Bitcon v West Allerdale Magistrates Court & another (unreported) (4 September 2003) (QBD)

Mental health – funding – revocation of order – psychiatric hospital


This was an application for judicial review of the decision of West Allerdale Magistrates Court revoking its own decision to make an order under s35 Mental Health Act 1983 remanding B for assessment.


B had been accused of assault and it had become clear that he suffered from post-traumatic stress disorder following time served in Northern Ireland as a soldier and wrongful imprisonment in connection with later alleged offences as a civilian. B wished to be remanded to a specialist private nursing home, which was within the definition of a hospital for the purposes of MHA 1983 and accordingly an application was made for his remand pursuant to s35 with supporting evidence from a psychiatrist who had previously treated B and who considered that funding would be available for such a remand. The order was duly granted.


However, following a report by a psychiatrist appointed by the local health authority (LHA) it became apparent that the LHA would not fund B’s stay at the home. The magistrates court therefore revoked the order on the basis that under s35(4) an order could not be made unless it was satisfied on written or oral evidence that arrangements had been made for any applicant’s admission to hospital, such admission to be within seven days of the order. Since there was no funding, no such arrangements had been made. B sought judicial review but prior to the hearing B was seen by a psychiatrist whose report was pending. In addition, his case had been referred to the Crown Court where wider powers existed to refer B to a hospital. Notwithstanding that there was no realistically arguable case in the face of the terms of s35(4) of the Act, B personally wished the judicial review proceedings to continue.


The judge held that it was not for the Administrative Court to make the decision as to the best location to which to remove B. However, it appeared that B was in need of treatment and the public interest was served by treatment rather than by any other means. Nonetheless, the magistrates court had been correct to revoke its own order since it clearly could not be satisfied that the appropriate arrangements had been made given the absence of funding. The judge added that where an application was made under s35, the proper course for magistrates to take was to adjourn for a short period for enquiries regarding funding and, if necessary, to require evidence and/or representations from the relevant local health authority. Whilst the court formed no conclusion on the issue, it appeared that a local health authority might be entitled to refuse to go along with a proposed order unless it had had an opportunity to make representations to the magistrates court prior to the latter’s decision.

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