View source for Transcript of R (Baisden) v Leicester City Council (2011) EWHC 3219 (Admin)

<div class="perm">
<div align="right">CO/1920/2011</div>


Neutral Citation Number: [2011] EWHC 3219 (Admin)


IN THE HIGH COURT OF JUSTICE


QUEEN'S BENCH DIVISION


THE ADMINISTRATIVE COURT



<div align="right">High Court of Justice




(Birmingham Administrative Court)




Birmingham




1 April 2011</div>









<div align="center">B e f o r e:




MR JUSTICE BLAKE




Between:




THE QUEEN ON THE APPLICATION OF GARY BAISDEN</div>




<div align="right">Claimant




</div><div align="center">v




LEICESTER CITY COUNCIL</div>




<div align="right">Defendant</div>









<div align="center">Transcript from the Tape Recording of




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Ms Luh appeared on behalf of the Claimant


Mr Sharland appeared on behalf of the Defendant








<div align="center">J U D G M E N T




(As Approved)









Crown copyright ©</div>



1.     MR JUSTICE BLAKE:  This is an application for judicial review of
assessments made by the defendant council, communicated on 11 February 2011, of
the Inter Agency Care Programme Approach Assessment to the claimant's needs
("ICPAA").


2.     There is a substantive history to this case.  It is probably sufficient
to pick up the history in the spring of 2009.  At that stage the claimant was an
adult male, normally resident in the area of the defendant council, who had
already been admitted for treatment under the Mental Health Act by reason of his
mental health to which further reference will be made.  He was at that stage
living in accommodation provided to him by the defendant, but possession
proceedings were commenced because of his anti‑social behaviour, causing
harassment or alarm or a nuisance to adjoining occupiers.


3.     The case came before the Leicester County Court and the judge was
concerned as to whether the claimant had mental capacity to participate in those
proceedings given what appeared to be his mental state.  Those proceedings were
adjourned, but as a result, perhaps of observations made by Her Honour Judge
Hampton, they were never pursued.  The claimant was moved to further
accommodation in August 2009, 65 Ethel Road, Leicester.  It seems that this
accommodation is quite close to accommodation where elderly residents live.


4.     By October 2009 fresh possession proceedings in respect of those premises
had been started.  I understand that they are based upon a schedule of alleged
acts of nuisance to adjoining occupiers since he moved into the premises and
other relevant matters for the County Court.


5.     Those possession proceedings were adjourned for a time whilst authority
was sought for the appointment of the Official Solicitor as authorised litigator
to represent the claimant's interests.  A certificate of suitability of a
litigation friend was issued in favour of the Community Law Partnership on 2
March 2011.  But much earlier, on 10 March 2010, a certificate of capacity to
conduct proceedings had been issued by the then treating psychiatrist, Dr
Fallow, who indicated his opinion as to the essential source of the present
problem


6.     " the person concerned has the following impairment or a disturbance of a
function of the mind or brain, schizophrenia, substance misuse"


7.     and he concludes the certificate


8.     "longstanding mental health problems and drug use".


9.     In the summer of 2010 the claimant was represented by different
solicitors; it seems Howell and Co acting for Community Legal Advice,
Leicester.The importance of psychiatric assessment of the claimant's behaviour
was apparently recognised because in June 2010 solicitors for the claimant and
the defendant council jointly instructed Dr Fallow to assist with a sequence of
questions that had materiality for the future of the possession proceedings.


10.     There were 29 questions in all, it is not necessary to summarise them,
but they include the question "From what, if any, mental health condition do you
consider Mr Baisden to suffer at present?", question 14, "Might there be other
reasons for Mr Baisden's misconduct?" and question 13, "To what extent is
misconduct the product of Mr Baisden's mental health condition?"  And there was
a sequence of related questions, including whether he has capacity to understand
the conditions of his sentencing and is capable of abiding by them.


11.     Dr Fallow responded to this joint instruction on 8 July.  He recorded
that Mr Baisden was diagnosed as suffering from a paranoid schizophrenic illness
and also substance abuse which in his case mainly involves amphetamines and
occasional cannabis.


12.     He had earlier recited as accurate the history of Mr Baisden's
psychiatric treatment contained in an earlier ICPAA prepared in April 2010, but
added that he had had three relatively brief admissions to hospital from 6 to 20
May, 21 May to 1 June and 16 to 24 June.  He did not specify the legal regime
behind those admissions, though it transpires that they were section 2 and
section 3 of the Mental Health Act: once for assessment, twice for treatment.


13.     He gives his assessment that many of the symptoms of Mr Baisden's
illness can present with acute intoxication with amphetamine, psychotic symptoms
secondary to drug intoxication, usually resolved fairly quickly, usually within
a week but sometimes within a matter of hours.  He is prescribed medication,
which is an anti‑psychotic preparation, and he has been seen on a number of
years and is seen by staff of the City Assertive Outreach Team each week.  When
he is with that team he has been largely compliant with his prescribed
medication. He  described the up and downs of his health and drug use.


14.     But the substance of the balance of the report at paragraphs 12 and 13,
is to this effect:


:"12. It is unlikely that the underlying schizophrenic illness played a significant role in reported misconduct prior to becoming non‑concordant in November 2009.


13.  Most of the reported misconduct is likely to be related to intoxication
with amphetamines rather than a functional psychosis such as schizophrenia. The
reason for believing this is probably the case is, firstly, the reports of noise
and disturbance occurred during the periods he was concordant.  Secondly,
recently admissions where he has been brought in for an assessment of bizarre
behaviour or reported disturbance he has settled within a period of several days
up to a week.  Thirdly, reports from those who know him well in the Outreach
service, as well as the observations of mine, is that there is a marked
difference in his behaviour between when he appears under the influence of drugs
and when he is not."


15.     Further questions were posed to the doctor on 9 August by Howell and Co,
asking follow‑ups to some of the information he had provided.  The doctor was
away for a period but responded on 31 August 2010, when, amongst the answers
that he gives, one finds 2(b):


:"I am not aware of Mr Baisden's mental health having a significant (word missing) on his ability to self‑determine or manage, mitigate stop his substance abuse.


:...


:3(e) It is not always easy to differentiate between underlying cause or factors but usually symptoms resolving very quickly or without treatment is one indication and in truth Gary is usually fairly candid about his drug misuse if questioned when not under the influence."


And so on.


16.     At 24(d), in answer to questions about suitable accommodation, he says:


<blockquote>"He needs to stop the drugs.  I am not sure if the critical element is really
the living environment _per se_.  At the present time the main goal is to try
and reduce the chances of relapsing with schizophrenia, secondly, if opportunity
presents itself intervene with the substance misuse or refer him on to those who
can help him and, thirdly, damage limitation and support his daily living
functioning as best we can."</blockquote>


17.     That was the end of the psychiatric expert's assessments.  The matter
appears then to have gone into abeyance for a couple of months until October
2010 when the present solicitors acting for the claimant came on the scene.  I
understand that they had available to them the previous correspondence and
reports of the doctor, and, indeed, from this morning it appears that counsel
presently acting for the claimant had also acted in connection with the
possession proceedings in the earlier part of 2010 and the summer of 2010, and
may, indeed, have been the source of the questions that were posed in the
follow‑up letter from Howell and Co.


18.     Despite that, the solicitors did not apparently have a complete medical
record of Mr Baisden and they only came into possession of that in December when
the basis for his admission under the Mental Health Act would have become
crystal clear.


19.     On 21 October a pre‑action protocol letter was written to the local
authority, alleging that because of his hospitalisation on a number of occasions
during 2010 and the fact that he was mentally ill he was a person to whom a duty
was owed under section 21 of the National Assistance Act 1948 and proceedings
were threatened if that duty was not acknowledged.


20.     There was a prompt response to that letter before action on 29 October.
The existence of such a duty was denied and considerable quotation was made from
Dr Fallow's report and emphasis was placed in the context of the suggestion of a
causal nexus by reason of the claimant's schizophrenia and need for care and
attention.  But there was a proposal that a fresh ICPAA be undertaken and on
that basis no further litigation developed.


21.     On 16 December 2010 the present solicitors also indicated:


<blockquote>"Given that there were two admissions in 2010 under section 3 of the Mental
Health Act, it is clear that section 117 of the Mental Health Act applies in
this case.  There is a clear need for the assessment of and provision of
effective aftercare services.  This arose on Mr Baisden's discharge from
hospital.  It would appear that effective aftercare services may well not have
been in place given that there were readmissions in such a short time scale."</blockquote>


22.     On 9 February the ICPAA was provided.  This  acknowledges the existence
of a duty under section 117 but not a duty to provide accommodation to the
claimant essentially because the view is taken that his drug taking is the cause
of his anti‑social behaviour that threatens his accommodation and his ability to
look after himself and he has independent capacity if he decides not to take
drugs.  Various references along those lines are made in section 11 of the
report, and section 12, dealing with accommodation and environment, concludes:


<blockquote>"Whilst it is right to say that Gary falls under section 117 Aftercare regime,
it is not accepted that this requires the relevant Health and Social Care
agencies to provide him with accommodation.  Both aspects of Gary's required
Aftercare regime that relate to his mental health needs do not call for the
provision of bare housing at all.  His mental disorder has no bearing on his
ability to have his accommodation needs properly met through ordinary housing by
the Housing Authority.  It is Gary's use of illicit drugs that places at risk
his tenure, not his mental health needs.  The Aftercare package properly
identifies the need for support from the Assertive Outreach Team to assist Gary
to maintain a stable living environment ... but this is entirely different to a
need for the provision of bare housing/accommodation under that regime. [The
case of Mwanza is cited].  The need for bare housing has been properly
considered under section 21 ..."</blockquote>


23.     The assessment conclusions at section 50 are to similar effect.


24.     It was also concluded by this stage that his eligibility assessments
were substantial rather than critical, as they had been assessed the previous
year, in April 2010.


25.     For completeness, at the same time a City Assertive Outreach Service
report, dated January 2010, was also provided.  Under the section on
accommodation and action it is said:


<blockquote>"In the event that Gary's behaviour is viewed as anti‑social placing his tenancy
at risk, City AO staff to undertake an assessment of his mental health to
ascertain his possible behaviour is associated with (inaudible) and a relapse in
his mental health, or as a result of illicit substance usage."</blockquote>


26.     The service of that decision then elicited the present application for
judicial review that was lodged on 1 March.


27.     Although there is a lengthy narrative in the grounds, the essential case
that is put is that: (1) the defendant has failed to produce a lawful assessment
of the claimant's needs under section 117 of the Mental Health Act; (2) the
similarity with the 2010 report, with the exception of the downgrading of the
assessment from substantial to critical, suggests that no proper assessment has
been made; (3) the conclusions that it was his voluntary drug taking rather than
schizophrenia that was the cause of his social and accommodation needs was
perverse in the light of his lack of capacity and his previous admissions to
hospital for paranoid schizophrenia and mental and behavioural disturbances due
to poly‑substance abuse.


28.     It is suggested that there the separation of drug misuse and mental
disturbances associated with that and paranoid schizophrenia is wholly perverse
and a complete misunderstanding of the underlying mental disorder affecting the
claimant's aftercare needs fundamentally infected the defendant's assessment and
the care planning process.


29.     What is missing from those grounds is any engagement with or response to
the assessment of the consultant psychiatrist, Dr Fallow, whose views were known
to the claimant's team, both solicitors and counsel, and had been, as I
understand it, for some months before.  Indeed, it appears that Dr Fallow's
reports were not placed before the judge in the bundle that was lodged for this
judicial review claim and only a close reading of the materials might have
elicited the fact that there was a cross‑reference to that report in the reply
before claim of 29 October that was in the bundle at page 41.


30.     The case came before Beatson J without notice on an urgent application
because at the same time the defendant council had decided to restore the
possession proceedings and they were due to be heard as a matter of days before
the Leicester County Court.  Beatson J, reading the papers that were before him,
directed that the possession proceedings be stayed and that the defendant do not
take any steps to repossess the flat at Ethel Road, Leicester, where the
claimant is currently residing, but abridged time for an AOS and directed an
oral hearing of the application for permission.  This is the oral hearing of the
application for permission.


31.     The defendant's response to the AOS is a simple one.  The duty under
section 117 of the Mental Health Act is acknowledged.  That duty includes
117(2):


<blockquote>"It shall be the duty of the Primary Care Trust or Local Health Board and of the
local social services authority to provide, in co‑operation with relevant
voluntary agencies, after‑care services for any person to whom this section
applies until such time as the Primary Care Trust or Local Health Board and the
local social services authority are satisfied that the person concerned is no
longer in need of such services; but they shall not be so satisfied in the case
of a community patient while he remains such a patient."</blockquote>


32.     However, the content of the duty, and in particular the contention that
there was a content to provide accommodation, is disputed.


33.     The learning indicates that accommodation can in certain circumstances
come within after‑care services that one of the responsible agencies has a duty
to provide. Equally  the present state of the learning suggests that the duty to
provide accommodation is likely to arise where it is accommodation plus rather
than bare accommodation that is needed and where that need for accommodation is
a consequence of his mental condition rather than any other factors which fall
outside that mental condition.


34.     If the mental condition does not require specialised accommodation with
elements of support, then the duty to provide bare accommodation is under
section 21 of the National Assistance Act.  In any event, in respect of both
duties the defendant says that the assessment of the consultant psychiatrist is
that it is his voluntary drug taking that is the cause of his predicaments
rather than his underlying schizophrenia that can respond to medication.
Therefore what he needs to do is to stop taking drugs and to co‑operate with his
Outreach team in that respect, at which point he will be able, if he so chooses,
to manage independent living, look after himself, abide by the conditions of his
tenancy and not be a nuisance with his neighbours.


35.     The claimant says that once it is recognised that drug dependency can
itself be with a mental illness, and was one cause of his admission in June as a
mental illness, then it is not open to the consultant as a matter of expert
assessment or the defendant as the local authority to consider his drug taking
as a voluntary act distinct from mental incapacity.


36.     That seems to be the central issue behind this challenge. In my
judgment, on the face of the totality of the medical information, including the
expert assessment of Dr Fallow, it was open to the defendant to conclude to
place weight upon that assessment and therefore conclude that there was an
extent to which the amphetamine taking was voluntary and not itself a mental
illness, even though it was an associated condition that caused his admission.
If that is right, then there can be no substance to the claimant's assertion
that the assessment was perverse or that the ICPAA assessment of February 2011
was not a lawful one.


37.     I well appreciate that drug dependency can itself in certain
circumstances be recognised as a mental illness, and it may not be easy to
distinguish between a drug dependency as a mental disorder and simply a factor
outside the Mental Health Act as simply drug taking if it is assessed to be.
But precisely in those matters that any lay person, including this authority,
would need to be guided, and is entitled to be guided, by the expert assessment
of a consultant psychiatrist.


38.     I find it incomprehensible that the claimant's legal team did not engage
with the consultant psychiatrist and seek to explore why his conclusion was
reached and maintained, notwithstanding the basis for the section 3 admissions
under the Mental Health Act 1983 in the summer of 2010.  Even if it be the case
that they were not aware that those were compulsory admissions for treatment
until the medical record was obtained in December, there would still have been
time to have raised that case with him  before making assertions under section
117, when they were well aware of the use that the defendant authority was
making of Dr Fallow's assessment in response to a different but similar duty
under section 21 of the National Assistance Act.


39.     That, in my judgment, has been the core problem in the claimant's
submissions in this case.  I have read with care the skeleton argument which
seeks to attack the consultant's report as being inconsistent with the treating
practitioner who admitted the claimant in the first place, but that bare attack,
and the assertion that once one is admitted for treatment partly because of a
disorder identified as relating to the amphetamine taking then it is not open
for any other view to emerge and not open to the council to put any weight upon
the expert opinions of the consultant, seems to me to be simply impossible to
sustain.


40.     I therefore conclude that the challenge that is brought to the
assessment on the basis of section 117(2) is not arguable.  This application is
refused. Therefore, the stay on proceedings which was obtained should also be
discharged.


41.     This,  is not a conclusion that one reaches with any sense of
satisfaction as to how this claimant will be treated in the future.  It is
possible that the County Court, when the possession proceedings will be
restored, will make a possession order against him and doubtless the psychiatric
assessment will play a role whether it is reasonable to do so.  It is possible
that after a period of interim housing, or whilst he applies as homeless, as he
may be entitled to do, he may find for one reason or another that no housing
duties are owed to him under that legislation.  He may find that, despite the
assistance of his community psychiatric nurse and Outreach Team, he will be
disadvantaged in obtaining a private tenancy with his present state of
vulnerability, albeit the psychiatric assessment as to the dominant reason for
that vulnerability is already made clear.  But I must recognise that this court
can only deal with a challenge that is made before it and cannot speculate too
far into the future, but doubtless all those who have some degree of
responsibility for this claimant's future care will need to be alive to the
problem that he must not be allowed to fall between all gaps of supervision and
assessment because that may present dangers not only to him if he were to do so.
But for the reasons I have given, and despite the sustained submissions of Miss
Liu to the contrary, I conclude that this is not a case in which I can grant
permission.  This application is dismissed.


42.     MR JUSTICE BLAKE:  Now, are there any consequential matters you want me
to deal with?


(Pause)


43.     MR SHARLAND:  My Lord, there are no consequential applications.  The
claimant is legally aided so we can't get costs from the Service Commission at
the High Court.  We will not get any costs from the claimant.  The third option
is what is colloquially as a wasted cost orders against the claimant's lawyers,
but given the likely cost of pursuing that application, it is usually a
two‑stage process and we require hearings and so forth, and given that this case
only got to the permission stage, we reluctantly make no further application, my
Lord.  Obviously your Lordship has his own discretion but that is our position.
Unless I can assist you any further.


44.     MR JUSTICE BLAKE:  No.  Thank you.


45.     MS LIU:  Nothing, my Lord, other than public detailed assessment, the
usual order relating to ‑‑ because he is publicly aided and under the
regulations you just need publicly funds subject to a detailed assessment.


46.     MR JUSTICE BLAKE:  Quite.  Should I refuse you that because of what
appears to me to be a very serious error of professional judgment in not
disclosing those reports to this court?


47.     MS LUh:  Well, my Lord, all I can point you to is what has been said by
the claimant's solicitors in their witness statement as to the reasons why they
were concerned about the reliance of Dr Fallow's report and they were very clear
in that respect at supplemental bundle May 18.  Paragraph 4, my Lord.


48.     MR JUSTICE BLAKE:  Let me just reread that.  (Pause).  Yes, I  have read
that.  I appreciate that is what is the effect of your skeleton argument.  The
fact that you did not rely on it, or you did not think that report conclusive,
may well be a matter for your judgment, but that does not excuse you of the
obligation to place it before the court, given its role in this narrative
history.  I consider that to be a serious failure of duty by you both.


49.     MS LUH:  Well, my Lord, I accept that in future this is a lesson to be
learned, a serious lesson to be learned, but, as your Lordship also noted, the
letter ‑‑ the reply to the letter before claim does in full set out the
substance of the defendant's position.


50.     MR JUSTICE BLAKE:  I accept that you haven't sought to suppress it in
some way.  Perhaps that saves you from a disciplinary order.


51.     MS LUH:  I am grateful, my Lord.


52.     MR JUSTICE BLAKE:  But I think you understand the depth of my concern in
this way.  I think you do need to reflect quite hard about this.  I, for my
part, understand that these are difficult cases where you have got people who
may be street homeless and you wish to do all that you can within the ambits of
the law, but, equally, sitting in this case, as one does on permission
applications, one is increasingly conscious that one is not a source of
humanitarian intervention, let alone an alternative psychiatry service or an
alternative housing service, and one has to work through the aspects of the law
that one needs to be fully cited, whatever the material, from both sides.  And
if you had a clear and cogent  psychiatric report going the other way, which the
defendant was suppressing, you know what you would expect this court to say in
response to that.  And no lesser duty is on you, indeed a greater duty, when you
and your team are seeking interlocutory proceedings.


53.     Please put that in the forefront of your mind if you ever make such an
application again.
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