Anyone at a Local Authority will have come across the tangled dynamic which is persuading a health authority that they ought to be finding a specialist bed for a young person who is obviously suffering from mental health disorders and hitting a brick wall ends up having to accommodate the young person through the inherent jurisdiction instead, often in a place that is doing its best but clearly not as good as a specialised health unit.
For that reason, I was very interested in the case of SB, Re [2024] EWHC 2964 (Fam) (19 November 2024)
https://www.bailii.org/ew/cases/EWHC/Fam/2024/2964.html
where Conway County Borough Council made an argument before Keehan J that made me shuffle three inches forward in my seat so that I was on the very edge of it.
This issue culminated in the local authority seeking a declaration and ancillary orders from this court, in short form, that because SB was detainable under the provisions of the Mental Health Act 1983 (‘the 1983 Act’), the court did not have jurisdiction to grant a DoL pursuant to the inherent jurisdiction. In practical terms, the thrust of the local authority’s case was that it was the responsibility of the health board, pursuant to the provisions of the 1983 Act, to make provision for the care and treatment of SB, and not the responsibility of the local authority even with the benefit of a DoL, if authorised by the court.
It won’t surprise you to learn that the Trust staunchly opposed this
The health board strongly opposed the position of the local authority. It asserted that this court had no jurisdiction to determine whether SB detainable in a hospital pursuant to the 1983 Act; it had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians and professionals under the 1983 Act; and that for the court to make a declaration or findings as to whether SB was detainable under the 1983 Act put pressure on the health board to change its position, or otherwise, was an abuse of process
The stakes are pretty high on this one. If Conway prevail, suddenly there’s a route by which the Health Authority are compelled to do something about these cases – even if they decide not to accommodate, they are at least having to make a conscious decision to not accommodate and to bear the risks of this. (I’m astutely conscious of the fact that I’m writing this as a Local Authority hack, and no doubt if I were a Health hack I’d be massively opposed to it).
There are basically two difficult competing arguments here. The first is the Trust’s argument that there are many many authorities saying that the Courts have limits to their power and should not exercise them to inhibit the actions of other statutory agencies unless they are specifically charged with doing so.
“11. The starting point, in my judgment, is the fundamentally important principle identified by the House of Lords in A v Liverpool City Council [1982] AC 363 and re-stated by the House in In re W (A Minor) (Wardship: Jurisdiction) [1985] AC 791. For present purposes I can go straight to the speech of Lord Scarman in the latter case. Referring to A v Liverpool City Council, Lord Scarman said (page 795):
“Authoritative speeches were delivered by Lord Wilberforce and Lord Roskill which it was reasonable to hope would put an end to attempts to use the wardship jurisdiction so as to secure a review by the High Court upon the merits of decisions taken by local authorities pursuant to the duties and powers imposed and conferred upon them by the statutory code.”
He continued (page 797):
“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority.”
- Lord Scarman was not of course disputing the High Court’s power of judicial review under RSC Ord 53 (now CPR Pt 54) when exercised by what is now the Administrative Court: he was disputing the High Court’s powers when exercising in the Family Division the parens patriae or wardship jurisdictions. This is made clear by what he said (page 795):
“The ground of decision in A v Liverpool City Council [1982] AC 363 was nothing to do with judicial discretion but was an application in this field of the profoundly important rule that where Parliament has by statute entrusted to a public authority an administrative power subject to safeguards which, however, contain no provision that the High Court is to be required to review the merits of decisions taken pursuant to the power, the High Court has no right to intervene. If there is abuse of the power, there can of course be judicial review pursuant to RSC Ord 53: but no abuse of power has been, or could be, suggested in this case.”
It is important to appreciate that Lord Scarman was not referring to a rule going to the exercise of discretion; it is a rule going to jurisdiction.”
The other argument is that the statute (Children Act 1989) says that the inherent jurisdiction cannot be used in a situation where there is already a statutory solution AND that section 3 of the Mental Health Act 1983 provides the statutory solution in this case. Thus that before the Court decides whether to use the inherent jurisdiction it is a necessary preliminary step to consider whether another statutory solution is available – thus the declaration they seek is just the Court doing what is required of it in any event.
LA readers here are saying “go Conway”, Health readers are saying “go Trust” (or more likely “What the heck am I doing on this website and well…how did I get here?”) and a lot of other people are doing the Alan Partridge shrug gif.
The Trust prevailed and the Court did not make the declaration:-
Analysis
The leading authorities are abundantly clear that this court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority. The 1983 Act is an obvious example where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.
Schedule 1A of the 2005 Act makes statutory provision for finding that a person is ineligible from being deprived of their liberty under the 2005 Act, where in case E, they could be detained under the provisions of the 1983 Act. This express statutory provision enables the Court of Protection to consider and determine the question of whether a person could be detained under s.2 or s.3 of the 1983 Act. It is limited to the exercise of determining the specific question of whether a person is ineligible to be detained under the provisions of the 2005 Act. I cannot see any basis for concluding that this provision is to be read as having a wider application, and, in particular, to permit the court to determine whether a person is ‘within the scope of the Mental Health Act’ when exercising its powers under the inherent jurisdiction.
There is no authority for the proposition that a court contemplating the exercise of the inherent jurisdiction to deprive a person of their liberty had jurisdiction to encroach upon the issue of whether a person was detainable or could, or would, be detained in a hospital under s.3 of the 1983 Act. In the absence of clear authority, I am satisfied that for this court to make findings and/or declarations about whether SB was detainable under s.3 of the 1983 Act would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act. This court has no jurisdiction to make such findings or orders.
Further, and in any event, even if this court did find favour with the opinions of Dr Vaidya over those of Dr Hales and made a finding that SB was detainable under s.3 of the 1983 Act what would that achieve? It would not, of itself, lead to SB being detained in a hospital for treatment under the 1983 Act. It might lead to the clinicians and professionals charged with making the decision to detain her under the 1983 Act, to change their professional opinions and decisions. However, to make orders in these circumstances would, as Hoffman LJ set out in ex p T (above), be an abuse of process.
If the court did make such a finding, and then went on to make the declaration initially sought by the local authority that the court could not then exercise the inherent jurisdiction to authorise the deprivation of liberty, SB could find herself in a position where she was not afforded protection by being detained for treatment in a hospital nor afforded the protection of being deprived of her liberty in a safe place. This would be an intolerable and unconscionable state of affairs.
suesspiciousminds 