Judgments - Trent Strategic Health Authority (Respondents) v Jain and another (Appellates)

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51.  What is very clear is that the case should sound as a strong warning to magistrates faced with similar ex parte applications to make orders cancelling the registration of persons operating nursing homes. It is likely to be a very rare case where an order has to be made without giving the owners an opportunity to state their case. Magistrates should devote care to probing the case made by health authorities, to satisfy themselves whether there is such a risk that no course other than that of making an immediate cancellation order can safely be followed. Certainly on the facts which came out before the tribunal in the present case, there was no need whatever to make an immediate order. No harm would have been done to the interests of the patients if the magistrate had adjourned the matter for such time as was required to allow the appellants to advance any explanations they might wish to put before him and make representations why it was not necessary to make an order to protect the patients against serious risk to their life, health or well-being. If this simple step had been taken, there might have been a wholly different result. I must express the hope that magistrates will understand and accept the imperative need to devote the necessary time and care to ascertaining whether such orders need to be made at all and, in particular, whether they should accept the case made ex parte for cancellation of registration. They should bear in mind that their function is to exercise an emergency function for the protection of patients. If there is evidence that a nursing home is being run in an unsatisfactory manner, but they are not satisfied that there is a serious risk of immediate harm, they can refuse to make any order under section 20 of the Care Standards Act 2000, the successor to section 30 of the Registered Homes Act 1984, leaving the issue to be determined by the registration authority under section 14 of the 2000 Act.

52.  Unhappily, improvements in procedure adopted in the future and changes in the law will not help the appellants. They will understandably feel aggrieved by the extent of the power entrusted to officials and the extent of its misuse in their case, and I can only join in the expressions of sympathy which have been made. I am impelled, however, to the conclusion reached by Lord Scott, and for the same reasons, that the common law cannot give them a remedy. I therefore have to agree with regret that the appeal must be dismissed.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

53.  I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Scott of Foscote. In common with all your Lordships, I agree with his reasoning as to why this claim must fail and share his considerable regret at the result.

54.  Like Lord Scott, and indeed like my noble and learned friend Baroness Hale of Richmond, whose opinion I have also had the benefit of seeing in draft, there appears to me to be considerable force in the notion that the appellants’ rights under article 6 of the Convention and article 1 of the First Protocol to the Convention have been infringed. While it would be quite inappropriate to express any concluded view on the point, I think it is only right to add that it would seem to give rise to a serious injustice if the appellants were unable to recover proper compensation for the loss they have suffered as a result of what, to put it mildly, was an inappropriate and high-handed implementation of the procedure contained in section 30, and in particular section 30(2), of the 1984 Act.

55.  I also agree with what my noble and learned friend Lord Carswell, whose opinion I have had the privilege of seeing in draft, has said about what should be learnt from this sorry case. It provides an object lesson for any District Judge to whom an application under section 30 is made, indeed for any Judge to whom any application is made, where no prior notice of the application has been given to the respondent against whom an order is being sought. In any such case, before entertaining the application, the Judge should, really as a matter of course, ensure that it is simply not possible or that it is inappropriate to give the respondent any notice. Impossibility would arise where there was extreme urgency or where the respondent cannot be contacted within the requisite time-scale; the classic case where it might be inappropriate would be in the case of some freezing injunctions, where there is a real risk of dissipation or concealment being effected very quickly by the respondent.

56.  However, even in many cases where it is impossible or inappropriate to give written notice as required by the rules relating to applications on notice, it may well be possible and not inappropriate to give informal notice, even by telephone or e-mail, to inform the respondent of the application, before the applicant seeks such an order - or even after the application has been made and before the order is pronounced. If such a course is possible and not inappropriate, then the Judge should normally require it to be taken. And the more draconian the effect of the order applied for or to be made, the more necessary it is for the Judge to be satisfied that it is simply impossible or inappropriate to give the respondent any notice that the application is being sought before he or she makes the. Furthermore, it is wholly unsatisfactory for an applicant to contend before the Judge that an application must be heard at once without any, or even very limited, notice to the respondent, in circumstances where the applicant has been preparing the application for some time, and could therefore have given notice, possibly only of an informal nature, to the respondent to warn that the application was being, or even might be, made.

 
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