R (Z) v Whittington Hospital [2013] EWHC 358 (Admin), [2013] MHLO 29

"The claimant, Mrs Z, who very ably represented herself, was sectioned under the Mental Health Act shortly after giving birth to her first baby after a prolonged and very difficult labour. ... Miss Z says that looking at the reasons that were given at the time, which are recorded in a document signed by both doctors (Form A3, that is the formal sectioning document) the reasons that are there recorded are insufficient reasons to warrant her detention under the Mental Health Act." [Summary required.]

Related judgments

R (Z) v Camden and Islington NHS Foundation Trust [2013] EWCA Civ 1425, [2013] MHLO 100

  • R (Z) v Whittington Hospital [2013] EWHC 358 (Admin), [2013] MHLO 29

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: Text:MHLR 2014.

Whether a decision to detain under s2 Mental Health Act 1983 was unreasonable; whether the failure to hold a managers’ hearing in light of the proximity of a Tribunal hearing was unreasonable - R (Zhang) v Whittington Hospital – [2014] MHLR 127

Points Arising: It was not unreasonable to detain under section 2 Mental Health Act 1983 even though further evidence showed the decision to be unduly cautious; nor was it unreasonable to not hold a managers review when a Tribunal hearing was to be held soon.

Facts and Outcome: Ms Zhang was refused permission to challenge a decision to detain her under section 2 Mental Health Act 1983. She had been discharged by a Tribunal on the basis her disorder was not of the relevant nature or degree, but the High Court determined that whilst the further evidence before the Tribunal might have revealed the detesntion to be overly cautious, it was not shown to be unreasonable. She was also refused permission to challenge the failure of the hospital to organise a review by the hospital managers under s23 of the 1983 Act: the fact that there was an impending Tribunal meant that is was not unreasonable not to have the managers hearing.

Transcript

                                                                    CO/5850/2012



Neutral Citation Number: [2013] EWHC 358 (Admin)


IN THE HIGH COURT OF JUSTICE


QUEEN'S BENCH DIVISION


THE ADMINISTRATIVE COURT



                                                         Royal Courts of Justice




                                                                          Strand




                                                                 London WC2A 2LL




                                                       Monday, 4th February 2013









                                  B e f o r e:




                              GERALDINE ANDREWS QC




                     (Sitting as a Deputy High Court Judge)









                                    Between:




                     THE QUEEN ON THE APPLICATION OF Z




                                                                        Claimant




                                       v




                              WHITTINGTON HOSPITAL




                                                                       Defendant









              Computer‑Aided Transcript of the Stenograph Notes of




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                   (Official Shorthand Writers to the Court)








The Claimant appeared in Person


Miss A Hearnden (instructed by Hempsons) appeared on behalf of the Defendant








                                J U D G M E N T




                                 (As Approved)









                                Crown copyright©




1.     THE DEPUTY JUDGE: This is a renewed application for permission to apply for judicial review.


2.     The claimant, Mrs Z, who very ably represented herself, was sectioned under the Mental Health Act shortly after giving birth to her first baby after a prolonged and very difficult labour.


3.     On 6th March 2012, which was only two days after the birth, an assessment of her mental health was carried out. Following that assessment two doctors, a Dr Shah and a Dr Dyers, decided that it was appropriate to section her under the Mental Health Act. The test, of course, was whether or not it was in the interests of her health and safety or the interest of her baby that she should be detained. The detention had to be in consequence of a clinical decision that she was at that time, and I stress "at that time", suffering from a mental disorder.


4.     Mrs Z very properly and fairly points out that she did have a past history of psychotic illness with which she had managed to cope and that there had been some history of delusions, but that she had been coping well with the pregnancy, she had been co‑operating with the midwives and with all other people in authority, and at no stage in the course of her pregnancy did anybody express to her any concerns about her mental health or her ability to properly care for her baby after the birth. That is why it must have come as a considerable shock and a matter of considerable distress to her that without any form of prior warning or any discussion with her as to what they were going to do, the two mental health professionals that I have mentioned decided that she should be sectioned, which resulted in her going to the Mother and Baby Unit.


5.     Miss Z says that looking at the reasons that were given at the time, which are recorded in a document signed by both doctors (Form A3, that is the formal sectioning document) the reasons that are there recorded are insufficient reasons to warrant her detention under the Mental Health Act. The reasons briefly stated are that she has a two‑day old baby and what is described as a 4‑year history of psychotic illness. Mrs Z points out that she had been well since 2009 and that is a 3‑year period where she had been managing matters perfectly well. The record then goes on to say that she has previously experienced thought interference and delusions of reference from TV, and then it states:


"Currently admitting to ongoing delusions regarding multi national governmental conspiracy. Believes she is being monitored by hidden cameras. Refuses to believe she has any mental health illness so does not want to accept treatment. Claims to be happy with baby but does not demonstrate normal levels of vigilance when being assessed. Mental state predominantly calm but easily irritated by certain persons. Quite limited range of affect particularly when discussing baby. Refusing to co‑operate with the questions posed by Dr Shah more co‑operative with Dr Dyers."


Then there is a note from Dr Dyers:


"She lacks insight and is not willing to accept treatment or hospital admission informally."


6.     Mrs Z's husband tried to get her discharged almost immediately after the sectioning and there was a discussion with one of the doctors, Dr Long, who decided not to allow immediate discharge. The matter had to go to a Tribunal, which it did on 20th March.


7.     The decision of the Tribunal was to discharge Mrs Z. The grounds it gave in summary were that:


"The Tribunal was not satisfied that the patient is suffering from mental disorder or from mental disorder of a nature or degree which warrants the patient's detention in a hospital for assessment for at least a limited period. The Tribunal is not satisfied that the patient's detention as aforesaid is justified in the interests of the patient's own health or safety or with a view to the protection of other persons."


8.     When one reads the Tribunal's decision as a whole it is clear that they have not come to the conclusion that Miss Z was not suffering from any mental disorder, but rather that any such disorder was not of a nature or degree that warranted her detention. Their conclusion was recorded in paragraphs 13 and 14:


"Having considered all the evidence with care we were not satisfied that grounds for continuing detention under section 2 were made out."


Then they say this in paragraph 14:


"We fully understand why given Miss Z's history and apparent presentation on 6th March [I stress "apparent presentation"] section 2 was considered appropriate. Given the history of psychosis, the residual delusional beliefs and the risk of post partum psychosis the decision to place her on section cannot be criticised."


They go on to say:


"Since being placed on section 2 there has been no deterioration in Miss Z's mental health. The period for which she would be at risk for post partum psychosis has passed as Dr Davey agreed and we do not consider that a further period of detention would bring back about a change in attitude to medication. She has been managing the baby well. We saw this for ourselves during the hearing, during which the baby was present throughout. No concerns arose during her pregnancy, during which she attended anti natal classes and appointments regularly. Miss Z is well supported by her husband whose evidence we found compelling. She is prepared to accept visits and help from the health visitor whom we are told would be fully appraised of this admission."


Reading on to paragraph 18:


"It follows that we didn't find at present the nature of Miss Z's disorder ... [which postulates that there is a disorder] ... is such as to require continuing detention for further assessment or treatment, which in any event she has refused to accept or assessment is needed in the interest of health or for the protection of others. So far as the latter is concerned the only realistic risk is to the baby. No such risk was apparent to us and there is in any event to be an assessment of that by Children and Family Services."


9.     Looking at that information and evidence the question is whether or not there are grounds on which this court, which is a court of review, can interfere with the initial decision to section Mrs Z. It may well be, in light of the further evidence that was presented to the Tribunal, that the medical health professionals were being unduly cautious when they did what they did. It is most unfortunate that it caused a high degree of distress, as undoubtedly it would to a lady who was clearly in a vulnerable state and who only wanted to look after her baby. To have it suggested that she might harm the child, I can imagine was something that would cause considerable mental anguish at a time after a very difficult labour.


10.     I have extreme sympathy with Mrs Z about what happened to her and it may well be that the decision to section her, when looked in the light of hindsight, was a wrong decision. But that is not enough for this court to be able to interfere by way of judicial review because this court is not a court of appeal on the merits. The question I have to ask is whether, faced with the information that is recorded in the contemporaneous documents, the two mental health professionals who made the decision that they did, were acting outside of the boundaries of what was reasonable for a clinician or two clinicians to have done at the time? Particularly in the light of the observations of a very experienced Mental Health Tribunal, it seems to me that the chances of being able to persuade a judge of this court that this decision was outside those boundaries are very slender indeed. The claim that the decision was unreasonable does not meet the threshold test for permission. That means unfortunately that I am going to decline the application for permission on that ground.


11.     The question that remains then is whether or not there are any separate grounds in relation to the procedural complaint, which is that the authority should have had a management meeting at a much earlier stage to deal with the efforts of Mrs Z's husband to get a discharge before the Tribunal hearing. If this had been a case in which the matter was put off pending a Tribunal hearing several months down the line, I would have had quite a lot of sympathy with that submission. There is not a great deal of material before the court that really assists me to determine whether or not the matter could have been dealt with more quickly administratively, if there had been a management meeting. But it does look as if the application to reconsider administratively more or less coincided with the timing of the Tribunal hearing. I cannot be satisfied in the circumstances that a decision to leave the matter to the Tribunal, rather than deal with it internally by way of a management meeting, was either unreasonable or constituted a reviewable error, or indeed caused any further inconvenience to Mrs Z.


12.     I appreciate that Mrs Z is very upset by this whole affair. I can understand why that should be. She is particularly distressed by the fact that she says that the information on which the professionals acted was not information that she gave them and that there was no proper discussion with her. But one has to look at matters from the point of view of the clinicians and to see things through their eyes. They often have to make difficult decisions in the heat of the moment. Faced with the medical history of which they were aware, and with what they noticed at the time in relation to her lack of affect with the baby, it is entirely understandable that they decided to act out of an abundance of caution and to section her.


13.     Therefore, with some regret and a great deal of sympathy, I have come to the conclusion that this application must be dismissed.


14.     THE DEPUTY JUDGE: I am very indebted both to counsel and Mrs Z for the assistance given to the court.


15.     THE CLAIMANT: My Lady, can I still raise a point after you have made the decision?


16.     THE DEPUTY JUDGE: No, I have made my decision now. That is it. I have dismissed your application.


17.     THE CLAIMANT: Can I, if you allow me and then I briefly say one point. Because they had to follow the Mental Health Act law and then the Mental Health Act law says this patient has to be suffering from a mental disorder then the doctors ‑‑ experts can section. But I was not suffering from mental health disorder at all and then the defendant has not provided any evidence to prove I was suffering from mental disorder.


18.     THE DEPUTY JUDGE: I have ruled against you on that point Mrs Z. I have ruled against you on the basis that whether you were or were not suffering from a mental disorder the two doctors who sectioned you were entitled to come to the view that you were. That is the basis on which I have dismissed your application. I am very sorry, I know you will be unhappy at the result but that is my decision.


19.     THE CLAIMANT: It means the two doctors follow the procedure does not mean they follow the law, they have to ‑‑


20.     THE DEPUTY JUDGE: No Mrs Z, I am not ‑‑


21.     THE CLAIMANT: ‑‑ from the human rights points.


22.     THE DEPUTY JUDGE: Forgive me Mrs Z, you have had your opportunity. You had a very fair opportunity to address the court. I have to deal with other people now. I am very sorry that you will be upset by my decision but I have made it and that is it. So, I have to listen to other people now.


23.     THE CLAIMANT: Thank you very for your help. Can I say, I seek the permission to appeal and would you give me the permission to appeal?


24.     THE DEPUTY JUDGE: I cannot give you permission to appeal my decision. You can go to the Court of Appeal. I have no power to give you permission to appeal. You have to make the application to the Court of Appeal.


25.     MISS HEARNDEN: Forgive me my Lady, I am not sure that is correct.


26.     THE DEPUTY JUDGE: I think it is final, is it not?


27.     MR NATHAN: My Lady, it is not final. The application can be renewed to the Court of Appeal by way of application for permission to appeal and that application can actually be made to your Ladyship.


28.     THE DEPUTY JUDGE: I did not realise that. I thought as far as I was concerned it was exhausted.


29.     THE ASSOCIATE: My Lady none of them are right: she can appeal but she has to go to the Court of Appeal. What you have done is final. If she wants to appeal she has to make an application to the Court of Appeal. I do not give you a form to renew.


30.     MISS HEARNDEN: My Lady, I think I have caught up. The point is Mrs Z would need permission to appeal to the Court of Appeal and that application at the first instance can and should be made to your Ladyship.


31.     THE DEPUTY JUDGE: I will refuse permission to appeal to the Court of Appeal and therefore if you want to make an application to the Court of Appeal for permission, you have to make it to them.


32.     THE CLAIMANT: I'm going to, yes my Lady.


33.     THE DEPUTY JUDGE: To expedite that, should I order a transcript of my judgment? I think then what I will do is I will order, to help you with that, I shall order a transcript of my judgment to be made available to you at the earliest opportunity. All right?


34.     THE CLAIMANT: Can I have it today?


35.     THE DEPUTY JUDGE: It will not be ready today. In practical terms it is impossible to get a transcript today.


36.     THE CLAIMANT: I need to make the application within 7 days.


37.     THE DEPUTY JUDGE: If you have not a transcript within 7 days, you can tell the Court of Appeal in your application for permission that a transcript is being ordered and everything will be done and I will direct that it be expedited.


38.     THE CLAIMANT: I think you are very helpful my Lady. Could I briefly ask the reason you refuse me my permission?


39.     THE DEPUTY JUDGE: Yes. I will fill in a form which states it. The reason I am refusing you is that I consider that there are no properly arguable grounds for judicial review in this case, that your application is largely consisting of an attempt to reargue the merits, which is not what this court is dealing with and that on the information before me it is plain that the decision that was reached was within the bounds of the decision that the clinicians could reach.


40.     THE CLAIMANT: I'm a litigant in person, I do apologise. Can I ask for the merits and which court is dealing with that?


41.     THE DEPUTY JUDGE: It will be the Court of Appeal. All right? You have to go to the Court of Appeal Office and if you ask ... I am sure that one of the barristers who is here will be able to give you some help.


42.     MR NATHAN: My Lady, if it assists I have spoken Mrs Z's husband outside and would very much appreciate the opportunity ... I believe they have another appointment this afternoon. Once that finishes I have arranged provisionally to meet with her and her husband.


43.     THE CLAIMANT: That will be great.


44.     THE DEPUTY JUDGE: Can I, on behalf of the court, say how very much I appreciate your help. That is a really kind offer and thank you in the best traditions of the Bar. Thank you very much indeed. I will make sure I fill in

this form and get it to you fairly quickly.

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