DD v Durham County Council & Anor

The threshold for leave under section 139(2) of the Mental Health Act 1983 is low. The court should decide only whether the proposed claim is arguable, rather than finally determining an important and inadequately pleaded question of duty. It was arguable that an approved mental health professional had to exercise some independent judgment regarding the hospital and regime recommended by medical practitioners. An arguable breach therefore justified leave. A claimant should not bear another defendant’s costs merely because the law was uncertain where that defendant was joined following a losing contention by a different defendant.

DD sought leave to bring proceedings against Durham County Council under section 139(2) of the Mental Health Act 1983. He alleged that approved mental health professionals had failed to take reasonable steps to ensure that the hospital and regime selected for his detention were suitable, resulting in detention conditions arguably infringing Articles 3 and 8 rights.

Eady J refused leave, holding that the professionals owed no duty to investigate the proposed hospital or regime. He also ordered DD to pay costs relating to Middlesbrough City Council, which had been joined because Durham disputed responsibility for the second professional. The appeal concerned whether leave should have been refused and whether that costs order was justified.

1. Leave application. The President of the Queen’s Bench Division, with Moore-Bick and Rimer LJJ agreeing, held that the section 139 threshold was low. The court was concerned only with whether DD’s proposed claim was arguable. The authorities cited for that approach were Winch v Jones [1986] QB 296 and Johnston v Chief Constable of Merseyside Police [2009] EWHC 2969 (QB).
2. Scope of the AMHP’s duty. The court declined to determine finally whether the duty arose under the Human Rights Act 1998 or from the statutory scheme. The pleadings and evidence were insufficient, and the issue required consideration of the wider statutory structure, including the responsibilities of nearest relatives, courts making hospital orders and the Secretary of State transferring prisoners. In light of St George’s Health Care NHS Trust v S [1998] 3 All ER 673, it was at least arguable that an AMHP had to bring independent judgment to bear on medical recommendations concerning the hospital and regime. The alleged facts disclosed an arguable breach, particularly by the first AMHP.
3. Costs. DD should not have been ordered to pay Middlesbrough City Council’s costs. The council had been joined because Durham asserted that it was responsible for the second AMHP. The uncertainty of the law did not justify shifting those costs to DD. Durham, which took and lost the relevant point, should bear them under ordinary principles.

The appeal was allowed. The proceedings were remitted for a case management conference before a designated High Court judge, who was directed to consider the appropriate procedure, an expedited timetable and whether the related claims should be heard together.

• Court of Appeal (Civil Division) allowed DD’s appeal, remitted the proceedings for case management and varied the costs outcome.
• Queen’s Bench Division, Administrative Court Eady J refused leave under section 139(2) and made the costs order under appeal in [2012] EWHC 1053 (QB).