R (Holloway) v Oxfordshire County Council & Oxford and Buckinghamshire Mental Health Partnership NHS Trust [2007] EWHC 776 (Admin)

This was an application for judicial review by a patient (H) against an interim displacement order made by the county court and a decision of the local authority (O) for making a without notice application to displace his mother as nearest relative.  H had been diagnosed with chronic paranoid psychosis and had a history of compulsory admissions to hospital for treatment. Due to a clerical error, the doctors treating H mistakenly believed that they had the power to detain him for twelve months instead of six.  Once the mistake had been noticed and H was due be release imminently they used their powers under section 5 of the Mental Health Act 1983 to detain him, as they were concerned that H still posed a high level risk to the public.  It was decided that H should be readmitted under section 3 of the Act at the expiry of the holding admission.  It is a requirement of the Act that when a patient is admitted under section 3, the nearest relative must be informed and consent to the admission.  H’s mother made it clear that she would not consent and she believed that her son would cope adequately in the community.  An application was made to the county court for an order to displace H’s mother as his nearest relative on the ground that she was unreasonably refusing to consent to her son’s admission under section 3.  Notice was not given to H’s mother nor H, that this application would be made.  The court granted an interim displacement order which placed O as nearest relative. O consented to the admission as H’s new nearest relative and H was admitted to hospital under section 3 of the Act.   A full displacement order was later granted in O’s favour during a hearing at which H’s mother was present.

H argued that a patient must always be given a notice of intention to displace his or her nearest relative and that failing to do so was contrary to the rules of natural justice and breached his rights under articles 6 and 8 of the ECHR.  The High Court rejected this argument and held that displacement applications could be made without notice if the general legal rules about making such applications are complied with.  Furthermore, ‘fair trial’ guarantees under Article 6 only apply to interim orders where such orders would result in “irreversible prejudice”. In this instance there wasn’t irreversible prejudice as H’s the interim displacement order was not determinative or irreversible as both he and his nearest relative had a number of safeguards that they could have employed.  However, it was very critical of O’s legal department, in particular the solicitor responsible for making the without notice application.  It commented that the solicitor “displayed a lack of appreciation of the basic requirements of fairness in legal proceedings”.  Despite the time pressures under which the local authority was acting there had been ample time for it to have notified the mother that the application would be made.

A second issue was whether the failure to give notice invalidated the interim displacement order.  H argued that the county court had acted outside its jurisdiction in making the order and it was therefore invalid.  The High Court held that the judge had erred in failing to make inquiries as to whether it would have been feasible for the mother to have been notified.  However, he was entitled to expect those making the application to make him aware of the relevant facts including, those which may have been adverse to the application. Therefore the fact that the judge had not made proper enquiries would be a possible ground of appeal, it would, as a matter of legal principle, deprive the judge of the jurisdiction to make an order on a without notice application.

Application dismissed.

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