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Session 2002 - 03
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Judgments - Regina v. East London and the City Mental Health NHS Trust and another (Respondents) ex parte von Brandenburg (aka Hanley) (FC) (Appellant)


SESSION 2002-03
[2003] UKHL 58
on appeal from: [2001] EWCA Civ 239




Regina v. East London and the City Mental Health NHS Trust and another (Respondents) ex parte von Brandenburg

(aka Hanley) (FC) (Appellant)



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry




Regina v. East London and the City Mental Health NHS Trust and another (Respondents) ex parte von Brandenburg (aka Hanley) (FC) (Appellant)

[2003] UKHL 58


My Lords,

    1.  The appellant challenges a ruling of the Court of Appeal on an issue of law which Lord Phillips of Worth Matravers MR expressed in this way ([2001] EWCA Civ 239, [2002] QB 235, 243, paragraph 5):

    "When a mental health review tribunal has ordered the discharge of a patient, is it lawful to readmit him under section 2 or section 3 of the [Mental Health Act 1983] where it cannot be demonstrated that there has been a relevant change of circumstances?"

The Master of the Rolls, with whom Buxton LJ agreed, gave an affirmative, although qualified, answer to that question. So also did Sedley LJ, although he gave his own, slightly different, reasons. Mr Gordon QC for the appellant contends that a negative answer should have been given, save where the situation in question is one of emergency.

    2.  Since the appellant's application for judicial review proceeded (unfortunately, as I think) without any judicial exploration of the underlying facts, some of which are in dispute, I need give no more than a bare summary of the agreed factual background. A more detailed account was set out by the Master of the Rolls in paragraph 3 of his judgment, adopting the summary of the judge.

    3.  On 15 March 2000 the appellant was lawfully admitted to St Clement's Hospital for assessment pursuant to an emergency application made under section 4 of the 1983 Act. The first respondent is the manager of that hospital. The application was made by the second respondent, an approved social worker (ASW), and was supported by the required medical recommendation. A second medical recommendation was obtained, and on the same day the appellant's admission was converted, again lawfully, into an admission for assessment for a period not exceeding 28 days under section 2 of the Act. On 22 March the appellant applied for a tribunal hearing under section 66(1)(a) of the Act. This hearing took place on 31 March. The appellant's application for discharge was resisted by the appellant's responsible medical officer (RMO), who gave oral evidence to the tribunal, by a staff grade medical practitioner working with the RMO, and by the second respondent. The tribunal ordered that the appellant should be discharged with effect from 7 April, deferring the discharge for 7 days to allow accommodation in the community to be found and a care plan to be made, including possible medication. On 6 April 2000 the appellant, who had not left the hospital, was again detained, this time under section 3 of the Act. The application was again made by the second respondent. The necessary medical recommendations were made by the appellant's RMO already referred to, and also a second doctor who had supported the earlier admission under section 2.

    4.  The appellant sought judicial review of the first respondent's decision to admit the appellant on 6 April and also of the second respondent's decision to apply for the appellant's admission under section 3 notwithstanding the recent decision of the tribunal. The broad thrust of his case was that the application and admission of 6 April were unlawful unless there had been a relevant change of circumstances, and that there had been none. The respondents disputed the need for a relevant change of circumstances to legitimate the application and admission of 6 April but contended that there had on the facts been such a change of circumstances. The appellant's application for judicial review came before Burton J. It was then agreed, for want of time, to confine argument to the legal issue stated at the outset of this opinion and to defer a decision on the factual issue (whether there had or had not been a relevant change of circumstances between 31 March and 6 April 2000) until, if ever, it became necessary to resolve that issue. In the event, following the decision of Laws J in R v Managers of South Western Hospital, Ex p M [1993] QB 683, Burton J decided the legal issue against the appellant and dismissed the application. He concluded his judgment by adopting the ruling of Laws J at page 696 of Ex p M and holding:

    "that there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision. The doctors, social worker, and managers must, under the statute, exercise their independent judgment, whether or not there is an extant tribunal decision relating to the patient."

    5.  While agreeing in the result, the Court of Appeal did not endorse the full breadth of the judge's reasoning. The Master of the Rolls summarised his conclusions in paragraphs 30-34 of his judgment:

    "30  The nature of mental illness is such that the severity of the symptoms and the need for treatment will often fluctuate over time. A sequence of discharge, readmission, discharge and readmission is not uncommon. Normally a sensible period is likely to elapse between discharge and readmission. In such circumstances the implied statutory requirement of change of circumstances for which Mr Gordon contends is neither necessary nor sensible. If the professionals concerned are acting objectively and bona fide, the application for readmission is likely to be triggered by behaviour of the patient that is, at least in part, a reaction to life in the community. This will almost certainly constitute a change of circumstances when compared with the patient's reaction to the hospital regime that was prevailing when the tribunal discharged the patient. To require the professionals involved to investigate and attempt a comparison between the two sets of circumstances in order to decide whether or not there has been a relevant change of circumstances would not be helpful or even meaningful.

    31  The position is very different where an application for readmission is made within days of a tribunal's decision to discharge, which carries the necessary implication that the criteria for admission are not present - the more so if the patient has remained under the hospital regime because discharge has been deferred, so that there has been no change in the patient's environmental circumstances. In such a situation there is likely to have been, as Mr Gordon pointed out, a difference of view between the patient's responsible medical officer and the tribunal as to whether or not the criteria justifying detention were established. Under the statutory scheme, where such a conflict exists, it is the opinion of the tribunal that is to prevail.

    32  In such circumstances I do not see how an approved social worker can properly be satisfied, as required by section 13, that 'an application ought to be made' unless aware of circumstances not known to the tribunal which invalidate the decision of the tribunal. In the absence of such circumstances an application by the approved social worker should, on an application for judicial review, be held unlawful on the ground of irrationality.

    33  In conclusion I agree with Burton J that Mr Gordon has failed to establish the premise upon which he has based his case, namely that as a matter of statutory interpretation of the Act an application and admission of a patient under sections 2 or 3 of the Act cannot lawfully be made after the patient has been discharged by a tribunal unless either the relevant professionals have satisfied themselves that there has been a relevant change of circumstances or it is not reasonably practicable for them to do so.

    34  This leaves unanswered the question of whether on the facts of this case the applicant's readmission, which took effect even before he was discharged, was unlawful on the ground of irrationality. It is the respondents' case that the applicant's mental condition had, in fact, significantly deteriorated in the six days between the tribunal's order that he be discharged and the order for his detention under section 3, so that they were in a position to demonstrate, if so required, that there had been a relevant change of circumstances. This raises the question of the significance of the fact that the reasons upon which the applicant's readmission was founded gave no explanation as to why admission was said to be justified despite the tribunal's decision that the applicant should be discharged and, indeed, made no mention of that fact. Neither of these matters were explored before Burton J and they are not matters upon which it would be appropriate for this court to express a view."

Sedley LJ expressed his conclusions in paragraphs 38-43 of his judgment:

    "38  This case has taken a peculiar and in some ways unsatisfactory shape. Mr Gordon has, I agree, succeeded in his challenge to the decision of Laws J in Ex p M [1993] QB 683, 696 that 'there is no sense in which those concerned in a section 3 application are at any stage bound by an earlier tribunal decision', but has failed in his endeavour to introduce in its place, as a matter of law, a change of circumstances criterion for readmission. What has been confirmed in the space between the two is the set of private law and public law controls which Burton J described and which Lord Phillips of Worth Matravers MR in paragraphs 31 and 32 of his judgment endorses, as I would.

    39  In a great many cases, especially those where readmission comes hard on the heels of discharge by the tribunal, there may in the light of this be little practical difference between what Mr Gordon has sought and what he has achieved. Any decision made in the exercise of statutory powers and affecting a person's liberty must not only be made in good faith but must, among other things, have proper regard to any relevant facts.

    40  The need for good faith in this context is well illustrated by Mr Knafler's correct concession on behalf of the social worker that an application to readmit will not be lawful if the approved social worker believes that a mental health review tribunal will thereupon order the patient's discharge; and the same, in my view, is true of the recommending doctors.

    41  A recent - and often a not so recent - order of a tribunal for discharge will always be a relevant fact. If so, it is the duty of the subsequent decision-maker to take it into account; a failure to do so, albeit through ignorance, will vitiate a subsequent decision to seek admission. The principle that the weight to be given to such facts is a matter for the decision-maker, moreover, does not mean that the latter is free to dismiss or marginalise things to which the structure and policy of the Act attach obvious importance. Thus a recent mental health review tribunal decision to discharge a patient, if the circumstances have not appreciably changed, must be accorded very great weight if the second decision is not to be perceived as an illicit overruling of the first. Put another way, there will have to be a convincing reason, in such a case, for readmission. This is particularly so if the United Kingdom's Convention obligations are to be respected. But neither the Act nor the Convention inhibits the detention by a proper decision-making process of those who, although recently discharged, have deteriorated or whose mental wellbeing otherwise requires admission.

    42  In this sense (reverting to the formulation of Laws J in Ex p M [1993] QB 683) it can be said that, while not legally bound in the absence of a change of circumstances by a recent mental health review tribunal decision in favour of discharge, those concerned in a section 3 application cannot lawfully ignore it. They must have due regard to such a decision for what it is: the ruling of a body with duties and powers analogous to those of a court, taken at an ascertainable date on ascertainable evidence. The second decision must be approached with an open mind, but it is not necessarily going to be written on a clean slate.

    43  What has come before us, however, is an appeal confined to the construction of sections 2 and 3 of the Act. On this footing I agree that it fails; but the argument has achieved a significant movement in the law as it has thus far been understood."

The governing principles

    6.  The differences between the parties to this appeal do not lack practical importance for those charged with the difficult and sensitive task of administering the mental health regime established by the 1983 Act. But the differences are relatively narrow, and it is convenient to begin by rehearsing certain familiar overriding principles, not in themselves controversial. First, the common law respects and protects the personal freedom of the individual, which may not be curtailed save for a reason and in circumstances sanctioned by the law of the land. This principle is reflected in, but does not depend on, article 5(1) of the European Convention on Human Rights. It can be traced back to chapter 29 of Magna Carta 1297 and before that to chapter 39 of Magna Carta 1215. But, secondly, the law may properly provide for the compulsory detention in hospital of those who suffer from mental disorder if detention is judged to be necessary for the health or safety of the patient or the protection of others. The necessity for such detention in appropriate cases is recognised by article 5(1)(e) of the Convention, and has long been given effect in domestic law. Under the legislation now current, it is a pre-condition of an emergency application under section 4 of the 1983 Act, and an application for admission for assessment under section 2, and an application for admission for treatment under section 3, that the subject should be judged to be suffering from a mental disorder of a kind which warrants his detention in a hospital or makes it appropriate for him to receive treatment in a hospital and that detention is necessary for the health or safety of the patient or the protection of others. Thus the personal freedom of the individual may be lawfully curtailed in such cases, provided the strict statutory conditions are observed.

    7.  The third relevant principle is of more recent vintage. It is that a person compulsorily detained on mental health grounds should have the right to take proceedings by which the lawfulness of his detention may be decided by a court and his release ordered if the detention is not lawful. This right is expressed in article 5(4) of the Convention, but was not adequately protected in the case of patients subject to restriction by the Mental Health Act 1959, which gave a mental health review tribunal no more than an advisory role in such cases. In X v United Kingdom (1981) 4 EHRR 188, which concerned a restricted patient, a violation of article 5(4) was found because the mental health review tribunal enjoyed a power to advise only and not the power which a court would have to direct the discharge of a detained person. This deficiency was remedied by the Mental Health (Amendment) Act 1982 and now by the 1983 Act. In the case of patients who are not restricted, the tribunal's powers (so far as relevant) were laid down in section 72(1) of the 1983 Act. Before amendment in 2001, the subsection read:

    "Powers of tribunals

    72 -  (1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and -

    (a)  the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are satisfied -

    (i)  that he is not then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

    (ii)  that his detention as aforesaid is not justified in the interests of his own health or safety or with a view to the protection of other persons;

    (b)  the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied -

    (i)  that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

    (ii)  that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or

    (iii)  in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would not be likely to act in a manner dangerous to other persons or to himself."

By subsection (3) the tribunal was empowered, as it did in this case, to direct the discharge of a patient on a future date specified in the direction.

    8.  Fourthly, the rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided. It was clearly established by the House in Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 2 AC 370 that a mental health review tribunal is a court to which the law of contempt applies. It follows that no one may knowingly act in a way which has the object of nullifying or setting at nought the decision of such a tribunal. The regime prescribed by Part V of the 1983 Act would plainly be stultified if proper effect were not given to tribunal decisions for what they decide, so long as they remain in force, by those making application for the admission of a patient under the Act. It is not therefore open to the nearest relative of a patient or an ASW to apply for the admission of the patient, even with the support of the required medical recommendations, simply because he or she or they disagree with a tribunal's decision to discharge. That would make a mockery of the decision.

    9.  In applying these principles, account must be taken of certain important considerations:

    (1)  While doctors may be expected to exercise their best professional judgment in diagnosing the condition and assessing the cases of those suffering from mental disorder, and prescribing treatment, their conclusions will rarely be capable of scientific verification. There will often be room for a bona fide difference of professional opinion. In Johnson v United Kingdom (1997) 27 EHRR 296, paragraph 61, the European Court of Human Rights said:

    "It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science."

    (2)  As the Master of the Rolls pointed out in paragraph 30 of his judgment quoted above, the condition of many of those suffering from mental disorder will not be static. Episodes of acute illness may be followed by episodes of remission. Thus it does not follow that a tribunal decision, however sound when made, will remain so. Other things being equal, the longer the period since the decision was made the greater the chance that the patient's mental condition may have altered, whether for better or worse.

    (3)  It is plain from the language of sub-paragraphs (a)(i) and (b)(i) of section 72(1), quoted above, that the focus of the tribunal's enquiry into the mental health of the patient is on whether he is not "then suffering" from mental disorder or mental illness. "Then" refers to the time of the tribunal's review and the tribunal has no power to consider the validity of the admission which gave rise to the liability to be detained: see Ex parte Waldron [1986] QB 824, 846. The tribunal will doubtless endeavour to assess a patient's condition in the round, and in considering issues of health, safety and public protection under sub-paragraphs (a)(ii) and (b)(ii) of section 72(1) it cannot ignore the foreseeable future consequences of discharge, but the temporal reference of "then" is clear and the tribunal is not called upon to make an assessment which will remain accurate indefinitely or for any given period of time.

    (4)  If an unrestricted patient, compulsorily detained, seeks to be discharged, and the responsible doctors (including the current RMO) agree that the conditions for detaining him are no longer satisfied, he may be discharged and there will be no occasion for a tribunal hearing. Thus hearings will take place where (as here) a patient seeks to be discharged and the responsible doctors, or some of them, judge that he should not be discharged. Where an order for discharge is made by the tribunal, it will (unless the resisting doctors revise their opinion during the hearing) indicate that the tribunal has not accepted their judgment. A conscientious doctor whose opinion has not been accepted by the tribunal will doubtless ask himself whether the tribunal's view is to be preferred and whether his own opinion should be revised. But if, having done so, he adheres to his original opinion he cannot be obliged to suppress or alter it. His professional duty to his patient, and his wider duty to the public, require him to form, and if called upon express, the best professional judgment he can, whether or not that coincides with the judgment of the tribunal.

    (5)  Account must be taken of section 13 of the 1983 Act, which so far as relevant provides:

        "(1) It shall be the duty of an approved social worker to make an application for admission to hospital or a guardianship application in respect of a patient within the area of the local social services authority by which that officer is appointed in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him.

        (2) Before making an application for the admission of a patient to hospital an approved social worker shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."

        It is plainly of importance that the ASW is subject to a statutory duty to apply for the admission of a patient where he is satisfied that such an application ought to be made and is of the opinion specified.


    10.  The problem at the heart of this case is to accommodate the statutory duty imposed on ASWs (by whom, in practice, most applications for admission are made) within the principles referred to in paragraphs 6, 7 and 8 above. The correct solution is in my opinion that proposed by the Master of the Rolls, although I would express it in slightly different terms. In doing so, I do not find it necessary to make detailed reference to the European Convention. Consistently with the principle identified in paragraph 8 above, an ASW may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a mental health review tribunal of which the ASW is aware unless the ASW has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal. It is impossible and undesirable to attempt to describe in advance the information which might justify such an opinion. I give three hypothetical examples by way of illustration only:

(1)  The issue at the tribunal is whether the patient, if discharged, might cause harm to himself. The tribunal, on the evidence presented, discounts that possibility and directs the discharge of the patient. After the hearing, the ASW learns of a fact previously unknown to him, the doctors attending the patient and the tribunal: that the patient had at an earlier date made a determined attempt on his life. Having taken medical advice, the ASW judges that this information significantly alters the risk as assessed by the tribunal.

(2)  At the tribunal hearing the patient's mental condition is said to have been stabilised by the taking of appropriate medication. The continuing stability of the patient's mental condition is said to depend on his continuing to take that medication. The patient assures the tribunal of his willingness to continue to take medication and, on the basis of that assurance, the tribunal directs the discharge of the patient. Before or after discharge the patient refuses to take the medication or communicates his intention to refuse. Having taken medical advice, the ASW perceives a real risk to the patient or others if the medication is not taken.

(3)  After the tribunal hearing, and whether before or after discharge, the patient's mental condition significantly deteriorates so as to present a degree of risk or require treatment or supervision not evident at the hearing.

In cases such as these the ASW may properly apply for the admission of a patient, subject of course to obtaining the required medical support, notwithstanding a tribunal decision directing discharge. The position of the patient's nearest relative, in those cases where he or she makes the application with knowledge of the tribunal decision, does not differ in principle from that of the ASW, although the nearest relative could not in many cases be expected to be familiar with the evidence or appreciate the grounds on which the tribunal had based its decision.