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Cite as: [2010] EWHC 1349 (Admin), [2010] ACD 78, [2010] MHLR 214, [2010] Med LR 362

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Neutral Citation Number: [2010] EWHC 1349 (Admin)
Case No: CO/1221/2009


Royal Courts of Justice
Strand, London, WC2A 2LL
11 June 2010

B e f o r e :


TTM (By his Litigation Friend TM)
- and -

London Borough of Hackney
First Defendant
- and-

East London NHS Foundation Trust
Second Defendant
- and -

Secretary of State for Health
Interested Party


Ms Laura Davidson (instructed by Messrs Steel & Shamash) for the Claimant
Mr Alexander Ruck Keene (instructed by London Borough of Hackney Legal Department) for the First Defendant
Mr Sydney Chawatama (instructed by Capsticks Solicitors LLP) for the Second Defendant
Mr Jason Coppel (instructed by the Solicitor to the Department of Health) for the Interested Party
Hearing dates: 20, 21 & 22 April 2010



Crown Copyright ©

    Mr Justice Collins:

  1. This claim arises from an admission to hospital for treatment under section 3 of the Mental Health Act 1983 (the Act) which is said to have been unlawful. The admission in question was on 30 January 2009. On 4 February 2009 an application for a writ of habeas corpus was lodged and at the same time pre-action letters were sent to the defendants indicating that a judicial review claim would be made unless it was agreed that the claimant should be released from the s.3 detention. On 10 February 2009 this claim was lodged. On that day the habeas corpus application was heard by Burton J. He gave judgment on 11 February and ordered that the application for the writ of habeas corpus should be granted, the claimant's detention being unlawful. He was released from detention forthwith.
  2. While the habeas corpus application achieved the claimant's release, he now seeks a declaration that his admission to hospital under s.3 of the Act was unlawful, that he should recover damages as required by Articles 5(5) and 8 of the ECHR, that he should be granted leave to pursue a claim for damages against the first defendant under s.139(2) of the Act and that the court should declare that ss.139(1) and 6(3) of the Act are incompatible with the ECHR. Following refusal of permission on the papers by Holman J, permission was granted by Silber J following oral argument on 10 September 2009. The claim for a declaration of incompatibility has led to the intervention of the Secretary of State.
  3. The claimant's elder brother, his litigation friend, has acted as his nearest relative for the purposes of the Act. I shall refer to the relevant legislative provisions in due course, but the habeas corpus application succeeded because Burton J, having heard evidence, concluded that the claimant's brother had objected to the admission and had informed the Approved Mental Health Professional (AMHP), who made the application for admission, of his objection. She had not informed the hospital managers that there was an objection because she had failed to appreciate that his brother's objection was being maintained and in all honesty she believed that it had been lifted. If there is an objection from a nearest relative, an AMHP is prohibited from making an application for an admission for treatment under s.3 and it follows that, if such an application is made notwithstanding the objection, to accede to it would be unlawful. This follows from s.11(4) of the Act which, so far as material, provides:-
  4. "An [AMHP] may not make an application for admission for treatment in respect of a patient in the following case-
    (a) the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made "

    The prohibition can only be overcome by an application to the County Court under s.29 of the Act for an order that the functions of the nearest relative should be exercised by someone other than the objector because the objection was unreasonable (s.29(3)).

  5. All parties have accepted that I should accept Burton J's findings of fact insofar as they are material in this claim. It will, however, be necessary to consider the history of the claimant's admission to and stay in hospital prior to 30 January 2009 and some details of information which were available to the hospital managers or which it is submitted by the claimant they ought to have known. This is because, inter alia, it is submitted that, in addition to the failure to appreciate that the objection by the brother was being maintained, neither of the two medical practitioners who recommended admission had had previous acquaintance with the claimant. This it is submitted was a breach of s.12(2) of the Act which provides:-
  6. "of the medical recommendations given for the purposes of any application [for the admission of a patient under this part of the Act], one shall be given by a practitioner approved for the purposes of this section by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder; and unless that practitioner has previous acquaintance with the patient, the other such recommendation shall, if practicable, be given by a registered medical practitioner who has such previous acquaintance."

    In addition, I have to consider whether a claim for damages against the first defendant should be permitted having regard to s.139(2) of the Act. So far as material, s.139 provides:-

    "(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, unless the act was done in bad faith or without reasonable care.
    (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court
    (4) This section does not apply to proceedings against the Secretary of State or NHS foundation trust."
  7. It seems somewhat anomalous that the protection given by s.139 is in effect removed in the case of public but not in the case of private hospitals. However, s.6(3) gives what may be regarded as a greater protection since it cannot be disapplied by a court order. S.6(1) provides that an application for the admission of a patient duly completed in accordance with the relevant provisions of the Act is to be sufficient authority for the applicant to convey the person to the hospital within the material time limit. S.6(2) & (3) then provide:-
  8. "(2) Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subsection (1) above, or, being within that hospital, is treated by virtue of section 5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of the Act.
    (3) Any application for the admission of a patient under this Part of the Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it."
  9. Section 5 of the Act enables an application to be made in respect of a patient who is already in hospital but not (unless he had been admitted under s.2 for assessment) detained. As will be seen, the claimant was on 30 January 2009 a voluntary patient and so fell within s.5 of the Act. While s.5(2) contains a power to detain for no more than 72 hours if the medical practitioner in charge of his treatment states that he should in the doctor's view be detained, that power is not directly relevant to the circumstances of the detention under attack, but it had been used earlier, as will become clear when I set out the relevant history.
  10. The protection afforded by s.6(3) depends on what degree of scrutiny the hospital managers are required to carry out when presented with an application for admission. Further, if they learn of an impediment to admission after admission has taken place, it is necessary to consider what steps they must take either to bring the detention to an end or to rectify the situation. Ms Davidson has submitted that on the facts they ought not to have been satisfied that the application appeared to be in order so that s.6(3) applied and, if they were entitled to be so satisfied, they were aware very soon after the admission that the brother had maintained his objection and so ought immediately to have brought the detention to an end.
  11. The claimant is now 27 and is Lithuanian. He and his brother came to this country to seek work. In November 2008 on two occasions the claimant was arrested for what is described as bothering two women who were strangers to him. He said that they reminded him of a 'soul mate' whom he had contacted on the internet some five years earlier. He was deluded and a subsequent diagnosis is that he suffers from erotomania. Doctors who have dealt with him are divided whether he is likely to be a danger to women because of his condition or merely a nuisance. In any event, the first arrest on 8 November 2008 led to a caution. The second, on 13 or 14 November 2008, led to him being taken by the police to Homerton Hospital and his admission for assessment under s.2 of the Act.
  12. On 9 December 2008 he was admitted under s.3 of the Act. His brother as his nearest relative did not object, recognising that he needed treatment. He had approached a woman patient in the hospital and put his hand on her breast and had apparently admitted to stalking other women before his admission. The two doctors who supported his admission under s.3 of the Act took slightly different views as to his dangerousness. Dr Chatterjee thought he was suffering from erotomanic delusional system, he had no insight into his condition and was refusing treatment. He concluded that he needed to be detained and receive treatment for his own safety. Dr Malik stated that he was suffering from a paranoid psychotic illness, that he remained "insightless" and that he was only intermittently complying with his medication regime. His view was that he needed to be detained not only for his own safety and health but for the protection of others.
  13. His brother was concerned that the treatment the claimant was receiving did not properly take account of his background and cultural and language problems and was focussed on control rather than suitable treatment. In particular, he was concerned that his brother was having depot injections against his will and should be given counselling and therapy. On 16 January 2009, he was advised of his right as a nearest relative to require the claimant's release. On 19 January 2009, having thought about it over the weekend, a fax drafted by his solicitor was sent to the hospital managers giving notice that he intended to discharge the claimant at 8 pm on 22 January 2009.
  14. The nearest relative's power to require discharge is conferred by s.23(2)(a) of the Act. Section 25(1) provides that not less than 72 hours notice in writing must be given. The 72 hours expired at 12.37 pm on 22 January 2009. If within that 72 hour period the responsible clinician furnishes a report certifying that in his or her opinion the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself, the discharge cannot take place. When the fax was received, Dr Malik was informed and made known his intention to exercise his powers under s.25(1) to prevent the discharge taking effect. Unfortunately, despite receiving reminders of the need for him to report in writing to that effect within the 72 hour period, he did not do so before it elapsed and so the claimant's release from detention could not be prevented.
  15. Dr Malik made out the report that he should have produced to prevent discharge at 1.30pm on 22 January 2009. His view was that the claimant had a paranoid psychotic illness and that his harassment and stalking of at least two women prior to his admission in November 2008 and the possible sexual assault on a further patient showed that he was likely to act in a dangerous manner if discharged since he did not believe he was unwell, minimised his offending behaviour and would not give informed or consistent consent to voluntary admission. The claimant's brother and his solicitors attended the hospital at lunchtime on 22 January 2009. Partly, perhaps largely, because the claimant had nowhere to live and was wishing to remain as a voluntary patient, the brother wrote a further note at 1.15 pm stating that he was happy for the claimant to stay in hospital informally if he agreed. He did agree.
  16. There is in the bundle a report from Dr Chatterjee which is on its face dated 22 January 2009 and timed at 3.30 pm. This records that the claimant was then wanting discharge and the claimant thought he could stay with his brother. Although he regarded him as extremely arrogant and cocky and in total denial about any possibility of relapse, he did not think that he was sectionable. In the light of his agreement to remain as a voluntary patient, there is good reason to believe that the date was wrongly referred to 22 January and was in fact 21 January or that the time should be before 12.30 pm. However, Dr Malik's view expressed in what would have been his s.25 report led to a decision to detain the claimant for up to 72 hours in accordance with s.5(2) of the Act. This provides:-
  17. "If, in the case of a patient who is an in-patient in a hospital, it appears to the registered medical practitioner or approved clinician in charge of the treatment of the patient that an application ought to be made under this Part of this Act for the admission of the patient to hospital, he may furnish to the managers a report in writing to that effect; and in any such case the patient may be detained in the hospital for a period of 72 hours from the time when the report is so furnished."
  18. When notified of the fact that the claimant had been sectioned again, the claimant's solicitors immediately faxed a letter asserting that any continued detention was unlawful and a habeas corpus application would be made. It was stated, in particular, that he should not be given compulsory medication. It was stated that he was prepared to remain informally and 'to negotiate about taking medication'. He was seen the next day but Dr Evans, the clinical director, rescinded the s.5(2) detention "because MHA does not need to be invoked at present". The claimant agreed to accept advice to remain on the ward for at least 24 hours and thereafter to remain as an informal patient. The plan was that he should remain an informal patient at least until 29 January but, if he attempted to discharge himself, he should be reassessed and s.5(2) could be used but only if there was any change in presentation. Dr Malik, who remained his responsible clinician, noted, following discussion with Dr Evans:-
  19. "This man is now informal. There are no current grounds to repeat a MHAA by 2 independent (of trust) doctors and a ASW." [Viz an AMHP].
  20. The hospital notes do not show any deterioration in his state after 23 January, but it is noted that on 24 January he said he would no longer be taking medication. On 27 January there is a note as follows:-
  21. "After discussion with Dr Malik, he recommended [patient] to be reassessed for section 3 as [he] has not being (sic) engaging as an informal [patient]. He has not being (sic) taking medications, he continues to be paranoid. Dr Lyall, forensic psychiatrist, suggest that the risk is still there and another Section 3 assessment is necessary."
  22. On 29 January the claimant's brother and his solicitor attended the hospital. There was a meeting with Dr Malik and Dr Linford, who was due to take over from Dr Malik, and nurses who had been looking after the claimant. It was, in the claimant's brother's view, a positive meeting and he was impressed with Dr Linford, believing, as he put it, that he 'seemed a lot more thoughtful about my brother's case'. Dr Malik did say that Dr Lyall was to assess the claimant at 8 am the following morning, but it was not then suggested that there would be a further use of s.3 of the Act. The impression given was that the claimant should, as he agreed, remain as a voluntary patient for another two weeks.
  23. Following his examination of the claimant, Dr Lyall concluded that he did require detention in hospital because of the risk he posed to others and potentially to himself. Dr Malik was of the same opinion and on 28 January had informed Mr Davis, who has provided a statement setting out his involvement as the Associate Director of Mental Health Law at the second defendant trust, of that opinion. Mr Davis says that he considered with the medical director and his associate director who should be asked to make the necessary assessment having regard in particular to s.12(2) of the Act. It was apparent that Dr Malik believed that the claimant should be detained but that other doctors, including Dr Evans and Dr Chatterjee, took a different view. There was thus a division of opinion among those who had previous acquaintance with the claimant. In those circumstances, it was decided that it would be fairer to go to two independent practitioners both of whom had experience in forensic psychiatry. One was from within, the other from outside the trust. He considered such legal guidance as existed, including a case R(E) v Bristol City Council [2005] EWHC 74 Admin and the Code of Practice issued under s.118 of the Act by the Secretary of State. While not binding, the guidance in the Code (which is laid before Parliament: s.118(4)) should be given great weight and followed unless cogent reasons are given for adopting any different course of action: see R(Munjaz) v Mersey Care NHS Trust [2005] MHLR 276 (H.L.) The view was that it was not practicable to use a practitioner with previous acquaintance of the claimant.
  24. In this context, the relevant paragraphs in the Code are 4.73 and 4.74. These read:-
  25. "4.73 Where practicable, at least one of the medical recommendations must be provided by a doctor with previous acquaintance with the patient. Preferably, this should be a doctor who has personally treated the patient. But it is sufficient for the doctor to have had some previous knowledge of the patient's case.
    4.74 It is preferable that a doctor who does not have previous acquaintance with the patient be approved under section 12 of the Act. The Act requires that at least one of the doctors must be so approved."

    In the light of 4.74, it was decided that both doctors should be approved under s.12 of the Act.

  26. The two doctors assessed the claimant and agreed that he should be admitted under s.3 of the Act. The AMHP, Ms Bailey, following an interview with the claimant and consideration of the hospital records, decided that she should make the necessary application. She records in her report of 30 January 2009:-
  27. "An application for section was completed today on the basis that I considered [the claimant] to be suffering from a mental disorder. And as a result of this Mental disorder it is necessary for him to receive treatment in hospital in the interest of his health and safety and the protection of others.
    I do not believe that he understands the seriousness of his behaviour and therefore he is at risk of repeating this offence with serious consequences."

    By 'this offence' she is I think referring to the harassment of women.

  28. In her report, she gives details of conversations held with the claimant's brother during the course of the day. This is material to the question whether he objected to the sectioning. There were, as Burton J concluded, a total of four conversations over the telephone, three before and one after the admission. The first two preceded her interview with the claimant and took place at about 10 and 10.30 am respectively. She explained to the claimant's brother why the application was to be made and informed him what his rights were. In the second call, he indicated that he was not agreeing to the sectioning. Before Burton J, Ms Bailey accepted that he was objecting at that stage and so s.11(4) precluded the application.
  29. However, there was a further telephone call at about 2 pm. In this, his brother asked whether the claimant would be allowed to leave the hospital if detained under s.3 and was told that he would be subject to the clinical team. She explained again why in her view the detention was needed, based as it was on the recommendations of the two doctors. She recorded:-
  30. "[The brother] did not disagree with the application. [He] asked me to fax him the information I had discussed with him."

    At 4 pm, when he had been informed of the sectioning, the brother, having spoken to his solicitor, faxed a note which read:-

    "I am [the claimant's] nearest relative I spoke to social worker today and I've disagreed with the decision to keep him on section 3. I don't want to keep him on section 3. I told her this on the phone."

    This is timed at 4 pm. At about that time he had spoken to Ms Bailey over the telephone telling her he was not agreeing to the sectioning and had spoken to his solicitors. She gave him the fax number to which he should send confirmation. She also told him that she had understood that he was agreeing to the sectioning.

  31. It is apparent that she did not in the course of the third call ask the brother in terms whether he was now agreeing and withdrawing what she should have appreciated was an objection raised in the course of the second call. Burton J found Ms Bailey to be a thoroughly honest and a convincing and impressive witness. He found in the claimant's favour because of her honesty in recognising (as indeed her notes tend to confirm) that there had been an objection in the second call. He rejected the brother's account of a second afternoon call in which he said he had made it clear that he was objecting. But he concluded that, although she honestly believed that the claimant's brother was agreeing to the sectioning, he in fact had not and she should not have concluded that he had.
  32. He said that the court had to ask itself what was the reasonable belief of the AMHP. In paragraph 40 of his judgment, he said:-
  33. "The course that I conclude is the right one is that to which I referred, namely, on analysis of the facts, did the AMHP act reasonably in concluding that there was an (sic) objection. I do not see any inconsistency with s.11(4) of the Act in taking that view, which requires the nearest relative of the patient to have notified the professional that he objects to the application being made. In my judgment, that requires that the professional must have notice of the objection, and if it is put forward in a way which is not reasonable to expect amounts to notice to the professional, then he has not received that notice. It is, in my judgment, an objective question."

    On that objective analysis, there was in Burton J's view nothing between 10.30 (the second telephone conversation) and 3 pm (the application to admit) which should have caused Ms Bailey to change her mind. He concluded:-

    "I believe Ms Bailey did act properly on this occasion, but I believe that in the end it was not reasonable of her to have formed the view that she did, that there had been a change of mind by the nearest relative between 10.30 and 3.15. In those circumstances, I must conclude that the admission under s.3 was not lawful."
  34. The application was made in writing on the appropriate form A6. It was accompanied by the recommendations of the two doctors. The form recorded that Ms Bailey was acting on behalf of the London Borough of Hackney. She had consulted the nearest relative, who was identified, and had not deleted the statement on the form:-
  35. "That person has not notified me or the local social services authority on whose behalf I am acting that he or she objects to this application being made."

    The following rubric appears on the form:-

    "If neither of the medical practitioners had previous acquaintance with the patient before making their recommendations, please explain why you could not get a recommendation from a medical practitioner who did have previous acquaintance with the patient."

    As I indicated in the course of the hearing and as will become clear when I consider the effect of 'not practicable' in s.12(2), I think this is misleading. It suggests that the test is one of possibility rather than practicability. The word 'could' should be replaced with 'did'. In any event, the explanation given was as follows:-

    "[The claimant] was assessed by Dr Lyall and Dr Metcalf because the clinical team wanted an independent assessment from person that was not part of the clinical team.
    [The claimant] had been initially placed on a s.3 MHA 1983. The nearest relative applied for discharge. Unfortunately the responsible clinician disbarring of the nearest relative fell outside the 72 human rights limit."

    As I have already noted, the evidence of Mr Davis shows that there had been a discussion about which doctors should be asked to consider whether to recommend a s.3 admission and so the hospital was in any event aware of why the decision not to use a doctor with previous acquaintance had been made.

  36. The brother's fax at 4 pm did not on its face, as Burton J noted, indicate that he had maintained an objection before the application for admission was made. It was followed later by a letter from the solicitor which averred:-
  37. "This was an application for treatment that would not lawfully have been made since our client's nearest relative and brother has notified his objection to it. He did so during a telephone consultation with Hackney social services, whose officer was acting as the AMHP under the Act. To have gone on to make the application in those circumstances was a breach of s.11(4)(a)."

    There followed a threat to seek an immediate court order unless it was agreed that in the meantime until the matter was sorted out the claimant would not be given any treatment without his consent or any medication pending his examination by a Dr Nias, instructed on the claimant's behalf, due to be held the following Monday.

  38. In a letter of 2 February 2009, the second defendant recorded that, in the knowledge of the previous exercise by the claimant's brother of his power to discharge under s.23, the hospital had made further enquiries of Ms Bailey who had given assurances that a full consultation exercise had been carried out and that the nearest relative did not object to an application for admission for treatment being made at that time. Thus the allegation of unlawfulness was rejected.
  39. However, since it was apparent that an objection to detention was being made, it was treated as a discharge requirement under s.23. The responsible clinician, now Dr Linford, exercised his powers under s.25 and barred the discharge on the ground that the claimant would, if discharged, be likely to act in a manner dangerous to other persons or to himself. He stated in his reasons that the consensus view, with which he agreed, was that the claimant was suffering from a paranoid psychotic illness and that he required medication. Dr Nias's view, having examined the claimant, was that he was suffering from erotomania, a delusional disorder, and that he would have a low score for dangerousness. Dr Nias doubted the efficacy of medication, indicating that in his view maintaining and managing his condition was the appropriate course. He recommended that the claimant should remain in hospital as a voluntary patient. Medication might in due course be desirable, but initially supportive counselling and psychotherapy were needed.
  40. It is clear that there was a division of opinion among the doctors who had examined and dealt with the claimant. Some thought that he needed medication and unless detained would be a danger to himself or others. Others thought he did not need to be detained but that he was clearly suffering from a mental illness which would be helped by treatment and so he should remain in hospital as a voluntary patient.
  41. Ms Davidson has submitted that the hospital managers had a duty to scrutinise the application and, if they had carried out their duty, they could not have been satisfied that the application appeared to have been duly made. She relies on paragraphs in the Code of Practice. The relevant ones are 13.6, 13.9 and 13.12 and 123.13. Those read:-
  42. "13.6 This chapter distinguishes between receiving admission documents and scrutinising them. For these purposes, receipt involves physically receiving documents and checking that they appear to amount to an application that has been duly made (since that is sufficient to give the managers the power to detain the patient). Scrutiny involves more detailed checking for omissions, errors and other defects and, where permitted, taking action to have the documents rectified after they have already been acted on.
    13.9 When a patient is being admitted on the application of an approved mental health professional (AMHP), the receiving officer should go through the documents and check their accuracy with the AMHP.
    13.12 Documents should be scrutinised for accuracy and completeness and to check that they do not reveal any failure to comply with the procedural requirements of the Act in respect of applications for detention. Medical recommendations should also be scrutinised by someone with appropriate clinical expertise to check that the reasons given appear sufficient to support the conclusions stated in them.
    13.13 If admission documents reveal a defect which fundamentally invalidates the application and which cannot, therefore, be rectified under section 15 of the Act, the patient can no longer be detained on the basis of the application. Authority for the patient's detention can be obtained only through a new application (or, in the interim, by the use of the holding powers under section 5 if the patient has already been admitted to the hospital.)"

    13.9 was complied with. Contrary to Ms Davidson's submissions, it is apparent from 13.6 that the obligation to scrutinise arises after the admission based on a check that the documents appear to amount to an application that has been duly made. If, following such scrutiny, it is apparent that there was a defect which cannot be rectified under s.15 because it is fundamental, the detention should be brought to an end.

  43. There can be no doubt that the managers were entitled to rely on the AMHP's confirmation that there had been no objection from the nearest relative. The previous requirement for discharge could not mean that he was still objecting since it was known that he had been involved in discussions with the doctors, that he was concerned about his brother's mental health and that he wanted what was best for him in the way of treatment. Ms Davidson relies on what she submits was a failure to comply with s.12(2) in that it was practicable to have found a doctor who had had acquaintance with the claimant. She suggests that in the context of s.12(2), lack of practicability is intended to deal with urgent applications or where specialist assessment is needed which is outside the experience of any doctor who was acquainted with the patient (perhaps a general practitioner whose knowledge of psychiatry was insufficient) or where there was no doctor who had had previous acquaintance to be found.
  44. Reliance has been placed on R(E) v Bristol City Council [2005] EWHC 74 (Admin), a decision of Bennett, J. That case concerned a decision by the social worker not to consult the patient's nearest relative before making an application. Section 11(4) of the Act provided, so far as material:-
  45. "No such application shall be made by such [an approved]
    social worker except after consultation with 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."

    Section 11(3) of the Act required the social worker to "take such steps as are practicable to inform the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below". Thus practicability whether qualified by the adverb reasonably or unqualified is used in s.11. Bennett J decided that the approach must be that an interpretation consistent with the patients' rights under the ECHR should be adopted so that the patients' wishes, health and well-being must be taken into account. There may be good reasons why a nearest relative should not be consulted or notified if that relative could not be trusted to act in the patient's interests. He referred to authority in a different context which made the point that practicable should not be equated with possible (see per Griffiths J in Owen v Crown House Engineering Ltd [1973] ICR 511).

  46. In the case of E, the patient had made it clear that the nearest relative should not be informed or consulted. In Bennett J's view, with which I entirely agree, practicability should be approached on the basis that the patient's interests are to be considered. A judgment has to be made, but it must always be borne in mind that one of the doctors who is concerned with recommending compulsory admission should have had previous acquaintance with the patient. Thus only if it is considered on reasonable grounds to be appropriate in given circumstances for doctors who have not had previous acquaintance to decide whether to recommend admission should such a course be adopted.
  47. In the circumstances of this case, it was known that there was a division of opinion among the doctors who had had acquaintance with the claimant. The weakness of Ms Davidson's argument can be shown by her recognition that she could not have complained of a breach of s.12(2) if one of the doctors chosen had been Dr Malik. Equally it might not have been in the interests of the claimant if one who held a contrary view was chosen since he might in reality need treatment which he would not receive as a voluntary patient. Thus I think that the decision to use two professionals who came afresh and who, of course, had access to all the hospital notes and could question nurses or other doctors was reasonable and a proper exercise of judgment of what was in the claimant's best interests. Thus there was no breach of s.12(2).
  48. It follows that the second defendant was entitled to rely on the protection conferred by s.6(3). The hospital acted entirely properly in accepting the application for admission and in deciding, based on Dr Linford's report, to override what was correctly treated as a requirement for discharge under s.23.
  49. Before considering whether on the facts I should give leave under s.139(2) on the basis that it is arguable that there was a lack of reasonable care, I should deal with an argument put forward by Mr Ruck Keene that Ms Bailey rather than the first defendant is the correct defendant. She is a professional who must make her own decisions and cannot be dictated to or influenced by the wishes of the Council. She may well be regarded as a person who is a public body within the meaning of the Human Rights Act. But, as the Act makes clear, as an AMHP she has to be treated as acting on behalf of the local social services authority. S.145 (1AC) provides:-
  50. "References in this Act to an approved mental health professional shall be construed as references to an approved mental heal professional acting on behalf of a local social services authority, unless the context otherwise requires."

    Thus the relevant Council is vicariously liable for any lack of care or bad faith on the part of an AMHP. It is to be noted that one of the social services functions of a local authority is the appointment of AMHPs: see Local Authority Social Services Act 1970 (as amended) s.1A and Schedule 1 referring to s.114 of the Mental Health Act 1983, which enables a local social services authority to approve a person to act as an AMHP. The first defendant is correctly named as a defendant and is responsible in law for the AMHP's actions.

  51. Bad faith is not nor could be alleged in this case. If bad faith were established, there could be a private law claim based on misfeasance in public office. If there were lack of reasonable care, the question whether a duty of care exists is material. I see no reason in principle why such a duty should not exist. No doubt there is an element of judgment in any decision to be made and the AMHP is a professional, but that does not preclude a duty of care. It is difficult to see why in a case such as this, if Ms Bailey was negligent in believing that there had been no objection, there should be no liability to compensate for the loss of liberty which resulted. S.139 itself recognises that lack of care in respect of "any act purporting to be done in pursuance of this Act" may properly result in civil proceedings being brought by the victim, who will normally be the patient.
  52. Ms Bailey made a mistake, but it was, as Burton J found, an honest mistake. His conclusion that it was not reasonable for her to have formed the view that she did may seem to be consistent with negligence and indeed to suggest that she was negligent. But it was prefaced by the observation that she acted properly and was expressed in the context of the objective test that he posed, namely did she act reasonably in concluding that there was an objection. I recognise that an entirely honest action can still be negligent, but it seems to me that what in reality Burton J was deciding was that the objection had not been withdrawn. There was thus a breach of s.11(4)(a) whatever Ms Bailey might have believed, reasonably or otherwise. He felt it necessary to consider what was the reasonable belief of the AMHP and, since there had been no withdrawal of the objection and the evidence showed that that was in fact so, he was compelled to conclude that, despite acting properly, Ms Bailey's belief was not reasonable. Lawfulness of detention, as it seems to me, does not depend on whether the AMHP reasonably believes that there is no objection but on whether in fact there was no objection. That is what has to be decided if there is an issue raised. Naturally, if there is a belief, reasonable or otherwise, there will be a detention, but it can and should be put right if thereafter the objection is raised. Compensation should only follow (subject to the ECHR claim which I will consider in due course) if there is negligence or bad faith. In my view, on the facts found by Burton J there is no reasonable prospect of success in any negligence claim and so I decline to give leave under s.139(2).
  53. I turn now to the claim under s.7 of the Human Rights Act 1998. Article 5 of the ECHR, so far as material, provides:-
  54. "1. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law
    (e) the lawful detention of persons of unsound mind
    4. Everyone who is deprived of his liberty by detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful.
    5. Everyone who has been the victim of detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

    Article 8 is also raised (the right to private life). But this adds nothing to Article 5 since, if the detention was lawful, there will be no breach of Article 8. If it was not, Article 5(5) provides for an enforceable right to compensation. Article 8 does not.

  55. The crucial question is whether the detention is regarded in domestic law as lawful until the decision of Burton J in the habeas corpus proceedings that it was not and so the claimant was discharged from the s.3 order. In cases such as this, habeas corpus and judicial review are concurrent remedies. It would obviously be absurd if the lawfulness of any detention prior to the court's decision differed depending on the remedy chosen. There has in the past been much learning on the status of an administrative decision which was found to have been unlawful. Was it to be regarded as null and void ab initio or as voidable so that it had effect until set aside?
  56. There is no doubt that an administrative decision which is found to have been unlawful and so should be quashed will usually be regarded as null and void. In Boddington v British Transport Police [1998] 2 All ER 203, in which the lawfulness of a bye-law prohibiting smoking in a railway carriage was challenged by way of defence to a prosecution for breach of the bye-law, Lord Irvine, LC considered previous authorities and stated (p 209j) that the old distinction between void and voidable acts no longer applies. He concluded (p 210g):-
  57. "Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is for the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid."

    If those observations represent the law in all cases involving an attack on an administrative act, it is apparent that the detention must, once established to have been unlawful, be regarded as unlawful from the outset so that, in accordance with Article 5(5), compensation must follow.

  58. However, other members of the committee did not accept this view. Lord Browne-Wilkinson at p 218j made the point that a subsequent recognition of an act's invalidity could not rewrite history as to all the other matters done in the meantime in reliance on its validity. He continued:-
  59. "The status of an unlawful act during the period before it is quashed is a matter of great contention and of great difficulty: see Percy v Hall [1997] QB 924 at 950-952 per Schiemann LJ and the authorities there referred to; de Smith, Woolf and Jowell Judicial review of Administrative Action (5th Edn. 1995) Paras 5.044 and 5.048 and Calvin v Carr [1980] AC 574 at 589-590."

    He preferred to express no view on those difficult points. Lord Slynn of Hadley equally and for much the same reasons declined to express a view on the question ( p 219f-220a). He said that where the presumption in favour of legality had been overruled by a court of competent jurisdiction, the question whether the acts or bye-laws were to be treated as having at no time had any effect in law was not one which had been fully explored and was not one on which it was necessary to rule in the appeal and he preferred to express no view upon it. He concluded:-

    "The cases referred to in Wade & Forsyth on Administrative Law (7th Edn 1994) pp 323-4, 342-4 lead the authors to the view that nullity is a relative rather than an absolute concept (p 343 and that 'void' is meaningless in any absolute sense. Its meaning is relative. This may well be rather imprecise but the law in this area has developed in a pragmatic way on a case by case basis."

    Lord Steyn (p 225f-j) stated that he saw no reason to depart from the orthodox view that 'ultra vires' was the central principle of administrative law, nevertheless he accepted the reality that an unlawful bye-law was a fact and that it might in certain circumstances have legal consequences. He then cited (at p 226 a-b) the following observations of Dr Forsyth, which he said were a more accurate summary of the law:-

    " it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that those acts are valid. When this happens the validity of those later acts depend on the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void."

    Lord Hoffmann simply agreed with the reasons for dismissing the appeal given by Lord Irvine and Lord Steyn.

  60. It is clear that Lord Irvine's observations, which were not necessary for the determination of the appeal, are not supported by the other four members of the Committee. It is also to be noted that the unlawful act was that of the AMHP in applying for compulsory admission notwithstanding that the nearest relative had objected: see s.11(4)(a) of the Act. The hospital managers acted on this in the belief that a valid application had been made and so they had legal power to admit and detain the claimant.
  61. Percy v Hall [1996] 4 All ER 523 was a claim for false imprisonment based on an arrest which was based on bye-laws which the Divisional Court decided were unlawful. The Court of Appeal decided that the constables who arrested the plaintiffs could rely on a defence of lawful justification if they could show that they acted in the reasonable belief that the plaintiffs were committing a bye-law offence. While a subsequent declaration that the bye-laws were invalid would operate retrospectively to entitle a person convicted of their breach to have that conviction set aside, it could not convert conduct which, at the time, had been regarded as the lawful discharge of the constables' duty into actionably tortious conduct. Schiemann LJ raises but does not answer the difficulty in deciding in given circumstances whether what he refers to as the ex tunc (i.e. retroactive invalidity) or the ex nunc (i.e. invalidity from the time of the pronouncement) approach should be applied.
  62. It is clear that Parliament has taken the view that unless there is what might broadly be referred to as fault on the part of one of those who are responsible for the difficult decision whether a person should be compulsorily admitted to a hospital no liability in domestic law should exist. It suffices that there is a means whereby discharge can be speedily achieved if it transpires that there was any error leading to the unlawfulness of the detention. Habeas corpus proceedings are concerned with whether the detention is unlawful when the court has to consider the matter and normally it is not material for the court to decide whether the unlawfulness is retroactive or not. But in judicial review the issue can arise and, since a claim for damages can be made in judicial review proceedings, it will often be material to consider the point. Nevertheless, in considering whether in domestic law the detention was lawful so that there was no breach of Article 5 until it was established to be unlawful the will of Parliament is an important factor. The ECtHR gives a margin of appreciation to member states and it is by no means an unusual view that unlawfulness once established must operate ex tunc.
  63. There is important authority which supports the view that the correct conclusion in cases such as this is that, absent any lack of care or negligence or bad faith, the detention is to be regarded as lawful until a court decides that it was unlawful. In R v Managers of South Western Hospital ex p M [1993] QB 683, Laws J had had to consider an alleged failure properly to consult with the patient's nearest relative. He concluded that there had been a failure to comply with s.11(4). He said:-
  64. "In my judgment, where an application on its face sets out all the facts which, if true, constitute compliance with the relevant provisions of Part II of the Act (again including s.11(4)) it is an application which 'appears to be duly made' within s.6(3). If any of the facts thus stated are not true, then although the application appears to be duly made, it is not duly completed for the purposes of s.6(1) and 6(2). Here, [the social worker's] application did state all the facts which, if true, constituted compliance with the relevant statutory provisions. Accordingly it was an application which appeared to be duly made. It follows that, although the managers were not authorised to detain the patient by s.6(2) standing alone, they were entitled to act upon the application, and thus to detain the patient by virtue of s.6(3). Accordingly, the applicant's detention is not unlawful."

    This led Laws J to dismiss the application for habeas corpus.

  65. In Re S-C (Mental Patient Habeas Corpus) [1996] QB 399, the Court of Appeal were concerned with the legality of the admission and detention of the applicant. Sir Thomas Bingham MR cited the passage from Laws J's judgment which I have cited in the previous paragraph and said that he would accept 'almost everything in that passage as correct with the exception of the last sentence'. He continued:-
  66. " The learned judge goes straight from a finding that the hospital managers were entitled to act upon an apparently valid application to the conclusion that the Applicant's detention was therefore not unlawful. That is, in my judgment, a non sequitur. It is perfectly possible that the hospital managers were entitled to act on an apparently valid application, but that the detention was in fact unlawful. If that were not so the implications would, in my judgment, be horrifying. It would mean that an application which appeared to be in order would render the detention of a citizen lawful even though it was shown or admitted that the approved social worker purporting to make the application was not an approved social worker, that the registered medical practitioners whose recommendations founded the application were not registered medical practitioners or had not signed the recommendations, and that the approved social worker had not consulted the patient's nearest relative or had consulted the patient's nearest relative and that relative had objected. In other words, it would mean that the detention was lawful even though every statutory safeguard built into the procedure was shown to have been ignored or violated. Bearing in mind what is at stake, I find that conclusion wholly unacceptable."
  67. One can well understand Sir Thomas' horror. But that is based on the conclusion of Laws J that the detention was not unlawful for the purposes of habeas corpus once the defect and so the unlawfulness of the application for admission was identified. As Neill LJ observed, the hospital managers have a defence in civil proceedings, but s.6(3) is not intended to nor does it have the effect of preventing a court, if satisfied that the original application was not made in accordance with s.3 of the Act, from issuing a writ of habeas corpus or making some other appropriate order. The responsibility for release is that of the court.
  68. While disapproving of Laws J's conclusion, the Court of Appeal did not in terms state whether the detention was to be regarded as lawful prior to the hearing before the court. Article 5 was not then directly in issue since the case preceded the Human Rights Act. There could be no civil claim against the hospital because of s.6(3) and s.139 would prevent action against the social worker in the absence of lack of care or bad faith.
  69. In R v Central London County Court ex p London [1999] QB 1260 the Court of Appeal did consider whether the unlawfulness should be regarded as prospective or retrospective. The case itself concerned ex parte orders made by a county court judge under s.29 displacing a nearest relative who had in his view unreasonably objected to an admission of a patient. Stuart-Smith, LJ, who gave the only reasoned judgment, referred to Ex parte Evans (No 2) (then in the Court of Appeal, a decision later upheld by the House of Lords: [2001] 2 AC 19) where a prison governor who had acted in accordance with the law which he then believed to be applicable but which was subsequently overruled by a superior court in calculating the proper release date of a serving prisoner was held liable for false imprisonment. He noted in paragraph 35 of the judgment, after citing the passage set out by Lord Steyn in Boddington from Dr Forsyth's article:-
  70. "In ex p Evans (No 2) there was no second actor, the action was solely that of the governor in detaining the applicant for too long due to an error of calculation. In the present case the hospital managers are second actors relying on the validity of the court orders and the application; they were not only entitled, but in accordance with their duty bound to admit the applicant.'"
  71. There is clear authority which is supported by the ECtHR that a court order is to be treated as valid and must be applied until it is set aside by another competent court. But we are here concerned with an administrative act and, Ms Davidson submits, different considerations apply. However, the Court of Appeal considered the question on a broader basis. The issue did not strictly speaking fall to be considered since the court decided that the County Court judge's order was valid, but, as Stuart-Smith LJ observed (Paragraph 25):-
  72. "However, since careful submissions have been made to us, and the matter is of some importance to hospital managers, I think it right to express my view as to the validity of the decision on the hypothesis that ' the county court had no jurisdiction to make the orders '"
  73. He referred to Percy v Hall (supra). He said (Paragraph 30):-
  74. "I accept that on the present hypothesis the applicant would be entitled to have the county court orders quashed. He would also have been entitled, if he had applied for it, to a writ of habeas corpus or perhaps, if he sought such relief in the judicial review proceedings, a declaration that he was entitled to be released, since the county court orders were pronounced invalid. What he is not entitled to is a declaration that the decision to admit was unlawful. At the time, it was not; it can only be quashed if at the time the decision was ultra vires the hospital managers and it was not."

    He then considered Re S-C and the observations on Laws J's conclusions in M's case. In paragraph 32 he said this:-

    "Both counsel rely on those judgments to support their contentions. They suggest that the phrase used by Laws J and criticised by the Court of Appeal, is ambiguous. It may mean that the applicants' continued detention is not unlawful; or it may mean that the original detention was not unlawful, but does not deal with the continued detention once the Court had pronounced the underlying application to be invalid. It seems to me that the Court of Appeal considered it in the first sense, and if that is correct then I respectfully agree. But it seems to me that if Laws J meant it in the second sense, what he was saying was consistent with authority, namely that the original admission and detention, based as it was on an apparently valid application, was itself valid and lawful until the underlying basis, namely the application, is held by the court to be invalid. This does not preclude the court from ordering the patients' release once the determination has been made, but it does not retrospectively render invalid the decision to admit which was valid at the time it was taken."
  75. Laws J's use of the present tense in deciding on the lawfulness of the detention and his dismissal of the habeas corpus application do, I think, make it clear that he was indeed applying what Stuart Smith LJ refers to as the first sense. Ms Davidson submits that the observations of the Court are obiter and so not binding on me. No doubt that is correct, but, since they were reached following full argument, I should clearly follow them unless persuaded that they are wrong. Far from being so persuaded, I am satisfied that they are correct. Since both M and S-C were concerned with unlawful administrative acts rather than court orders, I am equally satisfied that I should adopt the Court of Appeal's approach here. It follows that the detention was not unlawful in domestic law so that there was no breach of Article 5 and so no claim for compensation under Article 5(5). Thus there can be no claim under s.7 of the Human Rights Act 1998.
  76. In those circumstances, there is no incompatibility in either s.139 or s.6(3). Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), the detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow. It is equally unnecessary to read down either of the provisions.
  77. A declaration that the detention was unlawful from the moment Burton J reached his decision is all the relief that the claimant could obtain. But such a declaration is unnecessary since Burton J's decision makes that clear in any event. Accordingly, this claim must be dismissed.

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