19.11R (Barker) v Barking, Havering and Brentwood Community Healthcare NHS Trust (1999) 2 CCLR 5, CA
A detained patient on hospital leave remained detained and liable to recall to hospital if in receipt of, and still needing, hospital treatment, which included monitoring and testing
Facts: Ms Barker had a history of personality disorder and repeated admissions to hospital in a psychotic state. She was detained under section 3 of the MHA 1983 and then, later, allowed section 17 leave under which Ms Barker spent five days a week living at home, subject to conditions attached to her leave. Her psychiatrist renewed Ms Barker’s section 3 detention, under section 20 of the MHA 1983. Ms Barker submitted that section 20 was inapplicable because she was no longer ‘detained’ or in receipt of, or needing, ‘medical treatment in a hospital’.
Judgment: the Court of Appeal (Lord Woolf MR, Hobhouse and Thorpe LJJ) held that a patient continues to be ‘detained’ in hospital, for the purposes of the MHA 1983, while on section 17 leave; and that while assessments on their own did not amount to ‘hospital treatment’, the requirement to return to hospital to be monitored, and a liability to be recalled and subjected to hospital treatment under supervision with urine and other tests, did amount to ‘hospital treatment’:
If Mr Gledhill’s approach is right it creates considerable difficulties in treating the many patients like the appellant who should be treated partly as an inpatient and partly as an outpatient as described by Dr Taylor in the case of the appellant. In such cases the activities which take place as part of the inpatient treatment may all individually be capable of being performed without the treatment taking place in the hospital, yet for the treatment as a whole to be successful there will often need to be an inpatient element to the treatment which means it is in fact ‘appropriate for him to receive medical treatment in a hospital’ and ‘that it cannot be provided unless he continues to be detained’. The requirement that the patient has to return to hospital and be monitored and is liable to be recalled and from time to time is subjected to the discipline of being treated in hospital as an inpatient under direct supervision with urine and other tests is an essential part of the treatments. They enable the patient to attempt the process of rehabilitation in the wider community which would be more precarious otherwise. This appears to be just the type of treatment contemplated by the second half of the definition of treatment contained in section 145 of the Act. As the Code of Practice states in paragraph 20.1, leave ‘can be an important part of a patient’s treatment plan.’
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Mrs Justice Hale in Mental Health Law suggests the change in language may be a draftsman’s slip. On my reading of the 1959 Act ‘liable to be detained’ is used both to cover a person who is detained and a person who would be detained if he were not on leave. The opening words of section 20(3) require the responsible medical officer to examine those who are ‘liable to be detained’. This literally applies to those on leave but it must also refer to those who are ‘detained’. It is to the managers of the hospital where the ‘patient is detained’ that the report is to be furnished. However I do not find it inappropriate to describe the hospital of a patient who is on leave in this way. As Mr Grace submits the detention does not have to be continuous, as section 17 makes clear, but even when on leave the patient still has a hospital at which he is detained when not on leave. Equally he will for the purpose of section 20(4) continue to be detained whether when the report is furnished he is in hospital or liable to be required to return to hospital.
No help is therefore available to Mr Gledhill from McCullough J’s judgment. The same is true as to the distinction which he seeks to draw between assessment and treatment. The fact that assessment by itself cannot amount to treatment for section 3 does not mean that assessment cannot be a legitimate treatment under sections 3 and 20. Often assessment or monitoring of progress will be an important part of treatment. This will certainly be the case where as here there is an evolving programme of treatment.
The Court of Appeal also explained that, in detention cases, judicial review was the appropriate remedy, rather than habeas corpus, where ‘what is in issue is the propriety of some prior administrative act’, rather than where ‘what is in issue is whether some precedent fact going to jurisdiction is in issue’ (15D–H).