B, R (on the application of) v West Allderdale Magistrates Court & Anor

A magistrates’ court may remand an accused person to a hospital under section 35 of the Mental Health Act 1983 only if it is satisfied that arrangements have been made for admission within seven days. A clinical opinion that funding will probably be available is insufficient where funding has not been agreed and admission has not been arranged. If funding is unresolved but a section 35 order appears appropriate, the proper course is generally to adjourn briefly, obtain evidence and allow the health authority to make representations. A funding declaration cannot be granted where the underlying section 35 order is invalid.

The claimant sought judicial review of the magistrates’ decision to revoke an order remanding him to Ty Gwyn under section 35 of the Mental Health Act 1983 for assessment. He also sought a declaration that the second defendant, the relevant primary care trust, had acted unlawfully by refusing to fund the placement.

The magistrates initially made the order on the basis of medical evidence, but reconsidered it after being told that funding had not been agreed. They concluded that section 35(4) had not been complied with and set the order aside. The central issue was whether that conclusion was correct.

1. The application was dismissed. The magistrates were correct to set aside the section 35 order because the statutory precondition in section 35(4) had not been satisfied.
2. Section 35(4) requires the court to be satisfied that arrangements have been made both for the accused’s admission to the specified hospital and for admission within seven days of the remand. The requirement is directed to ensuring that the order will be complied with.
3. Although Dr Jones believed that funding would be available, the absence of any funding agreement meant that admission to Ty Gwyn had not been arranged. The magistrates therefore could not lawfully have been satisfied that the statutory arrangements existed.
4. Where a court considers that a section 35 order may be appropriate but funding is unresolved, the proper course is to adjourn for a short period. The court may require evidence about funding and should give the health authority an opportunity to make representations. The court should then decide whether the statutory requirements are met.
5. The court deliberately left open the theoretical question whether a health authority could lawfully refuse funding after being approached before the order was made and given an opportunity to make representations. That issue had not been fully argued and did not arise on the facts.
6. The requested declaration against the primary care trust could not be granted because it depended on the validity of the magistrates’ order. The claimant’s case had also moved to the Crown Court, which had wider powers under sections 35 and 36. Costs were awarded in the usual way, subject to the claimant’s Community Legal Services funding certificate being lodged within 14 days.

This was a first-instance judicial review. The application was initially considered by Sullivan J, who adjourned it for an oral hearing on notice. Maurice Kay J subsequently granted permission, directed expedition and ordered that the magistrates be joined as an additional defendant.