Dyer, R (in the application of) v The Welsh Ministers & Ors, Court of Appeal - Administrative Court, December 21, 2015, [2015] EWHC 3712 (Admin)

Resolution Date:December 21, 2015
Issuing Organization:Administrative Court
Actores:Dyer, R (in the application of) v The Welsh Ministers & Ors
 
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Case No: CO/1933/2015

Neutral Citation Number: [2015] EWHC 3712 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Cardiff Civil Justice Centre

2 Park Street

Cardiff

CF10 1ET

Date: 21/12/15

Before :

MR JUSTICE HICKINBOTTOM

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Between :

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Ian Wise QC and Stephen Broach (instructed by Irwin Mitchell Solicitors LLP)

for the Claimant

Richard Gordon QC and Joanne Clement (instructed by Government Legal Department) for the First Defendants

Rhodri Williams QC and Rebecca Stickler (instructed by Christian Young, Solicitor, Legal & Risks Services, NHS Shared Services Partnership ) for the Second and Third Defendants

Hearing dates: 17-18 November 2015

Further written submissions: 20 November 2015

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JudgmentMr Justice Hickinbottom :

Introduction

  1. The Claimant is 21 years old, and suffers from a complex mental health condition, including autistic spectrum disorder (``ASD'') and learning disability (``LD''), which results in her behaviour from time-to-time becoming aggressive and otherwise challenging. She lives with her family in Swansea, but her behaviour is such that sometimes they find it difficult to cope; and, on four occasions when this has happened, the Claimant has been compulsorily detained in various hospitals for assessment and treatment under sections 2 and 3 of the Mental Health Act 1983.

  2. In this claim, the Claimant challenges 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 contends that the duty has been breached because no decision has been taken by any authority as to either (i) the ``reasonable requirements'' of women in Wales with ASD and LD for secure in-patient assessment and treatment; or (ii) the level of provision necessary to meet the reasonable requirements found to exist. Indeed, the relevant authorities have not only failed to make those decisions, it is said that they have failed to collate the information required to make them; and so they are not even in a position to make properly informed (and, therefore, lawful) decisions.

  3. That is the legal basis of the claim. However, the concern of the Claimant and her family underlying the claim is more personal and practical in nature. The last time the Claimant 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. Brighton is a very long way away from Swansea. The Claimant's condition is such that she is strongly dependent upon the support of her family. Her mother describes the Claimant's trauma as a result of this placement; and she believes that being so far away from home had a seriously detrimental impact on her. Since her release in November 2014, the Claimant has been happily at home. This claim is 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'' (paragraph 3 of the Claimant's Grounds of Claim). The point is put thus in paragraph 8 of the statement of Alexander Rook (the solicitor with conduct of the claim for the Claimant) dated 3 June 2015:

    ``... [T]here remains no concrete plan to treat [the Claimant] in Wales if she requires detention under the [1983 Act] again...'';

    and in an even more focused manner in paragraph 5 of the Addendum to the Claimant's Grounds:

    ``The pressing practical issue in the claim remains that there is no secure facility in Wales which has confirmed that it will accommodate the Claimant in the event that her condition deteriorates''.

  4. In other words, quite understandably, if the Claimant has to be detained again under the 1983 Act, both she and her family wish to have some comfort that she will be detained in Wales and in a facility somewhat nearer to her home than Sussex. They consider that, if the relevant authorities in Wales collated the information which (it is said) they require 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, will (or may) be made available in Wales and the prospects of her being detained nearer home will consequently increase.

  5. The Claimant's mother makes her own views very clear (paragraph 36 of her statement dated 2 November 2015):

    ``I feel strongly that there should be at the very least one unit or facility for people like Claire in times of crisis. I am worried not just about Claire but about other people in her position - with complex needs who are being shipped off to England instead of being treated at home.... How can the Welsh Government transfer these people to England, away from their homes and families, when this is so damaging to people with autism and complex needs? I am calling on the Welsh Government to look at this issue again, to start getting together data they need to ensure that there are services locally that meet the needs of people like Claire. This will prevent an awful lot of heart-break for people like us, so that when the next crisis occurs Claire will have somewhere to go where her family can still see her every day. I hope the Welsh Government will take responsibility for providing these much needed services locally, rather than relying on England and transferring people hundreds of miles from their homes to get the right treatment.''

    There is, certainly, no doubting Mrs Dyer's sincerity - nor, I should add, have any of the Defendants sought to doubt it.

  6. This concern about the perceived lack of secure mental health facilities for women in Wales is not unique to the Claimant and her family. In 2014, a petition was organised by the family pressing for the Claimant's prompt return from Brighton to Wales attracted nearly 100,000 signatures; and this claim has the support of two national charities, Mencap Cymru and Learning Disability Wales (an umbrella body for some 90 third sector organisations active in the field of disability, including charities such as Mencap Cymru, but also statutory bodies such as the NHS Centre for Equality and Human Rights and the Welsh Centre for Learning Disability). The statement of the Director of Mencap Cymru (Wayne Crocker) dated 1 June 2015 makes clear that he too considers there should be more local facilities in Wales for women suffering from ASD and LD who require medium secure hospital accommodation.

  7. In this judgment, I shall refer to the First Defendant as ``the Welsh Ministers''; the Second Defendant (Abertawe Bro Morgannwg University Health Board) as ``the UHB''; and the Third Defendant (Welsh Health Specialised Services Committee) as ``the WHSS Committee''.

  8. Before me, Ian Wise QC and Stephen Broach appeared for the Claimant; Richard Gordon QC and Joanne Clement for the Welsh Ministers; and Rhodri Williams QC and Rebecca Stickler for the UHB and the WHSS Committee. At the outset, may I thank all Counsel for their helpful contributions.

    The Statutory Framework

    Detention for assessment and treatment of a mental disorder

  9. Under sections 2 and 3 of the Mental Health Act 1983 (``the 1983 Act''), a patient may be admitted to a hospital and compulsorily detained there for assessment of and treatment for a mental disorder.

  10. Section 17 allows the responsible clinician to grant a detained patient leave of absence, subject to such conditions as he considers fit. That provision enables a patient (e.g.) to spend time at home, whilst being the subject of a compulsory detention order.

  11. Section 117 requires an LHB and the relevant local social services authority to provide after-care services to any person when he ceases to be detained under (e.g.) section 3 until they are satisfied that he is no longer in need of such services.

    General NHS Duties

  12. Healthcare has been a devolved function under the Government of Wales Acts since 1999. The function was performed by the National Assembly of Wales until 2006, when it was transferred to the Welsh Ministers by section 162 of, and paragraph 30 of Schedule 11 to, the Government of Wales Act 2006.

  13. Insofar as NHS Wales functions are concerned, the National Health Service (Wales) Act 2006 (``the 2006 Act'') is a direct descendant of the National Health Service Act 1946.

  14. Under the 2006 Act, the Welsh Ministers are required to continue the promotion in Wales of a comprehensive service designed to secure improvement (i) in the physical and mental health of the people of Wales, and (ii) in the prevention, diagnosis and treatment of illness (section 1(1)). This is a paradigm general or ``political'' duty, used in some textbooks as an example of such (e.g. see Administrative Law, HWR Wade & CF Forsyth, 11th Edition (2009) (``Wade & Forsyth''), at page 499).

  15. The Ministers must, for the section 1(1) purpose, provide or secure the provision of services in accordance with the Act, which must be provided free of charge (section 1(2) and (3)). The section 1 duty expressly includes a duty to provide hospital accommodation and services for persons who are liable to be detained under the 1983 Act and, in the opinion of the Welsh Ministers, require treatment under conditions of high security on account of their dangerous, violent or criminal propensities (section...

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