QUEEN'S BENCH DIVISION
B e f o r e :
|THE QUEEN, ON THE APPLICATION OF CS||(CLAIMANT)|
|MENTAL HEALTH REVIEW TRIBUNAL||(RESPONDENT)|
|MANAGERS OF HOMERTON HOSPITAL|
|(EAST LONDON & CITY MENTAL HEALTH NHS TRUST)||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR STEPHEN SIMBLET (instructed by Hereward Forster Solicitors, 101 Barking Road, Canning Town, London E16 4HQ) appeared on behalf of the CLAIMANT
MS KRISTINA STERN (instructed by Treasury Solicitors, Queen's Anne's Chambers, 28 Broadway, London SW1H 9JS & Bevan Ashford, 1 Chancery Lane, London WC1A 1LF) appeared on behalf of the DEFENDANT & INTERESTED PARTY
Crown Copyright ©
"* The very fixed nature of CS's psychotic symptoms, their distressing nature and the very significant impact they were having on her ability to care for herself.
* Ongoing concerns were expressed by CS's closest friends, who felt CS should remain under section at this time. CS's friends had previously been caring for CS's illness extremely competently for over ten years and felt that this episode was significantly more severe.
* CS's ongoing reluctance to take the medication that had previously been useful to her and her inability to accept the current episode as a mental illness made it impossible to treat CS appropriately on an informal basis."
"Her insight remains very poor and given the history of non-compliance with medication and disengagement with services in the past and recent non-compliance, she still needs treatment under section. If she was informal, the likelihood is that CS would refuse medication and deteriorate rapidly, posing a risk to herself.
The plan is for CS to continue with the depot medication and finally to be discharged back to the care of the AOS. Due to recent concerns regarding her non-compliance and trying to disengage with The Assertive Outreach Team, I do not believe that CS will be able to comply fully with this plan. She does not have sufficient insight into her situation to manage this as a voluntary patient at present.
I recommend that she continue to be detained under section 3."
"The section 3 is still required for CS's own health and safety but not for the safety of others. ...
I saw her last Wednesday (28.01.04). ... She has now accepted the depot.
Since last month things have gone well. She is communicating well with the AOS and still attending ward rounds. ... She has fixed delusions. These were present last Wednesday when I saw CS. She has a negative way of thinking, almost total hopelessness. She has very limited insight into her condition.
... CS feels that she has been sentenced to death. She is already dead or as good as dead.
The ring, Judaism etc, these delusions are still present. Her ideas have not shifted at all. ...
Since I have known CS she has been in hospital several times. Her last leave from the ward did not go very well. It is currently a touchy situation. Things could get worse for CS.
I hope that things continue to improve but there is a chance that things could get worse.
CS should stay on her current medication at present. It is working. She is engaging well with the AOS and she is engaging with her psychologist. It is all positive but slow.
CS says that she will continue to take her depot until May. I am not so sure. I do not think she has enough insight into her own condition. I do not think she would comply for very long. She is reasonably happily engaged with AOS.
In the past her deterioration has been pretty quick if disengaged.
Nothing different for affective side of things ... Work with that rather than enforcing any medication.
... At present she is seeing the AOS two times a week. She has requested that she sees the AOS once a fortnight.
The AOS on their own cannot cure CS. She needs medication as well. She needs the insight work and medication together.
I understand that CS wanted the depot to be given on the ward and not by the AOS. [The RMO was referring to the events of 7th and 8th January.]
We have two ward rounds a week. For one of the ward rounds CS may not be present but we will always mention her briefly. If CS is present this could be anything up to twenty minutes.
CS is now returning to the hospital for ward rounds once every four weeks, instead of once every two weeks.
I think that section 3 is useful. I am not sure why it works. She has been better since 5th November 2003.
If things go well then Dr Cross will take over and I will take less responsibility on the ward.
I think it is helpful that she knows that she has the hospital there for her.
There will be no hospital treatment after four weeks, depending on how things go during the four weeks.
I have written a section 17 form for the next four weeks. I signed it last Wednesday. I said, 'I will see you again in four weeks or if things go well Dr Cross will see you.'"
Asked whether that was an expectation, she replied:
"You are asking about intangibles. I cannot give a definite answer.
The aim is that CS has less and less to do with the ward. AOS would have more responsibility with CS.
The psychologist said that CS was very careful with what she says to him and what she brings into the sessions. Now CS is also seeing a psychotherapist. I do not think it is good to see both a psychologist and a psychotherapist. The two professions should discuss the matter together."
Claire Gunson, the Outreach nurse, explained her own anxiety:
"It is complicated. She feels on her way to death. She thinks that death has occurred already. Self-neglect is a worry. I worry that she would disengage with the AOS and her friends. This has happened in the past. ...
If CS stopped taking her medication, she will get back into illness and then spiral out of control. Historically it has been shown that CS will not take her medication."
1. For the past decade CS has suffered from a psychotic illness. ... I concur with the frequently cited diagnosis of schizo-affective disorder. These illnesses have responded well to neuroleptic medication, but her view that she does not need medication and consequent reluctance to comply in the community has occasioned frequent relapse.
2. The present illness appears to be responding well to Piportil, as far as the psychotic symptoms are concerned, but she still has some way to go and I believe consideration might be given to a modest increase in the dose. She is also, I feel, nurturing an affective illness that merits treatment and I fully endorse the present suggestion that she be given a course of lithium, perhaps with an anti-depressant being considered later. Maybe reluctantly, CS told me that she would fully comply with such a programme.
4. Meanwhile, I believe CS is sincere in her assertion that she will cooperate with her treatment programme and that accordingly her detention under Section can be lifted without peril to herself or others.
1. In light of this opinion, therefore, may I respectfully recommend that the tribunal grant CS's request that her detention under section 3 of the Mental Health Act (1983) be rescinded.
2. May I further recommend to CS that she give her full cooperation to those providing her care and in particular that she comply with her prescribed medication."
"... she has a record of non-compliance with medication and disengagement from Community Services when out of Hospital, leading to quick relapse and readmission. The patient's condition has been characterised by paranoid delusions, somatic delusions, (someone interfering with her body), beliefs that her body was rotting in response to her belief that she had done a terrible act, and she has delusions of guilt. Her nutrition, self-care and home-care caused concern before this admission. She became socially isolated, did not feel safe in her flat and has wandered in the past. She is pessimistic and has talked of harming herself if her physical health deteriorates. ...
Since this admission, although her self-care has improved, her core delusions have not shifted, nihilistic delusions remain (death is very much around her because of religious events). Negativity and hopelessness are both still present. She has been on full-time section 17 leave since 05.11.03 working with the Assertive Outreach Team (AOT). ...
She has very little insight into her condition and need for medication. The medical oral evidence is that she does not like taking medication and believes she got better naturally in the past. ...
The medical oral evidence is that the patient needs continuing treatment with depot Piportil and AOT work, which were explained at the hearing to include motivational interviewing, insight work, activities of daily living and back to training in the longer term. Both elements of treatment were necessary. The medical evidence is that she is taking medication from and engaging well with the AOT, that she comes back to the hospital at present after four weeks' leave, that the aim is to hand over gradually to the community psychiatrist if things go well. She is also seeing a psychologist, but the RMO stated that things are progressing slowly in that area.
... [The RMO] agreed that things are going well with the section in place, but that, without it, she could easily stop taking medication with a resulting quick deterioration as in the past. The CPN gave evidence that it is an historical probability that the patient would withdraw from medication and if she discontinued treatment with medication she would spiral into social withdrawal and self-neglect. Although the independent report of 9.1.04 believes that the patient is sincere in her assertion that she will cooperate with the treatment programme, Dr Wright also states that the patient is of a view that she does not need medication and is reluctant to comply in the community. The tribunal note that even when she believed she had psychosis on previous admissions ... she did not continue medication or engagement with follow-up and we must therefore have doubts about her compliance on this occasion when she has said clearly that she does not believe that she has psychosis. She said in oral evidence that the reason she would continue medication until May was because her "friends want me to" ... She does not feel that it has helped or is helping her at present.
In view of her past insight, her past history of non-compliance with medication and her disengagement with community following, we feel from all the evidence that she is unlikely at present to be able to comply with treatment as an informal patient. ... In the community she was felt, before admission, to be at risk of exploitation and self-harm ... The section should therefore be retained for her health and safety.
We have taken into account R (on the application of H) v Mental Health Review Tribunal North and East London Region  and from the evidence are satisfied that detention is a proportionate response having regard to the risks on discharge.
... The AOT have stated that a good relationship is currently being built up between the team and the patient. We are satisfied that it is too early in that relationship for consolidation to have taken place, that it needs to continue at its current level of contact for that to be assured.
The RMO has said that the section is necessary for the patient at this stage in case things do not go well which would result in rapid deterioration... It would also enable the hand-over to the community psychiatrist, which is at an early, and therefore crucial stage, to take place safely in accordance with the needs of the patient. Although the representative submitted that there must come a point when she cannot go on having successive on-leave ... we are satisfied that that point has not yet arrived, that the hand-over to the community is not yet safely established. We look (as the cases presented to us today tell us to do) at the whole course of the patient's treatment, past, present and future, and are satisfied from past history, from present level of insight and present and future transfer plans into the community ... that it is too early to discharge the section today."
"(1) Where application is made to a mental health review tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and---
(b) The tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied---
(i) that he is then suffering from mental illness ... of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii)that it is necessary for the health or safety of the patient ... that he should receive such treatment;
(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard---
(a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient's condition; and
(b) in the case of a patient suffering from mental illness ... to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation."
"On my reading of the 1959 Act 'liable to be detained' is used both to cover a person who is detained and a person who would be detained if he were not on leave. The opening words of section 20(3) require the responsible medical officer to examine those who are 'liable to be detained'. This literally applies to those on leave but it must also refer to those who are 'detained'. It is to the managers of the hospital where the 'patient is detained' that the report is to be furnished. However, I do not find it inappropriate to describe the hospital of a patient who is on leave in this way. As [counsel] submits the detention does not have to be continuous, as section 17 makes clear, but even when on leave the patient still has a hospital at which he is detained when not on leave. Equally, he will for the purpose of section 20(4) continue to be detained whether when the report is furnished he is in hospital or liable to be required to return to hospital."
"So far as his analysis causes McCullough J to come to the conclusion that section 3 'only covers those whose mental condition is believed to require a period of in-patient treatment' I have no reason to quarrel with his reasoning. The overnight admission of W was not the in-patient treatment which justifies section 3 being invoked. It is his reasoning as to the interpretation of section 20 which I regard as being wrong and leading to results which cannot have been intended by Parliament. ...
McCullough J's judgment has been now been applied for many years by the medical profession. They have accepted that a patient on leave under section 17 cannot have his detention renewed under section 20. Consequently, care is taken to ensure that a patient is not on leave when the renewal takes place. The need to rearrange leave is an inconvenience but nothing more than an unnecessary inconvenience. More serious is the indirect consequence that [counsel] contends follows from McCullough J's reasoning. ...
If [counsel's] approach is right it creates considerable difficulties in treating the many patients like the appellant who should be treated partly as an in-patient and partly as an out-patient as described by Dr Taylor in the case of the appellant. In such cases the activities which take place as part of the in-patient treatment may all individually be capable of being performed without the treatment taking place in the hospital, yet for the treatment as a whole to be successful there will often need to be an in-patient element to the treatment which means it is in fact 'appropriate for him to receive medical treatment in a hospital' and 'that it cannot be provided unless he continues to be detained'. The requirement that the patient has to return to hospital and be monitored and is liable to be recalled and from time to time is subjected to the discipline of being treated in hospital as an in-patient under direct supervision with urine and other tests is an essential part of the treatments. They enable the patient to attempt the process of rehabilitation in the wider community which would be more precarious otherwise. ...
... It is the treatment as a whole which must be calculated to alleviate or prevent the deterioration of the mental disorder from which the patient is suffering. As long as treatment viewed in that way involves treatment as an in-patient the requirements of the section can be met."
"... whether a significant component of the plan for the claimant was for treatment in hospital. It is worth noting that, by section 145(1) of the Act, the words 'medical treatment' include rehabilitation under medical supervision. There is no doubt, therefore, that the proposed leave of absence for the claimant is properly regarded as part of her treatment plan. As para 20.1 of the Code of Practice states, 'leave of absence can be an important part of a patient's treatment plan'. Its purpose was to preserve the claimant's links with the community; to reduce the stress caused by hospital surroundings which she found particularly uncongenial; and to build a platform of trust between her and the clinicians upon which dialogue might be constructed and insight on her part into her illness engendered."
I respectfully accept and adopt Wilson J's analysis.
"... the ward round reviews attended by CS consisted of discussions with her about how her leave was progressing, how her medication was suiting her and whether any adjustments were necessary to the dose of her medication. In addition they included supportive and motivational interviewing to help CS to move out of the hospital-based model of care to community-based care under the AOS. This included support with her compliance with medication including achieving insight into the role of medication as an important part of her package of treatment. The treating teams experienced some difficulty getting CS to engage in care, hence her referral to AOS, and efforts to encourage her to continue to engage are still an important part of her care plan. Also in the ward rounds, we would agree the care plan for the next period of leave and negotiate the length of the next period of leave. On the basis of the suitable agreement I would authorise the next section 17 leave."
"28. Mr Simblet's submission is predictable: it is that in the cases of Hallstrom and Gardner McCullough J said that the plan had to be in-patient treatment and that, far from being doubted in the Barking case, that part of his decision was there echoed. He says that the plan in the present case was not for any element of in-patient treatment; and that the other test allegedly reflected in the judgment of Thorpe LJ, namely whether the hospital was to be the patient's 'home base', is also unsatisfied in the present case.
29. I reject Mr Simblet's submission. The test is what is laid down in section 20(4)(a) (and section 3(2)(a)), namely whether the plan is for the patient to receive medical treatment in a hospital. There was no need for McCullough J in the two plain cases of Hallstrom and Gardner, where there was no plan for any treatment in hospital, whether in-patient or out-patient, to hold that the test embraced only in-patient treatment. His remarks, though entitled to very great respect, are obiter; and his distinction between treatment at hospital and treatment in hospital is too subtle for me. When I eat at a restaurant, I eat in a restaurant. In the Barking case, where the limited proposed treatment in hospital happened to be of an in-patient character, it was natural that that word might again be deployed. But that does not make it become the test, any more than the reference of Thorpe LJ to a 'home base' renders that concept the test. The significance of the Barking case is that the renewal was lawful notwithstanding that only part of the plan was for treatment in hospital. It sufficed if that part of the plan was, to borrow another phrase from the judgment of Thorpe LJ, an essential ingredient."
"It is not appropriate to abruptly discharge a patient who has been subject to compulsory admission and treatment as an in-patient for a number of months. I would strongly disagree with an assertion that it is better for a patient to be discharged straight into the community without adequate phasing of care and then re-sectioned if the patient suffers a relapse. Such a statement shows little insight into modern means of engaging and treating patients with severe mental illness. With the rest of her multi-disciplinary treating team, I have worked hard with CS to engage her in thinking about her own illness in a way that allows her to accept medical treatment. To allow CS's section to lapse or bring it to an abrupt end only to re-section her would greatly upset CS and damage the relationship between her and the clinical team. It would also mean that mental health services were only able to engage once CS has suffered a significant deterioration. CS has a very distressing illness when it is in its acute phase and we have attempted to help her to avoid acute exacerbations of her illness. Bringing her back from leave at the earliest sign of deterioration has avoided a significant descent into her severest symptoms and has led to limited rather than prolonged periods spent on the ward before further leave could be granted."
"Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary."
In that case the Court of Appeal held that the Secretary of State's policy was Article 5 compliant.