"This is an application for judicial review of a decision by an independent panel on 12 April 2016 to discharge the Interested Party, AU, from detention under the Mental Health Act 1983. It is brought by South Staffordshire and Shropshire Healthcare NHS Foundation Trust and Dr Whitworth (previously AU's responsible clinician). ... To put the case in general terms the claimants are concerned about the Panel's decision to discharge AU in the light of the views of the clinical team and also a decision of the First Tier Tribunal ... which decided on 10 March 2016 not to discharge him from detention. ... The judicial review raises an important point of principle as to the capacity of a body to seek judicial review of a decision which it could have made itself. In broad terms the Trust appointed the Panel and under the 1983 Act it exercised delegated powers. Because AU raised this point in his grounds, Warby J joined Dr Whitworth as a second claimant to the action on 4 May 2016 on the basis that, if the Trust could not seek judicial review, she could. If the Trust and Dr Whitworth can seek judicial review, the grounds they advance against the Panel's decision are, first, that it failed to treat the Tribunal's decision as a relevant consideration and, secondly, that the Panel's decision is irrational in light of the evidence available and the reasons it has given."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Queen’s Bench Division
Regina (South Staffordshire and Shropshire Healthcare NHS Foundation Trust and another) v Hospital Managers of St George’s Hospital.
2016 May 17; 20
Judicial review — Claimant — Entitlement to bring claim — NHS trust delegating to independent review panel power to discharge patient liable to be detained — Panel deciding to discharge patient — Whether NHS Trust entitled to bring judicial review claim against panel’s decision — Whether NHS trust both claimant and defendant — Mental Health Act 1983 (c 20), s 23(6) (as amended by Health and Social Care (Community Health and Standards) Act 2003 (c 43), Sch 4, para 53(c) and Mental Health Act 2007 (c 12), s 45(1))
Mental disorder — Compulsory admission — Discharge of patient — Powers of discharge — NHS trust delegating to independent review panel power to discharge patient liable to be detained — Panel deciding to discharge patient shortly after decision of tribunal not to do so — Whether panel to have regard to tribunal’s decision — Whether panel’s decision unlawful — Mental Health Act 1983 (c 20) (as amended by Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), art 3, Health and Social Care (Community Health and Standards) Act 2003 (c 43), Sch 4, para 53(c), Mental Health Act 2007 (c 12), ss 9(6), 45(1), Sch 3, paras 10(2)(3), 21(2) and Transfer of Tribunal Functions Order 2008 (SI 2008/2833), Sch 3, para 53(a)(b)), ss 23, 72(1)
The interested party, who suffered from long-standing mental health issues, was arrested for assault and detained in a medium secure unit pursuant to section 3 of the Mental Health Act 1983. His responsible clinician made a barring order against his discharge which was subsequently contested by the interested person himself and his mother by way of an application to the First-tier Tribunal (Health, Education and Social Care Chamber) for a formal hearing. Approximately one month after the tribunal had reached a decision not to discharge him an independent review panel of hospital managers, exercising delegated powers under section 23(6) of the 1983 Act on behalf of the relevant NHS trust, decided that he should be discharged. The NHS trust sought judicial review of the decision of its independent panel. The panel and the interested person resisted the claim, contending that the trust had no legal power to challenge what was, in effect, its own decision.
On the claim for judicial review —
Held, claim dismissed. (1) A public body could not be both the claimant in and the defendant to a claim. Therefore, had the NHS trust taken the decision itself judicial review would not have been possible because a public body could not bring a claim for judicial review of its own rules and decisions. However, in the present case the legal position of capacity was altered by the nature of the delegation. Section 23(6) of the 1983 Act ensured the independence of a panel from an NHS foundation trust by the requirement that members could not be executive directors of its board or employees. Consequently, the panel was sufficiently separate from and independent of the trust to enable the trust to bring a claim for judicial review against the panel’s decision (paras 25–26).
(2) The discharge power conferred on an NHS foundation trust or its appointed panel under section 23 of the 1983 Act was wholly different from that conferred on the First-tier Tribunal under section 72, such that the tribunal’s decision was not a relevant consideration which the panel had been required to take into account. The panel had acted properly and rationally in making its decision and there was no basis on which the court could interfere with it (paras 35, 36, 42, 43, 44).
Nicola Greaney (instructed by Capsticks Solicitors LLP) for the NHS trust.
Susanna Rickard (instructed by Mills & Reeve LLP) for the panel.
Helen Curtis (instructed by QualitySolicitors CMHT, Walsall) for the interested party.
Reported by: Thomas Barnes, Solicitor