LAW REPORT: 10 July 1997: Leave to apply for judicial review given despite delay

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The Independent Online
Re S's Application for Judicial Review ; Court of Appeal (Lord Justice Butler-Sloss, Lord Justice Phillips and Lord Justice Waller) 3 July 1997

Where an application for leave to move for judicial review raised questions of public importance in relation to the interpretation of section 2 of the Mental Health Act 1983 and its application to a pregnant woman, who suffered from a physical condition which posed a risk both to her and her unborn child but who refused medical treatment, leave was exceptionally granted despite delay in bringing the proceedings.

The Court of Appeal granted the applicant leave to move for judicial review of the decision of the first respondent to admit and detain her under section 2 of the Mental Health Act 1983 for the purpose of assessment in a hospital under the control of the second respondent; and to challenge her detention by the second respondent, her transfer to and detention in a hospital under the control of the third respondent, the caesarian section performed on her there, and her transfer back to the first hospital. Leave to move had been refused by Mr Justice Popplewell on the ground of delay.

Richard Gordon QC and Barbara Hewson (Leigh Day & Co) for the applicant; Beverley Lang (Solicitor, Merton Borough Council) for the first respondent; Philip Havers QC and Monica Carrs-Frisk (Bevan Ashford, Bristol) for the second and third respondents.

Lord Justice Butler-Sloss said that the applicant, who had a deep-seated aversion to medical intervention, had become pregnant in September 1995 and had not sought antenatal care until the eighth month of her pregnancy, when she was found to be suffering from severe pre-eclampsia. That posed a risk to her life and to the unborn child. Immediate admission to hospital was recommended. The applicant refused to be admitted or to have treatment.

The first respondent, an approved social worker, felt she had no choice but to detain her in accordance with the provisions of section 2 of the Mental Health Act 1983. She was admitted to one hospital and then transferred to another.

The applicant made it clear, having taken legal advice, that she declined treatment. The third respondent, without the applicant's knowledge and without taking steps to see if representation might be arranged for her, made an ex-parte application to Hogg J for a declaration to authorise treatment including operation by way of caerarian section. The judge granted the application. The hospital carried out the operation and the applicant gave birth to a daughter. Her detention under section 2 was terminated on 2 May.

After some delay in obtaining medical records, the applicant's original application was lodged on 6 December 1996, the three-month time limit having expired on 2 August.

Three principal matters had been raised on the applicant's behalf on the appeal: the construction and application of section 2 to the compulsory admission of the applicant to hospital; her detention in and transfer to and from both hospitals; and the circumstances in which the applicant said she had not been kept informed of the hearing before the judge and had been denied access to the court and a fair trial. It was submitted that all those issues were of such public importance that judicial review was the proper way for them to be considered.

Counsel for the respondents had relied on R v Institute of Chartered Accountants in England and Wales, ex p Andreou [1996] Vol 8 Admin LR 557. Whilst agreeing with the firm approach set out in that case, there was another line of authority dealing with issues of public importance: see R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482 and R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386.

The general importance of the matter raised in the application might constitute a good reason to extend time even though in most cases the delay would be a complete bar to granting leave. Applying those propositions to the present case, it ought to be argued by way of moving for judicial review.

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