M v South West London & St George's Mental Health NHS Trust

In a challenge to detention under the Mental Health Act 1983, oral evidence and cross-examination are required only where necessary for the fair determination of an issue the court must decide. The court should first examine the detainee’s evidence; further evidence may be needed only if it raises a sufficiently cogent or arguable case of statutory non-compliance. An examination under section 12(1) may be sufficient despite an uncooperative patient’s refusal to answer or engage. An interview under section 13(2) is flexible and may be conducted through an attempt to communicate. No fixed duration is required. Timing is ordinarily a matter of professional judgment. Signed forms may be taken at face value absent contrary evidence.

Ms M was detained under section 2 of the Mental Health Act 1983 and later detained for treatment under section 3 while receiving treatment for pancreatitis in a general hospital. She sought habeas corpus, arguing that the approved doctor had not personally examined her and that the approved social worker had not interviewed her as required by sections 12(1) and 13(2). Underhill J dismissed the application on the documentary evidence and refused an adjournment for oral evidence and cross-examination. The appeal concerned whether the statutory preconditions had been met and whether the case required oral evidence.

1. Disposition. The appeal was dismissed. Lord Justice Stanley Burton and Lord Justice Mummery agreed with the judgment of Lord Justice Richards.
2. Oral evidence. There is no general rule requiring oral evidence and cross-examination in detention challenges. They should be ordered only if, and to the extent that, they are necessary for the fair determination of an issue which the court needs to decide. The court was entitled first to examine the contemporaneous documents and the evidence relied on by the applicant. Further evidence, and potentially cross-examination, would become relevant only if those materials raised a sufficiently cogent or arguable case of non-compliance. The approach in R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 depended on its particular context. The qualifications in Regina (N) v M and others [2003] 1 WLR 562, including that the court’s role is essentially one of review, were pertinent. The present case could properly be decided on the documents because the factual averments were not themselves in dispute.
3. Examination and interview. An examination for section 12(1) purposes may take place despite a patient’s refusal to cooperate or answer questions. Observation of the patient’s conduct may be sufficient, subject to the doctor’s professional judgment. The requirement in section 13(2) to interview the patient in a suitable manner is flexible. An attempted communication may constitute a sufficient interview even where the patient refuses to respond. No fixed period is required for either exercise.
4. Timing and evidence. Whether to proceed with, or postpone, an assessment is ordinarily a matter of professional judgment. Proceeding in this case was not unreasonable and did not invalidate the examination or interview. The signed statutory forms could be taken at face value in the absence of contrary evidence. That approach did not reverse the state’s burden of proving lawful detention or impose an additional hurdle.
5. Limits. The court left open whether different considerations might apply to an unconscious or highly intoxicated patient unable to participate, or where the professionals could not gain access to the patient. The Code of Practice under section 118 was non-binding guidance to which great weight should be given, consistent with R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148.

• Court of Appeal (Civil Division) — Appeal from the Administrative Court, before Underhill J. The appeal was dismissed.
• Administrative Court — Underhill J dismissed Ms M’s habeas corpus application.