judge and the appropriate social worker were in effect bound by the Tribunal’s first decision. That clearly cannot be right because the matter is, as my Lady has said, an assessment of the reasonableness in all the circumstances of the attitude adopted by the appropriate relative. The importance of the Tribunal’s decision, as a matter of practicality and common sense, is that placed on it by Kay J in R v Pathfinder NHS Trust, ex p W, to which my Lady has referred. The Tribunal’s decision is to be respected unless there has been, as Kay J said, some change in the circumstances of a significant kind which would enable the Tribunal to take a different view if the matter was referred to them again. 
22.	It is a matter of some interest (though not one upon which I can or would proceed) that we were informed from the Bar that another Tribunal has indeed more recently taken a different view from the Tribunal with whose decision we are concerned. But that is not the point. The question is whether there has been a significant change in the circumstances. The only way in which Mr Gledhill was able to say that the judge had been wrong and not able to take the view that there had been a change of circumstances was, as I understand it, based on an argument that one should look at the conclusion that the Tribunal stated (that the patient was not now suffering from a mental illness etc, which makes it appropriate for him to be detained in a hospital for medical treatment) completely divorced from the reasoning that they offered, which included an assurance made by Mr W., and accepted by the Tribunal, that he would continue to take his medication. That seems to me to be a completely artificial way of looking at what the Tribunal decided. The judge was right to say that it was plain that a vital factor was their acceptance of that assurance. That is not only the overall burden of what the Tribunal said, but is also in my judgement a realistic view of their answer to question A on the form.
23.	That being so, it plainly was open to the judge to form the view that the nearest relative was adopting an unreasonable attitude in this very important and delicate question of whether Mr W. should or should not be detained for his own safety and that of other people. As my Lady has said, the judge went into this matter with enormous care. He heard a lot of evidence. Once it is the case, as in my judgement it is the case, that is was open him to proceed in the way that he did, there is no possible ground upon which the way in which he dealt with the matter can be criticised.
24.	In those circumstances there is, in my judgement, no prospect of the Court of Appeal reversing the judge’s decision and, like my Lady, I would refuse permission.
ORDER:  Application refused; legal aid taxation.