NHS: Trust needs to belatedly comply with order
A King’s Bench master has ordered an NHS trust to comply with a requirement that it provide a witness statement explaining why it had not engaged with proposed ADR.
Deputy Master Marzec also urged the parties to comply with an earlier order to keep ADR in mind at all times to settle the claim.
She made the comments while rejecting a bid by Leeds and York Partnership NHS Foundation Trust (‘D2’ in the ruling) to strike out a claim brought over the detention of a woman under the Mental Health Act 1983, including her husband’s claim that it infringed his right to family life. The couple were litigants in person.
After finding that a strike out would be too severe a sanction for the claimants failing to serve expert evidence as per a March 2024 order of Master Stevens, the judge said the claimants submitted that D2 had breached the same order, which required that any party not engaging in any proposed ADR was to serve a witness statement giving reasons within 21 days of receipt of that proposal.
In May 2024, the claimants wrote to D2’s solicitors, Capsticks, proposing ADR. Capsticks responded, stating that they were prepared to do so and asked what form the claimants were suggesting.
The claimants said they proposed mediation, but there was no reply from Capsticks.
Deputy Master Marzec held that the claimants were correct to say D2 had not complied with the order.
D2 told the judge that it was willing to engage in ADR but had told the claimants it needed sight of the claimants’ expert evidence in order for it to be effective.
But she said this was irrelevant: “In this case, even after the claimants specified that their proposed ADR method was mediation, D2 did not begin to engage in ADR within 21 days of the claimants’ proposal; they expressly stated that their view was that expert evidence should be served first.
“In compliance with the master’s order, a witness statement should have been served setting out D2’s reasons for not engaging with mediation within 21 days of 4 June 2024. The fact that D2 did not expressly refuse to engage in ADR is nothing to the point.”
Deputy Master Marzec directed D2 to comply with the order – “albeit belatedly” – and serve a witness statement giving reasons why it did not engage with mediation following receipt of the claimants’ proposal.
“I would also urge the parties to review paragraph 2 of the master’s order (including the requirement to consider settling this litigation by any means of ADR at all stages), and to ensure that they comply with it.”
The deputy master also rejected the trust’s submissions that the claim was time-barred, and that the statement of case disclosed no reasonable grounds for bringing the claim or was an abuse of process.
She said that, even if she was wrong as to the claim’s prospects of success, “in my judgment there is to be a good, indeed a compelling, reason for this case to go to trial”.
“When a decision is made to deprive someone of their liberty and forcibly inject them with medication against their will, at the very least the responsible authority should explain and justify its decisions.”
Earlier this year, at a separate hearing, the deputy master refused the claimants’ application to stay the proceedings for ADR, rejecting their contention that it was mandatory for the parties to engage in it.
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