CASE OF ANDRIA OY AND KARI KARANKO v. FINLAND

The applicant , an owner of the applicant company , was born in DATE and lives in LOC .

NORP Since DATE S. had ordered children ’s clothing from the then PERSON ( apparently not the same company as the applicant company , and since DATE called “ PERSON ” ) . In DATE the then PERSON debt collecting operation was transferred to a company E.

On DATE , PERSON , which is not an applicant before this ORG , filed a writ of summons ( case no . CARDINAL ) against PERSON with ORG ( käräjäoikeus , tingsrätten ) . The plaintiff PERSON was represented by the second applicant . The plaintiff requested outstanding payment of ORG CARDINAL,CARDINAL ( FAC ) with interest for an order of children ’s clothing made by S.

On DATE , the summons was served on the defendant , who contested the claims , alleging that he had cancelled the order in time .

The court held a preparatory hearing on DATE , in which the plaintiff PERSON was represented by the second applicant . According to the Government , the plaintiff had stated that it would file a supplementary writ of summons and a claim for damages . On DATE PERSON ’s representative NORP and the court agreed by telephone that the supplementary claims were to be submitted by CARDINAL DATE .

DATE ORG informed the plaintiff PERSON that a preparatory hearing would be held in DATE and reminded that it had not lodged a supplementary summons .

On DATE , the applicant company filed a new writ of summons against S. with ORG ( case no . CARDINAL/CARDINAL ) . This claim also concerned the recovery of an outstanding payment of ORG CARDINAL,CARDINAL ( ORG CARDINAL ) for the purchase of goods . The applicant company also claimed damages in the amount of ORG CARDINAL ( ORG CARDINAL,CARDINAL ) . The summons was served on the defendant on DATE , who submitted his response on DATE .

Meanwhile , the preparatory hearing concerning the first writ of summons , filed by PERSON , scheduled for CARDINAL DATE , was cancelled .

ORG considered it appropriate to examine all the claims together . According to the Government , on DATE it joined the actions and served the defendant ’s responses on the plaintiffs .

On DATE and CARDINAL DATE , the court held preparatory hearings . The main hearing was held on DATE , at which CARDINAL witness was heard . The court also examined CARDINAL items of written evidence . At the hearing , the applicant company submitted a further claim for damages of FIM CARDINAL,CARDINAL ( EUR CARDINAL ) .

On DATE the court issued a joint judgment in the CARDINAL cases . Without giving reasons , PERSON was no longer considered as a plaintiff and the applicant company was indicated as the only plaintiff . The court rejected all the claims and ordered the applicant company , together with the second applicant , to pay the defendant ’s legal expenses . It found that the second applicant , being the plaintiff ’s legal representative , had negligently caused PERSON to incur legal costs . In its judgment it also noted the following :

“ It was not possible for ORG to eliminate entirely the lack of clarity in the claims of the parties , especially those of the plaintiff , and the grounds of and evidence for these claims . ... It has examined the case to the extent that the parties have presented their claims and the grounds for them , and what had been the matter in question in ORG view . ”

PERSON and the applicants appealed to ORG , stressing , inter alia , that PERSON had issued the first writ of summons . The appellate court upheld the judgment on DATE , without holding an oral hearing . It considered , as ORG , that the applicant company was the only plaintiff in the proceedings and consequently dismissed PERSON ’s appeal .

According to the applicants , PERSON transferred the allegedly outstanding account from PERSON to the applicant company on DATE .

E. and the applicants sought leave to appeal and appealed to ORG ( korkein oikeus , högsta domstolen ) , complaining , inter alia , about the length of the proceedings . They also alleged that both PERSON and the applicant company had lodged summonses and , consequently , the CARDINAL ORG claims should not have been examined together . They further stated :

“ [ The applicant company ] has been a party to the proceedings only as of DATE when it filed a writ of summons with ORG ( summons no . PERSON ) , by which it requested damages from [ S. ] ... ”

ORG refused leave to appeal on DATE .


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently in detention .

According to the applicant , on DATE he found a small - bore rifle and cartridges . He checked whether the rifle worked and then practised shooting . While doing this he was accompanied by his friend T. At CARDINAL moment the applicant needed to go to the toilet and went over to some bushes near the road . Behind the bushes he came face to face with CARDINAL strangers , later identified as PERSON and NORP , who allegedly behaved aggressively towards him . According to the applicant , CARDINAL of the strangers was holding an object in his hand which the applicant took for a gun . Fearing for his life , he fired at CARDINAL of them in self - defence and left . Soon he joined ORG , who was waiting for him at some distance . The applicant told PERSON that he had fired into the river .

DATE the applicant separated the breechblock from the rifle and threw them both into the river .

On DATE E. and NORP were found shot dead and criminal proceedings were instituted .

On DATE the applicant was arrested on suspicion of the murder of PERSON and NORP The applicant confessed to firing at NORP in self - defence .

On DATE investigating prosecutor PERSON conducted a videotaped on - site reconstruction of the events . During the reconstruction the applicant asked to be represented by a lawyer . This request was rejected by prosecutor PERSON

On DATE ORG ordered the applicant 's pre - trial detention on the ground that he was suspected of having committed a crime punishable by imprisonment and that he might abscond . The applicant 's detention was extended on several occasions by the prosecutors : to DATE on DATE , to DATE on DATE and to DATE on DATE , without indicating any grounds for the detention .

On DATE PERSON was appointed as the applicant 's lawyer .

DATE and DATE the investigation conducted several different forensic examinations and questioned several witnesses . In ordering a medical examination , the investigator requested the expert to check whether the findings of the examination corresponded to the applicant 's statements as to the circumstances of the crime .

On DATE the applicant requested that PERSON be appointed his lawyer . This request was granted .

From DATE to CARDINAL DATE the applicant and his lawyer were given time to study the case file materials . On several occasions they requested extension of the period of access to the case file .

On DATE the bill of indictment was completed by the investigation and referred to ORG ( ORG ) , acting as a first - instance court .

On DATE the applicant was committed for trial . ORG also continued to remand him in custody having decided to leave the chosen preventive measure without changes .

On DATE the court ordered CARDINAL additional forensic examinations in respect of the victims and the weapon which had been used to commit the crime .

An additional forensic medical examination in respect of the victims was concluded on DATE .

An additional ballistic examination was concluded on DATE .

On DATE the judicial examination of the applicant 's case was resumed . ORG also continued to remand the applicant in custody without indicating any grounds .

In DATE the Vice - President of ORG , in reply to a complaint from the applicant that he was not being allowed family visits , informed him that the hearing in his case had been fixed for DATE and that he would be allowed a family visit after his case had been decided .

On DATE ORG held hearings in the case and questioned several witnesses . Witnesses T. and PERSON failed to appear before the court .

On DATE ORG decided to refer the criminal case for further investigation on the grounds that prosecutor PERSON , who had been in charge of the investigation , did not have legal power to conduct the investigation ; that the investigators had not located the breechblock of the rifle ; that it had not been proved beyond doubt that the applicant had intentionally killed PERSON and NORP ; and that the investigators had not fully checked the circumstances of the applicant 's confession . The court also continued to remand the applicant in custody without indicating any grounds .

On DATE ORG lodged an appeal against the decision of DATE .

On DATE ORG quashed the decision of ORG of DATE and remitted the case to it for examination . The court noted that the prosecutor did have power to conduct the investigation , and that the investigators had searched for the breechblock of the rifle but that after DATE it was not possible to remedy the situation with regard to the missing item . The court further noted that the first - instance court should have verified the circumstances of the applicant 's confession in the trial proceedings . The court maintained , lastly , that the issue as to whether there was sufficient evidence on which to convict the applicant should be decided by the first - instance court during the examination of the case on the merits .

On DATE the applicant was committed for trial . ORG also continued to remand the applicant in custody without indicating any grounds .

By a letter of DATE , the Acting President of ORG , in reply to the applicant 's complaint , informed him , among other things , that due to the illness of Judge PERSON , who had originally dealt with his case , the case had been transferred to Judge NORP on DATE and was scheduled for examination on DATE . Following the remittal of the case to the court on DATE the case was scheduled for CARDINAL DATE and then , due to the illness of Judge NORP , postponed to CARDINAL DATE .

On DATE ORG found the applicant guilty of CARDINAL murders motivated by hooliganism and sentenced him to DATE imprisonment . The court found that both victims had been killed by the same weapon , which could have been the rifle used by the applicant ( conclusive identification was not possible without the missing breechblock ) . The court established , inter alia , that no other gun had been found at the site of the crime or elsewhere in the neighbourhood , that T. had heard several shots while the applicant had been behind the bushes and that the applicant had behaved normally immediately after the incident and had not shown any signs of agitation . The court further examined the procedural shortcomings of the pre - trial investigation and disregarded the pieces of evidence , including the videotaped reconstruction of events of DATE , which had been obtained in violation of the applicant 's right to defence .

The applicant appealed against the judgment of DATE challenging , among other things , the testimonies of witness PERSON and interpretation of evidence by the court .

By a separate ruling of DATE , ORG brought to the attention of ORG the procedural violations committed by prosecutor PERSON during the pre - trial investigation , including refusing the applicant a lawyer during the videotaped reconstruction of events . As a result of that ruling , prosecutor PERSON was found disciplinarily liable .

Following the applicant 's conviction , he was allowed to see his mother and his wife . He had in total CARDINAL family visits DATE and DATE .

On DATE the ORG gave a ruling rejecting the applicant 's request for access to the audio records of the hearings . The applicant appealed .

On DATE ORG examined the applicant 's complaints concerning the records of the hearings and dismissed them .

On CARDINAL DATE ORG quashed the rulings of CARDINAL and CARDINAL DATE .

On DATE ORG rejected the applicant 's challenge of the court and his request for access to the audio records . The court also examined the applicant 's objections to TIME of the hearings and dismissed them .

On DATE ORG upheld the judgment of DATE .

In DATE the applicant and his representative made number of requests to ORG for receiving copies of the documents from his criminal case file . In reply , they were informed that only copies of the court judgment and respective decisions by the higher courts on his appeal were furnished to the defendant . As to other documents , the court informed that the applicant or his representative could have access to the case file and could copy the documents from it .

On DATE ORG refused to institute criminal proceedings against prosecutors PERSON and ORG following a complaint by the applicant that his right to defence on DATE had been violated and that the prosecutors had claimed bribes from him in return for closing the case against him . It was established that prosecutor PERSON had been subject to disciplinary sanctions for the above violation of the applicant 's right to defence . As to the allegations of proposed bribes , the investigator rejected this complaint as unsubstantiated .

By letters of DATE and DATE , ORG informed the applicant that there were no grounds for an extraordinary review of his case .

The Code of Criminal Procedure DATE ( prior to DATE ) provided :

Article CARDINAL

Appeal against the prosecutor 's arrest warrant

“ The detainee , his defender or legal representative may appeal against the prosecutor 's arrest warrant to the relevant district ( city ) court ...

The appeal may be lodged directly with the court or through the administration of the pre - trial detention centre , which must send the appeal to the relevant court within TIME of its receipt . ”

Article CARDINAL

Rights of the defendant during the trial

“ In the court proceedings the defendant has the right :

... CARDINAL ) to lodge requests ... ”

Article CARDINAL

Procedure for rendering rulings in the court sittings

“ In all matters decided by the court during the trial , the court gives a ruling . Rulings on ... selection , change or cancellation of a preventive measure ... decided by the court in camera and drawn in form of a separate document signed by all judges .

Rulings rendered by the court during the trial shall be pronounced ... “

Article CARDINAL

Selection , termination or change of a preventive measure in court

“ During the court proceedings , if there are any grounds to do so , the court may by its ruling change , cancel or select a preventive measure in respect of the defendant ... ”

The above - mentioned LAW was excluded from the ORG on the basis of LAW of DATE . By LAW , the new procedure of ordering and maintaining detention at the pre - trial stage has been introduced :

Article CARDINAL

General provisions on the procedure of application , cancellation and change the preventive measure

“ A custodial preventive measure shall be applied only by motivated judge order or court ruling ... ”

Article CARDINAL - CARDINAL

Procedure for the selection of a preventive measure

“ ... In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure , with the prosecutor 's consent he shall lodge an application with the court . The prosecutor is entitled to lodge an application to the same effect . In determining this issue , the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody , and to verify that the evidence was received in a lawful manner and is sufficient for charging the person .

The application shall be considered within TIME of the time at which the suspect or accused is detained .

In the event that the application concerns the detention of a person who is currently not deprived of his liberty , the judge shall be entitled , by means of an order , to give permission for the suspect to be detained and brought before the court under guard . Detention in such cases may not exceed TIME ; and in the event that the person is outside the locality where the court is situated , it may not exceed TIME from the moment at which the detainee is brought within the locality .

Upon receiving the application , the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator . A prosecutor shall question the suspect or accused and , if necessary , shall hear evidence from the person who is the subject of the proceedings , shall obtain the opinion of the previous prosecutor or defence counsel , if the latter appeared before the court , and shall make an order :

( CARDINAL ) refusing to select the preventive measure if there are no grounds for doing so ;

( CARDINAL ) selecting a preventive measure in the form of taking of a suspect or accused into custody .

The court shall be entitled to select for the suspect or accused a non - custodial preventive measure if the investigator or prosecutor refuses to select a custodial preventive measure for him or her .

The judge 's order may be appealed against to the court of appeal by the prosecutor , suspect , accused or his or her defence counsel or legal representative , within DATE from the date on which it was made . The lodging of an appeal shall not suspend the execution of the judge 's order . ”

Relevant parts of articles CARDINAL , CARDINAL and CARDINAL of the Code remained unchanged after the amendments of DATE .

Other relevant domestic law concerning pre - trial detention and investigation is summarised in the cases of PERSON and PERSON v. GPE ( nos . CARDINAL and GPE , § CARDINAL , DATE ) and PERSON v . GPE ( ( dec . ) , no . CARDINAL , DATE ) .

Under section CARDINAL ) of ORG , permission for relatives to visit a detainee ( in principle , once DATE for TIME ) can be given by the authorities of the place of detention , but only with the written approval of an investigator or a court dealing with the case depending on whether it is the investigation or the trial stage .

Relevant provisions of LAW DATE read as follows :

Section CARDINAL

Visiting a detainee

“ Visits of relatives or other persons to a detainee can be allowed by a person or an institution that deals with the case . The duration of the visit shall be fixed from TIME . The visit can be allowed , as a rule , not more than once a month . ”

Section CARDINAL

Granting relatives permission to visit a convicted person

“ Prior to entry of the judgment into force , the presiding judge or the president of the relevant court shall be obliged to grant close relatives of a convicted person , upon their request , permission to visit the detained convicted person . ”


Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . He has suffered from autism since birth . He is unable to speak and his level of understanding is limited . He is frequently agitated and has a history of self - harming behaviour . He lacks the capacity to consent or object to medical treatment . For DATE he was cared for in ORG ( “ the hospital ” ) , a ORG hospital . He was an in - patient at ORG ( “ IBU ” ) of the hospital from its inception in or DATE . The applicant ’s responsible medical officer ( who had cared for him since DATE ) was PERSON ( clinical director of learning disabilities , deputy medical director and consultant psychiatrist for psychiatry of learning disabilities ) .

In DATE he was entrusted on a trial basis to paid carers , Mr and PERSON , with whom he successfully resided until DATE . He was not formally discharged , and the hospital remained responsible for his care and treatment . From DATE onwards the applicant attended on a DATE basis a DATE - care centre run by the local authority .

On DATE the applicant was at the day - care centre when he became particularly agitated , hitting himself on the head with his fists and banging his head against the wall . Staff could not contact Mr and PERSON and got in touch with a local doctor , who administered a sedative . The applicant remained agitated and , on the recommendation of the local authority care services manager ( PERSON ) with overall responsibility for the applicant , he was taken to the accident and emergency unit at the hospital .

At the hospital , the applicant remained agitated and anxious and was received and assessed by PERSON ( acting consultant psychiatrist – learning disabilities services ) as being in need of in - patient treatment . He was transferred , with the physical support of CARDINAL nursing assistants , to the hospital ’s IBU . He was recorded as making no attempt to leave . Having consulted , PERSON and PERSON considered that the best interests of the applicant required his admission for in - patient treatment . PERSON did consider his committal under LAW DATE ( “ the DATE LAW ) but concluded that that was not necessary as the applicant was compliant and did not resist admission . The applicant was therefore admitted as an “ informal patient ” . PERSON confirmed ( in her submissions in the judicial review proceedings referred to below ) that , if the applicant had resisted admission , she would have detained him compulsorily under LAW as she was firmly of the view that he required in - patient treatment .

Dr M. ’s personal attendance notes for DATE record the reports she had received of extremely disturbed behaviour at the DATE - care centre on DATE and previously ; the suggestion by PERSON that the applicant may have been suffering from a cyclical mood disorder and the recommendation that the applicant be assessed to establish any action required ; PERSON detailed consultation throughout DATE with the applicant ’s local doctor , PERSON , PERSON , ward staff and other care professionals ; the conclusion that , given the escalation of behavioural problems , the applicant required readmission for “ thorough investigation and treatment ” but that he would not be “ sectioned ” as he was “ quite compliant ” and had “ not attempted to run away ” ; the numerous unsuccessful attempts to contact the applicant ’s carers ; and the decision to discourage visits by the applicant ’s carers as it risked causing them and the applicant distress .

Her notes for DATE , DATE , recorded that the applicant was calm , had complied with all care needs and accepted the change without problem ; that his carers were “ happy with [ the ] suggestion not to visit for DATE ” ; and the clinical opinion that , given the reports of escalating behavioural problems and self - harm and the suggestion by PERSON of a cyclical mood disorder , time was needed to observe , assess and administer appropriate treatment . Various tests were proposed to rule out any “ organic pathology ” . The applicant was to be referred to the psychology and speech therapist for assessment and a care plan was to be drawn up as appropriate “ for maintenance purposes on discharge ” . His carers were to be made aware of the need not to visit until the team treating the applicant felt confident for them to do so .

In its letter dated DATE to the applicant ’s social worker ( copied to PERSON ) , the DATE - care centre enclosed a detailed report of the incident that had occurred DATE and outlined serious behavioural issues to be considered by the applicant ’s health care professionals before he could be allowed to return to the day - care centre . It was noted that the applicant ’s outbursts had increased over DATE and that he had been finding it increasingly difficult to cope with his environment and group . A summary of the applicant ’s behaviour and attendance at the day - care centre DATE was also included .

On DATE Dr M. prepared a detailed report on the applicant ’s history , care and progress for the manager ( learning disabilities ) of the local health authority as a follow - up to their recent discussions regarding the applicant . PERSON indicated that the hospital was coming to the conclusion that the applicant , as well as being autistic , suffered from a mood disorder , and noted that his discharge at that time would be against medical opinion .

On DATE a consultant psychiatrist in learning disabilities ( PERSON ) assessed the applicant at the request of PERSON and PERSON His report described the applicant as suffering from a severe learning disability , autistic traits and a possible cyclical mood disorder . That psychiatrist recommended further assessment of the applicant in the ORG and better cooperation between the hospital ’s professional team , the day - care centre and PERSON and PERSON

On DATE ORG indicated ( see the proceedings detailed below ) that the applicant ’s appeal would be decided in his favour . Accordingly , on DATE the applicant was detained in the hospital under section CARDINAL(CARDINAL ) of LAW ( following receipt of a notice from a doctor in charge of an in - patient that an application ought to be made for the latter ’s detention for , inter alia , treatment under LAW , the patient may be detained for CARDINAL to allow for that application to be processed ) . On DATE the applicant was admitted for treatment as an involuntary patient under LAW ( CARDINAL medical practitioners having recently examined the applicant would have certified his detention for treatment as necessary ) .

On DATE the applicant ’s carers visited him for the first time since his readmission in DATE .

On DATE the applicant ’s legal representatives applied for a review of his detention by ORG ( “ MHRT ” ) . Legal aid was granted to instruct an independent psychiatrist to prepare a report . The psychiatric report , dated DATE , was prepared jointly by a consultant psychiatrist and a registrar in the psychiatry of learning disability , both attached to ORG at ORG . The psychiatrists recommended the applicant ’s discharge because they were of the opinion that his mental disorder was “ currently neither of a nature or degree to warrant continued detention in hospital , nor [ was ] it necessary for his health or safety or for the protection of others ” .

On DATE the applicant ’s representatives applied to the hospital managers for his release ( section CARDINAL of LAW ) , a meeting of the managers taking less time to convene than a meeting of the ORG .

The multidisciplinary team responsible for the applicant ’s care and treatment decided that he had settled enough to be managed at home , and on DATE he was released on leave of absence ( under LAW ) into the care of PERSON and PERSON

On DATE PERSON prepared a report for the forthcoming ORG review meeting . He noted that the applicant ’s discharge on DATE under LAW of LAW was to be complemented by DATE psychiatric outpatient follow - up appointments , continued medication and monitoring by a community nurse . PERSON was hopeful that the community team and their consultant psychiatrist could take over the applicant ’s care so that he could be formally discharged from the hospital .

On DATE the hospital managers decided to formally discharge the applicant to the carers ( section CARDINAL of LAW ) .

The first letter from PERSON and PERSON after the applicant ’s admission to the hospital was dated DATE . Having noted the attempts made to contact them on DATE , PERSON outlined in detail what had happened and how the applicant was progressing . PERSON indicated that , while the aim was to discharge the applicant to them as soon as possible , she was unable to predict the length of his stay as it depended on the completion of all necessary investigations and assessments . PERSON indicated that visits would be unwise until the hospital staff felt that it would be appropriate , in order to avoid the applicant thinking that he could go home with PERSON and PERSON following each visit at a time when he was “ not clinically fit for discharge ” . PERSON and PERSON to contact her about meeting her DATE .

Dr M. sent a further detailed update on the applicant ’s care , assessments and progress to PERSON and PERSON on DATE . Having noted Mr and PERSON requests to staff to visit the applicant , PERSON indicated that the current serious observational assessment would be prejudiced by such visits and suggested that the situation be reviewed DATE . Dr PERSON pointed out that the applicant was not clinically fit for discharge .

NORP Since Mr and PERSON had expressed concerns to staff at the hospital about the applicant ’s care and treatment , PERSON sent a long letter to PERSON and PERSON on DATE in which she explained the clinical team ’s responsibility to provide the applicant with the care and clinical input he required . In particular , PERSON noted :

“ I would like to take the opportunity to stress , through this correspondence , that we , as a Clinical Team , within the [ IBU ] , are here , primarily to provide the treatment for [ the applicant ] who was admitted under our care , as an emergency . It would be extremely irresponsible of us not to provide [ the applicant ] with the care and the clinical input that he deserves and is in need of . His disposal / discharge from within the unit is dependent ... on the Multidisciplinary Clinical Professionals’ considered views , following their assessment and the work that they intend doing with [ the applicant ] , specifically , in relation to his challenging behaviour and/or mental health needs . As I have stressed , in my earlier correspondence , these things do take time and unfortunately we have to be a little patient to allow the professionals some room and space to carry on with their work in the provision of care ... [ The applicant ] has been admitted to the [ IBU ] on an ‘ informal’ basis and this is not a time - limited admission . I am not sure if you have misunderstood his status and are under the impression that perhaps he was admitted and held under ‘ the Mental Health Act’ . Even then , there is no ‘ one ORG time - limit , as it all depends on the patient ’s fitness for discharge ... On behalf of ORG , I would like to stress that [ the applicant ] is being treated within the [ IBU ] and once he is fit for discharge , he will be discharged back to the address from where he was admitted , with a ‘ Treatment Plan’ which will include all aspects of his care and a ‘ maintenance ORG prescribed . ”

Given the ongoing treatment and assessments , it was not possible to specify a discharge date . PERSON repeated her offer to meet PERSON and PERSON to discuss the applicant ’s care .

In a further letter of DATE , PERSON confirmed to PERSON and PERSON that the conclusions drawn from the assessments to date meant , and the recent clinical professionals’ meeting had decided , that the applicant was to be “ fully ” referred for care and treatment to the ORG and that his stay was likely to be a long one . She invited PERSON and PERSON to attend a clinical meeting about the applicant ’s care and treatment on DATE and offered to meet PERSON and PERSON separately to discuss , inter alia , the subject of visits .

Mr and PERSON in a letter of DATE that they could not agree with the suggested plan for the applicant and would be in touch again prior to the relevant meeting . By a letter dated DATE , PERSON and PERSON confirmed that they would not be able to attend the meeting on DATE as they were seeking legal advice . PERSON responded by letter dated DATE expressing regret that PERSON and PERSON felt that their attendance at the clinical meeting could jeopardise the applicant ’s position . In a separate letter of DATE , PERSON outlined the results of the clinical meeting , including a recommendation that PERSON and PERSON E. visit the applicant once a week , and requested them to contact her to arrange this .

On DATE Dr M. reassured Mr and PERSON that the subject of them visiting the applicant had been discussed at the hospital at some length and encouraged PERSON and PERSON to meet her to discuss the applicant ’s needs .

Detailed behaviour management guidelines were issued on DATE by the psychology service of the hospital to , among others , PERSON , PERSON and PERSON , the applicant ’s social worker and other therapeutic services that were to be involved in the applicant ’s future care . Appendix DATE was a detailed clinical description of the applicant ’s mental state ( autism and a cyclical mood disorder ) , needs and reactions prepared on the basis of extensive psychiatric and behavioural observations and assessments , with a view to achieving a global approach to his condition , treatment and care . Appendix CARDINAL contained an extremely detailed “ communication dictionary ” which was designed to enhance communication with the applicant through voice , action and routine . Appendix CARDINAL contained recording charts .

By a letter of DATE to the applicant ’s legal representatives , PERSON acknowledged receipt of the guidelines of DATE ( described above ) and explained the clinical team ’s plans regarding the applicant ’s release on leave of absence in the near future with a view to a possible full discharge at DATE .

In or around DATE , the applicant , represented by his cousin and “ next friend ” , applied for leave to apply for judicial review of the hospital ’s decision to admit him on DATE , for a writ of habeas corpus and for damages for false imprisonment and assault ( a technical assault associated with his admission ) .

ORG refused the application . It found that , although the DATE Act provided a comprehensive statutory regime for those formally admitted to psychiatric care , section CARDINAL(CARDINAL ) of the DATE Act preserved the common - law jurisdiction in respect of informal patients . Since the applicant had not been “ detained ” but had been informally admitted and since the requirements of the common - law principle of necessity had been satisfied , his application was rejected .

Lord PERSON , Master of the Rolls , delivered the principal judgment . On the question of whether the applicant was “ detained ” , he noted that it was agreed that this was a question of objective fact which did not depend on the presence or absence of consent or knowledge . He considered that a person was detained in law if those who had control over the LOC in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so . He went on :

“ We do not consider that the [ High Court ] judge was correct to conclude that [ the applicant ] was ‘ free to ORG . We think it is plain that , had he attempted to leave the hospital , those in charge of him would not have permitted him to do so . ... PERSON and PERSON had looked after [ the applicant ] , as one of the family , for DATE . They had made it plain that they wanted to take him back into their care . It is clear that the hospital was not prepared to countenance this . If they were not prepared to release [ the applicant ] into the custody of his carers , they were not prepared to let him leave the hospital at all . He was and is detained there . ”

Lord PERSON also found that the right to detain a patient for treatment for mental disorder was to be found only in LAW , the provisions of which applied to the exclusion of the common - law principle of necessity . Section CARDINAL which preserved the right to admit a patient informally applied only to a patient who had the capacity to and did consent to his admission . Since the applicant had been admitted for treatment without his consent and the other formalities required by LAW , his detention was unlawful :

“ It follows from our judgment that the whole approach of the [ hospital ] in this case was based on a false premise . It was based on the belief that they were entitled to treat [ the applicant ] as an in - patient without his consent as long as he did not dissent . That was a wrong approach . They were only allowed to admit him for treatment if they complied with the statutory requirements . ... [ W]here [ LAW ] covers the situation , no necessity to act outside the statute can arise . The [ hospital ’s ] powers to act under the common - law doctrine of necessity can arise only in relation to situations not catered for by [ LAW ] . ”

ORG awarded nominal damages and granted leave to appeal to ORG .

ORG granted leave to , among others , ORG to intervene in the proceedings . In its submissions to ORG , the ORG outlined the beneficial consequences to patients of ORG conclusion that persons in the applicant ’s position were “ detained ” for the purposes of LAW , which included the application to such persons of the substantive and procedural safeguards of the LAW . The ORG also described the survey it had completed since ORG judgment by sending a questionnaire to all ORG hospitals ( and registered nursing homes ) . PERCENT of those establishments responded , from which the Commission was able to submit that , if ORG judgment were applied to patients such as the applicant , there would be CARDINAL detained patients resident on any one day and CARDINAL compulsory admissions per year under LAW .

ORG gave judgment on DATE and unanimously allowed the appeal . PERSON ( with whom ORG and ORG agreed ) delivered the principal judgment . Lords PERSON and PERSON also agreed that the appeal should be allowed but for different reasons .

Having considered the drafting history of section CARDINAL of the CARDINAL Act , Lord PERSON disagreed with ORG and concluded that section CARDINAL applied to patients who consented as well as to compliant but incapacitated patients . He underlined , however , that the statutory history of the section , which put the matter beyond all doubt , appeared not to have been drawn to the attention of ORG and that ORG did not have the benefit , as did ORG , of assistance from counsel appearing for the Secretary of ORG . As to the basis upon which a hospital was entitled to treat , and to care for , patients who were admitted as informal patients under section CARDINAL(CARDINAL ) but lacked the capacity to consent to such treatment or care , PERSON stated as follows :

“ It was plainly the statutory intention that such patients would indeed be cared for , and receive such treatment for their condition as might be prescribed for them in their best interests . Moreover , the doctors in charge would , of course , owe a duty of care to such a patient in their care . Such treatment and care can , in my opinion , be justified on the basis of the common - law doctrine of necessity ... ( Re F. ( Mental Patient : Sterilisation ) [ DATE ] CARDINAL AC CARDINAL ) It is not therefore necessary to find such justification in the [ CARDINAL Act ] itself , which is silent on the subject . It might , I imagine , be possible to discover an implication in the statute providing similar justification ; but even assuming that to be right , it is difficult to imagine that any different result would flow from such a statutory implication . For present purposes , therefore , I think it appropriate to base justification for treatment and care of such patients on the common - law doctrine . ”

Lord PERSON then considered whether the applicant had been “ unlawfully detained ” as alleged and as found by ORG . He pointed out that for the tort of false imprisonment to be committed there must , in fact , be a complete deprivation of , or restraint on liberty : an actual and not a potential deprivation of liberty went towards constituting the tort . Lord PERSON then turned to the facts and quoted extensively from the affidavit ( sworn on DATE ) of PERSON

“ At TIME on DATE I was contacted by ... [ the ] social worker and [ the applicant ’s ] case manager . She advised me that there had been an incident at ORG , where [ the applicant ] had been attending since DATE , when [ the applicant ] had seriously self - harmed and was extremely disturbed . She said that he had to be sent to ORG and she requested assistance from the psychiatric services to assess [ the applicant ] with a view to admitting him if necessary . CARDINAL of my team members , [ PERSON , staff grade psychiatrist , attended ORG as requested . His notes state that he took a history from ... the team manager at ORG who reported that since DATE [ the applicant ’s ] episodes of self - injurious behaviour had increased in severity . On DATE whilst he was at Cranstock he had been agitated , hyperventilating , pacing up and down and hitting himself on the head with his fists . He was also banging his head on the wall . The whole area had to be evacuated to avoid disturbance and assure the safety of others . He was given QUANTITY of ORG to try to calm him down at the time but this had no effect . The ORG was therefore called who administered QUANTITY of Zimovane . However he still remained agitated in ORG . He was assessed and treated at A & E. [ Dr P. ] later assessed [ the applicant ] as being agitated and very anxious . He noted redness of both his temples , that he was punching his head with both his fists at times and hyperventilating . [ Dr P. ] assessed that [ the applicant ] required in - patient treatment and transferred [ the applicant ] to ORG . [ PERSON noted that [ the applicant ] ‘ makes no attempt to ORG . I recorded that we considered whether it was necessary to detain [ the applicant ] under LAW DATE but it was decided that this was not necessary as he was , as I noted at the time , ‘ quite compliant’ and had ‘ not attempted to run NORP . He was therefore admitted as an informal patient . If [ the applicant ] had resisted admission I would certainly have detained him under the [ DATE ] Act as I was firmly of the view that he required in - patient treatment . This was clearly thought through and supported following discussion with [ PERSON , ward staff , other professionals and the ORG Manager . An appropriate framework of care and treatment was implemented . ”

Lord PERSON then noted how PERSON had then

“ ... described how PERSON and PERSON were informed on DATE of [ the applicant ’s ] admission , as was [ the applicant ’s ] next of kin . At first , with the agreement of PERSON and PERSON , it was arranged that they would not visit [ the applicant ] for DATE , in accordance with the usual clinical practice . On DATE Dr M. wrote to PERSON and PERSON and in her letter invited them to come and meet her DATE when it was her intention to discuss the possibility of phased visits , but they did not accept this invitation to meet her . On DATE an advocacy worker was appointed as [ the applicant ’s ] advocate . [ The applicant ] was again assessed . A programme of tests and observations was then put into effect . ”

Lord PERSON continued to quote from PERSON affidavit :

“ As [ the applicant ] is an informal patient there has never been any attempt to detain him against his will or carry out any tests , observations or assessments to which he indicated a dislike or with which he refused to cooperate . [ The applicant ] has always accepted his medication which has always been administered orally . He was also fully compliant when blood was taken from him for testing . He did not however cooperate with the attempts that were made to carry out a GPE scan and ORG , which were necessary in view of his old history of fits and temporal lobe abnormality , on CARDINAL and DATE and so these tests were abandoned . [ The applicant ] cooperated to a certain extent with the speech therapy assessment which was carried out on DATE and the occupational therapy assessment . However , as soon as he showed any signs of distress the assessments were postponed and reviewed . [ The applicant ] is accommodated on an unlocked ward and has never attempted to leave the hospital but has accepted the change in his environment very well and is not distressed by it ... It was , in my professional opinion , in [ the applicant ’s ] best interests to be admitted on DATE and it is also in his best interests to continue with in - patient treatment to prevent further deterioration of his mental health . His discharge at this point in time would therefore be against medical advice . At the time of and since admission [ the applicant ] has been fully compliant with treatment and never indicated that he wishes to leave the hospital . In view of this it has not been necessary to detain him under the Act ... If [ the applicant ] stopped cooperating or indicated a wish to leave then I would have to consider at that time whether his condition warranted detention under LAW . As these circumstances have not so far arisen detention has not been necessary . ”

Lord PERSON considered that , in the light of the above account by PERSON , the following conclusions might be drawn :

“ The first is that , as I have already recorded , although [ the applicant ] had been discharged from hospital into the community on a trial basis , and on that basis had gone to live with PERSON and PERSON as his paid carers , nevertheless he had not been finally discharged . It followed that the appellant trust remained responsible for his treatment , and that it was in discharge of that responsibility that the steps described by PERSON were taken . The second is that when , on DATE , [ the applicant ] became agitated and acted violently , an emergency in any event arose which called for intervention , as a matter of necessity , in his best interests and , at least in the initial stages , to avoid danger to others . Plainly it was most appropriate that the appellant trust , and PERSON in particular , should intervene in these circumstances ; certainly PERSON and PERSON , as [ the applicant ’s ] carers , could not assert any superior position . Third , I have no doubt that all the steps in fact taken , as described by PERSON , were in fact taken in the best interests of [ the applicant ] and , in so far as they might otherwise have constituted an invasion of his civil rights , were justified on the basis of the common - law doctrine of necessity .

I wish to add that the latter statement is as true of any restriction upon his freedom of movement as then occurred , as it is of any touching of his person . There were times during the episode when it might be said that [ the applicant ] was ‘ ORG in the sense that , in the absence of justification , the tort of false imprisonment would have been committed . I have particularly in mind the journey by ambulance from LOC to ORG . But that journey was plainly justified by necessity , as must frequently be so in the case of removal to hospital by ambulance of unfortunate people who have been taken ill or suffered injury and as a result are incapacitated from expressing consent . I wish further to add that I can not see that Dr PERSON ’s statements to the effect that she would if necessary have taken steps compulsorily to detain [ the applicant ] under the Act of DATE have any impact on the above conclusions . Those concerned with the treatment and care of mentally disordered persons must always have this possibility in mind although , like PERSON , they will know that this power is only to be exercised in the last resort and they may hope , as in the present case , that it would prove to be unnecessary to exercise it . Such power , if exercised in accordance with the statute , is of course lawful . In the present case all the steps in fact taken by PERSON were , in my opinion , lawful because justified under the common - law doctrine of necessity , and this conclusion is unaffected by her realisation that she might have to invoke the statutory power of detention .

Finally , the readmission of [ the applicant ] to hospital as an informal patient under section CARDINAL(CARDINAL ) of the Act of DATE could not , in my opinion , constitute the tort of false imprisonment . His readmission , as such , did not constitute a deprivation of his liberty . As PERSON stated in paragraph CARDINAL of her affidavit , he was not kept in a locked ward after he was admitted . And the fact that she , like any other doctor in a situation such as this , had it in her mind that she might thereafter take steps to detain him compulsorily under the LAW , did not give rise to his detention in fact at any earlier date . Furthermore , his treatment while in hospital was plainly justified on the basis of the common - law doctrine of necessity . It follows that none of these actions constituted any wrong against [ the applicant ] . ”

For these reasons , Lord PERSON allowed the appeal . He had CARDINAL “ subsidiary points ” , the second one being as follows :

“ ... the function of the common - law doctrine of necessity [ lies ] in justifying actions which might otherwise be tortious , and so has the effect of providing a defence to actions in tort . The importance of this was , I believe , first revealed in the judgments in ORG ( Mental Patient : Sterilisation ) [ DATE ] CARDINAL AC CARDINAL . I wish , however , to express my gratitude to counsel for the appellants ... for drawing to our attention CARDINAL earlier cases in which the doctrine was invoked , viz . PERSON v. PERSON ( DATE ) Lofft CARDINAL , especially at p. CARDINAL , per Lord GPE , PERSON ( DATE ) CARDINAL F. and F. CARDINAL , CARDINAL , per PERSON , and PERSON v. PERSON ( DATE ) CARDINAL F. and PERSON , CARDINAL , per PERSON , all of which provide authority for the proposition that the common law permitted the detention of those who were a danger , or potential danger , to themselves or others , in so far as this was shown to be necessary . I must confess that I was unaware of these authorities though , now that they have been drawn to my attention , I am not surprised that they should exist . The concept of necessity has its role to play in all branches of our law of obligations – in contract ( see the cases on agency of necessity ) , in tort ( see ORG ) [ DATE ] CARDINAL AC CARDINAL ) , and in restitution ( see the sections on necessity in the standard books on the subject ) DATE and in our criminal law . It is therefore a concept of great importance . It is perhaps surprising , however , that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law . ”

Lord PERSON , for his part , agreed with ORG that the applicant had been detained : he referred to the contents of PERSON long letter of DATE and to the additional matters on which ORG had relied in this respect ( and quoted above ) . Nevertheless , he allowed the appeal as he was satisfied that

“ the trust and its medical staff behaved throughout not only in what they judged to be the best interests of [ the applicant ] , but in strict accordance with their common - law duty of care and the common - law principle of necessity ” .

Lord PERSON also allowed the appeal . He recognised that to uphold the decision of ORG would be to ensure that a number of important protections applied to the applicant and that to allow the appeal would result in an indefensible gap in mental health law . However , he considered that it was possible , on a contextual interpretation of LAW , to allow the appeal .

In the first place , he found that the applicant had been detained :

“ It is unnecessary to attempt a comprehensive definition of detention . In my view , this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention . The critical facts are as follows : ( CARDINAL ) When on DATE at the Day Centre [ the applicant ] became agitated and started injuring himself , he was sedated and then physically supported and taken to the hospital . Even before sedation he was unable to express dissent to his removal to hospital . ( CARDINAL ) Health care professionals exercised effective power over him . If [ the applicant ] had physically resisted , the psychiatrist would immediately have taken steps to ensure his compulsory admission . ( CARDINAL ) In hospital staff regularly sedated him . That ensured that he remained tractable . This contrasts with the position when he was with carers : they seldom resorted to medication and then only in minimal doses . ( CARDINAL ) The psychiatrist vetoed visits by the carers to [ the applicant ] . She did so , as she explained to the carers , in order to ensure that [ the applicant ] did not try to leave with them . The psychiatrist told the carers that [ the applicant ] would be released only when she , and other health care professionals , deemed it appropriate . ( CARDINAL ) While [ the applicant ] was not in a locked ward , nurses closely monitored his reactions . Nurses were instructed to keep him under continuous observation and did so .

Counsel for the Trust and the Secretary of ORG argued that [ the applicant ] was in truth always free not to go to the hospital and subsequently to leave the hospital . This argument stretches credulity to breaking point . The truth is that for entirely bona fide reasons , conceived in the best interests of [ the applicant ] , any possible resistance by him was overcome by sedation , by taking him to hospital and by close supervision of him in hospital . And if [ the applicant ] had shown any sign of wanting to leave , he would have been firmly discouraged by staff and , if necessary , physically prevented from doing so . The suggestion that [ the applicant ] was free to go is a fairy tale . ... In my view [ the applicant ] was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty ” .

Secondly , he found that detention to be justified under the common - law doctrine of necessity :

“ It is now necessary to consider whether there was lawful authority to justify the detention and any treatment of [ the applicant ] . This is a matter of statutory construction . But it is important to approach the mental health legislation against the context of the principles of the common law . The starting - point of the common law is that when a person lacks capacity , for whatever reason , to take decisions about medical treatment , it is necessary for other persons , with appropriate qualifications , to take such decision for him : ORG ) [ DATE ] CARDINAL AC CARDINAL , at CARDINALH , per Lord PERSON of ORG . The principle of necessity may apply . For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that ( CARDINAL ) there must be ‘ a necessity to act when it is not practicable to communicate with the assisted person’ and ( CARDINAL ) ‘ that the action taken must be such as a reasonable person would in all circumstances take , acting in the best interests of the assisted person’ : Re F. , supra , per Lord PERSON of Chieveley , at CARDINALH. There was not unanimity on this point in Re F. But I am content to approach the matter in the same way as counsel did ... Against this common - law background ORG recommended a shift from the ‘ ORG whereby hospital patients were ‘ GPE by special procedures , to a situation in which most patients would be ‘ informally’ received in hospital , the term ‘ informally’ signifying ‘ without any legal formality’ . This was to be achieved by replacing the existing system ‘ by the offer of care , without deprivation of liberty , to all who need it and are not unwilling to receive it’ : see Report of ORG on ORG DATE ) ... The desired objective was to avoid stigmatising patients and to avoid where possible the adverse effects of ‘ sectioning’ patients . Where admission to hospital was required compulsion was to be regarded as a measure of last resort . LAW of DATE introduced the recommended changes . Section CARDINAL ) was the critical provision . ... Counsel appearing on behalf of [ the applicant ] accepted that the effect of section CARDINAL was to leave in place the common - law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients .

In DATE ORG substantially amended LAW of DATE . In DATE ORG enacted a consolidating statute with amendments , namely LAW DATE . By section CARDINAL(CARDINAL ) of the Act of DATE the provisions of section CARDINAL ) of the Act of DATE were re - enacted verbatim . ... Prima facie section CARDINAL(CARDINAL ) must be given the same meaning as section CARDINAL(CARDINAL ) . On this basis , section CARDINAL(CARDINAL ) also preserved the common - law principle of necessity as a means of admitting compliant incapacitated individuals . But counsel for [ the applicant ] submitted that section CARDINAL(CARDINAL ) , unlike its predecessor , only applies to consenting capacitated patients . He argued that contextual differences between the statutes of DATE and DATE required the court to interpret the language of section CARDINAL(CARDINAL ) of the Act of DATE in a narrower sense than section CARDINAL ) of the Act of DATE . ... On orthodox principles of statutory interpretation the conclusion can not be avoided that section CARDINAL(CARDINAL ) permits the admission of compliant incapacitated patients where the requirements of the principle of necessity are satisfied . Having had the benefit of the fuller argument produced by the intervention of the Secretary of ORG , I have to accept that the view of ORG on the meaning of section CARDINAL(CARDINAL ) can not be upheld . ”

Accordingly , the common - law doctrine of necessity had been preserved by section CARDINAL(CARDINAL ) of the DATE Act and the applicant ’s detention and treatment were justified on that basis .

Lord PERSON went on to note that the effect of the House of Lords’ judgment was to leave compliant incapacitated patients without the safeguards enshrined in the CARDINAL Act :

“ This is an unfortunate result . The common - law principle of necessity is a useful concept , but it contains none of the safeguards of LAW . It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals . It is , of course , true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient . But neither habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients . Given that such patients are diagnostically indistinguishable from compulsory patients , there is no reason to withhold the specific and effective protections of [ LAW ] from a large class of vulnerable mentally incapacitated individuals . Their moral right to be treated with dignity requires nothing less . The only comfort is that counsel for the Secretary of ORG has assured the ORG that reform of the law is under active consideration . ”

In DATE Mr and PERSON complained to the Commissioner about the applicant ’s readmission to hospital . The complaints subjected to investigation were : ( a ) that the clinical decision to admit the applicant on DATE was unreasonable ; and ( b ) that the clinical management of his admission was inadequate . The independent assessors investigated . In their report , they considered that the applicant ’s admission to the ORG on DATE was “ probably unavoidable ” . He had a significantly better quality of life with his carers and more serious consideration should have been given to sending him home on DATE his carers had been located or , at least , DATE . The assessors considered that it was difficult to see why , even if it was necessary to retain him TIME , he was not discharged the following day and his subsequent evaluation conducted on an outpatient basis . The process of assessment of the applicant had been too long and resources should have been available to speed up that process . In this latter respect , the assessors did not believe that any of the clinicians were acting irresponsibly or maliciously and their main recommendation for the future was that admissions to the IBU be “ strictly time - limited ” and that adequate resources be made available to enable a multi - disciplinary assessment to be carried out if at all possible on an outpatient basis and , if not , as speedily as possible .

The Commissioner , in his report of DATE , agreed with the FAC conclusions , adopted their recommendations and conveyed the hospital ’s apologies to PERSON and PERSON for the shortcomings identified . The hospital had also informed the Commissioner that , through ORG , the LAW recommendations for outpatient assessment had been implemented .

The majority of persons who receive in - patient psychiatric care are treated without resort to the compulsory powers under Part II of the DATE LAW and these are called “ informal patients ” .

Such patients are either “ voluntary patients ” , namely , those persons with legal capacity to consent and who have consented to admission for treatment , or persons who do not have the legal capacity to consent to treatment but who are admitted for treatment on an “ informal basis ” as they do not object to that admission ( incapacitated but compliant ) .

Section CARDINAL(CARDINAL ) of the DATE LAW provides as follows :

“ Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or mental nursing home in pursuance of arrangements made in that behalf and without any application , order or direction rendering him liable to be detained under LAW , or from remaining in any hospital or mental nursing home in pursuance of such arrangements after he has ceased to be so liable to be detained . ”

The DATE Act provides for a number of substantive and procedural safeguards to those “ detained ” under its provisions .

( a ) Patients can only be detained for assessment ( section CARDINAL ) or for treatment ( section CARDINAL ) where the strict statutory criteria set out in Part II of the Act have been met . In general ( and emergency admissions apart ) , detention requires the acceptance by the relevant institution of an application in the prescribed form by a qualified person . That application must be founded upon written medical recommendations in the prescribed form of CARDINAL medical practitioners , both of whom have recently examined the patient and have no personal interest and CARDINAL of whom has special experience in the diagnosis or treatment of mental disorder .

( b ) Part IV of the DATE Act sets out rules on the need to obtain a patient ’s consent or a second medical opinion for certain forms of medical treatment .

( c ) Part V provides for an opportunity to apply , or to be automatically referred , to a ORG ( “ MHRT ” ) for a review of the need for continued detention .

( d ) The “ nearest relative ” of a detainee has the power , inter alia , to object to an application for involuntary committal under LAW , to discharge a patient from such detention and to apply to the ORG ( in certain cases ) for a patient ’s discharge ( sections CARDINAL - CARDINAL ) .

( e ) A former detainee has access to aftercare services ( section CARDINAL ) .

( f ) NORP The Secretary of ORG must create LAW ( section CARDINAL ) in order to guide those concerned with the treatment of psychiatric detainees . Section CARDINAL charges the Secretary of ORG with the supervision of the exercise of the powers and duties conferred and imposed by LAW and accords him associated powers to visit , interview and investigate . LAW established ORG , which exercises the functions of the Secretary of ORG under section CARDINAL and CARDINAL of the CARDINAL Act .

( g ) Detainees have a right to receive information about their detention from hospital managers ( section CARDINAL of LAW ) .

The relevant parts of section CARDINAL of the DATE Act , entitled “ General remit of GPE ” , provide :

“ ( CARDINAL ) On a complaint duly made to a Commissioner by or on behalf of a person that he has sustained injustice or hardship in consequence of –

( a ) a failure in a service provided by a health service body ,

( b ) a failure of such a body to provide a service which it was a function of the body to provide , or

( c ) maladministration connected with any other action taken by or on behalf of such a body ,

the Commissioner may , subject to the provisions of this LAW , investigate the alleged failure or other action .

( CARDINAL ) Nothing in this LAW authorises or requires a Commissioner to question the merits of a decision taken without maladministration by a health service body in the exercise of a discretion vested in that body . ”

Section CARDINAL of the DATE Act is entitled “ Exercise of clinical judgment ” and provides as follows :

“ ( CARDINAL ) A Commissioner shall not conduct an investigation in respect of action taken in connection with –

( a ) the diagnosis of illness , or

( b ) the care or treatment of a patient ,

which , in the opinion of the Commissioner , was taken solely in consequence of the exercise of clinical judgment ...

( CARDINAL ) In subsection ( CARDINAL ) , ‘ ORG includes a mental disorder within the meaning of LAW DATE ... ”

The common - law doctrine of necessity was relied on as early as PERSON v. PERSON ( DATE ) Lofft CARDINAL , PERSON ( DATE ) CARDINAL Foster and Finalson ’s Nisi ORG Reports CARDINAL , CARDINAL , and ORG v. PERSON ( DATE ) CARDINAL Foster and Finalson ’s Nisi ORG Reports CARDINAL , CARDINAL ( see Lord PERSON ’s judgment , paragraph CARDINAL above ) . These cases provide authority for the proposition that the common law permitted the detention of those who were a danger , or potential danger , to themselves or others , in so far as this was shown to be necessary . This jurisdiction has also been exercised in relation to a range of medical treatment issues and , in particular , in relation to sterilisation operations ( ORG ) [ DATE ] CARDINAL Appeal Cases CARDINAL ) and the continuance of artificial nutrition and hydration ( ORG v. Bland [ DATE ] Appeal Cases CARDINAL , CARDINAL ) .

ORG has a certain jurisdiction to make declarations as to the best interests of an adult who lacks the capacity to make decisions . The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court .

In DATE ORG found that , where there was a risk of possible harm to a mentally incapable adult , ORG had power , under its inherent jurisdiction and in the best interests of that person , to hear the issues involved and to grant the necessary declarations . It therefore dismissed an appeal which contested ORG jurisdiction to make a declaration requested by a local authority in respect of the residence and contacts of an adult who lacked capacity and who was at risk of harm .

Lady Justice Butler - Sloss noted that the local authority was seeking to rely on the inherent jurisdiction of the court under the doctrine of necessity in order to direct where ORG should live and to restrict and supervise her contact with her natural family . The local authority , supported by ORG , submitted that the doctrine operated on DATE basis in making ordinary decisions for the care and protection of an incapable adult as recognised in the present case ( R v. ORG , ex parte L. [ DATE ] Appeal Cases CARDINAL ) . T. ’s mother contended that the courts were unable to fill the gap caused by statutory amendments : while there was a limited jurisdiction to make declarations in medical cases on issues capable of resolution at the time of hearing , that did not extend to cases where the effect would be coercive over a long period without limit of time and without a clear view of future requirements for that person .

Lady Justice Butler - Sloss had no doubt that there was a serious justiciable issue which required a decision by the court . Mental health legislation did not cover DATE affairs of mentally incapable adults and in both ORG ) and PERSON ( cited above ) the courts had recognised that the doctrine of necessity might properly be relied on side by side with the statutory regime . The jurisdiction of ORG to grant relief by way of declarations was therefore not excluded by LAW DATE . As to the question of whether the problem ( residence and contact ) arising in the case came within the established principles so as to give the court jurisdiction to hear the issue of ORG ’s best interests and make declarations , she found in the affirmative :

“ There is an obvious gap in the framework of care for mentally incapacitated adults . If the court can not act and the local authority case is correct , this vulnerable young woman would be left at serious risk with no recourse to protection , other than the future possibility of the criminal law . That is a serious injustice to T. who has rights which she is unable , herself , to protect .

Although the decision of this court in Re S. ( Hospital Patient : Court ’s Jurisdiction ) [ DATE ] DATE turned upon the locus standi of the claimant , the underlying issue , recognised by counsel and by this court was the best interests of LOC When the matter was remitted to PERSON for decision , the question that she answered was his future residence ( see ORG Patient : Foreign Curator ) [ DATE ] CARDINAL FLR CARDINAL . Lord PERSON in GPE recognised ... that the concept of necessity had a role to play in all branches of the law where obligations existed and was therefore a concept of great importance . In Re S. the Master of the Rolls set out the long - established power of ORG to grant declarations in a wide variety of situations and to assume jurisdiction if there is no practicable alternative . He looked at the line of medical and similar cases and said at page CARDINAL ... :

‘ Collectively , these cases appear to constitute the development of a new advisory declaratory ORG

In ORG : Contact ) [ DATE ] CARDINAL FLR CARDINAL , CARDINAL of the cases referred to by Sir PERSON , there was a dispute between the parents of an adult mentally incapacitated girl over contact between her and her mother . PERSON held ... that :

‘ In an appropriate case , if the evidence bears out the proposition that access is for the benefit of the patient in this case , S. , I see no reason at all why the court should not grant access by way of a ORG

In both PERSON the declarations sought were in support of identifying the best interests of an incapable adult where individuals around him or her were in conflict over his / her future welfare . The application for declaratory relief in the present appeal is between a local authority and a mother but ... there is no distinction to be drawn between a local authority and an individual . A declaration is , in many ways , a flexible remedy able to meet a variety of situations . In the present conflict , where serious question marks hang over the future care of ORG if returned to her mother , there is no practicable alternative to the intervention of the court . The declarations sought by the local authority may require alteration according to the facts found by the judge , but he would have the jurisdiction to vary them to meet the situation after those findings were made . There is the possibility that the judgment itself might resolve the situation . If it does not and declarations are required which determine where T should live , there is nothing in principle to inhibit a declaration that it was in her best interests that she should live in a local authority home and should not live anywhere else , nor , while she was in the home to regulate the arrangements for her care and as to with whom she might have contact . Such were the implications of the second stage of Re S. before PERSON and of Re C. ( above ) .

I am clear that it is essential that ORG ’s best interests should be considered by ORG and that there is no impediment to the judge hearing the substantive issues involved in this case .

The assumption of jurisdiction by ORG on a case - by - case basis does not , however , detract from the obvious need expressed by ORG and by the Government for a well - structured and clearly defined framework of protection of vulnerable , mentally incapacitated adults , particularly since the whole essence of declarations under the inherent jurisdiction is to meet a recognised individual problem and not to provide general guidance for mentally incapacitated adults . Until ORG puts in place that defined framework , ORG will still be required to help out where there is no other practicable alternative . ”

Lady Justice Butler - Sloss found as follows in a judgment delivered in DATE :

“ Another question which arises from the decision in Re F. is the relationship of best interests to the PERSON test ( PERSON v. ORG [ DATE ] CARDINAL WLR CARDINAL ) . Doctors charged with the decisions about the future treatment of patients and whether such treatment would , in the cases of those lacking capacity to make their own decisions , be in their best interests , have to act at all times in accordance with a responsible and competent body of relevant professional opinion . That is the professional standard set for those who make such decisions . The doctor , acting to that required standard has , in my view , a second duty , that is to say he must act in the best interests of a mentally incapacitated patient . I do not consider that the CARDINAL duties have been conflated into CARDINAL requirement . To that extent I disagree with ORG Report on Mental Incapacity ( paragraph CARDINAL ... ) and I prefer the alternative suggestion in [ the ] footnote ... ”

Mr PERSON , an involuntary psychiatric detainee , applied for judicial review of past and future treatment decisions . He argued that the domestic court had to examine the competing medical views before it in order properly to review the lawfulness of the enforced medical treatment in his case . The respondents argued that the level of scrutiny on judicial review , even applying the “ super - Wednesbury ” approach , did not allow the courts to substitute their view for that of the primary medical decision - maker and opposed the examination of the relevant health professionals . ORG refused to call and cross - examine the health professionals on their medical opinions .

By the time the Court of Appeal heard the case , LAW DATE ( incorporating the Convention into domestic law ) had come into force ( in DATE ) . The applicant argued therefore that the provisions of , inter alia , ORG , DATE , DATE , DATE , and CARDINAL of the Convention reinforced his position as to the level of examination of the varying medical views to be carried out , while the respondents maintained that LAW did not mean that the courts must adopt a primary fact - finding role in such circumstances .

As regards any future proposed medical treatment ( post-CARDINAL Act ) , ORG found that ORG , CARDINAL and DATE of the LAW required , on judicial review , a full review of the merits of the relevant medical decisions and that a review in accordance with the “ super - Wednesbury ” criteria would not have been sufficiently intrusive as to constitute such a proper review of the merits of those medical decisions . In this connection , ORG referred to ORG judgment in ORG the GPE ( nos . ORG and CARDINAL , § § CARDINAL - CARDINAL , ORG CARDINALVI ) .

In DATE ORG produced a series of consultation papers entitled “ Mental incapacitated adults and decision - making ” culminating in the above - mentioned report . The introduction noted :

“ QUANTITY . It is widely recognised that ... the law as it now stands is unsystematic and full of glaring gaps . It does not rest on clear or modern foundations of principle . It has failed to keep up with social and demographic changes . It has also failed to keep up with developments in our understanding of the rights and needs of those with mental instability . ”

As to the meaning of best interests , the report noted as follows :

“ CARDINAL . Our recommendation that a ‘ best interests’ criterion should apply throughout our scheme can not be divorced from a recommendation that statute should provide some guidance to every decision - maker about what the criterion requires . No statutory guidance could offer an exhaustive account of what is in a person ’s best interests , the intention being that the individual person and his or her individual circumstances should always determine the result . In our DATE consultation papers , however , we suggested that certain principles of general application would always be relevant . At least in so far as substitute health - care decisions are concerned , the principles we suggested probably involve a significant departure from the present state of the law . This , as set out in [ ORG ( Mental Patient : Sterilisation ) [ DATE ] CARDINAL AC CARDINAL ] , appears to provide that a doctor who acts in accordance with an accepted body of medical opinion is both ( CARDINAL ) not negligent and ( CARDINAL ) acting in the best interests of a patient without capacity . ”

The footnote at this point in the report ( and to which Lady Justice PERSON referred in R .- B. ( A Patient ) v. Official Solicitor , cited above ) indicated as follows :

“ It may be that all [ the judges in Re F. ] were saying was that a doctor must both ( CARDINAL ) meet the standard of care required to avoid liability in negligence and ( CARDINAL ) act in an incapacitated patient ’s best interests . However , since they gave no indication of how those ‘ best interests’ were to be identified , some commentators have concluded that the CARDINAL requirements were in fact one . The speeches of the law lords in ORG v. Bland [ DATE ] ORG CARDINAL can not be said to have resolved this important point , and Lord PERSON again referred to the professional negligence standard when discussing what was in the patient ’s best interests . ”

DATE . The report went on :

“ This apparent conflation of the criterion for assessing complaints about professional negligence with the criterion for treating persons unable to consent has been the butt of vehement criticism . No medical professional body responding to consultation paper no . CARDINAL argued in favour of retaining such a definition of ‘ best interests’ . Many were extremely anxious to see some clear and principled guidance given as to what ‘ best interests’ might involve . ...

It should be made clear beyond any shadow of a doubt that acting in a person ’s best interests amounts to something more than not treating that person in a negligent manner . Decisions taken on behalf of a person lacking capacity require a careful , focused consideration of that person as an individual . Judgments as to whether a professional acted negligently , on the other hand , require careful , focused consideration of how that particular professional acted as compared with the way in which other reasonably competent professionals would have acted . ... ”

ORG recommended that , in deciding what is in a person ’s best interests , regard should be had to :

“ ( CARDINAL ) the ascertainable past and present wishes and feelings of the person concerned and the factors that person would consider if able to do so ;

( CARDINAL ) NORP the need to permit and encourage the person to participate , or to improve his or her ability to participate , as fully as possible in anything done for and any decision affecting him or her ;

( CARDINAL ) the views of other people whom it is appropriate and practicable to consult about the person ’s wishes or feelings and what would be in his or her best interests ;

( CARDINAL ) whether the purpose for which any action or decision is required can be as effectively achieved in a manner less restrictive of the person ’s freedom of action . ”

A revised Code of Practice , prepared pursuant to section CARDINAL of the CARDINAL Act , came into force on DATE . LAW did not impose a legal duty to comply with the LAW but , as it was a statutory document , failure to follow it could be referred to in evidence in legal proceedings .

Under the title “ Informal patients ” , the PERSON stated :

“ CARDINAL . Where admission to hospital is considered necessary and the patient is willing to be admitted informally this should in general be arranged . Compulsory admission powers should only be exercised in the last resort . Informal admission is usually appropriate when a mentally capable patient consents to admission , but not if detention is necessary because of the danger the patient presents to him or herself or others . Compulsory admission should be considered where a mentally capable patient ’s current medical state , together with reliable evidence of past experience , indicates a strong likelihood that he or she will have a change of mind about informal admission prior to actually being admitted to hospital , with a resulting risk to their health or safety or to the safety of other people .

NORP If at the time of admission the patient is mentally incapable of consent , but does not object to entering hospital and receiving care or treatment , admission should be informal ( see NORP v. Bournewood ORG , ex parte L. [ DATE ] CARDINAL ALL ER CARDINAL ... ) . The decision to admit a mentally incapacitated patient informally should be made by the doctor in charge of the patient ’s treatment in accordance with what is in the patient ’s best interests and is justifiable on the basis of the common - law doctrine of necessity ... If a patient lacks capacity at the time of an assessment or review , it is particularly important that both clinical and social care requirements are considered , and that account is taken of the patient ’s ascertainable wishes and feelings and the views of their immediate relatives and carers on what would be in their best interests . ”

The relevant parts of paragraph CARDINAL read as follows :

“ There are particular considerations that doctors must take into account in discharging their duty of care for those who lack capacity to consent . Treatment for their condition may be prescribed for them in their best interests under the common - law doctrine of necessity ( see the decisions of ORG in Re F. [ DATE ] CARDINAL AC CARDINAL and NORP v. ORG , ex parte L. [ DATE ] CARDINAL ALL ER CARDINAL ) . According to the decision in the case of Re F. , if treatment is given to a patient who is not capable of giving consent , ‘ in the patient ’s best interests’ the treatment must be :

– necessary to save life or prevent a deterioration or ensure an improvement in the patient ’s physical or mental health ; and

– in accordance with a practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of treatment in question ( the test that was originally laid down in [ the PERSON case ] ) . ”

On DATE a practice note was issued by the Official Solicitor entitled “ Declaratory proceedings : medical and welfare decisions for adults who lack capacity ” . It combined the guidance given in earlier practice notes concerning sterilisation operations for incapacitated persons and the continuance of artificial nutrition and hydration for those in vegetative states , and was extended to cover a wider range of medical and welfare disputes concerning adults who lack capacity . The relevant parts provide :

“ CARDINAL . ORG has jurisdiction to make declarations as to the best interests of an adult who lacks decision - making capacity . The jurisdiction will be exercised when there is a serious justiciable issue requiring a decision by the court . It has been exercised in relation to a range of medical treatment issues , in particular sterilisation operations and the continuance of artificial nutrition and hydration . It has also been exercised in relation to residence and contact issues . The jurisdiction is comprehensively reviewed and analysed in ORG ( Adult : Court ’s Jurisdiction ) [ DATE ] CARDINAL FLR CARDINAL .

THE NEED FOR COURT INVOLVEMENT

Case - law has established CARDINAL categories of case that will in virtually all cases require the prior sanction of a ORG judge . The first is sterilisation of a person ( whether a child or an adult ) who can not consent to the operation : Re B. ( A ORG ) ( PERSON : Sterilisation ) [ DATE ] ORG CARDINAL and ORG ) [ DATE ] CARDINAL AC CARDINAL . The second is the discontinuance of artificial nutrition and hydration for a patient in a vegetative state : ORG v. Bland [ DATE ] ORG , CARDINAL . Further guidance about sterilisation and vegetative state cases is given below . In all other cases , doctors and carers should seek advice from their own lawyers about the need to apply to the court . In ORG view , applications should be made where there are disputes or difficulties as to either the patient ’s capacity or the patient ’s best interests . Guidelines were handed down by ORG in St ORG v. PERSON ; NORP v. PERSON and Others , ex parte S. [ DATE ] CARDINAL FLR CARDINAL , CARDINAL - CARDINAL . It was stressed in that case that a declaration made without notice would be ineffective and ought not to be made .

THE EVIDENCE

The claimant must adduce evidence going to both capacity and best interests .

( i ) Capacity

The court has no jurisdiction unless it is established that the patient is incapable of making a decision about the matter in issue . The test of capacity to consent to or refuse treatment is set out in GPE ( Medical Treatment ) [ DATE ] CARDINAL FLR CARDINAL , CARDINAL . ...

( ii ) Best interests

In any medical case , the claimant must adduce evidence from a responsible medical practitioner not only ( CARDINAL ) that performing the particular operation would not be negligent but also ( CARDINAL ) that it is necessary in the best interests of the patient : PERSON Male Sterilisation ) [ DATE ] CARDINAL FLR CARDINAL , CARDINAL . The court ’s jurisdiction is to declare the best interests of the patient on the application of a welfare test analogous to that applied in wardship : Re S. ( Sterilisation : Patient ’s Best Interests ) [ DATE ] CARDINAL FLR CARDINAL , CARDINAL . The judicial decision will incorporate broader ethical , social , moral and welfare considerations ( ibid . , CARDINAL ) . Emotional , psychological and social benefit to the patient will be considered : Re Y. ( Mental Patient : Bone Marrow Transplant ) [ DATE ] Fam CARDINAL . The court will wish to prepare a balance sheet listing the advantages and disadvantages of the procedure for the patient . If potential advantages and disadvantages are to be relied on then the court will wish to assess in percentage terms the likelihood of them in fact occurring : Re A. ( Male Sterilisation ) [ DATE ] CARDINAL FLR CARDINAL , CARDINAL . ”

A practice direction ( issued by ORG with the approval of the Lord Chief Justice and the Lord Chancellor on DATE and entitled “ Declaratory proceedings : incapacitated adults ” ) pointed out that proceedings which involved its jurisdiction to grant declarations as to the best interests of incapacitated adults were more suited to ORG and that the note detailed in the preceding paragraph provided valuable guidance in relation to such proceedings and “ should be followed ” .

Further to the publication ( in DATE ) of a ORG on reforming the mental health legislation , a draft ORG Bill and a consultation paper were published in DATE . The objective of the bill , as described in the consultation paper , was twofold : to provide a legal structure for requiring mentally disordered persons to submit to compulsory treatment without necessarily requiring them to be detained in hospital and bringing the law more closely into line with modern human rights law ( notably the case - law of ORG ) . Part CARDINAL of the bill ( sections CARDINAL - CARDINAL ) was entitled “ Informal treatment of patients not capable of consenting ” and provided for specific safeguards for qualifying patients .

DATE . Steps were also taken towards developing legislation on the broader question of incapacity . Having published a consultation paper in DATE entitled “ Making decisions on behalf of mentally incapacitated adults ” , the Government published its proposals in DATE . It was proposed that legislation provide for a general authority enabling a person acting reasonably to make decisions on behalf of an incapacitated person and in the incapacitated person ’s best interests . The general authority would extend to decisions about care and welfare , including medical decisions .

Subsequently , a Mental Capacity Bill was introduced in ORG on DATE . On the assumption that additional safeguards for the care of incapacitated patients would be most appropriately included in legislation on capacity rather than on mental health , this bill provides for a detailed statutory framework to empower and protect vulnerable people incapable of making their own decisions and for safeguards not currently available under the common law .

In particular , the Mental Capacity Bill sets out in statutory form a number of common - law principles , including that everything done must be in the best interests of the patient and in a manner least restrictive of the patient ’s rights . It sets down detailed tests for the assessment of capacity and best interests . The bill creates new mechanisms for the appointment , where appropriate , of a designated decision - maker to act on behalf of an incapacitated patient and to be consulted on any decision made : either a lasting power of attorney ( which allows the appointment of someone to act on one ’s behalf in the case of future loss of capacity ) or a court - appointed deputy ( who can make decisions on welfare , health care and financial matters as determined by the court ) . CARDINAL new public bodies are also proposed by the bill to support the statutory framework : a new court of protection ( for dispute resolution on matters such as capacity and best interests ) and a public guardian ( a registered authority with supervisory responsibilities as regards the designated decision - makers described above ) . The bill also provides for the input of an independent consultee ( for a person lacking capacity who has no one who can be consulted about his or her best interests ) , allows individuals to make an “ advance decision ” to refuse treatment should they lose capacity in the future and creates a new criminal offence of “ ill - treatment or neglect of a person lacking capacity ” .