Wirral Health Authority & Anor v Mental Health Review Tribunal & Ors

At the permission stage, an appeal may proceed where it raises issues of principle concerning the interaction of statutory provisions, or where other reasons make it important for the Court of Appeal to consider the facts. Permission may be granted without indicating that the proposed appeal has realistic prospects of success. The court may also consider whether a late judicial review challenge should be permitted to continue, if appropriate grounds are advanced. The court identified these issues in the context of the interaction between the Mental Health Act 1983 provisions governing hospital orders, discharge and detention, but did not determine their substantive merits.

Mr Edwards was detained at Ashworth Hospital under the Mental Health Act 1983. The Mental Health Review Tribunal ordered his discharge without giving adequate reasons. Dr Finnegan subsequently discharged the section 37 order and took steps to detain Mr Edwards under section 3. The local authorities challenged both decisions by judicial review.

Scott Baker J quashed the Tribunal’s decision and Dr Finnegan’s discharge order. Mr Edwards applied for permission to appeal. The central issues included whether a section 37 hospital order could be reconstituted after discharge, and whether the late challenges should be allowed to proceed.

The Court of Appeal allowed the application for permission to appeal. Latham LJ and Mantell LJ expressed no view on the likely outcome of the substantive appeal.

1. Issues of principle. The proposed appeal raised questions concerning the interaction of the relevant provisions of the Mental Health Act 1983. These included the question whether a section 37 hospital order could be reconstituted after it had been discharged. Latham LJ considered that issue to present real difficulties, but nevertheless regarded it as suitable for consideration by the Court of Appeal.
2. Late challenges. The case also provided an appropriate occasion to consider, if properly argued, whether challenges brought late should be permitted to continue and how the court’s discretion should be exercised in such circumstances.
3. Disposition. Permission was granted on the alternative ground that there were other reasons why it was important for the Court of Appeal to consider the facts. The application was allowed and costs were reserved.

• Court of Appeal (Civil Division): Latham LJ and Mantell LJ granted permission to appeal on 19 October 2001, without expressing a view on the merits; costs were reserved. The decision is reported at [2001] EWCA Civ 1572.
• High Court, Queen’s Bench Division, Administrative Court: Scott Baker J allowed the judicial review challenges, quashed the Mental Health Review Tribunal’s discharge decision and quashed Dr Finnegan’s discharge order.