DB, R (on the application of) v Nottinghamshire Healthcare NHS Trust

A hospital order under section 37 of the Mental Health Act 1983 confers authority under section 40 for conveyance and admission only within the statutory 28-day period. If admission does not occur within that period, the order ceases to authorise later admission or detention under it. The period runs from the original order even if it is later varied. A place-of-safety direction under section 37(4) is discretionary and must be expressly made. Practical difficulties cannot extend the statutory period.

Following his conviction, the claimant was made subject to a hospital order under section 37 of the Mental Health Act 1983 on 17 December 2004. The order was varied on 21 December to identify a different hospital, but the 28-day period ran from the original date. He was admitted on 17 January 2005. Foskett J dismissed his judicial review claim: [2008] EWHC 986 (Admin). The appeal concerned whether the hospital order still authorised admission and detention after the 28-day period had expired.

1. Appeal allowed. The Court of Appeal, in the unanimous judgments of Stanley Burnton LJ, Longmore LJ and Laws LJ, declared that the claimant’s admission and subsequent detention from 17 January 2005 were not authorised by the hospital order.
2. Section 40 of the Mental Health Act 1983 expressly limits the authority conferred by a section 37 hospital order. A person may be conveyed to, and admitted by, the specified hospital within 28 days from the date of the order. If admission has not occurred by then, the order no longer authorises later admission or detention. The absence of a time limit in section 37(1) is immaterial because that provision concerns the making of the order, whereas section 40 concerns its effect.
3. The statutory scheme confirms that construction. Section 37(4) requires arrangements for admission within 28 days and permits detention in a place of safety only pending admission within that period. Section 37(5) permits substitution of another hospital only within the same period. Section 138(5) would be unnecessary if the order remained effective indefinitely. The protection in section 139 does not authorise detention after the express statutory limit.
4. The court distinguished the question whether an order remains formally valid until set aside from the separate question of its statutory effect and duration. The authorities relied on below, including IRC v Hoogstraten [1985] QB 1077, Isaacs v Robertson [1985] AC 97 and Nicholls v Kinsey [1994] QB 600, addressed the former question and did not determine the latter.
5. The amendment of the hospital order on 21 December did not restart the 28-day period. The period ran from 17 December and expired on 14 January. The deleted place-of-safety direction was discretionary, not automatic. Since it had not been expressly exercised, there was also no lawful authority for detention pending transfer during the period.
6. Practical difficulties could not justify disregarding the statutory limit. The court recommended that orders state the expiry date and noted the sentencing court’s power under section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 to vary or rescind an order, with rescission treated as a last resort.

• Court of Appeal (Civil Division) allowed the appeal and granted a declaration that the claimant’s admission and detention from 17 January 2005 were not authorised by the hospital order: [2008] EWCA Civ 1354.
• Administrative Court, Queen’s Bench Division (Foskett J) dismissed the judicial review claim: [2008] EWHC 986 (Admin).