View source for Transcript of R (Z) v Whittington Hospital (2013) EWHC 358 (Admin), (2013) MHLO 29

<pre>                                                                    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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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©

</pre>






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.