S-C, Re

Habeas corpus is an appropriate remedy where detention is alleged to have been unlawful from the outset because a statutory precondition to detention was absent. Under the Mental Health Act 1983, an application which appears duly made may be acted upon by hospital managers without further proof of signatures, qualifications or stated facts. That protection does not make an objectively defective application valid, nor does it prevent the court from examining the original jurisdiction to detain. Compliance with nearest-relative safeguards is substantive. Judicial review is not the exclusive remedy where the challenge concerns jurisdiction rather than an antecedent administrative decision.

An adult detained under section 3 of the Mental Health Act 1983 challenged the legality of his admission and continued detention. The approved social worker knowingly identified his mother as nearest relative although his father held that status and had objected. No written delegation or court order overriding the objection existed. Turner J refused habeas corpus on 26 October 1995. The Court of Appeal considered whether section 6(3) protected the detention because the application appeared compliant, and whether the challenge had to proceed by judicial review. The central issue was whether an apparently valid application could confer lawful detention despite non-compliance with section 11(4).

The Court of Appeal unanimously allowed the appeal in principle. The detention was unlawful because the approved social worker made the application despite knowing that the Appellant’s father was the nearest relative and had objected under section 11(4) of the Mental Health Act 1983. No effective delegation or statutory override had been made.

1. The Master of the Rolls held that section 6(1) and (2) required objective compliance with the statutory conditions. An application had to be actually duly completed, not merely state facts which, if true, would establish compliance.
2. Section 6(3) permitted hospital managers to act on an application which appeared duly made and founded on the necessary medical recommendations without further proof of signatures, qualifications or stated matters. That provision protected managers who relied on apparent compliance. It did not convert an unlawful detention into a lawful one or prevent habeas corpus once the original defect was established.
3. The challenge was jurisdictional: it alleged that the power to detain never arose. Habeas corpus was therefore appropriate. The Court distinguished Reg. v Secretary of State for the Home Department, Ex parte Muboyayi [1992] 1 QB 244, where the challenge concerned an antecedent administrative decision. The precedent-fact principle associated with Reg. v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74 supported the distinction.
4. The Court accepted the statutory reasoning in Reg. v Managers of South Western Hospital, Ex parte M [1993] QB 683 concerning actual compliance and apparent due making, but rejected its conclusion that section 6(3) itself made the detention lawful.
5. Lord Justice Neill agreed, expressly rejecting that conclusion. Lord Justice Hirst agreed with both judgments. The matter was adjourned so that the current hospital managers could show cause why the Appellant should not be released. Costs orders were made in favour of the Appellant, with an indemnity in favour of Warrington from Lancashire County Council.

• Court of Appeal (Civil Division): Allowed the appeal in principle, held the detention unlawful and habeas corpus appropriate, and adjourned the matter for notice to the current hospital managers.
• High Court of Justice, Crown Office List: Turner J refused the Appellant’s application for habeas corpus on 26 October 1995.