Lewis v Gibson and MH (by her litigation friend the Official Solicitor) [2005] EWCA Civ 587

In this case, the Court of Appeal considered how the County Court should approach an application for a nearest relative’s displacement.  It arose in connection with a nearest relative (L) whose displacement was sought because she had objected to her daughter (MH) being received into guardianship of a local authority (the Telford and Wrekin Borough Council).  L’s advisor’s argued that the local authority should instead, have applied to the High Court for a ‘best interests’ declaration regulating MH’s care.

L was the main carer for MH who suffered from Down’s Syndrome.  Following a deterioration of MH’s well-being and conduct, MH was removed from her home under s135 of the 1983 Act and detained for assessment under s2.  An unsuccessful application by L was made to the Mental Health Review Tribunal to discharge MH. In response, G, the ASW, applied to displace L as nearest relative.  The substantive order displacing L was granted in June 2004.  Permission to appeal was granted by the Court of Appeal judge, on the basis that MH’s article 8 rights may have been infringed by a disproportionate response by the local authority and a failure to involve L or MH in the process of guardianship.

The Court of Appeal analysed the relevant law, namely sections 1, 7 and 29 of the 1983 Act, which concerned the criteria required for a guardianship application and procedure for displacing a nearest relative.  It also noted a change in the Civil Procedure Rules 1998 which amended order 49, rule 12(3)(b) which provided a new safeguard (the discretion of the court to join the patient as a respondent to the s29 application) to protect the patient’s interests in proceedings displacing a nearest relative.  L now argued the following points:

(1) that the judge at the original hearing had been wrong to find that MH met the criteria under sections 7 and 29 for guardianship under the 1983 Act and failed to use his discretion by not considering non-medical evidence.
(2) the relevant date for the criteria to be satisfied was the date of the hearing and not the date of the application and
(3) G should have applied to the High Court for a ‘best interests’ declaration.

In relation to the first submission the Court of Appeal found that the judge had acted correctly by accepting the findings of the medical experts who all agreed that MH met the s7 (2) criteria required for a guardianship application.  In relation to the second point, it stated that the relevant dates for satisfying the section 7(2) criteria were (1) the date of application (2) the date of hearing and (2) the date of final hearing or grant of order. In response to the third submission although this may have been a case that could have been dealt with under the inherent jurisdiction (declaratory relief), it did not follow that the judge was wrong to have made an order under s29 once the criteria were satisfied.  The court recognised that there would be times when guardianship would be inadequate or inappropriate and that the best interests inherent jurisdiction would need to be invoked to fill the statutory lacuna.

On the subject of human rights, the court found that although the change in CPR rule 12 came too late for MH, not having been represented in the section 29 application, it had not caused MH any detriment or prejudice and at no stage had the local authority sought to exclude MH or L from the process.  The court concluded that the same eventual outcome would have resulted had G applied to the High Court for a ‘best interests’ declaration.  Appeal dismissed.


The court expressly refrained from deciding that there was no room for a High Court declaration in relation to a patient who met the criteria for guardianship.  It stated that there may be a time in the future when MH would need the Court to invoke its best interests inherent jurisdiction, where the scope of guardianship powers became inadequate or inappropriate.    The court, in its judgment, acknowledged the “extremely limited powers” conferred on a guardian under the 1983 Act, and which might not be sufficient to meet MH’s needs.   Counsel for MH suggested to the court that a best interests declaration may still be required in relation to a patient under guardianship.

Accordingly, it is suggested by this author, that what the Court of Appeal meant was that it may be possible for a guardianship to exist alongside a best interests declaration or in preference to it, if the best interests of the patient could not be secured by a guardian.   Kent County Council ex parte Marston is directly relevant to this point although unfortunately, it was not cited in this case.  Marston provides authority for a guardian to impliedly act beyond the express powers contained in s.8 of the 1983 Act, as long as it does not act in a ‘totalitarian fashion’.

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