West Law Report


Posted in judicial review, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:27AM BST 22/05/2008
Queen’s Bench Division (Admin)

Foskett J

May 7, 2008 (Filed: May 22, 2008)

Detention – Expiry – Hospital orders – Lawfulness of detention – Compliance with hospital order after expiry of compliance period – Effect of late compliance on lawfulness of detention – s. 37 Mental Health Act 1983 – s. 155 Powers of Criminal Courts (Sentencing) Act 2000 – s. 37(4) Mental Health Act 1983


The claimant (X) applied for judicial review of a decision of the defendant NHS Trust (T) to detain him under a hospital order pursuant to the Mental Health Act 1983 s. 37. X had committed a number of comparatively minor offences. He was subsequently diagnosed as suffering from paranoid schizophrenia and a request was made to the court for an order under s. 37 to detain and treat him in an appropriate medical unit. That order was originally granted on December 17, 2004 and varied on December 21. The December 21 order stated that X should be admitted to the relevant unit within 28 days from the date of the order, but recorded December 17 as the commencement date. X was admitted to the relevant unit on January 17, 2005. The court was asked to determine the lawfulness of that detention. If the true effect of the order was that the 28-day period ran from December 21, T would have fulfilled its obligations to provide X with the specified placement within the requisite period. However, if the amended order took retrospective effect from the date of its original creation on December 17, then T would have failed to secure X’s placement within the required time period. X submitted that the authority to detain him under the hospital order expired on January 14, 2005 and his detention thereafter was unlawful. T submitted that, provided the order was validly made in the first instance, then failure to comply with the 28-day time period did not mean that it ceased to have effect.


Whether the authority to detain X under the hospital order expired on January 14, 2005 and his detention thereafter was unlawful.

HELD (application refused)

(1) On the evidence it was clear that T interpreted the relevant time period as commencing on December 21, 2004, and expiring on January 18, 2005. However, such an interpretation was clearly not the interpretation that the judge intended when he left the commencement date intact. It would have been necessary for a specific and unequivocal direction to have been incorporated on the face of the order in order to discharge the natural effect of the Powers of Criminal Courts (Sentencing) Act 2000 s. 155. Accordingly, the amended order did, by its own terms, require X to be removed to the specified unit by January 14, R v Birch (Beulah) [1990] 90 Cr App R 78 CA (Crim Div), R v Galfetti (Plinio) [2002] EWCA Crim 1916, [2002] MHLR 418 considered.

(2) Having so concluded, it was necessary to consider the legality of X’s subsequent detention from January 14 until January 17. In the usual course of events, T should have sought a place-of-safety direction from the court, pursuant to s. 37(4) of the 1983 Act: that was not done and strictly speaking, X’s detention was therefore unlawful. However, in reality X was no worse off for that short period of detention. T had fully explained the reasons why it had been forced to delay placing X within the unit and it was inconceivable that a court, being appraised of those facts, would not have authorised X’s continued detention in any event. Furthermore, it was generally accepted that court orders remained valid until set aside, and there was nothing in the instant case to suggest the displacement of that general rule. Accordingly, the authorisation for X’s admission to the relevant unit subsisted after January 14, 2005 as did the obligation to comply with it; the fact that that compliance was late, did not deprive the order of its purpose or its intended effect. Accordingly, X’s detention from January 2005 was lawfully justified.

Alexander Ruck Keene (instructed by Cartwright King, Nottingham) for the claimant. David Lock and Nageena Khalique (instructed by Mills & Reeve) for the defendant.


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