Barker v Barking Havering & Brentwood Community Healthcare NHS Trust (Warley Hospital) & Anor

For renewal of detention under section 20 of the Mental Health Act 1983, detention need not be continuous. A patient on authorised leave remains detained for renewal purposes where the hospital remains the base of an integrated treatment programme. Treatment must be assessed as a whole. Rehabilitation, supervision, monitoring, assessment, testing, structure and discipline may together constitute medical treatment, although assessment alone is insufficient. Judicial review and habeas corpus may both address unlawful detention, but judicial review is generally the more satisfactory procedure where the complaint concerns a prior administrative act, because it offers wider remedies.

On 11 May 1998 Mr Justice Richards dismissed Melanie Barker’s applications for habeas corpus and judicial review concerning her continued detention at Warley Hospital under the Mental Health Act 1983.

She challenged the renewal of her section 3 detention under section 20. At the relevant time she was spending substantial periods outside hospital under section 17 leave, while returning for supervision, assessment and monitoring. The appeal concerned whether section 20 permitted renewal while she was on leave, whether the treatment requirement was satisfied by an integrated rehabilitation programme, and whether habeas corpus, judicial review, or both were appropriate procedures.

The appeal was dismissed unanimously. Lord Woolf MR delivered the leading judgment. Hobhouse LJ agreed with his reasons, and Thorpe LJ stated that he was in complete agreement.

1. Renewal during leave. The words requiring a patient to continue to be detained under section 20 of the Mental Health Act 1983 do not require continuous physical presence in hospital. Section 17 leave is compatible with continued detention. A patient on leave retains a hospital at which she is detained when not on leave and remains liable to return. The responsible medical officer could therefore furnish the renewal report while the appellant was either in hospital or on authorised leave.
2. Meaning of treatment. The cumulative conditions in section 20(4) must be considered by reference to treatment as a whole, rather than through an atomistic examination of individual activities. The statutory definition in section 145 includes rehabilitation under medical supervision. An integrated programme may therefore combine inpatient supervision with community rehabilitation. Structure, discipline, monitoring, assessment and urinalysis may be essential components of treatment. Assessment alone would not constitute treatment sufficient for section 3, but assessment and monitoring may form legitimate parts of a wider treatment programme. The narrow interpretation in R v Hallstrom, ex p W, R v Gardner, ex p. L [1986] QB 1090 was flawed. The holistic approach in R v Croydon Health Authority [1995] Fam. 133 was applied.
3. Procedure and remedy. The court applied the common approach described by Lord Wilberforce in R v Home Secretary, Ex p Khawaja [1984] 1 AC 74. Habeas corpus and judicial review may both be appropriate, but judicial review is generally preferable where the complaint concerns the propriety of a prior administrative act, particularly because of its wider remedial powers. The court agreed with the relevant reasoning in In re S-C (Mental Patient) Habeas Corpus [1996] QB 599, but rejected any suggestion that habeas corpus was possibly the only appropriate procedure. If both applications are made, they should be harmonised and supported by common evidence.
4. Orders. Appeal dismissed. Section 18 costs order nisi for the respondents’ costs. The appellant’s costs were subject to legal aid taxation. Leave to appeal to the House of Lords refused.

• Court of Appeal (Civil Division) — On 30 July 1998, dismissed the appeal from the decision of Richards J and refused leave to appeal to the House of Lords: [1998] EWCA Civ 1347.
• Queen’s Bench Division (Crown Office List) — On 11 May 1998, Richards J dismissed the applications for habeas corpus and judicial review concerning the appellant’s detention.