MENTAL DISORDER — Admission for treatment — Compulsory detention — Hospital order for admission and detention in hospital within 28 days — Order amended four days later following error in original order — Whether admission and detention from date of original order or from date of variation — Mental Health Act 1983, ss 37(1)(4), 40(1)
The effect of an order for the admission and detention of an offender in a hospital, within s 37 of the Mental Health Act 1983, was limited by s 40 to the period of 28 days from the date of the making of the order. A subsequent amendment of the order did not authorise admission after the 28-day period in the original order.
The Court of Appeal so held allowing the appeal of the claimant, DB, from the judgment of Foskett J on 7 May 2008 (sub nom X v An NHS Trust  EWHC 986 (Admin)) when he dismissed the claimant’s claim by way of judicial review for a declaration that his admission and detention on and after 17 January 2005 was not authorised by a hospital order made by the Crown Court at Nottingham on 17 December 2004 as varied by that court on 21 December 2004. The hospital order provided for the claimant’s admission to a secure unit within 28 days of the order, ie 14 January 2005, rather than a medium secure unit as recommended by a consultant forensic psychiatrist. The mistake having been noticed and the order being varied by the court, the claimant was admitted to the medium secure unit on 17 January 2005.
STANLEY BURNTON LJ said that s 40 expressly limited the authority conferred by a hospital order made under s 37 to the period of 28 days from the date of the making of the order. Once the 28-day period from 17 December 2004 had expired, the order relating to the claimant ceased to have effect and ceased to provide authority for his conveyance to the medium secure unit or for his detention in that unit thereafter. Because the order expired after 28 days, s 37(4) required the court to be satisfied there were arrangements for the patient’s admission within that period. The standard form of hospital order correctly reflected the Act’s provisions. The validity of the order of 17 December 2004 was not in issue. The judge should have asked what its effect was, and in particular what was its duration as amended. Because difficulties might arise if the hospital specified in the order became unavailable for whatever reason, it would be preferable for the standard form of order to specify the date when the 28-day period expired. In addition, it would be sensible for a s 37 order to include a direction or recommendation to the sentencing court that if an order was frustrated it had the opportunity to pass an alternative sentence before the authority to detain was extinguished. Further, since the court’s power under s 37(4) to direct the patient’s conveyance and detention in a place of safety pending admission to hospital was not automatic and mandatory, there would be no lawful authority for detention during that period unless the court ensured that the power was expressly exercised. His Lordship would make a declaration that the claimant’s admission and subsequent detention on and after 17 January 2005 were not authorised by the hospital order made on 17 December 2004 as varied by the order of 21 December 2004.
LONGMORE LJ gave a concurring judgment and LAWS LJ agreed with both judgments.
R (DB) v Nottinghamshire Healthcare NHS Trust  EWCA Civ 1354;  WLR (D) 375
CA: Laws, Longmore and Stanley Burnton LJJ: 3 December 2008
Appearances: Stuart Brown QC and Alexander Ruck Keene (Cartwright King, Nottingham) for the claimant; David Lock and Nageena Khalique (Mills & Reeve, Birmingham) for the defendant.
Reported by: Robert Rajaratnam, barrister