R v Central London County Court, Ex p London (London, Ex parte)

The County Court’s general power under County Courts Act 1984, section 38, includes power to make interim and ex parte orders displacing a mental patient’s nearest relative under section 29 of the Mental Health Act 1983. The statutory scheme does not impliedly exclude that power. Where the nearest relative objects to an application for treatment under section 29(3)(c), however, the preferable course, absent cogent reasons, is to determine displacement finally before a treatment application is made, using the statutory extension of assessment detention. Hospital managers may act on apparently valid court orders and admission papers. If an underlying order is later invalidated, the court may order release, but that does not retrospectively make the managers’ original decision unlawful.

The applicant, a detained mental-health patient, challenged County Court orders made on 8 and 15 March 1996 which temporarily displaced his mother as nearest relative under section 29 of the Mental Health Act 1983. He contended that the County Court could make only a final displacement order, with the consequence that his subsequent admission for treatment under section 3 was unlawful.

Owen J dismissed the judicial-review challenge. The applicant appealed and also renewed applications for permission to challenge the later renewal of detention and a later admission expressed to be without prejudice. The principal issue was whether the County Court had jurisdiction to make ex parte or interim orders under section 29, and, if not, whether hospital managers could lawfully rely on such apparently valid orders when admitting the patient.

1. Appeal dismissed unanimously. Stuart-Smith LJ gave the judgment, with which Robert Walker and Henry LJJ agreed. The County Court had jurisdiction to make the interim and ex parte displacement orders. Section 38 of the County Courts Act 1984 confers a general power equivalent to that of the High Court, including interlocutory orders. Nothing in section 29 of the Mental Health Act 1983 expressly or impliedly removed that power.

2. The statutory scheme supported that conclusion. Section 30(4) contemplated that a section 29 application might be made concurrently with, or after, a treatment application under section 3. In particular, where displacement was sought under section 29(3)(d), an interim order might be necessary to prevent an inappropriate discharge before a final hearing. If interim jurisdiction exists in that situation, it also exists where the ground is unreasonable objection under section 29(3)(c).

3. The court nevertheless gave practical guidance. Where section 29(3)(c) is relied on and section 29(4) can extend assessment detention, displacement should ordinarily be finally determined before a section 3 application is made. That course avoids the difficulty of having to unravel a treatment admission if the nearest relative is ultimately not displaced. This was guidance on the appropriate exercise of jurisdiction, not a limit on jurisdiction.

4. The challenge to the section 3 admission therefore failed. The renewed challenge to the section 20 renewal also failed because the original treatment admission was valid. The later admission expressed to be without prejudice was ineffective and fell away, so there was nothing to quash.

5. Stuart-Smith LJ additionally considered the contrary hypothesis. Hospital managers were entitled, and in performing their duty bound, to act on apparently valid court orders and admission documents. If the underlying orders had later been quashed, the court could order release or grant habeas corpus, but the managers’ original decision to admit would not thereby become retrospectively unlawful.

The court dismissed the appeal, refused permission to seek judicial review on the renewed matters, made no order for costs, and refused permission to appeal to the House of Lords.

• Court of Appeal (Civil Division): Dismissed the appeal from Owen J’s decision and refused the renewed applications for permission to apply for judicial review.

• High Court, Queen’s Bench Division (Owen J): On 13 March 1997, dismissed the applicant’s judicial-review challenge to the County Court’s interim displacement orders and the resulting section 3 admission. He also refused permission to challenge later detention decisions.