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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Holloway, R (on the application of) v Oxfordshire County Council & Ors [2007] EWHC 776 (Admin) (03 April 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/776.html Cite as: [2007] EWHC 776 (Admin)

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IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/04/2007

Beatson J :

1. The Claimant has suffered from chronic paranoid psychosis since the early 1980s. This has manifested itself in several incidents of serious violence and a conviction for the manslaughter of a fellow patient. He has been compulsorily detained under the Mental Health Act 1983 ("the Act") on several occasions. Before 15 November 2006 the interested party, his mother Jeanne Rance, was his "nearest relative" for the purposes of the Act. This application for judicial review arises as a result of the failure on 1 September 2006 to renew the authority for his compulsory admission to and detention in hospital for treatment under section 3 of the Act.
2. The challenge is to steps taken to ensure the Claimant remained in hospital after 16 November 2006, when a 72 hour "holding" admission pursuant to section 5(2) of the Act expired. The primary challenges are to an application made without notice on 15 November by Oxfordshire County Council, the first defendant, to displace the Claimant's mother from her status as his "nearest relative" for the purpose of the Act, and to an interim order to this effect made by the second defendant, the Oxford County Court, that day. The application to displace the Claimant's mother was made because she objected to a fresh admission under section 3. As his "nearest relative", her objection precluded admission under section 3: see section 11(4) of the Act. Section 29 of the Act enables an application to be made to displace the nearest relative inter alia on the ground of unreasonable objection to an application for admission for treatment.
3. The interim order of the County Court authorised the functions of the "nearest relative" to be exercisable by the Claimant's Approved Social Worker, Rachel Griffiths, on behalf of the Council. Having secured the interim displacement of his mother as nearest relative, the Council, also on 15 November 2006, applied for the Claimant to be admitted for treatment under section 3. The Oxford and Buckinghamshire Mental Health Trust, the third defendant, then detained him in the Oxford Clinic. There is a claim against the third defendant in respect of his detention after 16 November 2006. The third defendant has accepted that there was no authority for the Claimant's detention between 1 September and 13 November 2006 when he was admitted under section 5(2) of the Act. On 8 January 2007, following a contested hearing, a final order displacing his mother as his nearest relative was made.
4. The Council's decision to apply without notice for the displacement of the Claimant's mother as his nearest relative, and the Court's decision to make an interim order are challenged on broad natural justice grounds. It is submitted by Mr Bowen, that the court, in acting in this way, did so in breach of the principles of natural justice and of the rights of the Claimant and the interested party under Articles 6 and 8 of the European Convention. He argued that this meant it had acted without jurisdiction, with the consequence that the Claimant's mother was not validly displaced as his nearest relative. The second stage of Mr Bowen's submissions concerned the consequences of this. It followed, he submitted, that the Council's subsequent application pursuant to section 3 was unlawful because of the Claimant's mother's objection and, as a result, there was no authority for his detention by the third defendant. The application for permission was lodged on 16 November 2006, the day after the County Court made its order. Crane J gave permission on 24 November after an oral hearing.
5. Statutory Framework: The procedures for compulsorily admitting a patient to a hospital are contained in sections 2 to 5 of the 1983 Act. Section 2 is concerned with admission for assessment and section 3 with admission for treatment. The criteria upon which a person may compulsorily be detained in hospital for treatment are set out in section 3(2). These are that the person is suffering from inter alia mental illness which makes it appropriate for him to receive treatment that is necessary for his health and safety or the protection of other persons and the treatment cannot be provided unless the patient is detained in a hospital. By section 3(3):

"An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case his statement that in the opinion of the practitioner the conditions set out in subsection (2) … are complied with; and each such recommendation shall include [the prescribed particulars and a statement of reasons for the opinion] specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate."

6. The particulars required of the two medical practitioners are contained in section 12. In particular section 12(1) requires both practitioners to have personally examined the patient separately within the 5 days before they make their recommendations.
7. Section 11 specifies a number of conditions for applications for admissions for assessment and for treatment. Sub-section (1) provides that an application for admission for treatment may be made either by the patient's nearest relative or by an approved social worker. Sub-section (4) provides that no application for admission for treatment shall be made by an approved social worker except after consultation with the person appearing to be the nearest relative of the patient unless it appears to the social worker that in the circumstances such consultation "is not reasonably practicable or would involve unreasonable delay". Sub-section (4) also provides that an application for admission for treatment shall not be made by a social worker if, as occurred in this case, the nearest relative has informed that social worker that he or she objects to the application being made.
8. Section 6 of the Act deals with the effect of an application for admission. In the case of a person who is already an in-patient, section 6(2) provides that the application for admission, duly completed in accordance with the statutory requirements, "shall be of sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of [the] Act". Section 6(3), which is of crucial importance to the claim against the third defendant, provides:

"Any application for the admission of a patient under this part of this Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it."

9. Section 20(1) of the Act provides that a person admitted to hospital in pursuance of an application for admission for treatment may be detained for a period not exceeding 6 months. Section 20(2) enables the authority for the detention to be renewed, initially for a further period of 6 months, and then for further periods of 1 year at a time provided that the conditions of the section are satisfied. These conditions are substantially the same as those required for an application under section 3.
10. Section 29 of the Act provides in part:

"(1) The County Court may, upon application made in accordance with the provisions of this section in respect of the patient, by order direct that the functions of the nearest relative of the patient … shall, during the continuance in force of the order, be exercisable by the applicant, or by any other persons specified in the application, being a person who, in the opinion of the court, is a proper person to Act as the patient's nearest relative and is willing to do so."

11. By section 29(2)(c) one of the persons specified is "an approved social worker". It is provided that in relation to an application made by such a social worker the application is to be treated as made by the local social services authority. Section 29(3) provides that "an application for an order under this section may be made upon any of the following grounds, that is to say-… (c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment … in respect of the patient; …"
12. By section 29(4), where, immediately before the expiration of the period for which the patient is liable to be detained by virtue of an application for admission for assessment pursuant to section 2 of the Act, an application to displace the nearest relative is pending, the period for which detention is authorised until the application has been finally disposed of or, if the court so orders, for a further period of 7 days. This provision, however, has no application in the present case because it only concerns applications to displace the nearest relative where (a) the patient is detained for assessment pursuant to section 2, and (b) the application is made before the expiration of the authorised period of detention. The application was made after the expiration of the detention authorised by section 3 and during the period authorised by section 5(2).
13. Rules governing applications to displace the nearest relative are contained in CCR Order 49, Rule 12. Rule 12 provides:

"(3) Where an application is made under section 29 for an order that the functions of the nearest relative of the patient shall be exercisable by some other person-

(a) the nearest relative shall be made a respondent to the application unless the application is made [on the ground that the patient has no nearest relative within the meaning of the Act or it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is] or the court otherwise orders; and

(b) the court may order that any other person shall be made a respondent."

14. The Evidence: On behalf of the claimant the evidence consisted of statements by; Jeanne Rance, the Claimant's mother (dated 22 November 2006), the Claimant (dated 30 November 2006), and Meryll Patterson, the Claimant's solicitor (dated 27 February 2007). On behalf of the defendants there are statements by Rachel Griffiths, an approved social worker employed by Oxfordshire County Council (dated 23 November 2006), Dr. Cartwright, the registrar in forensic psychiatry at the Oxford Clinic who detained the claimant under section 5(2) of the Act (dated 18 December 2006), Dr. Gordon, the consultant forensic psychiatrist who was his Responsible Medical Officer (dated 19 December 2006), Nicholas Graham, principal solicitor of legal services at Oxfordshire County Council (dated 19 December 2006), and Tracy Duce who produced the judgment of His Honour Judge Compston who made the final order displacing the claimant's mother as nearest relative on 8 January 2007.
15. The circumstances in which the application to displace was made: In December 2003, contrary to the recommendation of the Claimant's RMO, the Mental Health Review Tribunal granted him an absolute discharge. After some problems during 2004 and 2005, on 20 August 2005 he was detained for assessment pursuant to section 2 of the Act. On 2nd September 2005 he was detained for treatment pursuant to section 3 and transferred to the Oxford Clinic. His section 3 order was renewed on 31 January 2006 for a period of 6 months but the detention was erroneously recorded to be for a 12 month period. It was for this reason that the hospital omitted to renew the order when it lapsed on 1 September 2006.
16. The error was discovered on Monday, 13 November 2006, the day before he was due to be transferred to Ravenswood House. He was informed of the lapse of the order and asked to leave the hospital. In view of the risk he was assessed to pose, Dr Cartwright immediately detained him pursuant to section 5(2) of the Act pending a full Mental Health Act assessment. That was at 11.49am. Section 5(2) only authorises detention for 72 hours. Accordingly this authority would expire at 11.49 am on 16 November. In view of this, the first and third defendants took steps to make a fresh application to admit the Claimant under 3 of the Act. On 13 November two doctors examined him and recommended his admission to hospital, and the claimant's mother was contacted in her capacity as "nearest relative" by Rachel Griffiths, the approved social worker employed by the council.
17. There is a dispute as to what the Claimant's mother was told by Rachel Griffiths when they first spoke on 13 November. It is, however, common ground that it is not necessary to resolve the conflict in the present proceedings. This is because it is not disputed that by 9.30 am on 14 November, about twenty-four hours before the Council's application pursuant to section 3 came before the County Court, the Claimant's mother told Ms Griffiths that she objected to the Council making it. It is nevertheless useful to summarise the evidence in order to understand the position taken by the Council.
18. The Claimant's mother states that she understood that what the Council was seeking was a renewal of the authority to detain under section 20 of the Act. She said Ms Griffiths did not tell her that the previous section 3 authority to detain had lapsed and that the application to be made would be a new application pursuant to section 3. The crucial difference is that a nearest relative has no power to object to the renewal of detention under section 20 but, by virtue of section 11, the nearest relative must either make the application under section 3 or consent to it.
19. The Claimant's mother states that after her son told her that the application was for a new admission and not to renew the order, she informed Ms Griffiths that she opposed it. The Claimant's solicitor, Ms Patterson, states that the Claimant telephoned her on 13 November. He asked her to speak to his mother who was upset because she had been told that what was being sought was a renewal of detention. She spoke to his mother who confirmed this. Ms Patterson states that at about 3pm that day she had a telephone call from the Mental Health Act Office at the Oxford Clinic. She was told that the hospital had forgotten to renew the detention and she indicated to the Mental Health Administrator that the Claimant's mother as nearest relative was opposing the application. Ms Patterson states that she informed the Administrator that if the social work team considered making an application to displace the claimant's mother as nearest relative Ms Patterson should be informed. The Administrator stated that a statutory assessment was taking place and agreed to keep Ms Patterson informed of the outcome. Ms Patterson then faxed a letter to the Mental Health Act Administrator confirming the Claimant's mother's opposition to the detention of her son and asking to be informed of the outcome of the assessment. It is not apparent from the material before me whether Ms Griffiths was informed of this letter.
20. In her statement Ms Griffiths says that she has no doubt that during the course of a lengthy telephone conversation she told the Claimant's mother that the previous section 3 authority had lapsed. Ms Griffiths prepared the report dated 14 November 2006 in support of the County Council's application to displace the Claimant's mother. In this she states that the Claimant's mother believed that the Claimant no longer posed a risk to his brother and that this indicated a lack of insight by her and that she may not be able to provide sufficient protective factors for the Claimant. It records Ms Griffiths' view of her communications with the Claimant's mother following the discovery that the authority to detain under section 3 had lapsed. The report states that Ms Griffiths spoke to the Claimant's mother three times.
21. The first time was in a telephone call after midday on 13 November. The report states that it was explained to the Claimant's mother that "his section 3 had lapsed and that this had triggered a Mental Health Act assessment". The Claimant's mother's views as to the possible use of section 3 were sought. She said that she did not think that section 3 was justified although she acknowledged that it had been in the past. She said that her son had lived independently and successfully in the community and felt that he would be better the sooner he could do so again. She also said that she did not object to the use of section 3 provided that her views were represented. The report states that, at the end of that conversation, the notes made were read back to the Claimant's mother and she again said that she did not object to the use of section 3.
22. The second telephone conversation was a call from the Claimant's mother to Ms Griffiths' office to inform them that, having spoken to the Claimant's solicitors, she now objected to the application. This call was probably after 3 pm in the light of Ms Patterson's evidence about the time she spoke to the Claimant's mother.
23. The third telephone conversation is stated to have been at about 6.15 pm when the assessment was completed. Ms Griffiths' report states that the Claimant's mother was telephoned to ask about her change of mind and during that conversation she said that she withdrew her objection. The report states that the doctors dealing with the medical recommendations consulted each other at around 7 pm, and pending completion of those, Ms Griffiths completed a section 3 application. Nicholas Graham's evidence is that he received instructions that there was a potential that an application would be required for displacement of a nearest relative late on the evening of 13 November. This, while not inconsistent with the statement in Ms Griffiths' report that the Claimant's mother withdrew her objection in the 6.15 pm conversation, does not sit altogether comfortably with it. Mr Choudhury submitted that, on 13 November, it could only be said that there was a potential need for an application pursuant to section 29. The position on the evidence of Ms Griffiths is that, before her conversation with the Claimant's mother at 6.15 pm, there was a real need for an application pursuant to section 29 because of the objection, but that after that conversation, since the objection was withdrawn, there was no need at all for an application.
24. Mr Graham was to be out of the office for all the following day, Tuesday 14 November. On the 13th he had asked that a full report from the Approved Social Worker be with him on his return on the Wednesday morning and asked his secretary to notify the court that an application would be made. His secretary told him that the court was content for proceedings to be issued and for the matter to be heard on the morning of Wednesday 15 November. In a letter written to the Claimant's solicitors on 15 November Mr Graham stated of what had occurred on 13 November that "whilst we did not enquire of the court, it was our understanding that this was the only time the court could hear our application. In the circumstances we were unable to serve a copy of the claim form upon your client or indeed notify you that the application was being made this morning".
25. On 13 November Mr Graham also asked for arrangements to be made for counsel to attend court. What he did not do was to ask that the Claimant, the Claimant's mother, or the Claimant's solicitors be notified that a hearing had been arranged for the morning of 15 November. Notwithstanding his absence from the office on 14 November, he could have asked his secretary, a member of his staff, or Ms Griffiths (who was in telephone communication with the Claimant's mother) to attempt to contact the Claimant, the Claimant's mother, or the Claimant's solicitors. No explanation is given as to why he did not do so.
26. I come to 14 November. Ms Griffiths' report states that she rang the Claimant's mother at 9.30 am that day, and that the Claimant's mother said that, in the light of discussions with the Claimant and his solicitors, she wished to reinstate her objection. Neither her report nor her statement says that instructions had been given on 13 November for an application pursuant to section 29. Ms Patterson states she telephoned the hospital on 14 November and was informed that the outcome of the assessment was not known. She then faxed a letter to the Administrator expressing her concern and asking for confirmation of the up to date position by return. It is to be recalled that Ms Griffiths' report stated that the assessment had been completed by 6.15 pm on 13 November.
27. On the morning of 15 November, Ms Patterson attended the Oxford Clinic for a mental health review tribunal hearing of another client's case. She met Doctor Gordon, the claimant's RMO, who said that he was surprised to see her as he thought she would be at the County Court where the Council were seeking to displace the claimant's mother as nearest relative. Ms Patterson states that she spoke to the Mental Health Act Administrator who was clearly embarrassed that she had not informed her. The hearing in the other case began moments later and Ms Patterson had no opportunity to contact the Claimant or his mother. That hearing lasted for most of the day. Ms Patterson said that the council was aware of her involvement in the case, and could have contacted her. She could have arranged for a colleague to attend the County Court, and in any event the Claimant's mother would have been able to attend that day to give the reasons for her objection.
28. The application came before His Honour Judge Corrie. The basis of the application was that the Claimant's mother's refusal to consent to the application was unreasonable. Judge Corrie was told that, if he made an order displacing her as "nearest relative", there would be an application under section 3. He stated that he had read Ms Griffiths' report and the doctors' recommendations. He referred to the fact that the application was without notice to the Claimant's mother and said that there would have to be a return date so she could have her say. He commented that she had not had much time to think about the matter. It was not surprising, he said, that in those circumstances, she had not agreed to the application, but she might do so given the chance.
29. The judge granted the Council an interim order displacing the claimant's mother as the "nearest relative" and ordering that the functions of the "nearest relative" be exercised by Ms Griffiths on behalf of the first defendant, abridging the notice period for the service of the claim form, and requiring the matter to be re-listed on the return date of 6 December 2006. He ordered that there should be no application for costs against the Claimant's mother by the County Council at any stage in the proceedings.
30. After the order was made the Council wrote to the Claimant's mother serving her with the order of the court displacing her and a copy of its application to the court. The Council also wrote to the Claimant's solicitors informing them that his mother had been displaced as his "nearest relative" on the ground that she unreasonably objected to the making of an application for his admission for treatment, that those functions were to be exercisable by Ms Griffiths on behalf of the Council, and that an application would be made for the Claimant's further detention under section 3. That letter was faxed as well as posted.
31. After her other client's hearing ended, Ms Patterson telephoned the Council and spoke to Mr Graham expressing her concern. Mr Graham said he did not think the Claimant had been prejudiced by the Council's actions. After this conversation Mr Graham wrote to the Claimant's solicitors. This letter set out the steps taken on Tuesday 13^th to inquire about the court's availability. The contents of this letter have been summarised in paragraph [24] above. Ms Patterson states that when she got back to her office she found a fax dated 15 November from the Mental Health Act Service Manager at the hospital stating that the claimant was currently detained under section 5(2), that he would be assessed for detention before the lapse of that authority, and that the Administrator would inform Ms Patterson of the outcome. Again, it is to be recalled that Ms Griffiths' report stated that the assessment had been completed by 6.15 pm on 13 November. It is also to be recalled that Ms Patterson's fax dated 13 November to the Mental Health Act Service Administrator confirming the Claimant's mother's opposition to the section 3 application does not appear to have been communicated to Ms Griffiths. Throughout the process there appear to have been failures of communication (in both directions) between the hospital's Mental Health Act Service office on the one hand and the doctors and Ms Griffiths on the other.
32. The application for the Claimant to be admitted under section 3 was duly made on 15 November, before the section 5(2) authority to detain expired on the morning of 16 November. Although the return date for the order of the court displacing the Claimant's mother was 6 December, the court was unable to deal with the matter on that day. It was adjourned to 8 January 2007 when it came before His Honour Judge Compston. There was a full and contested hearing. Mr Choudhury appeared on behalf of the Council and Mr Bowen appeared on behalf of and the Claimant. The judge made a final order under section 29 displacing the Claimant's mother as his nearest relative on the ground that her refusal to consent to the application under section 3 in November and her continuing refusal was unreasonable because the Claimant is a dangerous man because he is ill. There has been no criticism of his judgment. Mr Bowen accepts that, even if the Claimant and his mother had been put on notice and given an opportunity to make representations at the hearing on 15 November, the likelihood is that she would have been displaced on an interim basis.
33. The conduct of the Council and its legal department falls far below what is required of a public authority in the exercise of its responsibilities to persons with mental illness and the nearest relatives of such persons. Ms Griffiths, the Council's approved social worker, was in contact with the Claimant's mother about the problem until the telephone conversation at 9.30 am on 14 November when the Claimant's mother clearly and unequivocally stated her objection to an application for the Claimant's admission for treatment under section 3. In not informing the nearest relative of the position in relation to an application to displace her, she acted wholly inexcusably. It was she who telephoned the Claimant's mother. At the time of that conversation, she knew that the Council's solicitors had been instructed the previous day and that efforts were being made to put the matter before the court before the authority to detain the Claimant under section 5(2) of the Act expired on 16 November. Mr Graham was away from his office on 14 November. But he had arranged for the hearing of the application on 13 November, and for counsel to be instructed. In not making arrangements for others to inform the Claimant, the nearest relative, or the Claimant's solicitors that the application was to come before the court on the morning of 15 November he displayed a lack of appreciation of the basic requirements of fairness in legal proceedings which is surprising in a solicitor.
34. The question, however, is what the impact of these failings was on the court and the interim order which it made. It is clear that the nearest relative has an important statutory and common law role in safeguarding the interests of a patient and ensuring that he is not improperly detained: see e.g. R v Central London County Court, ex p. London [1996] QB 1260, at [15], R (S) v Plymouth CC [2002] 1 WLR 2583, at [21], [46] and [48]; Gibson v Lewis [2005] EWCA Civ 587 at [16]. The rights of the nearest relative can only be removed by a displacing order made by the court pursuant to section 29.
35. It is also clear that the fact that the 1983 Act provides a procedure under section 29 to deal with displacement and made provision in section 29(4) (on which see paragraph [12] above) for the position pending the determination of such an application does not preclude or limit the jurisdiction of the county court to make interlocutory orders without notice: R v Central London County Court, ex p. London [1996] QB 1260, per Stuart Smith LJ at [21], [23] and [24]. In R v Uxbridge County Court, ex p Binns [2000] 1 MHLR 179 two hours notice of the application to displace (but no documents in support of it) was given to the nearest relative who said she was unable to attend. An order displacing her but giving her permission to apply to vary or discharge the displacement was made. Hidden J dismissed an application to set aside the order. As far as domestic law was concerned, his Lordship stated at [30] that the court should be slow to conclude that a practice consistent with the general regime in the Civil Procedure Rules was precluded by the terms of the 1983 Act. Hidden J also considered the consistency of the practice with Article 6. Mr Singh, who appeared as an amicus, made submissions as to the human rights implications of the order. Hidden J accepted the submission that, in a case where there was urgency, preserving the right of the respondent who was not present in court was consistent with the human rights of the patient and the nearest relative: see at [27] and [31].
36. Mr Bowen submits that the jurisdiction to make an interlocutory order without notice pursuant to section 29 depends on the court taking steps to ascertain that it was not possible, or alternatively, not practicable, for the person making the application to inform the nearest relative. He argued that, since the judge had read Ms Griffiths' statement in which the contact between her and the Claimant's mother on the two previous days was set out, the circumstances cried out for an explanation of why it had not been possible to make an application on notice or to give her informal notice of the hearing. He submitted that the failure of the judge to make such inquiries was an irregularity so "gross and obvious" that it deprived him of jurisdiction.
37. Mr Bowen relied on the provision in CCR Order 49, Rule 12(3), set out in paragraph [13] that, on an application under section 29, the nearest relative shall be made a respondent. This provision does not, however, in my judgment assist him. First, in ex p London, in which the application to displace was made without notice, Stuart Smith LJ stated (at [16]) that the provisions of Rule 12 had no bearing on the question whether or not the court has jurisdiction to make interim or only final orders. Secondly, the words of that provision do not preclude an application being made without notice. In this case the application named the nearest relative as a respondent and she was served with it and the interim order once it was made.
38. Mr Bowen submitted that, if R v Central London County Court, ex p. London is authority for the proposition that a nearest relative can be displaced at a hearing of which no notice has been given even where it was possible or practicable to contact the nearest relative, it needs to be reconsidered in the light of the Human Rights Act 1998. Mr Bowen relied in particular on R (S) v Plymouth CC [2002] 1 WLR 2583 but it is manifestly clear, without the need for citation of authority, the Article 6 rights of the nearest relative and generally also their Article 8 rights are engaged by such an application. Mr Choudhury and Mr Cragg observed that there is a reference in R v Central London County Court, ex p. London to Winterwerp v The Netherlands (1979) 2 EHRR 387 and X v United Kingdom: see [1999] QB 1260, at 1263. That reference, however, was by counsel for the applicant. The position under the Convention is not considered in the judgments.
39. In support of his submission that the judge was under a duty to take steps to ascertain whether it had been possible to inform the nearest relative, Mr Bowen relied on the statement of Thorpe LJ in Gibson v Lewis [2005] EWCA Civ 587 at [40]. In that case Thorpe LJ was concerned with the need in applications under section 29 to ensure compliance with the patient's rights. Thorpe LJ stated that he supported the Official Solicitor's view that the patient must be served with the proceedings and notified of the right to be joined, and continued:

"[T]he County Court judge must at the earliest stage inquire whether the patient has been so served and ensure that appropriate steps are taken to secure the patient's Articles 6 and 8 rights. …. These precautions must be taken even in cases where urgent relief is sought. I accept the Official Solicitor's submission that it is difficult to conceive of circumstances in which a patient could lawfully be deprived of any opportunity to participate in proceedings. Any justification would have to address the patient's Article 6 and Article 8 rights."

40. The final element of the first stage of Mr Bowen's submissions is that the failure of the judge to make such inquiries was an irregularity so "gross and obvious" that it deprived the County Court of jurisdiction so that the Claimant's mother was not validly displaced as his nearest relative. A failure to give an opportunity to make representations was a breach of the requirements of natural justice and, as such, a matter depriving an inferior court of its jurisdiction in the matter before it. Mr Bowen relied, in particular on Lloyd v United Kingdom (2005), Applications 29798/96 and others, 1 March 2005, the latest in a series of decisions of the European Court of Human Rights, applying principles laid down in Bentham v United Kingdom (1996) 22 EHRR 293. These decisions distinguish acts of an inferior court which, although erroneous are within its jurisdiction and acts in excess of jurisdiction: see Lloyd v United Kingdom at [102]. The former are valid and effective unless or until they are overturned by a superior court, whereas the latter are null and void from the outset and fall outside the protection given to court orders in Article 5(1)(b) of the Convention and thus if they result in imprisonment or compulsory detention under the Mental Health Act give rise to a breach of the right to liberty contained in Article 5.
41. The judgment in Lloyd v United Kingdom considered the relevant English case-law and stated (paragraph [115]) that failure to notify a person of a hearing has been regarded as the disregard of an elementary principle which every court ought to obey, "a matter of natural justice", and as rendering the hearing "fatally flawed". The Strasbourg court concluded that for this reason the failure to notify individuals who had been said to have wilfully refused to pay community charge of a committal hearing in the magistrates' court amounted to a "gross and obvious" irregularity of procedure which deprived the magistrates' court of jurisdiction, so that orders for imprisonment constituted a breach of Article 5(1).
42. Here the order of the court did not in itself result in detention. Mr Bowen submitted that it was contemplated that as a result of the order an application would be made under section 3 for compulsory admission, and that application resulted in the Claimant's detention. He argued that, since the Claimant's mother was not validly displaced, the consequence was that there was no power to make the application pursuant to section 3 and the resulting detention was in breach of Article 5. He submitted that the reality in the present case, in which an order pursuant to section 29 was to be, and was, followed by an application for compulsory admission for treatment pursuant to section 3, was that the displacing of the nearest relative did deprive the Claimant of his liberty. He argued that to ignore the section 3 application that was to be made imminently, is to focus on form and not substance, and to render the protection of Article 5 illusory.
43. Notwithstanding the serious shortcomings in the way the Council proceeded, I have concluded that in the circumstances of this case the County Court was not deprived of its jurisdiction to make an interim order under section 29. My reasons for concluding that Order 49, Rule 12(3) does not assist Mr Bowen are given in paragraph [37] above. The authorities upon which Mr Bowen relies, in particular Gibson v Lewis and James v United Kingdom and the other Strasbourg cases, all concerned final as opposed to interlocutory orders. Support for the power of the county court to make an interim displacement order without notice does not entirely depend on ex p London. I have referred to R v Uxbridge County Court, ex p Binns where both domestic law and the impact of the European Convention was considered.
44. The implications of Mr Bowen's submissions for the general power of the courts to grant interlocutory relief without notice are significant. It is recognised that what the principles of natural justice require at the preliminary stage of a process is different from what they require where a binding decision is to be made: see Wade and Forsyth, Administrative Law 9th ed 547-549; de Smith, Woolf and Jowell, Judicial Review of Administrative Action 5th ed 10-025 ff. It is also recognised that applications which are not determinative, such as applications for interim relief, are not subject to Article 6 guarantees unless they cause "irreversible prejudice" to a party's interests: see Clayton & Tomlinson The Law of Human Rights at [11.157] and Markass v Cyprus [2002] EHRLR 387. So, in R (Kenny) v Leeds Magistrates Court [2003] EWHC 2963 (Admin), Owen J dismissed a challenge to an interim anti-social behaviour order made without notice. The decisions in Alstlerlund v. Sweden (1988) 8 EHRR 1 and Österreichische Schutzgemeinschaft für Nichtraucher and Rockenbauer v. Austria (unreported) were before the court and are referred to in paragraph [32] of his judgment. In paragraph [23] his Lordship stated that:

"There is nothing inherently unlawful in interim injunctions made without notice. The power to make such orders is a necessary weapon in the judicial armour, enabling the court to do justice in circumstances where it is necessary to act urgently to protect the interests of a party, or where it is necessary to act without notice to a prospective defendant in order to ensure that the order of the court is effective. Obvious examples of the latter are search orders and freezing orders. There is a well developed body of law as to the proper approach of the courts to applications without notice which it is not necessary to review in this context."

45. Mr Bowen submitted that the fact that the application under section 29 was to be followed by an application for admission pursuant to section 3 causes "irreversible prejudice" because it deprives the patient of his liberty where he could not otherwise be deprived of it, and thus engages Article 6 even at the interlocutory stage. The displacement of a nearest relative removes one of the means provided by the 1983 Act for safeguarding the interests of a patient. Interim displacement has the same effect pending the final hearing. I do not, however, consider that such prejudice as is caused to the patient by such interim displacement is "irreversible". It is important to note that there are a number of safeguards for the patient. In he light of those safeguards I do not consider that having regard to the fact that interim displacement under section 29 does not itself authorise detention, is to focus on form rather than on substance or (see Artico v Italy (1980) 3 EHRR 1 at [33]) to render the protection afforded by Article 5 "theoretical or illusory".
46. I turn to the safeguards. First, there are those inherent in section 3; the need for the written recommendations of the two doctors that the statutory conditions (see paragraph [5] above) are satisfied. Secondly, the Claimant's mother could have sought to have the order set aside as soon as she was served on 15 November. These proceedings were launched on 16 November but it does not appear from the material before me that consideration was given to returning to the County Court. Thirdly, where, after the interim displacement order, the patient is admitted for treatment under section 3, if the displacement order is discharged at the final hearing, an application pursuant to section 23 can be made to discharge the patient. Such an application can only be blocked where the patient is likely to be a danger to himself or others: section 25. Moreover, even if a final displacement order is made at the full hearing, under sections 29(6) and 66(1)(h) the supplanted nearest relative can make one application a year to a mental health tribunal for the patient's discharge. It must also be borne in mind that in the present case, the nearest relative was displaced at a full hearing at which the patient was represented, and about which there is no complaint. In his written reply submitted after the hearing Mr Bowen also relies on HL v United Kingdom (2004) 40 EHRR 761. Its circumstances, however, are very different from the present case. It was concerned with compulsory detention of an informal patient under the common law doctrine of necessity. Such a patient did not have the benefit of the procedural safeguards contained the 1983 Act which the Claimant has. It was the absence of procedural safeguards that led the Strasbourg court to conclude that there was a failure to protect against arbitrary deprivations of liberty and thus a breach of Article 5(1).
47. What of the judgment of the Court of Appeal in Gibson v Lewis and in particular the statement of Thorpe LJ set out above? Thorpe LJ said that the patient must be notified of the right to be joined in section 29 proceedings and that it was difficult to conceive of circumstances in which a patient could lawfully be deprived of any opportunity to participate in them (emphasis added). This must, however, be seen in the context of the facts of that case. It concerned a displacement order made by the Telford County Court after a contested hearing lasting three days. The patient was not represented and had taken no part either in that trial or in a hearing twelve months earlier when an interim displacement order was made: see [[2005] EWCA Civ 587, at [1] and [7]. She only became an interested party to the proceedings after the trial and as a result of the amendment to CCR Order 49 Rule 12 and the intervention of the Official Solicitor who became her litigation friend. From the submissions made on her behalf to the Court of Appeal it appears that her interests and position differed from those of the nearest relative. There is no discussion of interlocutory relief and no reference in the judgments to R v Central London County Court, ex p. London. In these circumstances the statements made in Gibson v Lewis are unlikely to have been intended to put into question the decision in ex p. London and cannot be regarded as having done so.
48. The limit suggested in the authorities for an interim order made without notice to the person affected is whether it is necessary to act urgently: see Hidden J in R v UxbridgeCounty Court, ex p. Binns and Owen J in R (Kenny) v Leeds Magistrates Court, (above). In the present case it was clearly necessary to act urgently in the light of the mistaken non-renewal of the authority compulsorily to detain him for treatment, the views of the Claimant's doctors in the assessment undertaken on 13 November as to the danger he would pose if he left the hospital, and the fact that the authority to detain him pursuant to section 5(2) would expire the next day. The material showing this was before the judge. So too was Ms Griffiths' statement which set out in summary form why the Claimant's mother objected to a fresh application under section 3.
49. The matter thus turns on Mr Bowen's submission that the judge was under a duty to make inquiries as to whether it was practicable to have given notice to the Claimant's mother and to consider whether it would be possible to adjourn the hearing to a time before the expiry of the authority to detain. It would have been good practice for the judge to make such inquiries. His failure to do so may well have been a proper basis for an appeal against his decision to make the interim order. The judge was, however, entitled to expect those making an application without notice to fulfil their duty to apprise him of all the relevant facts, including those which may be adverse to the application: see in the context of the High Court The White Book at 25.3.5. This duty of a party who makes an application without notice is an important one. Applicants are expected to identify the crucial points for and against the application. In this case the urgency was manifest, and the judge was alive to the need for the claimant's mother to have her say and set a short return date. Her position would be determined at the full hearing. Although displacing her pending the full hearing removed one of the procedural safeguards for the patient under the 1983 Act on an interim basis, for the reasons I have given, any prejudice to the patient was not irreversible. For these reasons, even if the judge fell into error in not making further inquiries, I do not consider that his failure to do so deprived him of jurisdiction to make an interim order.
50. Accordingly, the application must be dismissed and the remaining issues raised on behalf of the Claimant do not arise. I only observe that, even if the interim displacement of the Claimant's mother had been invalid, the claim against the third defendant appears misconceived. By the end of the hearing the Claimant conceded that the scope of the defence in section 6(3) of the 1983 Act to a claim for false imprisonment against hospital managers who admit a patient on the basis of an application that is valid on its face is wider than merely affording protection in respect of incorrect signatures or lack of qualifications by the approved social worker or the recommending doctors. The Claimant, however, submitted that if this interpretation of section 6(3) has the effect of depriving the Claimant of a remedy required by Article 5(5), the section must either be reinterpreted in a Convention compatible way pursuant to section 3 of the Human Rights Act or a declaration of incompatibility must be made. The Court of Appeal in ex p London considered this question. The Court stated that even if the county court had no jurisdiction to make the orders in that case, the decision of the hospital managers to admit the applicant was valid and should not be quashed. I do not consider that the submissions made in Mr Bowen's written reply dated 1 March 2007 put this aspect of that decision into question.