R (O) v West London MH NHS Trust  EWHC 604 (Admin)
Hospital managers are under a common law duty to provide both oral and written reasons at the time of the decison; the decision is legally defective if the reasons are inadequate; this defect cannot be cured by later evidence giving a proper explanation of the reasons; the supplementary evidence was more than mere elucidation so was not accepted.
O was admitted under s3 in January 2004. The nearest relative made a request for discharge under s23; the RMO barred discharge under s25. The consequent hospital managers' hearing was held on 30 April 2004.
In addition to the usual criteria, the managers in this situation should consider the dangerousness criterion, i.e. whether, if dischaged, the patient would be likely to act in a manner dangerous to other persons or to himself: see R v Riverside Mental Health Trust, ex p Huzzey  EWHC Admin 465 and Code of Practice ch 23.
The managers did not mention dangerousness in their written reasons, and failed to tick a box indicating whether or not they were satisfied that the criterion was met.
O was later discharged by his RMO on 11 June, just before an MHRT hearing. O contended that the managers' decision was unlawful and that therefore so was his subsequent detention.
The letter before action was sent on 29 June. The letter of response was received on 13 July, enclosing a supplementation of the original reasons. Proceedings were issued. A further supplementation of the reasons was attached to the acknowledgement of service. A third supplementation of the reasons, a witness statement including an assertion that a decision on dangerousness had been given orally, was made on 10 February 2005, a month before the hearing. (In the judgment the last two supplementations are considered as one.)
Common law duty to give reasons
R (Wooder) v Dr Feggetter  EWCA Civ 554 (which required SOADs to give reasons) stated that in certain classes of case "the common law implies a duty to give reasons... where the subject-matter is an interest so highly regarded by the law (e.g. personal liberty) that fairness requires that reasons... be given as of right." Hospital managers' decisions involve personal liberty so fall within this principle: there is therefore a common law duty to give reasons.
The Code of Practice requires that reasons be given, both orally and in writing, at the time of the decision. This guidance can be treated as part and parcel of what the law requires, consistently with R (Munjaz) v Ashworth Hospital Authority  EWCA Civ 1036 (but see the later R (Munjaz) v Ashworth Hospital Authority  UKHL 58).
The common law duty therefore is to provide both oral and written reasons at the time of the decison.
Original reasons stand or fall on own merits
In R (D) v Northamptonshire Council (1998) EDCR 14 it was said that "There are some classes of case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which will arise if the original reasons were inadequate."
Hospital managers' decisions fall within this principle, because of the common law duty to give reasons derived from the principle in Wooder.
Once the reasons are given, therefore, they stand or fall on their own merits. The hospital managers' reasons undoubtedly fell, because they were defective in that they did not deal with the key issue of dangerousness.
Incidentally, the judge accepted there had been evidence which could justify the conclusion that the dangerousness criterion had been met, although the panel's apparent acceptance that the patient had insight removed a large part of the concerns in those reports.
Ability to supplement reasons
R (Ermakov) v Westminster Council (1996) 2 All ER 302 involved supplementary reasons which were entirely different to the original reasons, and is the leading authority on supplementation of reasons: the court may admit evidence to eludicate or, exceptionally, correct to add to the reasons, but should be cautious in doing so; "the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction." R (D) v Northamptonshire Council, above, and R (Nash) v Chelsea College of Art and Design (2001) EWHC 538 followed Ermakov.
The supplementary reasons here were not entirely different (as in Ermakov) but were somewhat more than elucidation. The solicitor's contemporaneous record of the oral decision did not mention dangerousness, neither did the written reasons; in those circumstances, the judge was worried by the chairman's assertion that he had specifically mentioned dangerousness when giving the oral decision, and had real difficulty in accepting the assertion. The supplementary evidence was not accepted.
The judge concluded: "Of course, it may well be proper to explain or expand in certain circumstances. But where a key issue has not properly, or indeed at all, been dealt with in the original reasons, it becomes very difficult to accept that it should be possible to suppplement those matters subsequently when a challenge is raised."
Mr Justice Collins
Mr K Gledhill for the claimant
Mr J Hyam for the defendant