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

Unsuccessful challenge to (1) detention under s2 (a subsequent tribunal decision to discharge was consistent with a lawful initial detention) and (2) decision not to hold hospital managers' hearing (it was reasonable to wait a few days for the tribunal).

Related judgments

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


                                                           Case No: C1/2013/0326

Neutral Citation Number: [2013] EWCA Civ 1425






                                                         Royal Courts of Justice

                                                        Strand, London, WC2A 2LL

                                                           Date: 17 October 2013


                             LORD JUSTICE SULLIVAN

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                       THE QUEEN ON THE APPLICATION OF Z

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                         WHITTINGTON HOSPITAL) & ANR               Respondent

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                               (DAR Transcript of

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                        The Applicant appeared in person

             The Respondent did not appear and was not represented

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                           (As Approved by the Court)

                                Crown Copyright

Lord Justice Sullivan:

1.     This is a renewed application for permission to appeal against the order dated 4 February 2013 of Geraldine Andrews QC, sitting as a Deputy High Court Judge, refusing the claimant's application for permission to apply for judicial review of a decision to section her under section 2 of the Mental Health Act following the birth of her baby. She was sectioned on 6 March 2012, but after a hearing before the Mental Health Review Tribunal on 20 March 2012 she was released.

2.     The claimant's basic submission is that she was not suffering from a mental disorder of any kind, and she says that she has the evidence to demonstrate that. The difficulty she faces in judicial review proceedings is that, as I have sought to explain, they are not an opportunity to argue about the merits of the decision. They are simply an opportunity to contend that the decision was unlawful. In support of her contention that she was not suffering from a mental disorder, the claimant points to the first ground for the tribunal's decision, which says:

"The tribunal is 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 (or for assessment followed by medical treatment) for at least a limited period."

She submits that in the light of that finding that she was not suffering from mental disorder. It simply was not open to the doctors on 6 March to have concluded that she was.

3.     The difficulty with that submission is that fails to read the tribunal's decision as a whole. If one does so, it is perfectly clear that the tribunal was not saying that she was not suffering from a mental disorder. It was saying that she was not suffering from a mental disorder of a nature or degree which warranted continued detention. Moreover, the tribunal expressly stated in respect of the original detention on 6 March:

"We fully understand why, given [the claimant's] history and apparent presentation on 6th March, s.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."

4.     In the light of that conclusion, there is simply no prospect whatsoever of the claimant being able to establish that the doctors' decision of 6 March to section her was unlawful. The tribunal was able to reach a different conclusion (a) because it had more evidence before it and (b) because it had the benefit of hindsight, and in particular information as to whether there had been any deterioration in the claimant's condition. It is not in the least uncommon for a patient to be sectioned and for it then to be concluded at the tribunal stage that detention is unnecessary, either because the patient does not suffer from any mental disorder at all or because the disorder is not of such a degree as to warrant their detention either in their own interests or in the interests of someone else. That is the whole purpose of the tribunal process. It is able to examine matters with the benefit of more evidence, a fuller investigation, moreover an investigation with the benefit of a degree of hindsight that those carrying out the initial section process will not have had.

5.     So, for those short reasons, it seems to me that the principal ground of challenge is fairly described as being wholly without any legal (I emphasise legal) merit.

6.     There was a further point raised: that is to say, the claimant's husband had asked for her case to be reviewed. There was a challenge to the lawfulness of the decision not to review, but again that challenge has no prospect whatsoever of succeeding, because as I have mentioned the review hearing was due to take place on 20 March, and it was eminently reasonable, rather than reviewing the case, to say we will wait for the tribunal hearing, which by that stage was a matter of a few days away.

7.     So, for those short reasons, this renewed application for permission to appeal against the Deputy Judge's decision to refuse permission to apply for judicial review must be dismissed.

Order: Application refused

External link

Possible Bailii link (not there when checked last night, but might have appeared since)