Tagoe-Thompson, R (on the application of) v Hospital Managers of the Park Royal Centre

Under the Mental Health Act 1983, the requirement that at least three members may exercise the hospital managers’ discharge power is not merely a quorum. Where three members conduct the review, all three must affirmatively support discharge. The ordinary common-law presumption that public bodies act by majority yields to statutory wording and context. The construction is compatible with Article 5: the Act may require a strengthened safeguard before the responsible medical officer’s view is overridden, while access to a Mental Health Review Tribunal provides independent review. The court left the precise operation of the provision where more than three members sit unresolved.

The appellant was detained under section 3 of the Mental Health Act 1983. Three eligible members were appointed to review his detention under section 23(4). They declined to order discharge because they could not reach a unanimous decision that the detention criteria no longer applied.

Forbes J refused applications for judicial review and habeas corpus. The Court of Appeal granted permission to appeal against the refusal of judicial review. The central issue was whether section 23(4) created only a quorum, permitting a majority decision, or required three affirmative votes for discharge.

Disposition. The Court of Appeal unanimously dismissed the appeal. It held that the detention after the review decision remained lawful and refused the application for habeas corpus. The appeal was dismissed with costs.

1. Construction of section 23(4). The provision does not merely create a quorum for a panel. Where three members are appointed, the managers’ discharge power must be supported affirmatively by all three. The statutory language refers to the exercise of the managers’ power by three or more members, rather than conferring jurisdiction on a separate tribunal or panel.
2. Common-law majority principle. The general rule that bodies exercising public powers may act by majority, stated in Grindley v Barker (1798) 1 Bos. & Pul. 875 and considered in Picea Holdings Ltd v London Rent Assessment Panel [1971] 2 QB 216, is subject to contrary statutory wording or context. The sensitive nature of the statutory power meant that the presumption in favour of majority voting was not strong.
3. Statutory and Convention context. The responsible medical officer has a central role and may himself order discharge. Requiring three members to support discharge before overriding his view is consistent with the patient’s welfare, the safeguards in the Act, successive reviews and access to a Mental Health Review Tribunal. The court treated that balance as compatible with Article 5, including the protection recognised in Witold Litwa v Poland (2001) 33 EHRR 53.
4. Panels of more than three. Pill LJ left open the possible anomaly where seven members are appointed. Laws LJ considered that three could not prevail over four because the power remains that of the managers. Arden LJ considered that the answer depends on the trust’s constitutional arrangements and standing orders, which may ordinarily provide for majority voting. Those observations were not necessary to the decision.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 330, the court unanimously dismissed the appeal, held the detention lawful and refused habeas corpus.
2. Administrative Court, Queen’s Bench Division: Forbes J refused the applications for judicial review and habeas corpus on 9 December 2002.