Neutral Citation Number: [2013] EWCA Civ 96
Case No: A2/2012/1232
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE EADY
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/02/2013
Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
LORD JUSTICE MOORE-BICK
and
LORD JUSTICE RIMER
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Between :

	DD	Appellant	
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	Durham County Council & Anr	Respondent	

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Ms N Lieven QC and Mr C Buttler (instructed by Scott Moncrieff & Associates LLP) for the Appellant
Mr J Norman (instructed by DWF LLP) for the Respondent

Hearing date: 22 January 2013
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Judgment

President of the Queen's Bench Division : 
Introduction
1.	The issue in this appeal is whether leave should be given under s.139(2) of the Mental Health Act 1983 (the 1983 Act) to bring proceedings against the defendant (the County Council) for the failure of two Approved Mental Health Professionals (AMHP) to discharge duties in respect of the claimant (DD) said to arise under the 1983 Act, as amended.
The background
2.	DD, who had a complex social history and a history of mental health issues, was convicted of assault in 2007 and sentenced to a two year extended sentence of imprisonment for public protection.  He was placed at Durham prison; during his imprisonment there were concerns about his mental health; he committed a further assault on a visiting psychiatrist for which he received a further sentence of imprisonment.  Steps were taken to consider his transfer to a secure hospital, including an assessment at Rampton.  An application under s.47 of the 1983 Act (which gives the Secretary of State power to transfer a prisoner to a hospital) was discussed with the Ministry of Justice towards the end of his sentence.  Although his release date was 11 December 2009, he was not released on that date but kept in prison until 14 December 2009 because of serious concern that he posed a real danger to the public.  That additional period of detention is the subject of other proceedings.
3.	On 14 December 2009, a social worker who was an AMHP was asked to consider making an application for his detention under s.2 of the 1983 Act.  That section provides for compulsory detention at a hospital for a period of assessment.  She was provided with the opinion of two medical practitioners approved under the 1983 Act and other information.  She conducted an assessment during the course of which she was provided with information about what had happened in prison.  She was told that one of the medical practitioners had identified the Hutton Unit, St Luke’s Hospital, Middlesbrough as suitable for an assessment; that hospital is managed by the Tees, Esk and Wear Valleys NHS Trust.  She conducted her assessment and decided it was appropriate to detain him under s.2.  An application was therefore made by her to detain him under s.2 of the 1983 Act at the Hutton Unit.  DD was transferred to the Unit, admitted and detained there.  A statement made by her for the purpose of these proceedings set out her view that it was not the function of an AMHP to decide on the particular hospital to which a person should be sent for assessment under s.2; that was the function of the medical practitioner or the NHS Trust.
4.	At the end of the 28 day period for assessment by medical practitioners under s.2, a further assessment was conducted by a different social worker approved as an AMHP who, although employed at Middlesbrough City Council, is accepted for the purposes of the intended proceedings to have been acting on behalf of the County Council as an AMHP.  She was provided with the further medical reports of two approved medical practitioners who recommended continued treatment at the Hutton Unit.  On 8 January 2010 on the basis of those further reports and interviews of DD at the Hutton Unit, she concluded that he should remain at the Hutton Unit.  She therefore made an application under s.3 of the 1983 Act for his detention at the Hutton Unit for treatment and further assessment.
5.	DD contends that the Hutton Unit was a unit which practised a regime which was not suitable for him, given his mental condition.  In his statement he sets out the reasons for that, including allegations that he was kept in permanent seclusion in a bare room with a bed, foam chair and nothing else.  There was no toilet in that room; when he went to the toilet he had to defecate in front of the staff who accompanied him.  He was only permitted to go to the toilet on certain occasions.  He only had five baths during the period of detention.  He had no exercise or fresh air.  He was refused a pen and paper.  The room for the first two months was lit 24 hours a day.  He was provided with no access to radio or television.  He was rarely given hot food.  He saw the consultant psychiatrist once a week but only for a couple of minutes.  It was accepted that, for the purposes of the application under s.139 of the 1983 Act, these conditions amounted to an arguable breach of his Convention rights.
6.	After some three months, he was transferred to Rampton Hospital in Nottinghamshire about which he makes no complaint.  In a statement which he made after a period of two years detention at Rampton on 23 February 2012 for the purpose of the proceedings, he sets out the assessments that have been made and the way in which he has been treated at Rampton.  He has been diagnosed with a paranoid, narcissistic and anti-social personality disorder.
The present proceedings
7.	In December 2011 having seen his present solicitors, he sought to bring proceedings against the County Council on the basis that it was responsible for the first AMHP who made the s.2 assessment and application.  From what we were told it appears that the solicitors went to see the Master as to the correct procedure and were told by the Master that the appropriate course was to issue a claim form under CPR Part 8 seeking, “the leave of the High Court pursuant to s.139(2) of the Mental Health Act 1983 to issue proceedings against the proposed defendants for unlawful detention between 14 December 2009 and 2 March 2010”.  A claim form was then issued setting out very brief details of the nature of the claim on the basis that the AMHPs ought to have known that the Hutton Unit was not a place where appropriate treatment was available.  The claim form alleged that the conduct of the AMHP was therefore done either in bad faith or without reasonable care.  
8.	Claims were also made against HMP Durham and the NHS Foundation Trust that operated the Hutton Unit; no leave was required for those claims:  see s.139(4).  At a hearing before Lang J on 20 February 2012 various directions were given as to the filing of evidence; the claimant was ordered to serve a concise statement of the legal and factual grounds which were to address whether bad faith or a lack of reasonable care were relied on and to provide particulars.  A more detailed statement of facts and grounds was served.  Middlesbrough City Council as the employer of the second AMHP who made the s.3 assessment and application on 8 January 2010 was joined to the proceedings as the second defendant.
9.	The application under s.139(2) was heard by Eady J when junior counsel on behalf of DD advanced the claim under the Human Rights Act 1998 on the basis of infringement of his Convention rights under Articles 3 and 8 and for false imprisonment; the allegation of bad faith was not pursued.  In a clear and careful judgment on 24 April 2012 [2012] EWHC 1053 (QB), he rejected the application on the basis that the AMHPs owed no duty to investigate the proposed place of detention, the location where the patient would be kept and the regime to which he would be subject.  He also held that, if the second AMHP employed by Middlesbrough had owed a duty, the County Council and not Middlesbrough City Council would have been responsible for any breach on her part (see paragraphs 16-21 of his judgment).  The judge ordered that the County Council should pay the costs of Middlesbrough City Council and that DD should pay the costs of the County Council, including the costs which the County Council were ordered to pay Middlesbrough City Council, though the order against DD was not to be enforced without the leave of the court.
10.	DD appeals against the decision refusing leave and that part of the order relating to the payment of Middlesbrough City Council’s costs.  There is no appeal against the decision that Durham would be the body liable for any breach of duty or infringement of the Human Rights Act by the second AMHP.
The appeal
11.	It was contended by Ms Lieven QC, on behalf of DD, that the two AMHPs owed a duty to DD; that by making the application for admission to the Hutton Unit, each was in breach of duty and that the County Council was responsible vicariously for that breach of duty.  It was Ms Lieven QC’s primary case that under the statutory scheme the AMHP had the legal responsibility not only for assessing whether the patient should be detained, but also for the suitability of the hospital at which the patient was to be detained and the regime under which he would be held.  Although not precisely delineated, the responsibility gave rise to an obligation under the Human Rights Act 1998 to take reasonable steps to ensure that the patient’s Article 3 and 8 rights were not infringed.  This obligation did not extend to preventing some casual act committed by those at the hospital which might violate the Convention rights of DD.  In the alternative, there was a duty of care to like effect to be derived from the scheme of the 1983 Act.
12.	It was submitted, therefore, that the judge had been wrong to refuse leave to bring the claim.
The scheme of the Act
13.	The argument advanced by DD was founded upon the scheme of the 1983 Act.  It was submitted that the key to the operation of the Act was the inter-relationship between s.2, s.3, s.6, s.11, s.12 and s.13.  It was submitted that under s.11(1) the only person who may make an application for admission under s.2 or s.3 is either the nearest relative of the patient or an AMHP.  S.11(2) provides that the application must be addressed to the managers of the hospital to which admission is sought.  S.12 provides for the status of the recommendations of medical practitioners.  The two practitioners must personally examine the patient and provide the medical opinion, without which an application cannot be made; the section places no responsibility on them for the selection of the hospital.  Once an application has been made under the provisions of s.6(1) that application is sufficient authority to take the patient to the hospital; under the provisions of s.6(2) the application is sufficient authority for the managers to detain the patient in accordance with the provision of the 1983 Act.  
14.	S.13(1A) requires the AMHP to make the application for admission if satisfied that an application ought to be made and that it is necessary or appropriate for the application to be made by him.  S.13(2) expressly provides:
“Before making an application for the admission of a patient to hospital an approved mental health professional shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.”
15.	It was submitted, therefore, looking at the scheme of the 1983 Act, that the role of the doctors is confined to making a recommendation, and as the hospital to which the person was admitted is entitled by reason of the application to detain the patient, the person with the duty to satisfy himself that the hospital and the regime are suitable is plainly the AMHP.
16.	Ms Lieven QC also relied upon the judgment of this court given by Judge LJ (as he then was) in St George’s Health Care NHS Trust v S [1998] 3 All ER 673.  The claimant who was in an advanced stage of pregnancy refused to accept medical advice that she must have an induced delivery, as without it her life and the health and life of her baby were in real danger.  She wanted the baby born naturally.  She was seen by the AMHP  (then referred to in the 1983 Act as “an approved social worker”) and two doctors; an application was made under s.2 of the 1983 Act by the AMHP for admission.  In hospital, after obtaining the authority of the High Court to dispense with the consent of the claimant, the baby was delivered by Caesarean section.  The claimant then brought proceedings on various grounds, including a judicial review of her admission and detention in the mental hospital.  After reviewing the provisions of the 1983 Act Judge LJ, giving the judgment of the court, stated:
“Under s 13(1) of the Act it is the duty not of the doctors, but of an approved social worker, to make an application under s 2, where satisfied 'that such an application ought to be made and … of the opinion … that it is necessary or proper for the application to be made'. Moreover the social worker must be satisfied that 'detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need' (see s 13(2)).
These provisions make clear that the social worker must exercise her own independent judgment on the basis of all the available material, including her interview and assessment of the 'patient', and personally make the appropriate decision. When doing so she is required to take account of the recommendations made by the medical practitioners. Indeed the application must be 'founded' on their written recommendations (s 2(3)). The doctors too are required to make their recommendations on the basis of their best judgment of the relevant facts and, while eschewing the prohibited reasoning, decide whether the conditions provided in s 2(2) are satisfied. An application made for an improper or collateral purpose (R v Wilson, ex p Williamson [1996] COD 42), or flawed in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223) (R v South Western Hospital Managers, ex p M [1994] 1 All ER 161 at 176, [1993] QB 683 at 700) would be susceptible to judicial review; so would similarly tainted recommendations by the medical practitioners.”
17.	It is contended by Ms Lieven QC that this judgment supports her submission that the AMHP has an independent judgment to exercise and that that judgment by reason of the scheme of the Act extends to an independent assessment of the suitability of the hospital and the regime at the hospital.  It is not sufficient for the AMHP to rely on the recommendation of the medical practitioners; the AMHP must put himself in a position where proper independent judgment as to the recommendation made by the doctors can be scrutinised and a decision made as to whether what is proposed or recommended by them is the proper place for an assessment or for treatment. 
18.	Mr John Norman, who appeared for Durham, contended that the judge was right; no such duty rested upon the AMHP.  He referred to the express terms of s.13(2) and in particular to the fact that the duty was limited on the terms of the Act to the AMHP satisfying himself that, “detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.” (Emphasis added).  S.13(2) did no more than require satisfaction as to the need for detention in a hospital.  It did not extend to any responsibility for the selection of the hospital.
19.	Moreover, it was submitted that the Code of Practice prepared by the Secretary of State under s.118 of the 1983 Act, made clear that the responsibility for the suitability of a hospital was not that of the AMHP.  Mr Norman relied in particular on paragraph 4.75 which provides as follows:
“If the doctors reach the opinion that the patient needs to be admitted to hospital, it is their responsibility to take the necessary steps to secure a suitable hospital bed.  It is not the responsibility of the applicant, unless it has been agreed locally between the LSSA and the relevant NHS bodies that this will be done by any AMHP involved in the assessment.  Primary care trusts are responsible for commissioning mental health services to meet the needs of their areas.  They should ensure that procedures are in place through which beds can be identified where required.”
He further submitted that, on the facts of this case, even if there were a duty on the AMHP, there could be no realistic contention that there was a breach of duty by either AMHP.
My conclusion
20.	As is apparent from the very brief summary of the respective contentions that were advanced before us, the scope of the duty of an AMHP is a question of law of some importance.  It would, in the ordinary case, be desirable for this court to determine that question without remitting the matter for decision by a judge with the possibility of a further appeal to this court, given the significance of this point.  That is a course I hoped that this court could take on this appeal.  
21.	However, there were a number of reasons why this court could not do so.  First, there was no pleading or other document which set out the basis of the duty and whether it rested under the provisions of the Human Rights Act as the duty of a public authority or was a duty of care derived from the terms of the 1983 Act.  Second, it would be necessary in deciding the point to ensure that the decision fitted within the overall provisions of the Act, taking into account the nature of the responsibility placed on the nearest relative and possibly also the obligations of a court when making a hospital order under ss.37 and following or of the Secretary of State when transferring a prisoner to a hospital under ss.47 and following.  Third, there was no prospect of the parties being able to reach an agreement as to facts at this stage, or even as to assumed facts.  As there was no detailed pleading upon which such an issue could be determined, the court would not have had a sufficient factual basis  upon which to found its decision.  Fourth, Ms Lieven QC made clear that she would wish to place before the court a much more detailed analysis of the duty for which she contended and how it fitted into the scheme of the 1983 Act as a whole.
22.	In the circumstances, therefore, it became apparent that it would not be right to determine this important question of law one way or the other on this appeal.  No criticism can be attributed to those appearing, given the way in which the matter had proceeded initially and the nature of the appeal which was limited to the question as to whether the judge had been correct in refusing leave under s.139(2).
23.	It is clear, therefore, that the only point we could determine was whether the judge was correct in refusing leave.  The threshold under s.139 is a low one: see Winch v Jones [1986] QB 296 and Johnston v Chief Constable of Merseyside Police [2009] EWHC 2969 (QB). 
24.	I have no doubt that the argument advanced by Ms Lieven QC meets this threshold.  First it seems to me at least arguable, in the light of the decision in S, that there is a duty of the kind suggested by Ms Lieven QC on an AMHP; that the AMHP has a duty to satisfy himself that it is appropriate for the patient to be detained and it must be arguable that the duty extends at least to bringing a degree of independent judgment to bear on the recommendation as to the hospital and regime made by the medical practitioners.  On the very rudimentary facts and evidence before us, it would not be right on the argument as advanced before us by Miss Lieven QC to say at this stage that the very low threshold had not been met as regards an arguable breach of that duty, particularly by the first AMHP, given the position taken by her as to the limited extent of the duty.  
25.	I would, therefore allow this appeal on the application under s.139(2).  If my Lords agree, I would remit these proceedings for a case management conference before a designated judge of the High Court so that that judge can decide the most appropriate way of proceeding and set a timetable for a rapid resolution of the issue.  The judge should also consider whether these proceedings and the proceedings against Durham Prison and the NHS Trust should be heard together.  As the issue has been raised, it is plainly of considerable importance to all AMHPs, local authorities and others in this field that the responsibility be clarified as soon as possible.
The appeal on the costs order
26.	As I have set out, an order was made that DD should pay the costs that the County Council had been ordered to pay Middlesbrough City Council.  The judge did so on the basis that, although DD had sought to claim against the County Council in respect of the actions of the second AMHP, it was reasonable for the County Council to have tested that contention as the law was unclear.
27.	In my judgment, DD should not have been made responsible for the costs of Middlesbrough City Council.  The City Council had been joined as the County Council had said that it was responsible for the second AMHP.  The fact that the law was not clear was not a basis for making DD pay those costs.  The party taking the point was the County Council.  It lost and it should bear those costs on ordinary principles.
28.	In any event, if as is contended by the County Council, the judge was right in holding that the liability for the costs stood or fell with the application under s.139, the point is academic.
Lord Justice Rimer :
29.	I agree.
Lord Justice Moore-Bick :
30.	I also agree.