Garden Court counsel successfully oppose Hospital Trust claim that orders permitting compulsory treatment can be implemented and extended by remote examinations

Wednesday 20 December 2023

Garden Court’s Stephen Simblet KC and Ollie Persey acted for PQR, instructed by Deborah Robinson through Cartwright King Solicitors, with Garden Court’s Roger Pezzani and Alex Schymyck instructed by Rheian Davies on behalf of Mind.

The other parties were represented by Fenella Morris KC, Tom Cross, and Victoria Butler-Cole KC.

Share This Page

Email This Page

In Derbyshire Healthcare NHS Foundation Trust v Secretary of State for Health and Social Care and Others, a hospital trust had brought proceedings under CPR Part 8, seeking declarations that a responsible clinician intending to make or renew a community treatment order under the Mental Health Act 1983 need not conduct a face-to-face examination before making a community treatment order, or having it extended, and also for renewing orders for treatment, guardianship or in relation to patients subject to hospital orders.

The Trust relied on the evidence of its Assistant Legal Director and the contention that it would be in the interests of patients for virtual assessments to be permitted. Prior to the proceedings having been brought, and during the covid pandemic, “PQR”, who was subject to a community treatment order, had his community treatment order extended following a telephone call made by his responsible clinician. It was during the course of Mental Health Tribunal proceedings that his solicitor Deborah Robinson (who acted for PQR in these proceedings) realised that this did not comply with the requirements under the Mental Health Act 1983 for the responsible clinician to examine the patient before extending the order. She raised this issue with the Trust’s lawyers and the Tribunal. The First-tier Tribunal did not consider that that argument was correct, and dismissed that argument when the Trust’s lawyers put in submissions similar to those pursued in the Part 8 claim. She instructed Garden Court’s Stephen Simblet KC and Ollie Persey, who acted in these proceedings and also in parallel proceedings seeking to challenge the First-tier Tribunal decision in the Upper Tribunal. The appeal against the First-tier tribunal was partially successful, in that the earlier Tribunal decision upholding the Trust’s position on the lawfulness of the CTO renewal was set aside.

The Derbyshire Trust subsequently issued its part 8 claim seeking declarations, and PQR was added to the claim. Subsequently, the mental health charity Mind intervened, with its solicitor Rheian Davies instructing Garden Court’s Roger Pezzani and Alex Schymyck.

In a judgment handed down on 14th December 2023, Mr Justice Lane dismissed the Trust’s claim, and refused to make the declarations sought. He held that “Parliament requires the highest degree of assurance that the examination in question will be effective as it can be. There is no mandate for assuming that…. Parliament intended to leave the matter to be determined by the responsible clinician” and that it was not appropriate to seek declarations of this sort divorced from a factual context.

Finally, although the judge declined to deal with PQR’s submission that since it was his lawyer’s raising the invalidity of what had happened that had precipitated the Part 8 claim that the court should now deal with it, the case has a happy post- script for PQR, in that when the judgment was handed down, his Community Treatment Order was discharged.

Upcoming Hybrid Event

The Mental Health Act 1983, a year in review - Thursday 18 January 2023
The Garden Court Chambers Mental Health Team present a round-up of the key developments in mental health law from 2023.
Book here.

Related Areas of Law

We are top ranked by independent legal directories and consistently win awards.

+ View more awards