Warren's Application For Judicial Review

Where a patient is a party to proceedings and a consent order would dispose of them, the court may approve the order in open court without representation if the applicable procedural provision permits that course. Approval depends on consideration of the documents and the court’s view that the order should be made. Relevant material may include evidence of incapacity, the litigation friend’s suitability and legal advice on the prospects of the proceedings.

The applicant was a patient detained at Broadmoor Hospital. The Official Solicitor acted as his litigation friend in two long-standing applications. One concerned a Mental Health Review Tribunal decision refusing discharge. The other concerned an instruction about patients’ possession of videos and computers.

The Official Solicitor submitted consent orders disposing of both applications. The Court of Appeal, sitting on appeal from the Queen’s Bench Division, considered whether the orders should be approved under the applicable procedural provision.

1. The consent orders were approved and made in open court. The Official Solicitor acted as the applicant’s litigation friend, and the applicant and respondent were not represented at the hearing.

2. As the Court of Protection was not engaged, Rules of the Supreme Court PD 59 paragraph 10.7 1(b) applied. The provision covered a case where a party was a patient, the proceedings were not governed by Order 59 rule 23, and a consent order disposing of the proceedings was before the court. If, on consideration of the documents, the court considered that the order should be approved, the matter could be listed without representation and the order made in open court.

3. The court considered the certificate that the applicant was incapable of managing and administering his affairs by reason of mental disorder, the Official Solicitor’s certificate of suitability and notice of change of solicitor, and the joint opinion of counsel dated 2 December 1999. Lord Justice Laws concluded that the consent orders were properly put forward and made the orders sought.

• Court of Appeal (Civil Division): Consent orders disposing of the two applications were approved and made in open court.
• Queen’s Bench Division: The proceedings were stated to be on appeal from this Division; no separate decision or citation was given.