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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B, R (on the application of) v London Borough of Camden & Ors [2006] EWCA Civ 246 (21 February 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/246.html Cite as: [2006] EWCA Civ 246

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London, WC2
		21 February 2006

1. LORD JUSTICE WALL: Mr Paul Bowen, on behalf of Mr B, orally renews an application for permission to appeal refused by Buxton LJ on 26 October 2005 on paper. The decision which Mr B seeks permission to appeal is that of Stanley Burnton J sitting in the Administrative court in a reserved judgment handed down on 5 July 2005 in which the judge dismissed Mr B's application for judicial review and a claim for damages brought against the London Borough of Camden and the Camden & Islington Mental Health Social Care Trust.
2. The essential facts are that on 12 October 1998, Mr B was convicted of serious criminal offences involving violence and was ordered to be detained under Sections 37 and 41 of the Mental Health Act 1983. On 11 September 2003, a mental health review tribunal made a deferred order for his conditional discharge. There were six conditions contained within what was described as a suitable care package. The first of those conditions was:


"Suitable hostel accommodation to be identified and willing and able to accept Mr B within six months."

3. The remaining conditions included identification of a community consultant psychiatrist to act as RMO, appointment of a CPN and social supervisor. Mr B did comply with all the proper requirements of the supervisory team: he continued to take prescribed medication and to abide by restrictions on alcohol consumption, including compliance with requests to submit to drug screening and alcohol testing if required. However, Mr B was not in fact discharged until 2 July 2004, when the tribunal conditionally discharged him to reside at a hostel known as Holtwhites Villas in Enfield. His complaint was that the delay in his discharge to the hostel was due to breaches by Camden of its statutory duties towards him under Section 117 of the 1993 Mental Health Act.
4. He also claimed that his rights under Articles 5 and 8 of the European Convention had been breached and sought damages for those breaches against Camden. It was not in dispute before the judge that Camden was both the local authority in which Mr B resided prior to his arrest and that is was the relevant mental health trust. A feature of the case was that although Camden was the relevant authority under Section 117, Mr B could not be discharged to a hostel in Camden because his offences had been committed in the Borough and the Home Office had imposed what was described as an "exclusion zone consisting of Camden" on all unescorted leaves which Mr B had been permitted since August 2002.
5. As I have already indicated, the judge dismissed the claim and refused the relief which Mr B sought. It was common ground before the judge that Camden's duty under Section 117 was not absolute but a duty to use best endeavours. After an extensive review of the law and the respective submissions made to him, the judge reached a number of clear conclusions. The first was that the duty owed by Camden under Section 117(2) did not arise until after the decision of the MHRT on 2 July 2004 that the pre-conditions for discharge had been satisfied. The judge rejected Mr Bowen's submission that Mr B had ceased to be detained within the meaning of Section 117 following the earlier decision of the MHRT on 11 September 2003. At the same time, the judge recognised what he described as the "practical problems" created by his construction of Section 117. I do not think I need for the purposes of this judgment to read the terms of Section 117.
6. What the judge said about it was as follows:

"This conclusion – that is the conclusion to which I have just referred – however causes a practical problem. In the case of B as in many other cases, his safe discharge into the community required there to be suitable supported accommodation and other community services immediately available. How can those services be identified and made available if a Section 117 authority is under no duty to arrange or to provide them before discharge? Practicality requires Section 117 authorities to be under a duty before discharge at least in cases where a tribunal has provisionally decided that a conditional discharge is appropriate as the tribunal did in respect of B on 11 September 2003."

7. The judge resolved this issue by reliance on a passage in the judgment of the Master of the Rolls in The Queen on the Application of K v Camden & Islington Health Authority [2001] EWCR Civ 240 in which Lord Phillips had endorsed a concession made by counsel for the defendant in that case as to the duty of Section 117 authority before the discharge of a patient, namely:


"(a) A health authority has the power to take preparatory steps before the discharge of a patient;

"(b) It will normally be the case that in the exercise of its discretionary power an authority should give way to a tribunal decision and should use reasonable endeavours to fulfil the conditions imposed by such a decision insofar as they relate to medical care;

"(c) Failure to use such endeavours in the absence of strong reasons would be likely to be an unlawful exercise of discretion."

8. The judge accordingly concluded in paragraph 62 of his judgment that it was inconsistent with the lack of any express duty imposed by Section 117 in respect of a detained patient that a Section 117 authority should be under a duty to monitor the condition of such a patient with a view to deciding whether there is occasion to exercise their discretion to arrange for the provision of such services in case he is discharged. Where a patient is represented (as B was before the tribunal) one can expect his solicitor to inform the Section 117 authorities of the decision and the hospital should do so as well. That latter consideration arose also in the context of Mr Bowen's submission in relation to Section 47 of the National Health Service and Community Care Act, which the judge held could not require Camden to monitor Mr B's situation in order to consider providing for his changed needs.
9. In relation to the claim for damages based on delay, the judge found that there was no breach of Section 117 prior to the first tribunal hearing on 11 September. He found that Camden was under no duty to take any steps in consequence of the tribunal's decision until it was notified of the decision by 5 November 2003. He made clear, and I think it is reasonably clear, that the principal reason for the delay was funding. Holtwhites Villas was an out of borough placement. In the judge's view it was unrealistic and wrong to require Section 117 authorities to act without exploring funding issues. In paragraph 77 of the judgment, having reached that conclusion the judge cited from one of the circulars to which he was referred:


"It will be for the relevant health and social services staff to decide whether the resource is available to them to enable acceptable arrangements to be made for treating specific patients in the community."

10. It did not follow in the judge's judgment that Camden's delay in relation to funding had necessarily delayed Mr B's discharge from detention. There were other conditions which had to be met and to which I have already referred. The judge found on the facts that Mr B had not shown that Camden's delay had led to any delay in his discharge from detention and in the judge's view therefore, the question of damages did not arise. However, if it had arisen, the judge came to the conclusion that even if there had been a breach of Section 117 Mr B would not be able to claim damages from Camden. Finally, had the question of quantum of damages arisen, which of course on his findings it did not, the judge agreed with Mr Bowen that any award for Mr B would be modest and the figure that the judge identified as being the maximum he would have awarded would have been the sum of £1,500.
11. Mr Bowen, whose submissions have been forceful and very helpful, puts the argument on both limbs of CPR 52.3. He argues that there is a real prospect of success in this particular case and secondly, that there are compelling reasons why the appeal should be heard. As to the former, I have to say with great respect that I do not agree. Although Mr Bowen submits that the appeal is not academic, the fact remains that of course Mr B is now in the hostel and as far as the delay was concerned, there was a swift intervention by the Administrative court by way of judicial review in April 2004 which required interim relief to be made available by Camden, as a result of which the process was undoubtedly accelerated and Mr B was able to move. Therefore, for some considerable time now, I assume, Mr B has been in the hostel.
12. The only practical question, as I think Mr Bowen agrees now, would be is he entitled as a matter of law to the modest amount of damages which the judge would have awarded him had the judge found the law to be different or indeed were this court to find the law to be different? In paragraph 104 of his judgment, the judge addressed this issue obliquely by saying:


"The prosecution of these proceedings after B's conditional discharge to Holtwhites Villas was costly in terms of legal fees and court time. If they had been a timely and greater analysis and preparation that I have referred to, the costs would have been even greater. The legal and factual issues were complex and this judgment has required considerable judge time. It has been apparent since July 2004 that any award of damages would be modest and it could not have justified the costs of the continuation of the proceedings. The finding of breach of these convention rights would have given him some satisfaction but at considerable cost to the public purse."

13. In practice, the delay in placing Mr B in the hostel, as I understand it, is from the six-month period which elapsed after the tribunal made its first decision in September; so from 11 March 2004 to 2 July 2004 when the second tribunal discharged the patient, who had then moved into the hostel some ten days later. As I indicated a moment ago, that delay had been promptly addressed in April 2004 by proceedings for judicial review commenced on 6 April and interim relief being given on 21 April 2004. A much more powerful argument advanced by Mr Bowen seems to me that which is contained in the second limb of Section 52.3(6); namely, there is some other compelling reason why the appeal should be heard. Mr Bowen argues that there are many cases involving Section 117, and that the judge's interpretation of Section 117, albeit that it has been considered in other cases, is controversial.
14. He cites these four cases within his knowledge in which the point is to be raised before a different jurisdiction. He argues strongly that Article 5 of the convention is engaged and that the judge's view that the remedy did not sound in damages was one which itself was controversial and liable to attack. He refers to a series of cases in the European Court of Human Rights in which that court for the first time has acknowledged that a state owes positive obligations under Article 5.1 to protect citizens from unnecessary detention and he criticises the curious and possibly, he argues, unsustainable British dichotomy between the state as an entity and an individual limb of the state. So a whole host of questions Mr Bowen says arises. When does Section 117 duty arise? Does an authority such as Camden have a duty to monitor a patient's progress whilst he or she is in hospital? Does Section 47(5) of NHS CCA apply and if so what is its effect? What is the position about funding? Is the local health authority entitled to hide behind difficulties in funding and an attempt to seek alternative means of funding before providing its service? Finally does Section 117, contrary to the judge's view, lead to a liability under the Act and a claim for damages for breach of human rights?
15. Mr Bowen is also able to place before me a document from the Legal Services Commission which indicates that the case has been before the relevant panel and that panel considered there was a wider public interest in pursuit of these proceedings, as they had the potential to clarify the duty of public authorities under Section 117, particularly in the context of Article 5. It was recognised that there were inconsistent domestic decisions concerning the extent of an authority's duty in the period before discharge from hospital. This issue had particular significance in the light of recent decisions from the European Court dealing with the positive obligation under Article 5 but leaving open for further consideration the extent of an authority's obligations to ensure the full effectiveness of the decision of a mental health review tribunal.
16. Mr Bowen of course adopts that document and argues that this case could be in a sense a test case for these issues to be fully argued and determined. I have of course considered those arguments carefully but I remain of the view that this case is not the vehicle for those arguments to be addressed. I accept that it may well be arguable that breach of Section 117 should sound in damages as opposed to merely in judicial review; although in the instant case, judicial review of the decision undoubtedly rectified the decision as far as Mr B's accommodation was concerned. I also accept that there will be many cases in which the dilemma identified in this case arises. Nonetheless, I remain of the view that this particular appeal would not have any realistic prospect of success and even if it were to succeed on the issue of damages, the costs involved in reaching that conclusion would be disproportionate to the amount which would be awarded. Once again I can see very powerful public interest arguments against the breach of Section 117 giving rise to claims for damages as opposed to claims for judicial review.
17. If there are cases pending which raise the same point, and if the point is genuinely one of public importance which in due course needs to be conclusively resolved either in this court or in a higher court, I am quite confident that that will occur. Indeed it may be much more sensible for one or more of the cases currently pending to be put together and used to test the arguments which Mr Bowen has advanced this morning. Speaking for myself, I find the arguments addressed by the judge in the judgment convincing and indeed I see that they also convince Buxton LJ who, in his written reasons for refusing permission, went through each of Mr Bowen's notice of grounds to appeal explaining why he, Buxton LJ, thought they were not sound.
18. I agree with Buxton LJ's analysis, but as I say if the point is one which remains troublesome, if the profession takes the view that there are cases which merit not merely applications for judicial review but claims for damages, then in my judgment if one or more of them come before the court and (if sought to appeal) are combined, then that may well provide a proper forum on the basis for the testing of the propositions which are advanced. With great respect to Mr B, I do not see that he has any merit and the judge's careful judgment in my view disposes of his case fully and carefully. I appreciate that Kay LJ gave permission to appeal initially on the point which Stanley Burnton J then had to decide and I have of course considered carefully whether I should not do the same, but I suspect very much that if this case came before the full court, it would simply not be a proper vehicle to investigate all the issues which Mr Bowen has identified. I suspect that this court would wish to deal with it quite shortly on its own particular merits and leave the interesting points which it perceived to be academic in this case for decision on another occasion.
19. So whilst I am by no means unsympathetic to the arguments which Mr Bowen has advanced, and whilst I have given them I hope very careful consideration, it is my firm view that if these points, particularly of Article 5 and the Section 117 interaction, are to be addressed in this court, it should be on the basis of a proper platform prepared from the Administrative court and preferably by more than one decision being put together for this court and an invitation for this court to consider those as test cases and cases which, if I may say so without undue disrespect to Mr B, contain more merit than I perceive in his.
20. For all those reasons which I have no doubt expressed in undue length, in an attempt to do justice to the arguments Mr Bowen has put before me, this application is refused. At the same time I have no doubt that we have not heard the last of Section 117 and Article 5.

Order: Application refused.