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[2018] WLR(D) 790

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Court of Appeal

Regina (CXF) v Central Bedfordshire Council and another (Mind intervening)

[2018] EWCA Civ 2852

Bean, Leggatt, Haddon-Cave LJJ

2018 Dec 5; 20
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''Local government— Community care services— Mental patient— Patient detained in hospital granted leave of absence for day trip— Defendant refusing to fund mother’s visit to accompany patient for day trip— Whether defendant liable to provide “after-care services” to patient— Whether patient “ceasing to be detained” or “leaving hospital” when granted leave of absence for day trip— Mental Health Act 1983 (c 20) (as amended by Mental Health (Patients in the Community) Act 1995 (c 52), s 1(2), Sch 1, para 15(2), Crime (Sentences) Act 1997 (c 43), s 55, Sch 4, para 12(17) and Care Act 2014 (c 23), s 75(5)), ss 17, 117(1)''

''Statute— Construction— Aids— Minister’s Code of Practice pursuant to statute issued after enactment of statute— Status of Code— Whether can be used as aid to construction of statute— Mental Health Act 1983 (c 20) (as amended by Mental Health (Patients in the Community) Act 1995 (c 52), s 1(2), Sch 1, Mental Health Act 2007 (c 12), s 14(2), Sch 2, para 9, Sch 3, para 25 and Care Standards Act 2000 (c 14), Sch 4, para 9(6)(a)), s 118(1)''

Section 117 of the Mental Health Act 1983, which imposes a duty to provide “after-care services” to persons who are detained under the Act and then “cease to be detained and … leave hospital”, does not apply to a person who is granted leave of absence under section 17 of the Act to go on a day trip in the custody of hospital staff. The purpose of section 117, read in its context, is to arrange for the provision of services to a person who has been, but is not currently being, provided with treatment and care as a hospital patient (paras 38, 44).

B v Barking Havering and Brentwood Community Healthcare NHS Trust [1999] 1 FLR 106, CA applied.

R v Richmond upon Thames London Borough Council, Ex p Watson [2000] LGR 318 considered.

The Code of Practice issued under section 118 of the 1983 Act by the Secretary of State in 1999 and subsequently revised cannot be used to construe section 117(1), which is part of the original text, since, by analogy with statutory regulations or other delegated legislation, it can only be used as an aid to the interpretation of the Act under which it is made if it was contemporaneously prepared (para 24).

Legal Services Commission v Loomba [2012] 1 WLR 2461 applied.

R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, HL(E) considered.

Where, therefore, the claimant, a patient detained under section 3 of the Mental Health Act 1983, sought judicial review of the refusal of the local authority and the clinical commissioning group to fund his mother’s weekly visits to accompany him on escorted day trips on the ground that they constituted “after-care services” within the meaning of section 117, and the judge dismissed the claim on the basis that the claimant was not a person to whom section 117 applied since he had not “ceased to be detained” nor “left hospital” even when he was on a leave of absence under section 17, and the claimant appealed—

Held, appeal dismissed. The day trips were part of the treatment which the hospital was providing to the claimant, so that the services provided to the claimant in taking him on escorted day trips did not and could not constitute “after-care services” within the meaning of section 117 of the 1983 Act. Therefore, the claimant did not “cease to be detained” or “leave hospital” within the meaning of section 117(1) when he was on day trips escorted by members of hospital staff. Accordingly, the claimant was not a person to whom section 117 applied (paras 42, 44, 46, 55, 56).

Per curiam. (i) The relevant context of a statutory provision is both internal and external to the statute. The internal context requires the interpreter to consider how the provision in question relates to other provisions of the same statute and to construe the statute as a whole. The external context includes other relevant legislation and common law rules, as well as any policy documents such as Law Commission Reports, reports of Parliamentary committees, or Green and White Papers, which form part of the background to the enactment of the statute. When the strict conditions specified by the House of Lords in Pepper v Hart [1993] AC 593 are satisfied, reference may also be made to Parliamentary debates as reported in Hansard (para 21).

(ii) When a person or organisation with no right to take part in judicial review proceedings is granted permission to intervene, it is in the expectation that the intervener will act responsibly to endeavour to assist the court in the public interest. Although there is a natural desire, when preparing submissions on behalf of an intervener, to try to make a contribution to the argument which reflects the intervener’s expertise and/or interests and does not simply cover ground already covered by one or other of the parties to the proceedings, in a case which raises a pure question of statutory interpretation there may in fact be nothing distinctive or useful which an intervener can contribute (paras 53–54).

Decision of Dinah Rose QC sitting as a deputy judge of the Queen’s Bench Division [2017] EWHC 2311 (Admin) affirmed.

Ian Wise QC and Shu Shin Luh (instructed by Campbell-Taylor Solicitors) for the claimant.

Mike O’Brien QC and Varsha Jagadesham (instructed by LGSS Law, Huntingdon) for the first defendant.

Eleanor Grey QC and Peter Mant (instructed by Capsticks Solicitors llp) for the second defendant.

Amanda Weston QC and Michael Henson-Webb (instructed directly) for the intervener, by written submissions only.

<div align="right">Fraser Peh, Barrister</div>