Mr Justice Munby :
- The P family commenced judicial proceedings against the local authority ("Islington") on 12 March 2003 alleging breaches by Islington of its duties under section 47 of the National Health Service and Community Care Act 1990. Their application for permission was adjourned into court by Davis J on 13 March 2003 and came on for hearing before me on 26 March 2003 and again on 30 April 2003, 24 June 2003 and 23 July 2003. On the latter occasion I gave the claimants permission to apply on the basis of an amended claim form. By the time the substantive hearing began before me on 15 December 2003 all issues save one had been resolved. The one remaining issue relates to the adequacy of the community care assessment of Mr P prepared by Islington and dated 18 March 2003.
- Before proceeding any further it is convenient to draw attention to the distinction between two different types of assessment: one a Care Programme Approach ("CPA") assessment relating to the care in the community of those with mental health problems, the other a generic Community Care assessment relating to the provision of community care for those who do not fall within the ambit of the CPA. I should also refer at this point to Islington's published 'Mental Health Assessment Priorities & Entitlement Criteria' policy. Appropriately this policy distinguishes between, although it provides procedures for co-ordinating the preparation of, CPA assessments and Community Care assessments. Thus it states that:
"For community Care Assessments a judgement must be made about the level of need, Higher, Medium or Lower. These do not necessarily relate to the CPA levels."
A diagram illustrates how, if there are severe and enduring mental health needs, it will be the adult mental services which will be responsible for future care, whilst otherwise the responsibility will be that of generic health or social services. Eligibility for Community Mental Health Team services is dealt with as follows:
"CMHTs must concentrate on working with people with severe and enduring MH problems …
1 Clients diagnosed as suffering from Schizophrenia, Manic Depressive Illness or any other persistent Psychotic Illness unless a high degree of stability has been achieved with their symptoms …
2 Depressive Illness, Anxiety Disorders and Obsessive Compulsive Disorders where the risk of self-harm or harm to others has been sufficiently serious to consider a hospital admission within the past two years.
3 …"
No challenge of any kind is made to the lawfulness or propriety of this policy.
- The background is complex but I can summarise it comparatively briefly. The P family are Albanian asylum-seekers from Kosovo. They seem to have suffered gravely in Kosovo: their 6-year old son was shot dead by Serbian troops, another son A (who is now 18 years old) was tortured by Serbian troops. They arrived in this country in February 2001 where they were reunited with another son, B, who had already been granted asylum. The accommodation they obtained here was sub-standard: Islington described the conditions as squalid. The many accounts of Mr P's presentation since February 2002 (when the present story begins) show a picture of someone who, putting the point in layman's terms, appears in many respects to be sunk in depression and misery and almost to have lost the will to live. Certainly all the evidence suggests that without the constant assistance of his family, and in particularly of his son B, Mr P will not get out of bed, attend to his personal hygiene or take his medication. He does not initiate any activity and appears not to participate in family life. The evidence suggests that, hardly surprisingly, he has been deeply affected by the killing of his small boy and by the other traumas his family suffered in Kosovo. Prior to all that he had apparently been quite normal, albeit not functioning to a high level, and had worked and been able to support his wife and family.
- There have been concerns about Mr P's mental health since at least February 2002, when his GP reported on his physical and mental health. His condition has been monitored and assessed from time to time by a wide range of social work and mental health professionals. I need not go through the evidence in detail, save to record that the many documents I have been taken through record that he was seen on 4 April 2002 by a community mental health nurse and thereafter on a number of occasions by the Crisis Resolution Team. The visit on 4 April 2002 is recorded as follows in a report dated 5 April 2002:
"He was generally unwilling to be interviewed and much of the history therefore, was from the wife and son. Mr P had expressed his concern that he was not happy to be seen by a Doctor, because he believed he was going to be killed. He however volunteered a history of hearing voices, which he did not elaborate upon, before deciding he was not interested in being interviewed …
He sat on the bed with his head down most of the time. He had poor eye contact and [was] generally uncooperative and unwilling to be interviewed. He believed we had come to kill him. He was tearful when discussing his six-year son who was killed in Kosovo. His speech was retarded and he was depressed and irritable in his mood, but not suicidal. He had persecutory delusions as previously mentioned. It was impracticable to elicit any abnormality in his perception, or cognition, in view of his lack of co-operation he seems to have poor insight into his condition.
The impression is that he has presented with symptoms suggestive of a depressive episode, with psychotic symptoms, with a background of chronic grief reaction and unpleasant life experiences in Kosovo. It may well be that he has had symptoms suggestive of Post Traumatic Stress Disorder in addition."
- On 31 July 2002 he was seen by a community psychiatric nurse and an approved mental health social worker who formed the view that he was psychotic and that a formal mental health assessment by a consultant psychiatrist was necessary. He was examined at home on 6 August 2002 by Dr McK, a consultant psychiatrist, who was accompanied by Mr P's social worker, JP. Dr McK reported as follows on 12 August 2002:
"Mr P speaks no English and it was necessary to work with an interpreter. Mr P was unwilling to answer questions other than to say he was all right. According to his family he has always been "slow" and apparently never functioned at a very high level. He had occasional, casual labouring jobs whilst living in Kosovo and only ever had 2 years formal education and is unable to read a newspaper. However, his family felt that his condition had deteriorated since coming to the UK and following the death of one of his sons in Kosovo. He had appeared low in mood and forgetful. However, on questioning, there appears to be no suicidal ideation and no psychotic symptoms.
My assessment was that he was suffering from reactive depression and possible the early stages of dementia, although this was very hard to assess properly in the circumstances. As noted above, it would appear at best that he has only a fairly low level of function. His family were of the view that the housing situation exacerbated his condition and we will obviously do what we can to help with this, although in view of his current indeterminate immigration status, there may not be a great deal that can be done in the short term. I note he is currently on Paroxetine 40mgs daily and Amisulpride 200mgs mane, 400 mgs nocte. I would recommend continuing with the Paroxetine but the Amisulpride should be tailed off over the next few months."
- The same day (12 August 2002) Islington wrote to Mr P's solicitors, Bindman & Partners ("B&P"), saying that it had been concluded that Mr P "is not sectionable under the Mental Health Act 1983" and that the social worker – JP – would be returning to see Mr P to complete a comprehensive assessment of him. In the event JP made further visits to Mr P on 21 August 2002, xx September 2002, 30 October 2002, 19 November 2002 and 14 December 2002. Her notes record little observed change in Mr P's attitude and behaviour.
- A draft 'Health & Social Care Assessment' of Mr P was prepared – when precisely is not clear – and sent by Islington to B&P on 21 January 2003.
- On 18 March 2003 Mr P was visited by Dr B, Dr McK's specialist registrar. Her report, contained in a letter the same day, contains the following:
"I completed a home visit with Jackie Social Worker, a translator and Mr P's social worker. I visited Mr P at home with his wife and found him resting in bed upstairs. Initially Mr P did not respond to any questions at all and lay on his side staring at the wall. Most of the initial history was taken from his wife who was still also lying on the bed but was not asleep. His wife mentioned that her husband had always been "slow" and had never functioned cognitively at a high level.
She described how Mr P had been taking his medication but she had been giving her husband Paroxetine 60 mgs a day and Amisulpride 200 mgs once a day for the last year. He had been compliant with this and an improvement in his medical symptoms of aggression, suicidal thoughts and paranoid ideation had been noticed by her. However she remained concerned that her husband continued to spend most of his day in bed and appeared agitated and tremulous for most of the time. She would describe how he would often sit next to the window and stare out of the pane of glass occasionally appearing tearful.
However she did not say that he described any auditory hallucinations or paranoid ideas which had been a clear part of his symptomology one year ago. He continues to eat and drink, but at times this can be variable.
When I examined him today he appeared thin and withdrawn but he was not anaemic, dehydrated or jaundiced. His pulse was of a normal rate and rhythm of 80 beats per minute. He initially lay in bed and ignored my questions but after a while did eventually sit up in bed. He appeared to have some psycho motor retardation with minimal eye contact. He was extremely tremulous: both hands had bilateral tremor which was fairly marked. There was evidence of poverty of speech but no other formal thought disorder. His mood objectives appeared to be depressed but on questioning he said he felt fine. He denied any suicidal ideas, homicidal ideas, or any thoughts of self harm. He continued to eat and drink but this can be variable according to his wife. There is no loss of weight according to his wife. Although he remains in bed for much of the day it is difficult to assess how much quality sleep he gets as his wife is not able to tell at times whether he is asleep or just resting.
He denied any paranoid thoughts, and there was no evidence of any disorder of thought possession. In addition there was no evidence of abnormal perception or any auditory hallucinations which had been a feature previously.
Although Mr P continues to be compliant with his medication, I feel that his wife or Mr P has confused the fact that Amisulpride was meant to be given twice a day and Paroxetine only once.
I have re-addressed the balance of Paroxetine 30 mgs od and Amisulpride 200 mgs a day and would like to review Mr P in two or three weeks time.
It is very difficult to assess but I feel that Mr P probably has experienced some improvement on his medication with regard to the previous paranoid ideation and depressive symptomology and aggressive out bursts. However, there remains to be some evidence of ongoing depressive symptoms which may also in a context of some paranoia and/or cognitive limitations. This was difficult to assess given the history of Mr P."
- The same day, following a CPA meeting, JP and her team manager, AD, signed two documents on behalf of Islington: one was the final version of the 'Health & Social Care Assessment' of Mr P, the other was a CPA Community Care Plan for him. Much of the information contained in the first document reflected matters which we have already seen noted in the case papers. Key parts include the following:
"Mr P does not have a firm psychiatric diagnosis. He may be suffering from reactive depression resulting from traumatic events whilst living in Kosovo. Members of his family say he did not function to a high level before these events. There may be an organic root to his problems but it is not clear whether a neurological assessment has been arranged.
Mr P appears to be suffering from a form of depression known as "reactive" ie it is reasonably appropriate to his circumstances (lost his son in traumatic circumstances and is culturally and socially isolated). This is not a severe and enduring mental illness."
It was said to be "not possible to assess" either thought content (hallucinations, delusions, preoccupations, obsessive thoughts) or thought interference (withdrawal, insertion, broadcast), though there were said to be no hallucinations known. Mr P was assessed at being at "risk" of "severe self-neglect" and "vulnerable to deterioration in his mental state particularly if he stops taking his medication."
- Mr P's 'statement of need' read as follows:
"1 Mr P requires prompting to attend to all aspects of daily living including personal care.
2 Mr P requires reminding to take his medication.
3 Mr P needs treatment with depression and bereavement issues.
4 Mr P needs safe accommodation with more privacy for himself and his family.
5 Mr P requires support and prompting to go out and socialise."
The 'outcome of assessment' was that the answer "no" was given to the question "Does the service user meet the eligibility criteria for care management?"
- The other document repeated under four headings the five areas of need identified in the first document, identifying in respect of each the 'objectives/expected outcomes' and 'by whom' the relevant action was to be undertaken. Under heading 1 (corresponding to heading 1 in the other document) the objective was "good physical health" to be achieved by "family provide support". Under heading 2 (corresponding to headings 2 and 3 in the other document) the objective was "stable mental health" to be achieved by "family provide support". Under heading 3 (corresponding to heading 4 in the other document) the objective was "improved living conditions" to be achieved by "NASS/local authority". Under heading 4 (corresponding to heading 5 in the other document) the objective was "less isolation, improved social skills" to be achieved by "family provide support".
- In short the outcome of the assessment process was that, with the sole exception of his housing needs (which have in fact since been met), all of Mr P's assessed needs were left to be dealt with by his family.
- B&P immediately challenged Islington's assessments of Mr P. On 1 April 2003 they obtained an independent social work report from JO. He expressed his professional view as being that Mr P should be placed on an enhanced CPA because of his "complex and long term mental health needs". He "strongly disagreed" with the suggestion that Mr P "may be suffering from a reactive depression", saying that it is "likely to be a psychotic illness". He said:
"With such severe impact upon his daily functioning, and his stated vulnerability and adverse social circumstances, he should fulfil the eligibility criteria for Care Management, and should be allocated a Care Co-ordinator forthwith to help access and provided an appropriate support package for him."
- B&P wrote detailed letters of complaint to Islington on 4 April 2003 and again on 24 April 2003. The first of these letters castigated the community care assessment as being of "appallingly poor quality". Islington responded on 25 April 2003 in an important letter which explained its reasoning:
"My clients do not accept that Mr P has not had a proper community care assessment. As assessment was completed and following that assessment the decision was made that community care services will not be provided as Mr P does not have a severe and enduring mental illness. As you will see … your client was seen by two psychiatrists as part of the community care assessment that was undertaken (emphasis added)."
- A letter from the Crisis Resolution Team dated 7 July 2003 records its involvement with Mr P during the period from 29 April 2003 until 27 May 2003. He was seen on 29 April 2003 following reports from the family of increasing concerns about his mental state. By 7 May 2003 his mental state appeared to have improved. He was seen again on 19 May 2003 and discharged by the Crisis Resolution Team on 27 May 2003. Ms Markus, who appears on behalf of Mr P, told me, without contradiction from Mr McGuire, who appears on behalf of Islington, that 19 May 2003 was in fact the last occasion when Mr P was seen by anyone from Islington and that nothing has been done for him by Islington since the Crisis Resolution Team disengaged on 27 May 2003.
- B&P instructed another consultant psychiatrist, Dr H, who reported on 10 June 2003, having seen Mr P at home on 31 May 2003. He summarised his views in a covering letter to B&P dated 10 June 2003:
"My diagnosis is that he is suffering from severe depression with psychotic symptoms. This is a very severe mental illness".
In his report he described his interview with Mr P:
"When I asked Mr P whether or not he had any problems he would like to discuss with me, he initially did not reply. After a while he mumbled that "my friends are in the dark and I am going to provide light for them. I won't leave my friend in the dark". He said little else that was comprehensible throughout the two hours I was with him, apart from this reply. He sat crossed-legged on his bed, fiddling with an electric cable and plug. On several occasions he got up from his bed and walked in an agitated manner in the corridor."
- Dr H gave this description of his mental state examination of Mr P:
"Mr P was of slim build and dressed casually. He exhibited three behavioural phases. The main one was sitting on his bed fidgeting with his clothes and wrapping and electrical cable around a plug. He acted as though he was trying to fix the plug or attach the wire to it. He would vigorously rub his face and frequently fidget with his fingers and wring his hands.
At times Mr P would freeze. He would make no bodily movement for approximately thirty seconds.
The third characteristic behaviour he exhibited was pacing up and down in the corridor with his arms folded. He walked in an agitated manner and at times would stop and try to remove an invisible mark or object off of the floor.
Mr P only spoke three or four sentences when I was in his flat. There was marked poverty of speech, and at times he muttered incomprehensibly.
When I enquired about his mood, he did not reply. In the past he has expressed suicidal ideation but has not done so recently. His family is concerned that if left unsupervised he might harm himself, because he repeatedly tried to cut and strip electric cables with his teeth. Objectively, he appears severely agitated and depressed.
I was unable to elicit any delusional ideas because of his lack of communication. He appeared severely withdrawn from reality and was constantly preoccupied with his own concerns. He did not appear to notice my presence or that of his family. In the past he has exhibited paranoid delusions that his family are trying to kill him.
At times he appears to be responding to auditory hallucinations. I was unable to test his cognitive abilities.
Mr P appeared to have no insight to his state of mind."
- Dr H's opinion was that:
"Mr P fulfils the ICD 10 Diagnostic Criteria as suffering from a severe depressive episode with psychotic symptoms (Category F32.3). My reasons for this are that for over two years he has exhibited symptoms of low mood, suicidal ideation, severe agitation, anorexia, insomnia, inability to care for himself, paranoid delusions, auditory hallucinations and withdrawal from reality.
In my opinion Mr P suffers from a severe and enduring mental illness, as his depressive symptoms are of a psychotic intensity and he has been unwell for over two years.
I am also concerned that Mr P might be suffering from an organic brain disorder. There is a history of head injury from the beginning of his illness. I also observed times when the body became "frozen" which could be due to an absence attack, which is a type of epilepsy.
In my professional opinion Mr P's mental disorder has come about as a consequence of his maltreatment by the Serbian authorities and most important of all, the killing of his son. Even though Mr P, prior to these incidents, was of below average intelligence, he did not suffer from a psychiatric disorder, which could be the reason for his present problems. It is likely though that his low intelligence would have made it more difficult for him to cope with the tragic death of his son and contributed to his flight from reality.
Noise from Mr P's neighbours is exacerbating his depressive disorder, as it is responsible for making his insomnia worse and increasing his restlessness and agitation.
In view of the severity of Mr P's mental disorder, I think he is in need of regular supervision by mental health services. I would agree with his present care plan for treating him in the community. However without the support of his family, he would be at risk of self-harm and self-neglect and would require in-patient care. It is therefore necessary that his family is well supported and, if possible, given some respite. Unfortunately, respite might be difficult for the family, as so far, he has not accepted help from non-family members. It might be possible for carers to support him if they were involved regularly and consistently over a long enough period."
He added that, in view of the possibility of an underlying organic disorder, he would recommend detailed neurological investigation, including an EEG and CT scan.
- Dr H's report was sent to Islington on 23 June 2003. On 2 July 2003 Islington wrote to B&P reiterating that Mr P had no community care needs, and that accordingly no carer's assessment needed to be undertaken in respect of B's care of his father. The same day, although seemingly after that letter was written, Islington discussed Dr H's report with Dr McK. A file note by JP reads as follows:
"Discussion Dr McK (consultant) and AD (Team Leader)
They have read and discussed the report from Dr H – the doctor appointed by B&P to assess Mr P. The advice given is that there is insufficient evidence to suggest that we change our assessment of Mr P. I am advised by AD that I should now prepare to close this case. Therefore the carers assessment should be cancelled."
- An internal memorandum by AD dated 4 July 2003, apparently addressing itself to the points raised by B&P in their letter of 4 April 2003, records his view as being that he was "happy to stand by JP's assessment". He concluded:
"we do not propose providing services to HP and his family – the family are aware of his needs and, from what they've told us, they are willing to meet them as best they can."
- On 11 July 2003 JP wrote a letter in which she said that Mr P "appears to be depressed and has on occasion exhibited some psychotic symptoms", adding "these may fluctuate with time".
- On 15 July 2003 Islington wrote again to B&P to inform them that it was:
"holding to its decision that Mr P does not have severe and enduring mental illness thus warranting Community Care provision (emphasis added)."
- Mr P's amended claim form challenges the lawfulness both of the assessment made on 18 March 2003 and of Islington's decision on 15 July 2003, and complains of what are described as "continuing beaches of duty". It alleges that Islington's response to Dr H's report as set out in its letter of 15 July 2003 is "wholly inadequate" and "irrational" in the light of Dr H's report.
- Ms Markus makes four specific complaints which I will deal with in turn.
- The first complaint, founded on the statement in the draft 'Health & Social Care Assessment' of January 2003 and repeated in the 'Health & Social Care Assessment' dated 18 March 2003 that there is no "firm psychiatric diagnosis" of Mr P, is that Islington, so it is said, cannot in the absence of a firm diagnosis lawfully conclude that Mr P does not have a need for community care services and/or does not meet its CPA eligibility criteria.
- I cannot accept the premise underlying this argument, which seems to me, with all respect to Ms Markus, to be based on a misreading of what was meant by the phrase "firm psychiatric diagnosis" and on a linguistic confusion between two very different kinds of statement: one, the statement that there is no firm diagnosis (whether of X, Y or Z), the other the statement that there is no firm diagnosis of X (which is perfectly consistent with the existence of a firm diagnosis of either Y or Z). To say that there is no firm psychiatric diagnosis is one thing: to say there is no firm diagnosis of anything is something very different. There was here a tolerably firm diagnosis, but it was not a diagnosis of a psychiatric illness within the meaning of Islington's CPA eligibility criteria. It was, as Dr McK's report of 12 August 2002 in particular shows, a diagnosis of reactive depression. Islington, in my judgment, was fully entitled to proceed in March 2003 on the basis that whilst Mr P was, or might very well be, suffering from reactive depression, he was not, in the view of either Dr McK or Dr B, or for that matter in the view of JP, suffering from any psychiatric illness within the meaning of Islington's CPA eligibility criteria.
- The second complaint is stated as being that Islington failed to reconsider its assessment in the light of Dr H's report. This is simply wrong as a matter of historical fact: see paragraphs [19]-[20] above. The real complaint appears to be that:
i) Islington cannot reasonably maintain its reliance on what are said to have been Dr McK's and Dr B's "admittedly uncertain diagnoses" when faced with what, in contrast, is said to have been the "detailed and definitive … clear … careful diagnosis" of Dr H: given that, so it is said, Dr McK and Dr B had "stated that they could not reach a clear diagnosis" there was no reasonable basis for Islington to reject Dr H's diagnosis and in all the circumstances it was irrational to do so.
ii) Islington's decision is devoid of reasons: it is said to be impossible to tell whether Islington has concluded that Dr H's diagnosis is wrong or that, despite his diagnosis being correct, Mr P is nonetheless not eligible for services.
- There is no substance in the second of these complaints. It is clear from the facts as I have set them out (see paragraphs [19] and [22] above) why Islington has maintained its previous stance. It is because, in the light of Dr McK's further advice on 2 July 2003, Islington remains of the opinion that Mr P does not have a psychiatric condition bringing him within its CPA eligibility criteria and "thus" (the word used in its letter of 15 July 2003) does not qualify for community care provision. So the reason for its decision is that Islington has chosen to accept Dr McK's opinion in preference to that of Dr H. Nor is there any room for doubt as to the basis of Dr McK's advice on 2 July 2003. He had seen Mr P on 6 August 2002 and his specialist registrar, Dr B, had seen Mr P and written a detailed report on 18 March 2003. He had read Dr H's report and concluded that there was "insufficient evidence" to justify any change in his assessment of Mr P. In other words, Dr McK was standing by his earlier opinion.
- The real point here is the other one: the attack on the rationality of Islington's decision to prefer Dr McK's opinion to that of Dr H. I put the point that way, because as her formulation of the issue shows, and as Ms Markus accepts in terms, the test here is that of Wednesbury unreasonableness. Indeed, that is precisely how she puts her case: in the light of what she calls the quality of these competing opinions, Islington, she submits, "could not lawfully prefer that of Dr McK".
- There are features in Dr H's report that Ms Markus can point to as showing that it was something which Islington had to take seriously. Dr H was giving a report based on a recent visit and thus on more up to date information than had been available to Dr McK and Dr B. He observed and noted down certain things, not noted on previous occasions by Dr McK and Dr B, that added weight to his diagnosis: for example, the fact that at times Mr P appeared to "freeze" – a possible sign of organic brain disorder – and times when he appeared to be responding to auditory hallucinations. Thus Dr H's report cannot be dismissed, as Mr McGuire sought to do, by asserting that he had simply lumped together all the listed symptoms and assumed that they had all been present over two years.
- As against that, Ms Markus's argument is critically dependent on the disparaging contrast – disparaging of Dr McK and Dr B – which she seeks to draw between the competing reports. I have set out the relevant parts of all three reports and do not propose to embark upon a comparative textual and medical analysis of them. Suffice to say that the contrast Ms Markus seeks to draw is simply not to be found. Islington, in my judgment, was no more entitled – let alone required – in effect to reject Dr McK's report and Dr B's report without more ado, as Ms Markus would have it, than it was entitled in effect to reject Dr H's report without more ado, as Mr McGuire would have it. Both medical opinions (for Dr McK and Dr B in substance spoke with one voice) merited careful consideration. Neither was self-evidently so obviously right as to justify simply rejecting the other. The combination of the views expressed on earlier occasions by Dr McK and Dr B and the views expressed by Dr McK once he had had the opportunity of reading Dr H's report did give Islington, in my judgment, a rational basis for choosing to reject Dr H's diagnosis.
- The fact is that Islington was faced with an acute conflict of apparently responsible and reasonable medical opinion. It was no more irrational for Islington to decide to follow Dr McK's medical advice than it would have been irrational for it to decide to follow Dr H's medical advice. Either opinion was one that a reasonable authority could rationally have followed. Islington had to take a view. In the event it chose to prefer Dr McK's opinion to that of Dr H. It was entitled in law to do so. It was not, as Ms Markus would have it, in any way irrational of Islington to reject Dr H's diagnosis. Islington could, if it wished, lawfully prefer Dr McK's opinion.
- That in fact is precisely what Islington did, but only after discussing Dr H's report with Dr McK. Dr McK gave his opinion after reading Dr H's report. Dr McK discussed Dr H's report with AD (see paragraph [19] above). AD accepted Dr McK's conclusion that there was "insufficient evidence" to justify any change in his assessment of Mr P. Dr McK was standing by his earlier opinion. There was nothing in Dr H's report so compelling as to prevent Dr McK coming perfectly properly to that clinical decision: nor was there anything in Dr H's report, or in anything said or unsaid by Dr McK, so compelling as to prevent Islington deciding to accept Dr McK's opinion in preference to that of Dr H. Islington's decision to accept Dr McK's opinion was rational and lawful. I therefore reject this complaint.
- The third complaint lies within a very narrow compass. It is that Islington has erred in concluding that Mr P does not meet its own CPA eligibility criteria given that, in particular, Mr P has, it is said, been considered for a hospital admission within the past two years within the meaning of paragraph 2 of the CPA eligibility criteria (see paragraph [2] above). The factual basis for this submission is to be found, of course, in the reference in the letter dated 12 August 2002 (see paragraph [6] above) to Islington's conclusion that Mr P "is not sectionable under the Mental Health Act 1983".
- The argument, with all respect to Ms Markus, is simply not sustainable. Paragraph 2 of the CPA eligibility criteria defines the relevant cases as being "Depressive Illness, Anxiety Disorders and Obsessive Compulsive Disorders where the risk of self-harm or harm to others has been sufficiently serious to consider a hospital admission within the past two years." In other words, there is a two-fold test of eligibility: there must be a relevant illness or disorder and it must be sufficiently serious as to have led to consideration of a possible hospital admission. The test is plainly not met where, as here, the relevant determination is that the patient is simply not sectionable at all.
- Neither in this nor is any other respect has Islington misunderstood or misapplied its CPA eligibility criteria.
- The fourth and final complaint, in my judgment, has much more substance. It is that even if Islington was right that Mr P did not meet its CPA eligibility criteria, because he did not have a severe and enduring mental illness, that was not determinative of whether he nonetheless had a need for generic health or social services community care. That proposition I have no hesitation in accepting, as likewise the further complaint that there has never been a proper Community Care assessment of Mr P, only a CPA assessment.
- The assessments prepared in March 2003 (see paragraphs [9]-[11] above) identified that Mr P was at "risk" of "severe self-neglect" and "vulnerable to deterioration in his mental state" and further identified a number of what it might be thought were on any basis fairly pressing and serious "needs". In the light of that material it cannot be said that there was no need for serious investigation. There plainly was. Islington's duty therefore was, first, to produce a "needs assessment", that is to say an assessment identifying those needs which could potentially be met by the provision of community care services and then, secondly, to arrive at a "service provision decision", that is to say a decision as to whether those needs were such as to call for the provision by the authority of community care services.
- Even assuming in Islington's favour that the first part of this process was properly carried out (and for reasons I will mention shortly I am very sceptical about this) it is quite apparent, in my judgment, that the second part of the process has not been properly or lawfully carried out. The reason is very simple. It is quite clear that Islington treated its decision that Mr P did not meet its CPA eligibility criteria, because he did not have a severe and enduring mental illness, as determinative of whether or not he had a need for generic health or social services community care. That was error of law on the part of Islington, not, as Mr McGuire tried valiantly to persuade me, a mere failure by Islington to fill in the correct forms. Islington's approach appears clearly enough from two of its own documents. The letters dated 25 April 2003 and 15 July 2003 (see paragraphs [14] and [22] above) show with complete clarity the nature of Islington's reasoning. I repeat the key passages, in each case with emphasis added:
"… community care services will not be provided as Mr P does not have a severe and enduring mental illness …
… Mr P does not have severe and enduring mental illness thus warranting Community Care provision … "
Islington's misunderstanding – misdirection – is patent.
- Directly the effect of this error is only to invalidate the second part of the necessary decision making process, but the significance of the error is so great – the error is, indeed, so fundamental – as to cast doubt on whether even the first part of the process was properly carried out. Islington appears – and, I repeat, this is based on Islington's own written words – to have treated the absence of a severe and enduring mental illness as determinative of whether or not Mr P had a need for generic health or social services community care. That being so neither Mr P nor the court can have the slightest confidence that the first part of the process was not as severely infected by this error as the second part of the process quite manifestly was. In my judgment, Islington's demonstrable and serious error in its whole approach to the fundamental underlying questions must, in the circumstances, invalidate both parts of the process. In my judgment there has never been a proper and comprehensive Community Care assessment of Mr P, only a CPA assessment. The process in relation to the Community Care assessment must start again.
- I conclude, therefore, that although Ms Markus fails on her first three grounds of complaint she succeeds on her fourth. No doubt she and Mr McGuire will be able to draft an appropriate form of order giving effect to my conclusions.
