R (on the application of DB) v Nottinghamshire Healthcare NHS Trust (2008) EWCA Civ 1354

This was an appeal by DB against the refusal of an application for judicial review. DB wished to challenge the validity of his detention in a secure unit under s.37 of the Mental Health Act 1983. Following DB’s previous breach of a community rehabilitation order two psychiatrists recommended a hospital order, under s.37 MHA, requiring his detention in a medium secure unit. The order was originally made on the 17.12.04, however it was soon noted that the unit named was not a secure unit and at a further hearing on the 21.12.04 the order was amended to ensure he could be admitted to a secure unit. DB was not detained until the 17.01.05 and had thereafter been detained under part III of the MHA. He challenged the lawfulness of this detention on the basis that the original detention was outside the time limit imposed by the Court Order. It was common ground that the order made on the 17.12.04 and amended on the 21.12.04 was a valid order and that subsequent order of the 21.12.04 was an amendment of the earlier order and so required DB to be admitted within 28 days of the earlier date, namely the 14.01.05. However the Judge at first instance found that the order remained valid on the 17.01.05 beyond the 28 days because it could not simply cease to exist on the expiry of the 28 days.

The Court of Appeal found that s.40 MHA expressly limited the authority to detain a patient under s.37 MHA to 28 days from the date of the order. Therefore once that period had expired the hospital order ceased to have any effect. As such, from the 14.01.05, there was no authority to convey DB to a secure unit (s.40(1)(a)) or for his detention (s40(1)(b)) and the Court made a declaration that DB’s admission and subsequent detention was not authorised by the order made on the 17.12.04 as varied by the order on the 21.12.04. The Court of Appeal recommended that the standard form of hospital orders made under s.37 MHA be amended so as to expressly set out the date that the order would expire to prevent such misunderstandings in the future.

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