Judgments - Regina v. East London and the City Mental Health NHS Trust and another (Respondents) ex parte von Brandenburg (aka Hanley) (FC) (Appellant)

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    11.  In the present case the second respondent, as ASW, attended the tribunal hearing and learned of the tribunal's decision and the written reasons which the tribunal gave. He was therefore well placed, having consulted the doctors, to form an opinion whether there was information not known to the tribunal which put a different complexion on the case as compared with that which was before the tribunal. But this will not always be the case, particularly where time has passed since the tribunal made its decision and the patient has been discharged and has perhaps moved to a different locality. In such circumstances the ASW may not know there has ever been a tribunal decision and the former patient may not choose to tell him. Mr Gordon, for the appellant, contended that in such circumstances, save in an emergency, the ASW should be subject to a duty to make reasonable enquiry to establish whether any decision has been made by any tribunal and, if so, the grounds on which it was based. I cannot accept the full breadth of this submission. As appears from section 13(2) of the 1983 Act, quoted in paragraph 9 above, an ASW is obliged, before making an application for admission of a patient to a hospital, to interview the patient in a suitable manner and also to satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need. Save perhaps in the most exceptional circumstances, or where the relevant facts are already known to him, performance of these statutory duties will oblige an ASW to enquire into the patient's background and medical history, consulting those doctors who have pertinent information to give. In the course of such enquiries he may well learn of an earlier tribunal decision and will then, no doubt, wish to know the reasons for it. But if, despite performing these statutory duties in a reasonable way, he does not learn of a tribunal decision, I can see no ground for implying a more far-reaching duty of enquiry not expressed in the statute. There is no central register of decisions which the ASW could consult and the duty could be onerous and time-consuming to perform, as it would for a nearest relative making an application, since presumably an extra-statutory duty would fall on such nearest relative also. It follows that I cannot accept the opinion of Sedley LJ in paragraph 41 of his judgment that an ASW's decision to seek admission will be vitiated if he fails to take account of a recent or not so recent tribunal decision of which he is unaware.

    12.  It was argued for the appellant that if "the mental health professionals", having considered a previous tribunal decision, consider that there has been a relevant change of circumstances justifying them in taking a different view from the tribunal they must give reasons for their decision at the time. I would observe that the test of relevant change of circumstances was rejected by the Court of Appeal and is not the test which I have propounded. I would, secondly, resist the lumping together of the ASW and the recommending doctor or doctors as "the mental health professionals". It is the ASW who makes the application, not the doctors. While it will doubtless be helpful if a medical recommendation identifies any new information on which it is based, a recommending doctor is not in my opinion required to do more than express his or her best professional opinion. I would however accept that a limited duty should lie on the ASW, and this was accepted by counsel for the second respondent, although the prescribed form of application as it now stands does not make provision for the giving of such reasons. The principle that tribunal decisions should be respected for what they decide in my opinion requires that a patient should be informed why an earlier tribunal decision is not thought to govern his case if an application for admission is made by an ASW inconsistent in effect with the earlier decision. Such duty must however be limited, since the ASW cannot be required to make any disclosure potentially harmful to the patient or others, as (for example) where the ASW has based his opinion on information gained from the spouse or family of the patient or from a doctor with whom the patient has a continuing and trusting relationship. It may be necessary for the ASW to give reasons in very general terms.

    13.  The Court of Appeal might, I think, have allowed the appellant's appeal to it since, although he did not establish his proposed change of circumstances test, he did succeed in modifying the somewhat inflexible rule applied by the judge. But he has gained little by his appeal to the House. It is not in my opinion appropriate at this stage to remit the matter to the High Court to investigate whether, on the facts, the test which I have put forward was satisfied in this case. The untested statements which the House has seen disclose the grounds on which the second respondent made his decision to apply on 6 April: following the tribunal's decision the appellant, contrary to the assurance he had given the tribunal, declined to continue taking his medication with the result, so it is said, that his condition significantly deteriorated. There is no challenge to the bona fides of this judgment, and it would be hard to regard it (particularly in the light of the doctors' opinions) as other than reasonable. I would accordingly dismiss the appeal and make no other order, save that the parties have 14 days within which to make written submissions on costs.

LORD STEYN

My Lords,

    14.  I have read the opinion of my noble and learned friend, Lord Bingham of Cornhill. I agree with it. For the reasons he gives I would also make the order he proposes.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    15.  For the reasons given by my noble and learned friend Lord Bingham of Cornhill, I too agree that the appeal be dismissed.

LORD SCOTT OF FOSCOTE

My Lords,

    16.  I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Bingham of Cornhill. I am in complete and respectful agreement with his opinion and, for the reasons he gives, I too would dismiss the appeal and make the order that he has proposed.

LORD RODGER OF EARLSFERRY

My Lords,

    

 
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