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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Highfield v Minister for Health and Social Services [2011] JCA 023 (25 January 2011) URL: http://www.bailii.org/je/cases/UR/2011/2011_023.html Cite as: [2011] JCA 023, [2011] JCA 23 |
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[2011]JCA023
COURT OF APPEAL
25th January 2011
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Before : |
Jonathan Sumption, Esq., O.B.E., Q.C.,
President; |
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Between |
John Michael Highfield |
Plaintiff/Appellant |
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And |
Minister for Health and Social Services |
Defendant/Respondent |
Application for leave to appeal judgment of the Royal Court dated 3rd August 2010.
Advocate D. F. Le Quesne for the Appellant/Plaintiff.
Advocate M. H. Temple for the Respondent/Defendant.
JUDGMENT
THE president:
1. The question at issue on this appeal is whether the present proceedings against the Minister of Health and Social Services were brought in contravention of Article 50 of the Mental Health (Jersey) Law 1969. Sir Philip Bailhache, sitting as a Commissioner, held that they were and dismissed them.
2. Article 7 of the Law provides for the detention of a patient for treatment in hospital on the ground that he is suffering from a mental disorder or addiction and that it is In the ordinary course, the patient is detained by order of the Minister on the application of specified categories of applicant.
3. In December 2006, the Plaintiff John Highfield was detained under Article 7 by an order of the Minister on the application of an officer of the Public Health Committee. He was thereafter held for treatment against his will at Orchard House, which is an in-patient mental health unit run by the Minister and forming part of St. Saviour's Hospital. On 26 January 2007, Mr. Highfield tried to escape by climbing from a recreation yard onto a roof, from which he jumped to the ground, sustaining severe injuries to his left ankle. He says that the Minister owed him a duty to take reasonable care for his safety during his detention. The existence of a duty of care is not disputed. Mr. Highfield's case is that the Minister is vicariously liable for the negligent failure of staff at Orchard House to take reasonable steps to prevent him from trying to escape and injuring himself.
4. Article 50 of the Law provides as follows:-
In accordance with ordinary canons of statutory construction, an 'act' purporting to be done in pursuance of the Law, includes an omission unless (which has not been suggested) the contrary appears: see Interpretation (Jersey) Law 1954, Article 4 and Schedule Part 1.
5. Paragraph (1) of Article 50 is substantive, and paragraph (2) is procedural. The effect of paragraph (1) is to make it a condition of liability in respect of an that the Defendant should have done it in bad faith or negligently. Mr. Highfield is not concerned by that. His is a straightforward action in tort for common law negligence. If he establishes that, he will also have satisfied the condition at paragraph (1). His problem arises from paragraph (2), which imposes a procedural condition on the right to bring an action. He must satisfy the Superior Number of the Royal Court before bringing the proceedings that there is evidence of negligence amounting to a prima facie case. He did not seek to do that. And because his action was begun on the last day of the limitation period, it is now too late. It is common ground that if Article 50(2) applies to the present proceedings, its effect is that they are a nullity and that the Court has no jurisdiction to entertain them: see Seal (FC) v. Chief Constable of South Wales Police [2007] UKHL 31.
6. Article 50 substantially reproduces Section 141 of the United Kingdom Mental Health Act 1959. Section 141 itself reproduced the effect (although not the exact wording) of Section 16 of the Mental Treatment Act 1930. It is reasonably clear that the object of these enactments was to protect health professionals charged with the custody and treatment of patients under statutory powers from the perceived risk of harassment by groundless litigation, which would be liable to inhibit them in the performance of their functions: Pountney v. Griffiths [1976] AC 314, 329 (Lord Simon), Seal (FC) v. Chief Constable of South Wales Police, supra, at [18] (Lord Bingham). More recently, doubts have been expressed about how serious this risk really is and whether the restrictions are justified. Nearly half a century after the 1930 Act was passed, at a time when the Mental Health Act 1959 was under review, the United Kingdom Government published a white paper (Cmnd. 7320/1978), in which it was suggested that litigation by patients about the circumstances of their detention was rare and that there was no evidence that psychiatric patients were likely to be vexatious litigants. It was, however, concluded that it was desirable to reassure the staff working in psychiatric institutions about their legal position. The white paper concluded at para. 7.4:-
The outcome was that Section 141 of the Act of 1959 was amended by the Mental Health (Amendment) Act 1982. In its amended form the provision was re-enacted as Section 139 of the Mental Health Act 1983. For present purposes, the only relevant change was the addition of Section 139(4), which provided that the Section should not apply to proceedings against the Secretary of State or the various health authorities charged with functions under the Act. In effect, the result was to confine the protection of the provision to mental health professionals who were made Defendants to actions in respect of acts purporting to be done in pursuance of the Act.
7. Advocate Le Quesne, who appeared for Mr. Highfield, has submitted that Article 50(2) of the Jersey Law has no application to the present proceedings. His case can be summarised in three propositions:
"(1) Article 50(2) is a provision ousting the jurisdiction of the courts and as such should be given the narrowest reasonable construction consistent with its language and purpose.
(2) There is a difference between an 'act purportedly done in pursuance of this Law' (which is covered by the Article) and an act done in the course of the exercise of statutory powers (which is not). Mr. Le Quesne says that the negligent failure to prevent Mr. Highfield from escaping and thereby injuring himself fell into the latter category.
(3) Because the purpose of Article 50 was to protect staff in psychiatric institutions against unfounded allegations in court proceedings, Article 50 should be construed as applying only to proceedings against mental health professionals, and not to proceedings against the Minister."
8. I have no difficulty in accepting the first of these submissions. Access to a court is a fundamental constitutional right, and we should not construe any statute as restricting it unless it does so in clear terms. In itself, however, this does not get Advocate Le Quesne very far. Article 50(1) does not seek to restrict access to a court. It is a substantive provision which deals with the legal elements of a cause of action in respect of any In addition to any other conditions imposed by law on a person's liability for doing such an act, it must be found that he acted in bad faith or negligently before the act can be treated as wrongful. The only provision which can be said to restrict access to a court is Article 50(2), which provides that unless leave is obtained. No words could more clearly indicate the intention of the legislature to place conditions upon the right to bring proceedings in respect of an The real question is not whether the Article seeks to restrict access to a court, for it plainly does, but to what proceedings does it apply. Are the present proceedings brought in respect of an ? That question is addressed by Mr. Le Quesne's second submission, to which I now turn.
9. Since both paragraph (1) and paragraph (2) apply to , the expression must mean the same in both paragraphs. And since it cannot be construed in paragraph (1) on the footing that it is an interference with the right of access to a court, it cannot be construed on that footing in paragraph (2) either. There is, however, a different reason why the expression cannot be read literally in either paragraph, namely that the result of doing so would go far beyond anything which the legislature can rationally be supposed to have wanted to achieve. The statutory functions and powers of the Minister under the Law are very wide. Article 3, for example, empowers him to make arrangements for the provision, equipment and maintenance of residential accommodation for patients, to make available facilities for their training, occupation or employment and to provide any ancillary service for promoting their care, treatment or welfare. would literally include any act which the Minister or his agents could properly be said to do in the exercise of those functions and powers and which gave rise to liability. They would include acts giving rise to liability under agreements with contractors employed to provide goods or services to mental health facilities; acts giving rise to liability in tort to members of the public injured by the provision of defective premises or the negligent driving of hospital vans; or acts giving rise to liability to patients in the course of caring for them under statutory powers but which have nothing to do with the relationship of dependence arising from the patient's mental disorder or addiction as, for example, in a case where a patient suffers food poisoning as a result of negligence in the hospital canteen or is injured when the ceiling of his bedroom falls in.
10. It is a truism that wholly general words in a statute may be given a limited construction by reference to the subject-matter, context and purpose of the enactment in question. In Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] AC 850, the House of Lords considered a provision of the Landlord and Tenant Act 1954 that specified conditions were satisfied. Lord Diplock, at page 880 observed:-
11. The English courts considered the implicit limits on the general language of Section 141 of the Mental Health Act 1959 in Pountney v. Griffiths [1976] AC 315. Mr. Pountney was a patient at the secure hospital at Broadmoor. He instituted a prosecution for criminal assault against a male nurse who had attempted to restrain him. It was argued on his behalf that Section 141 was limited to acts done in the discharge of functions expressly provided for by the language of the Act, and had no application to acts done by hospital staff in the course of discharging their day-to-day duties. This contention is similar to the one advanced by Mr. Le Quesne in the present case, although Mr. Pountney's counsel carried the argument much further than Mr. Le Quesne has sought to do, suggesting that the only acts within the Section were the issue of certificates or orders for detention and the disposal of patients' property. The contention was rejected by both the Divisional Court and the House of Lords. They accepted that the Section was more limited than its literal language might suggest, but found the relevant limitation in the concept of control. The ratio is most clearly expressed in the judgment of Lord Widgery CJ in the Divisional Court. He said at page 319:-
In the House of Lords, the leading speech was delivered by Lord Edmund-Davies. He related the purpose of Section 141 to the situation in which the Act provided for the patient's detention, which He expressly endorsed the test proposed by Lord Widgery: see pages 335-6.
12. The essential feature of the Mental Health Act 1959 and the Mental Health (Jersey) Law 1969 is that they authorise public officials and hospital staff to do that which would otherwise be a wrongful invasion of a patient's liberty, namely to detain him and while he is detained to control him. Against that background, Article 50 of the Jersey Law, like Section 141 of the Mental Health Act 1959, applies to acts of the Defendant purportedly done in the exercise of the statutory function of exercising control over a patient. By that test, the acts alleged against the Minister by Mr. Highfield are within the scope of the Section. What is said is that the Minister's employees, in the course of performing his statutory functions, failed to control the Plaintiff so as to protect him from harming himself. In the context of an enactment which authorises the detention of a patient , it is rational to treat wrongs committed pursuant to the performance or purported performance of this function as the subject-matter of Article 50.
13. It is arguable, since the patient may also be detained , that the Article would also apply to a failure to exercise proper control over a patient, resulting in his causing injury or loss to third parties. But that involves further questions which are best left to a case in which they arise.
14. Mr. Le Quesne's third point is that Article 50(2) applies only to proceedings against health professionals and not to proceedings against the Minister. This was barely mentioned in his written contentions, but emerged in his oral submissions as his primary case. In effect, the argument is that Article 50 is subject to an implicit limitation corresponding to the express limitation in Section 139(4) of the United Kingdom Mental Health Act 1983, which was introduced by amendment in 1982. The amendment, as I have pointed out, provided that the Section did not apply to proceedings against the Secretary of State or relevant health authorities. Mr. Le Quesne submitted that this was implicit in the unamended United Kingdom Act and in the corresponding provisions of the Jersey Law, because these provisions were enacted for the protection of mental health professionals dealing with the patient. A restriction of the right to sue them was all that was required to give effect to the statutory purpose of protecting them from the fear of harassment by unfounded litigation. The Minister can look after himself.
15. It is fair to say that the Mental Health (Jersey) Law, like the United Kingdom legislation on which it was modelled, was directed at the protection of health professionals, and that the Minister probably did not need corresponding protection. This was no doubt why Section 139(4) was introduced into the United Kingdom Act in 1982. In my judgment, however, this is not nearly enough to sustain Mr. Le Quesne's third point. I reject it for the following reasons:
(i) It is directly inconsistent with the language of Article 50(1), which provides that shall be liable for the relevant class of acts, and with that of Article 50(2), which provides that proceedings in respect of such acts may not be brought against The Minister is the primary person upon whom the Law imposes duties and confers powers. In most respects relevant to the present issue, staff members come into it only as persons through whom the Minister performs these duties and exercises these powers. Against this background, the expressions and in Article 50 must at least include the Minister. It should be noted that in Pountney v. Griffiths at page 335, Lord Edmund-Davies cited an order made by the Secretary of State under Section 71 of the Mental Health Act 1959 for the removal to a special hospital of a person ordered to be detained at Her Majesty's pleasure as an example of an exercise of control over a patient of the kind which engaged Section 141 of the Act.
(ii) In the great majority of cases in which a health professional performs the function of control pursuant to the Law, he and the Minister will be concurrently liable, the health professional personally and the minister vicariously. Yet Article 50 does not make any distinction between these two bases of liability. It refers to liability arising by virtue of the relevant category of acts and to proceedings in respect of such acts. The defining feature is the nature of the act. If Mr. Le Quesne were right, it would follow that if a patient were to sue without leave both the health professional personally responsible and the Minister as his employer in respect of the same wrongful act, the court would have jurisdiction over the claim against the Minister but not over the claim against health professional. But we cannot rationally treat one and the same act as being done purportedly pursuant to the Law by the Minister but as not being done purportedly pursuant to the Law by the agent performing the relevant statutory function on his behalf.
(iii) Article 50(1) envisages that a defendant might, apart from the Article, be liable in respect of the relevant acts or on any other ground. It also envisages that the relevant acts may be done as well as without reasonable care. A staff member may incur liability on some ground other than want of jurisdiction, and his work may give rise to liability on account of his negligence. But although examples could doubtless be devised of circumstances in which a health professional may incur liability on the ground of or by acting , these particular expressions are more appropriate to the position of the Minister directly exercising statutory discretions rather than to that of his agents performing the ordinary care functions pursuant to their contractual relationship with him.
(iv) The statutory purpose of protecting hospital staff from harassment by unfounded litigation would not, as it seems to me, be served by preventing actions without leave against the health professional personally responsible but allowing them against the minister. In the ordinary course, these will be actions against the Minister based on his vicarious liability for the relevant acts of his employees. They would involve an investigation of the conduct of the relevant staff members, who would commonly have to give evidence just as if they had been impleaded directly. I have already quoted the United Kingdom Government's white paper of 1978. It regards the need to appear in court to respond to allegations against them as the main source of concern to health professionals. This seems realistic.
16. It follows that these proceedings are a nullity and must be dismissed. I agree with the Commissioner, and would dismiss the appeal.
17. The Commissioner expressed misgivings about the order which he felt bound to make, because he thought it technical and unjust. I have to say that I do not share these misgivings. Article 50(2) is not a prohibition on the relevant category of proceedings, but a procedural filter designed to bar those which have no merit. It rules out litigation only if the Plaintiff is unable to satisfy the Superior Number of the Royal Court that he has evidence amounting to a prima facie case to support his allegation of negligence or bad faith. It is difficult to see that justice requires that he should be allowed to bring an action for which he has no prima facie case. In Ashingdane v. United Kingdom (1985) 7 EHRR 528, the European Court of Human Rights held that the corresponding restriction in Section 139(2) of the United Kingdom Mental Health Act 1983 was consistent with the right of access to a court conferred by Article 6 of the Convention, provided (i) that it did not impair the essence of the right, and (ii) that it was proportionate to a legitimate legislative objective. The protection of those responsible for the care of mental patients is a legitimate objective: M v. United Kingdom (1987) 52 DR 269, 270. Given the low threshold set by Article 50 for obtaining leave from the Superior Number it would be difficult to argue that the restrictions in Article 50(2) impair the essence of a patient's right of access to a court, or that they are disproportionate to the objective of protecting health professionals from harassment. Mr. Le Quesne has wisely not sought to do so.
18. The reality is that Mr. Highfield's problem does not arise from Article 50(2) at all. Assuming in his favour that his pleaded case is true, he would have had no difficulty in satisfying the requirements of the Article. Unfortunately, he waited until the very end of the limitation period before beginning his action, and left himself with no time to obtain leave once the need for it became apparent.