Claimant from Wales loses court battle over compulsory detention in Brighton

A 21-year-old claimant from Swansea with a complex mental health condition has lost a judicial review challenge brought following her compulsory detention in a hospital in Brighton.

In Dyer, R (in the application of) v The Welsh Ministers & Ors [2015] EWHC 3712 (Admin) the claimant’s condition included autistic spectrum disorder ("ASD") and learning disability ("LD”). This resulted in her behaviour from time-to-time becoming aggressive and otherwise challenging.

The claimant lived with her family in Swansea, but her behaviour was such that sometimes they found it difficult to cope; and, on four occasions when this had happened, she had been compulsorily detained in various hospitals for assessment and treatment under sections 2 and 3 of the Mental Health Act 1983.

In the proceedings the claimant challenged an alleged failure by the public authorities responsible for the National Health Service in Wales (NHS Wales) to discharge the duty imposed upon them by section 3(1) of the National Health Service (Wales) Act 2006 to provide hospital accommodation "throughout Wales, to such extent as they consider necessary to meet all reasonable requirements".

In particular, she contended that the duty had been breached because no decision had been taken by any authority as to either:

  • the "reasonable requirements" of women in Wales with ASD and LD for secure in-patient assessment and treatment; or
  • the level of provision necessary to meet the reasonable requirements found to exist.

The claimant also said that the relevant authorities had failed to collate the information required to make them; and so they were not in a position to make properly informed (and, therefore, lawful) decisions.

The High Court judge hearing the case, Mr Justice Hickinbottom, noted that although that was the legal basis of the claim, the concern of the claimant and her family underlying the claim was "more personal and practical in nature".

The last time she had required compulsory detention on account of her mental condition was in August 2014 when, because there was no appropriate and available facility in Wales, she was sent to a hospital in Brighton where she was detained for some weeks.

The claimant's condition was such that she was strongly dependent upon the support of her family. Her mother described to the court the claimant's trauma as a result of the Brighton placement; and she believed that being so far away from home had had a seriously detrimental impact on her.

Since her release in November 2014, the claimant has been happily at home. This claim was openly brought "in an attempt to avoid a similar situation arising in the future, given the real risk that the claimant will once again require compulsory detention and treatment notwithstanding that at present she is making good progress in the community" (as set out in paragraph 3 of the claimant's Grounds of Claim).

The claimant and her family therefore wished, if she had to be detained again under the 1983 Act, to have some comfort that she would be detained in Wales and in a facility somewhat nearer to her home than Sussex.

They considered that, if the relevant authorities in Wales collated the information which (it was said) they required to make an informed decision about the requirements of women in Wales with ASD and/or LD for secure in-patient facilities – and then made lawfully informed decisions as to needs and provision – then more facilities, appropriate to the claimant's needs, would (or might) be made available in Wales and the prospects of her being detained nearer home would consequently increase.

Mr Justice Hickinbottom rejected the challenge. The judge's findings included:

  • Section 3(1) was a general duty with the obligation “limited to providing the services identified to the extent that [the relevant authority] considers that they are necessary to meet all reasonable requirements” (the judge’s emphasis in quotes from Lord Woolf in the Coughlan case). This necessarily placed considerable discretion or judgment in the hands of the authority.
  • The exercise of judgment was not restricted to the substantive scope of the reasonable requirements, and the services the relevant authority considered necessary to meet those requirements. The authority also had a substantial degree of flexibility as to how it went about its task.
  • Subject to the Wednesbury test, the court would not interfere with or otherwise prescribe how section 3(1) decisions were made.
  • It was “arguably artificial” to create a cohort by reference to the primary criterion lit upon by the claimant’s QC, ie a diagnosis of both ASD and LD, coupled with or uncoupled from the secondary criterion of a potential need for secure placement. Patients such as the claimant were clinically idiosyncratic, and might not have any or sufficient commonality in their ‘reasonable requirements’ for health care to classify as a ‘cohort’.
  • Even if they could be properly categorised as the claimant’s QC suggested, the decision be made about their reasonable requirements and how they might be met did not concern simply them. “Such decisions cannot be made in a vacuum, or…. in isolation from the competing needs and priorities of other cohorts of patients. To consider reasonableness of their requirements means assessing them in the context of the needs of a multiplicity of other patients and potential patients, and the many other calls on public resources allocated to NHS Wales. It is unrealistic to impose upon the relevant authority an obligation discretely to consider every possible group and subgroup of patients and potential patient, no matter how narrowly defined, who may wish to use the services of NHS Wales; and to make a discrete decision as what their precise requirements will be and whether to prioritise their needs or otherwise favour them over others with different health requirements.” The relevant decision-making process was therefore particularly sophisticated. It could sensibly be done – “and, perhaps, only sensibly done” – in the context of a scheme whereby the requirements of all patients and potential patients were taken into account somewhere along the line.
  • The Welsh Ministers had ensured that the section 3(1) requirement for them to provide services “throughout Wales” was performed by delegating it to the seven Local Health Boards.

Mr Justice Hickinbottom concluded: “It is unfortunate that [the claimant] could not be accommodated in Wales, nor anywhere nearer her home than Brighton. I understand the distress that that caused her, and her family.

“However, the placement, albeit far from ideal, was lawful; and it appears to have met with some clinical success – within weeks, she was discharged to home where she has remained since.”

The judge added: “The claimant and her mother wish to have some comfort that a placement far away from home will not happen again. Plans have been made that, hopefully, reduce the possibilities of such a placement; but, I accept, depending upon her presentation and the facilities that might be available at the time, it is possible that she might be placed in a hospital a long way from her home again.

“However, this court can intervene only if a decision-making authority has acted unlawfully. For the reasons I have given, none of the defendants has done so in this case.”

The Welsh Ministers were represented by Richard Gordon QC of Brick Court and Joanne Clement of 11KBW, instructed by the Welsh Ministers.

Ian Wise QC and Stephen Broach of Monckton Chambers appeared for the claimant.

Rhodri Williams QC and Rebecca Stickler of 30 Park Place appeared for the interested parties, six health boards, instructed by Christian Young of the NHS Shared Services Partnership.

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