Case No: C1/2014/2314
Neutral Citation Number: [2014] EWCA Civ 1332
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Administrative Court
Burton J
C0/2771/2014
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 23rd October 2014
Before:

LORD JUSTICE MOORE-BICK
LORD JUSTICE RYDER
and
MR JUSTICE DAVID RICHARDS
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Between:

	K (by his litigation friend)	Appellant	
	- and -		
	The Hospital Managers of the Kingswood Centre [1]
-and-
Central and North West London NHS Foundation Trust [2]
	Respondents	

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Mr Michael Paget (instructed by DH Law Ltd) for the Appellant
Mr Parishil Patel (instructed by Radcliffes Le Brasseur) for the Respondents

Hearing date: 23 July 2014
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Judgment
Lord Justice Ryder:
Background
1.	This is an appeal against the order of Mr Justice Burton who on 23 June 2014 refused to grant a writ of habeas corpus in respect a person who lacks capacity to make relevant decisions for himself within the meaning of the Mental Capacity Act 2005 and who was at all material times detained under Section 3 of the Mental Health Act 1983 [MHA 1983].  The appellant, who I shall refer to as ‘K’, acts by his mother who is his litigation friend.
2.	The issue in this appeal is whether the notice period of a ‘discharge order’ made for the purposes of section 25 MHA 1983 and served in accordance with regulation 3(3)(b)(i) of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 [the 2008 Regulations] starts running from the time at which it is received at the respondent hospital’s fax machine or whether time runs from when it is received by the officer authorised by the hospital managers.
3.	K has severe autism, learning disabilities and epilepsy.  He was first sectioned on 30 July 2008 and was detained under section 3 MHA 1983 prior to his admission to the Kingswood Centre [the hospital] on 4 August 2011.  The second respondent is the NHS trust that is responsible for the hospital.  K’s mother, who is also his nearest relative for the purpose of the MHA 1983, sought his discharge from the hospital on 6 June 2014, as she was entitled to do, in circumstances where she wanted to identify alternative and/or better ways to manage his mental and psychological health.
4.	As part of that process, on 4 June 2014 the appellant’s solicitor obtained a fax number for ‘the Mental Health Act Administrator’ at the hospital.  The evidence is that there is only one fax number for the hospital which is a number intended for general use i.e. it does not afford access to a particular department or officer.  On 6 June 2014 at 15.44, the appellant’s solicitor faxed documents to the hospital using the fax number that had been obtained.  The documents sent were an open fax comprising a covering letter addressed to ‘the Mental Health Act Administrator’ marked ‘Private and Confidential To be Opened by the Addressee Only’ and a document that is known as a 'discharge order' which was addressed to ‘the Managers of the Kingswood Centre’. The discharge order was dated 6 June 2014 and stated that: “I give you notice of my intention to discharge the person named above, and I order their discharge from 8 June 2014”. 
5.	The evidence was that the hospital’s MHA administrator only works between Tuesday and Thursday each week. The discharge order was only considered by her at approximately 9.00 am on Tuesday 10 June with the consequence that K’s responsible clinician did not consider the discharge order and whether it was appropriate to discharge K until after that time.  The clinician produced a report that is known as a 'barring report’ on 11 June 2014 which was on the same day that K’s mother attended the hospital to collect her son.   The hospital declined to allow K to be discharged with the consequence that proceedings were issued in the Administrative Court.
6.	The nearest relative of a patient is entitled to serve a discharge order requiring the discharge of the patient.  Where such an order is served, a 72 hour period is allowed for the responsible clinician to provide the hospital managers with a barring report certifying that, in the opinion of the responsible clinician, the patient is likely to act in a way that is dangerous either to him/herself or others if discharged.  If a barring report is provided, the nearest relative’s discharge order has no effect. If the nearest relative has given proper notice that has not been barred, the hospital has no legal authority to detain the patient.  The appellant contends that delivery of the discharge order occurred when the fax was received i.e. on 6 June 2014. In contrast, the respondent contends that delivery only took place when the discharge order was received by the authorised officer i.e. on 10 June 2014.
7.	On 23 June 2014 Burton J refused the application made to the Administrative Court for a writ of habeas corpus.  He granted permission to appeal, although pursuant to CPR 52.3(1)(a)(ii), that is not required. 
8.	Before this court, the appellant submits that the judge erred in law by concluding that the period for the discharge order did not expire on 9 June 2014:
i)	In holding that section 25 MHA 1983 requires receipt in person by the hospital managers or to an authorised officer of the managers;
ii)	By failing to distinguish Re GK (Patient: Habeas Corpus) [1999] MHLR 128 upon which reliance was placed; and
iii)	By failing to read section 25 MHA 1983 and the 2008 Regulations, in particular regulation 3(3)(b)(i), so as to comply with the obligations in articles 5 and 8 ECHR. 
The legislative scheme
9.	The relevant provisions of the MHA 1983 are as follows:
“Section 23 – Discharge of patients.
(1)	Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained … under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him absolutely from detention … is made in accordance with this section.
[…]
(1B)  An order under subsection (1) …above shall be referred to in this Act as “an order for discharge.”
(2)    An order for discharge may be made in respect of a patient-
a.	where the patient is liable to be detained in a hospital in pursuance of an application for admission or treatment or for treatment by the responsible clinician, by the managers or by the nearest relative of the patient; 
“Section 25 – Restrictions on discharge by nearest relative.
(1)	An order for the discharge of a patient who is liable to be detained in a hospital shall not be made under section 23 above by his nearest relative except after giving not less than 72 hours’ notice in writing to the managers of the hospital; and if, within 72 hours after such notice has been given, the responsible clinician furnishes to the managers a report certifying that in the opinion of that clinician the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself— 
a.	any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect; and 
b.	no further order for the discharge of the patient shall be made by that relative during the period of six months beginning with the date of the report. “

“Section 32 – Regulations for the purposes of Part II.
(1)	The Secretary of State may make regulations for prescribing anything which, under Part II, is required or authorised to be prescribed, and otherwise for carrying this Part of this Act into full effect.
(2)	Regulations under this section may in particular make provision – 
[…]
(b)	for prescribing the manner in which any such application, recommendation, report, order, notice or other document may be proved, and for regulating the service of any application, report, order or notice;
[…]
and for the purposes of this Part of this Act any application, report or notice the service of which is regulated under paragraph (b) above shall be deemed to have been received by or furnished to the authority or person to whom it is authorised or required to be furnished, addressed or given if it is duly served in accordance with the regulations.”

10.	The Secretary of State has made the 2008 Regulations under section 32 MHA 1983 and the relevant regulations are as follows:
“Documents
3(3)  	Where a patient is liable to be detained in a hospital under Part 2 of the Act –
(a) any order by the nearest relative of the patient under section 23 for the patient’s discharge, and
(b) the notice of such an order given under section 25(1), shall be served either by –
(i) delivery of the order or notice at that hospital to an officer of the managers authorised by the managers to receive it, or
(ii) sending it pre-paid to those managers at that hospital, or
(iii) delivering it using an internal mail system operated by the managers upon whom it is to be served, if those managers agree.
[…]
3(6)  	Where a document referred to in this regulation is sent by pre-paid –
(a) first class post, service is deemed to have taken place on the second business day following the day of posting;
(b) second class post service is deemed to have taken place on the fourth business day following the day of posting
unless the contrary is shown”

Discussion
11.	In coming to his decision, Burton J found persuasive the decision of the Administrative Court in Re GK (Patient: Habeas Corpus) [1999] 1 MHLR 128 where consideration was given to identical regulatory provisions.   That decision is not binding on this court but attention has been paid in submissions by both parties to the basis for it.  The judgment of Sedley LJ has, if I may say so, a number of wise and helpful observations that the respondents pray in aid in support of their submissions which I refer to below.  In his preamble to those observations Sedley LJ set out the purpose of the Act in terms with which I respectfully agree:
“[6]…the power which is vested in the nearest relative and in others is there essentially to ensure that nobody who is entitled to their discharge is prevented by bureaucracy or inertia or error in a hospital’s administration from gaining their freedom.  But the barring order is there to ensure that the mere desire of, in particular, a closest relative to have a patient out [of hospital] does not defeat the purpose of the Act which, both in the interests of the patient and in the interests of the public, has ultimate regard to the patient’s mental state.”
12.	The appellant does not disagree with that description of the purpose of the Act but understandably concentrates on one element, namely the deprivation of the liberty of the patient that detention entails.  It is conceded that the purpose of the regulatory scheme is to ensure that the discharge order comes to the attention of the authorised person without delay and it is accepted that the prescribed methods of delivery in the 2008 Regulations are disjunctive so that delivery of the nearest relative’s discharge order in this case falls to be considered under regulation 3(3)(b)(i). The appellant seeks to distinguish Re GK on its facts and submits that if one looks at the reason for delivery rather than the method i.e. to obtain release without delay where that is appropriate, it is either wrong or limited to its facts.  On the facts of this case, the appellant submits that use of the fax machine was ‘endorsed by the administrator’, was an accepted means of communication (another example of which can be found in TTM (by his litigation friend TM) v Hackney LBC [2011] EWCA Civ 4) and that the risk of delivery not being effected should lie with the hospital.
13.	The appellants rely on R (Modaresi) v Secretary of State for Health [2013] UKSC 53 and in particular Lady Hale at [31] to suggest that where deprivation of liberty is concerned, Convention compliance requires a safe system that prevents what happened in this case.  The effect of their submission is that the risk must always lie with the hospital whether or not a prescribed method of service is used.   They point out that, in any event, the system in place in this hospital could not, without more, be safe because without the authorisation of an alternative officer by the managers there would be times when delivery could not be effected to the authorised person because of her working hours with the risk that detention could be prolonged.
14.	The respondents submit that the legislative scheme was correctly applied in Re GK in the following respects.  They identify the purpose of the Act which I have set out at [11] above.  They submit that the scheme of the regulations is to distinguish between general service of documents and specified documents / situations where general service does not apply (Re GK at [14]) and that the purpose of the regulation is to ensure that by the prescribed means the discharge order comes to the attention of an authorised person without delay (Re GK at [17]).  As to the prescribed modes of service, there are deemed service provisions which the hospital managers fail to provide for at their own risk, for example, the deemed postal provisions.  Anything outside those provisions has to be service by delivery to the authorised officer (regulation 3(3)(b)(i) of the 2008 Regulations).
15.	In that context the respondents submit that K’s mother used a method of delivery for her discharge order that is not prescribed in the 2008 Regulations.  A hospital can be expected to put in place systems to deal with methods of delivery that are prescribed.  That is not the circumstance here.  It is submitted that they should not be expected to provide for a non-prescribed method of delivery.  Delivery to a general fax number is not a prescribed form of service, the deeming provisions do not apply to it and the default prescribed method of delivery then governs service so that it is not until the authorised officer has the order delivered to her that time begins to run.  On the evidence, the judge had to conclude that the authorised officer did not receive the faxed documents until 10 June 2014 and accordingly, time could not begin to run until then.  
Formulation
16.	I agree with the submissions of the respondents as set out at [14] and [15] above.  Extracting the general from the particular as the appellants seek to do often has unintended consequences, for example the elevation of one principle over others that are in play.  Safeguards surrounding deprivation of liberty are of critical importance but so is the safety of the patient and members of the public.  Concentrating only on deprivation of liberty ignores the purpose of the Act which provides for a balance of interests.  
17.	I do not understand that it is submitted that the 2008 Regulations are ultra vires the MHA 1983.  Section 32 of the Act empowers the making of the regulations and in particular regulations which make provision for prescribing the manner in which any document is to be served and section 25 provides for notice to be given to the hospital managers.  There is nothing inconsistent with those primary provisions in a regulatory scheme that prescribes the manner of service on the hospital managers in accordance with the power granted by section 32.  The regulations provide for the balance of interests described in the statutory scheme by prescribed methods of service with the consequence that, if the prescribed methods are not used, the risk may lie elsewhere than on the hospital managers.  
18.	Furthermore, the construction of the regulations with their deeming provisions in regulations 3(3)(b)(ii) and 3(6) points firmly to there being a regime of deemed service for which the hospital's system must provide and a default method of service that applies in all other cases.  The default service provision is that set out in reg 3(3)(b)(i) which has the character of personal service upon an authorised officer.  If it had been intended that there be deemed service in any other type of delivery than by post, the regulations would have made provision for that so that the regulatory scheme supported the balance of interests in the Act.  To construe the regulations in any other way does not have 'ultimate regard to the patient's mental state'.
19.	The question is whether there is an obligation on the hospital managers to devise a global system to take account of the wide variety of possible non-prescribed methods of service.  I do not think that there is.  Non-prescribed methods of service might include e-mail and social networking, both of which, like attempted fax service, are regularly excluded from commercial methods of service because in the context of the purpose to be served, the risk of non-delivery is too great.  
20.	There is nothing in the assertion that articles 5 and 8 ECHR require delivery to take effect when it occurs irrespective of to whom or where or in what manner that delivery takes place.  The domestic legislative scheme is clear.  The scheme is a procedure prescribed by law and accordingly any interference in the articles 5 and 8 rights of the patient is in accordance with the law.  There is no infringement of either article where the scheme is followed unless the scheme is incompatible with the Convention.  That is not alleged.
Conclusion
20.	For the reasons I have given, I would dismiss this appeal.
Mr Justice David Richards
21.	I agree.
Lord Justice Moore-Bick
22.	I also agree.