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Mental Health Law Reports

Sample case report

[2001]
1 MHLR
135

R (On the Application of P) v Surrey Oaklands NHS Trust

Issue: Whether judicial review was an appropriate remedy in relation to a decision as to where to place a severely disabled patient on the closure of a long-stay hospital.

Court and Reference: Administrative Court ; CO/2273/2001

Neutral Citation: [2001] EWHC Admin 461

Judge: Collins J

Date: 12 June 2001

Facts: P suffers from mental impairment and various physical disabilities; she has resided at a long-stay hospital since 1963. It was decided that the hospital would be closed and P moved to a home in the community, which she had visited without any adverse reaction and which it was accepted would be suitable. However, it was argued that the creation of a village community would be a better option, and it was submitted that this had not been considered properly. P's litigation friend, K, is involved with a group, PARG, which consists largely of relatives of residents at St Ebba's, which is pressing for a village community.

Decision: The issue is what is in the best interest of P having regard to the inevitable closure of St Ebba's; the Family Division of the High Court has jurisdiction to make declarations as to the best interests of an adult who lacks decision-making capacity, which it will exercise if there is a serious issue which requires a court decision. The Administrative Court on judicial review does not normally resolve issues of fact or hear evidence, and concerns itself with whether there have been errors of law. The proper forum being the Family Division, with the interests of the patient being looked after by the Official Solicitor (who has issued a practice note, dated 1 May 2001, dealing with such issues), there is an alternative remedy to judicial review, which is better because it will consider thoroughly the best interests of the patient: so permission to seek judicial review was refused.


[2001]
1 MHLR
R (On the Application of P) v Surrey Oaklands NHS Trust (Admin. Ct.) 136

Appearances: M Westgate (instructed by the Smith Partnership) for P; J Richards (instructed by Capsticks) for the Trust

Judgment:

1. DP, the claimant in this application for permission to seek judicial review, is a patient at present in a hospital called St Ebba's in Epsom. She sadly suffers, and indeed throughout her life has suffered, from mental impairment and physical disabilities. She is registered blind and has difficulty in hearing anything. She is doubly incontinent and confined to a wheelchair. Her mental age is described as that of a baby and she has been in care since she was 3 years old and indeed has lived in St Ebba's Hospital, which is a long-term psychiatric hospital, since 1963. She is now 54 years old, having been born in June 1946.

2. St Ebba's is one of some 5 hospitals built at the end of the 19th/beginning of 20th Century in and around Epsom. It is undoubtedly, and there is no issue about this, outdated and a decision has been made, and indeed was made as long ago as the 1980s, that St Ebba's would have to be closed. The question then arose as to what should happen to the claimant when that happened.

3. Her sister, Mrs K, who acts as her next friend for the purposes of these proceedings, was satisfied that what should be done was to transform St Ebba's into a village community so that her sister could remain in such a community. In the long-term it may be that that might have been an option. The difficulty is that no such village community at present exists and even if one is established it cannot happen for at least a year and probably considerably longer than that.

4. So far as any alternative village community is concerned there is no indication that Mrs K, or indeed anyone else on behalf of the claimant, has identified any possible place, or indeed has identified any reason why such a placement is appropriate for Miss P.

5. The experts who are in charge of her well-being decided that she should be moved to what is described as the community but what, in reality, is a home where she will be looked after appropriately, having regard to her needs. As I have indicated, she is totally incapable of looking after herself and she needs 24-hour care. The home that has been identified is called Church Layne. Mrs K, as I understand it, has seen it and indeed the claimant was taken to it on what is described as an outing to see whether there were any adverse reactions. There were none. It is not suggested, on behalf of the claimant, that Church Layne is other than appropriate, although the suggestion is still made that a village community would be more appropriate. That is an issue which is in dispute and which I am, and indeed the judicial review court would be, an inappropriate forum to decide.

6. What this boils down to is having regard to the inevitable closure of St Ebba's what is in the best interest of the claimant? That is a question of weighing up the evidence of those who are concerned with her care, the psychiatrists, the nurses and so on. Of course the relations' views are a relevant factor, but they cannot, in an issue such as this, be determinative. There were previous judicial review proceedings relating to the closure of St Ebba's which resulted in a settlement and an agreed order. That order has, to an extent, been relied on. I should say that the present defendants were not parties to those proceedings which were disposed of before Newman J on 4 April of this year. I have a copy of the order in the papers. There is an unfortunate dispute as to whether the court order in fact reflects precisely the agreement which was reached between the parties. It seems that the handwritten agreement signed by all counsel has gone missing.

7. What that consent order states is this:

AND whereas on the understanding that the relevant Local Authorities will complete any necessary multi-disciplinary needs assessments on all the residents currently at St Ebba's:

(1) Residents whose needs assessed through a multi-disciplinary assessment (taking into account the views of residents, carers and relatives) should be met by a village community placement will be given such a placement subject to the Choice of Accommodation Directions ... and any other statutory provisions or guidance.

(2) If any such multi-disciplinary assessment arrives at the conclusion that a resident's needs should only be met by a village community placement, and that should be at St Ebba's, they will be offered such a placement subject to
(a) any necessary statutory approvals being obtained including planning permission,
(b) the relevant authorities identifying such a placement in accordance with the Directions and any other statutory provisions for guidance, and
(c) the needs of other residents.

(3) Where a multi-disciplinary needs assessment (which will have taken into account the views of the residents, their relatives and/or carers) has concluded that the resident's needs could be met appropriately at either a village community (whether at St Ebba's or otherwise) or a placement in the community then the relative and/or family carer's preference will be determinative of the placement subject to the requirements of the Directions and any other statutory provisions or guidance."


[2001]
1 MHLR
R (On the Application of P) v Surrey Oaklands NHS Trust (Admin. Ct.) 137

8. Number (3) is where the problem arises because it is contended that the agreement, as signed, contained the word "equally" before "appropriately" so that it read, so far as material, where the assessment:

... has concluded that the resident's needs could be met equally appropriately at either a village community (whether at St Ebba's or otherwise) or a placement etc..."

9. The point is, of course, that family preference would only come into the picture if there was nothing to choose between either a village community or a placement in the community, such as is proposed for the claimant in this case. Complaint is made in the judicial review that that sort of assessment has not taken place and there has been a failure, therefore, to consider properly the option of village community in deciding on the proper course to be taken in respect of this claimant. There are other grounds including an attempt to rely on Art 8 of the European Convention on Human Rights but, as it seems to me, none of those grounds have any substance whatsoever.

10. However that is not the end of the story. The reason why this application must fail and must be dismissed is because this is clearly the wrong forum to litigate, if litigation be considered necessary, any of the issues surrounding the proper course to be taken for the claimant. The point has been taken that Mrs K, as a next friend, has her own agenda because she is concerned with an organisation known as PARG which is a group that has been set up consisting largely of relatives of residents at St Ebba's who have a vested interest in pressing for a village community and that it may be that she is, to an extent, being run from behind, as it were, by PARG. I am not in a position to, nor do I, make any findings upon that suggestion, but it is quite obvious that there is a potential conflict of interest in the fact that she is a member of or interested in the objectives of PARG. That is, perhaps, yet another reason why these proceedings are inappropriate.

11. The High Court, through the Family Division, has jurisdiction to make declarations as to the best interests of an adult who lacks decision-making capacity. The court will exercise that jurisdiction if there is a serious issue which requires a court decision. If there is a real dispute as to the welfare of a patient and relatives take the view and, as I say, there is material to support the view that what is being proposed is not in the best interests of a patient then any proceedings that relate to that should, in my view, be taken through the Family Division. As I have said the Administrative Court, through judicial review, does not normally concern itself with issues of fact. It does not normally hear evidence and it concerns itself only with whether there have been errors of law.

12. So far as the claimant is concerned it is perfectly obvious that the real issue is what is in her best interest having regard to the closure and that is a matter which ought, if it needs to be litigated, to be dealt with through the Family Division with the interests of the patient being looked after by the Official Solicitor. Indeed there is a practice note which has been drawn to my attention dated 1 May 2001 issued by the Official Solicitor which concerns itself with such issues.

13. Mr Westgate submits that the existence of the parallel jurisdiction, as it were, does not in any way remove the jurisdiction of the Administrative Court. That of course is correct but, as has been made clear in many decisions, judicial review is a remedy of last resort and it is only if there is no appropriate alternative remedy that it is normally right to seek judicial review. Here not only is there an alternative remedy but it is a much better remedy because it will consider thoroughly the best interests of the patient if, as I say, any real issue in the end arises as to what are her best interests. It may well be that when she is moved to Church Layne it becomes clear that she is being properly looked after there and that it is going to be in her best interest to remain there. Such a placement will be on a temporary basis initially because it is always essential that it does work for the individual patient and if after a time it becomes apparent that it is not working, for whatever reason, then obviously alternative arrangements will have to be made. I have no doubt that the professionals who are concerned with the claimant's welfare will keep a careful eye on how she settles down there and indeed no doubt Mrs K and any other relatives will do exactly the same. But for the court to interfere by granting an injunction to prevent the move, particularly as there is absolutely no evidence to support the suggestion that it would in any way be contrary to her interests (indeed such evidence as there is all goes the other way) seems to me to be quite wrong in the circumstances of a case such as this.

14. Accordingly, I take the view that these proceedings ought not to have been brought in the Administrative Court at all and as it seems to me, the suggestion of error of law is simply not made out. If there is any question of any failure to consider all possible options now that will be done in the future and there really is no purpose, no conceivable purpose, no benefit to the claimant in pursuing these proceedings because the likelihood is that no sensible relief would be granted in due course.

15. For all these reasons this application must be refused.


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