K v Hospital Managers of the Kingswood Centre  EWCA Civ 1332,  MHLO 102
A nearest relative sent an order for discharge to the hospital's fax machine. She had not used one of the three prescribed methods of service (delivery to an authorised officer; pre-paid post; or, with the managers' agreement, internal mail) so the 72-hour period began to run when the part-time MHA Administrator considered it on her return to work four days later.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Detention — Discharge — Mother of person lacking capacity and detained in hospital under mental health provisions seeking discharge — Mother sending discharge order to general fax number at hospital — Order not received by appropriate administrator until four days later — Hospital obtaining barring order declining discharge — Mother seeking writ of habeas corpus — Whether notice period for discharge order running from time at which received at hospital’s fax machine or from when received by officer authorised by hospital — Mental Health Act 1983, ss 23, 25 — Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 (SI 2008/1184), r 3(3)(b)(i)
K v Kingswood Centre and another
B;  WLR (D) 443
CA: Moore-Bick, Ryder LJJ, David Richards J: 23 October 2014
The notice period of a discharge order made for the purposes of section 25 of the Mental Health Act 1983 and served in accordance with regulation 3(3)(b)(i) of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 started to run from the time when it was received by the officer authorised by the hospital managers and not from the time when it was received at the hospital’s fax machine.
The Court of Appeal so stated when dismissing the appeal of K (by his mother and litigation friend) against the decision of Burton J on 23 June 2014 in the Administrative Court refusing an application for habeas corpus.
K’s mother sent a discharge order by fax on 6 June 2014 to the Kingswood Centre, the hospital operated by Central and North West London NHS Foundation Trust, where her son was detained. The discharge order was not given to the appropriate authorised hospital officer until 10 June 2014. The hospital then acted within a permitted 72-hour period and a barring order was made.
RYDER LJ said that under section 23(2)(a) of the 1983 Act the nearest relative of a patient was entitled to serve a discharge order requiring the discharge of the patient. Service was determined by the 2008 Regulations. Where such an order was served, a 72-hour period was allowed for the responsible clinician to provide the hospital managers with a barring report certifying that, in the opinion of the responsible clinician, the patient was likely to act in a way that was dangerous either to him/herself or others if discharged. If a barring report was provided, the nearest relative’s discharge order had no effect. If the nearest relative had given proper notice that had not been barred, the hospital had no legal authority to detain the patient. K’s mother contended that delivery of the discharge order occurred when the fax was received, ie on 6 June 2014. In contrast, the hospital contended that delivery only took place when the discharge order was received by the authorised officer, ie on 10 June 2014.
The scheme of the 2008 Regulations was to distinguish between general service of documents and specified documents/situations where general service did not apply and their purpose was to ensure that by the prescribed means the discharge order came to the attention of an authorised person without delay. As to the prescribed modes of service, there were deemed service provisions for example, the deemed postal provisions. Anything outside those provisions had to be service by delivery to the authorised officer: see regulation 3(3)(b)(i). In that context K’s mother used a method of delivery for her discharge order that was not prescribed in the 2008 Regulations. Delivery to a general fax number was not a prescribed form of service, the deeming provisions did not apply to it and the default prescribed method of delivery then governed service so that it was not until the authorised officer had the order delivered to her that time began to run. The construction of the regulations with their deeming provisions in regulations 3(3)(b)(ii) and 3(6) pointed firmly to there being a regime of deemed service for which the hospital’s system must provide and a default method of service that applied in all other cases. The default service provision was that set out in regulation 3(3)(b)(i) which had the character of personal service upon an authorised officer. If it had been intended that there be deemed service in any other type of delivery than by post, the regulations would have made provision for that so that the regulatory scheme supported the balance of interests in the 1983 Act. There was no obligation on the hospital managers to devise a global system to take account of the wide variety of possible non-prescribed methods of service. Non-prescribed methods of service might include e-mail and social networking, both of which, like attempted fax service, were regularly excluded from commercial methods of service because in the context of the purpose to be served, the risk of non-delivery was too great.
DAVID RICHARDS J and MOORE-BICK LJ agreed.
Appearances: Michael Paget (instructed by DH Law Ltd) for K’s mother; Parishil Patel (instructed by Radcliffes Le Brasseur) for the hospital and its foundation trust.
Reported by: Alison Sylvester, Barrister.