Public & Administrative
“A strong public lawyer, who garners much praise from market commentators for her work in this area.”
Chambers & Partners
Susanna is due to appear next month in the Court of Appeal hearing of R (YZ) v Oxleas NHS Foundation trust (2) West London Mental Health Trust; please see full details below.
experience & expertise
Susanna is frequently instructed on public law matters. Her specialist mental health law and community care practice encompasses judicial review, high-security psychiatric tribunals, and advising and acting in all other aspects of mental health law.
At present she is instructed in a novel case involving the human rights of a transgender psychiatric patient. The case challenges the decision to transfer him into high security psychiatric care under the Mental Health Act 1983, in circumstances where his gender dysphoria had been inadequately treated and where alternatives to transfer had not been explored. The claim alleges a violation of the principle of ‘least restriction’ contained in the Act and breaches of his Convention rights, and will be heard in the Court of Appeal later this year.
Cases & work of note
Patients’ right to choose provider of mental health services
Instructed (led by Angus Moon KC) on behalf of NHS England in judicial review proceedings concerning the interpretation of Regulations on patient choice, and the meaning and legal requirements of an NHS ‘commissioning contract’. The claimant alleged that the interpretation of the Regulations required her GP to refer her to a healthcare provider of her choice, regardless of the arrangements already put in place by the Clinical Commissioning Group to commission services of that nature.
Powers of ‘Hospital Managers’ to discharge patient from detention
South Staffordshire and Shropshire Healthcare NHS Foundation Trust v St George’s Hospital Managers  EWHC 1196 (Admin)
Susanna acted for the panel of Hospital Managers who had released a patient from detention under the Mental Health Act 1983, using the powers delegated to them by the claimant Trust. The Trust brought a claim for judicial review, concerned that the decision to release the patient ran contrary to a decision of the First Tier Tribunal one month earlier, which had decided the patient was dangerous. The Court dismissed the claim, accepting the case put on behalf of the Hospital Managers that the Tribunal decision was a permissible, not a mandatory relevant consideration for the panel, that the panel were entitled to put in evidence expanding on the reasons for their decision, and that their decision had been reasonable.
Ultra-vires decision affecting patients’ freedom to move around a hospital
Following an incident at a private psychiatric hospital from which a patient had absconded, the Ministry of Justice purported to ban the hospital from allowing patients out of their units and onto hospital grounds without the Ministry of Justice’s prior permission. Susanna advised on the legality of this decision, which was contrary to guidance and s.17 of the Mental Health Act 1983. She delivered pragmatic advice that led to the Ministry of Justice accepting the hospital’s position in law, as well as their reasons as to why the absconsion was unlikely to be repeated. This removed the need for the client to commence judicial review proceedings.
Interpretation of ‘Who Pays?’ guidance
Instructed to advise and appear on behalf of a Clinical Commissioning Group in a judicial review concerning the interpretation of the ‘Who Pays?’ guidance. The proceedings arose from a dispute as to which CCG was the responsible commissioner for a psychiatric patient, whose care ran into hundreds of thousands of pounds. The matter was settled in the client’s favour after the first hearing at which permission had been granted.
Regulator’s request to hospital to shut seclusion rooms
Recent instruction for a private psychiatric hospital commencing judicial review proceedings against the CQC, following demands for the withdrawal and redesign of the hospital’s seclusion facilities following inspection. The hospital could not have accepted patients without a functioning seclusion room, and would have had to close. The matter was settled in the client’s favour following the drafting of pleadings and advice.
Judicial review of General Medical Council regulatory decision
R (Adam) v General Medical Council  EWHC 3378 (Admin)
Instructed (led by John de Bono KC) to act for a doctor concerned about patient safety, who commenced judicial review proceedings after her complaints to the GMC had been dismissed. The GMC conceded the majority of the claim, relating to ten doctors involved in a patient safety matter, where the GMC had erred in law in failing to progress investigations to the next stage. The case relating to one remaining doctor, in respect of whom the GMC made no concession, was considered by the Administrative Court at a rolled-up hearing.
New public-law duty confirmed by the Administrative Court
In AB v A Chief Constable  IRLR 700 Susanna acted for the Chief Constable (led by John Beggs KC). A former police officer, the subject of gross misconduct proceedings, had secured employment with a regulatory body subject to provision of a satisfactory reference. The reference obtained by him in the force’s name was sparse and made no mention of the allegations against him; this caused consternation when it was discovered within the force. The former officer commenced judicial review proceedings to prevent the Chief Constable from communicating to the regulatory body the matters of concern. The Administrative Court accepted the novel legal argument that there was a duty on the Chief Constable at public law to provide a full and frank reference, not a ‘standard’ reference, though held for other reasons that the second reference could not be sent.
Judicial review of coroner’s judgmental comments
R (Dr S) v HM Senior Coroner (Yorkshire North East area)
Instructed for a doctor who had been criticised by a coroner, who had made unjustified findings as to the doctor’s conduct and adverse comments about the doctor’s honesty. This had triggered the doctor’s duty to self-refer to the General Medical Council. Susanna advised on and acted in judicial review proceedings brought by the doctor against the coroner, backed by the Medical Protection Society. Permission was granted and the coroner eventually conceded that his comments had been unlawful, being outside the scope of what a coroner was entitled to find and contrary to the requirements of natural justice. The Administrative Court struck the coroner’s comments from the record.
Duty to give reasons to mental health patient recalled to hospital
R (Lee-Hirons) v Secretary of State for Justice  MHLR 38
Instructions for the hospital concerned in this case, which was an Interested Party.
Restraint of publication against OFSTED
Susanna has recently advised a private educational facility affected by a poor OFSTED report as to judicial review proceedings and restraint of publication against OFSTED. The considerations and law involved in this are very similar to those involved in advising care homes about CQC inspection reports, where the ‘factual accuracy’ stage does not always lead to the changes the care home desires.