Lewis v Gibson & Anor

On an application to displace a nearest relative under the Mental Health Act 1983, the relevant statutory grounds must be established both when the application is made and when the final order is sought. Subsequent events may be considered when deciding whether to exercise the power. In assessing severe mental impairment, the court should consider past conduct and future propensity, not merely recent improvement. The county court retains discretion to make the statutory order where guardianship powers meet the need. The High Court’s inherent jurisdiction remains available to fill a statutory gap or supplement those powers. Procedural safeguards should secure the patient’s service, possible joinder and representation consistently with Articles 6 and 8.

The local authority applied under section 29 of the Mental Health Act 1983 to displace Brenda Lewis as the nearest relative of her adult daughter, M. The Telford County Court confirmed an interim displacement order and, after a three-day hearing, found that M satisfied the guardianship criteria and that Lewis’s objection was unreasonable.

Lewis appealed. The issues included the date at which the section 7(2) and section 29(3)(c) criteria had to be established, whether the county court should instead have required an application under the High Court’s inherent best-interests jurisdiction, and how the amended CCR Order 49 rule 12(3)(b) affected M’s Convention rights.

Appeal dismissed. Thorpe LJ gave the leading judgment. Smith LJ agreed. Wall LJ agreed and added observations on the related judicial review proceedings and future procedural safeguards.

1. Statutory dates. Jurisdiction under section 29(3)(c) of the Mental Health Act 1983 arises when the originating application is made. The statutory grounds also define the power to make the order, so they must remain established at the date of the final hearing. The court may take intervening events into account when deciding whether to exercise that power. The approach was supported by the analogy of Re: M [1994] 2 AC 424.
2. Guardianship criteria and evidence. M satisfied the section 7(2) criteria at both relevant dates. In assessing severe mental impairment, the court must consider the patient’s history and future propensity, as well as recent conduct. A temporary period of quiescence does not necessarily displace the underlying condition. Re: P (2002) EWCA Civ 697 was apt. The judge was entitled to prefer the responsible medical officer’s evidence and to rely on the oral evidence as a whole.
3. Discretion and inherent jurisdiction. The word may in section 29 confers a discretion whether to make the order. Once the statutory criteria were established, the judge was not required to refuse relief and send the local authority to the High Court for a separate best-interests declaration. Re: F (2001) FLR 192 was distinguishable. The inherent jurisdiction remains available where the limited powers under section 8 cannot manage an issue, such as ancillary contact arrangements.
4. Patient participation. The amendment to CCR Order 49 rule 12(3)(b) enabled the patient to be joined. The court endorsed guidance that the patient should be served, notified of the right to join, and assessed for capacity and litigation-friend arrangements. Those precautions apply even where urgent relief is sought, and any denial of participation requires justification by reference to Articles 6 and 8.

The county court’s order was left undisturbed.

• Court of Appeal (Civil Division) — The appeal was dismissed: [2005] EWCA Civ 587.
• Telford County Court — His Honour Judge Mitchell confirmed an interim order displacing Lewis as nearest relative and determined the substantive application on 22 July 2004.