Case No: C3/2012/2208 + 2209
Neutral Citation Number: [2013] EWCA Civ 701
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Royal Courts of Justice
Strand
London WC2A 2LL

Wednesday, 8 May 2013

B e f o r e:

LORD JUSTICE LAWS

LORD JUSTICE RIMER

LORD JUSTICE BEATSON
- - - - - - - - - - - - - - - -

Between:

(1) C
(2) F
Appellants

v

BIRMINGHAM AND SOLIHULL MENTAL HEALTH NHS TRUST AND ANOTHER
Respondent
- - - - - - - - - - - - - - - -
 (DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr Roger Pezzani (instructed by Guile Nicholas Solicitors) appeared on behalf of the Appellants
Mr Martin Chamberlain QC (instructed by Treasury Solicitors) appeared on behalf of the Respondents
- - - - - - - - - - - - - - - -
J U D G M E N T
Lord Justice Laws:  
1.	These linked appeals are brought against the decision of the Upper Tribunal (Judge Rowland) given on 29 May 2012.  By it the Upper Tribunal dismissed both appellants' appeals and their alternative applications for judicial review (permission) directed to the determinations of the First‑tier Tribunal of the FTT in each of the appellants' cases.  Permission to appeal to this court was granted on consideration of the papers by Maurice Kay LJ on 20 December 2012 (the applicant C) and 21 December 2012 (the appellant F).
2.	Judge Rowland identified the single point at issue in paragraph 1 of his decision as follows: 
"whether a patient detained under the Mental Health Act 1983 may challenge a decision by the First-tier Tribunal to refuse to make an extra‑statutory recommendation as to his future care or treatment." 
1.	In fact, and I shall come to this, Mr Pezzani for the appellants now submits that the language of recommendation is an unhelpful distraction.  Both appellants are "restricted patients"; that is to say they were made subject to Hospital Orders pursuant to the Mental Health Act 1983 (section 37) following their conviction for criminal offences, there being evidence from two doctors that each was suffering from mental disorder, and also Restriction Orders under section 41 of the 1983 Act on the footing that restriction under that section was necessary to protect the public from serious harm.  
3.	Restricted patients are subject to indefinite detention.  Leave of absence or transfer to another hospital requires the consent of the Secretary of State (section 41(3)(c)(i) and (ii) of the 1983 Act).  The discharge of a restricted patient by order of the FTT is governed by section 73.  The patient must be absolutely discharged if the FTT is not satisfied of the matters specified in section 72(1)(b)(i), (ii) or (iia).  Section 72(1)(b)(iia) was inserted by the Mental Health Act 2007.  This provision is now at the forefront of Mr Pezzani's argument for the appellants.  Taken with section 73(1)(a) it requires a restricted patient to be discharged if the FTT is not satisfied "that appropriate medical treatment is available for him".  Section 72(3)(a) confers on the FTT a statutory discretion in the case of an unrestricted patient to recommend the grant of leave of absence or transfer to another hospital "with a view to facilitating his discharge on a future date".  There is no analogue applying to restricted patients (see ex parte Smith, The Times, 12 October 1988, confirming McNeill J at first instance).
4.	The Upper Tribunal succinctly described the salient facts of the two cases as follows: 
 “7. In the first case before me, (C), the hospital order and restriction order were made in 2005. The patient was conditionally discharged in 2006 but recalled in 2008. He was again conditionally discharged on 1 April 2010 but was recalled on 30 April 2011. Following that recall, the Secretary of State referred the case to the First-tier Tribunal on 7 September 2011. The Appellant’s statement of facts, which has not been challenged and which I accept as accurate for the purpose of this appeal, says – 
 ‘6. The appellant did not ask the tribunal to discharge him. His sole application was for a recommendation that he be granted leave outside the hospital.
7. The tribunal announced at the outset of the hearing and before hearing any evidence that it had decided [it] would not recommend that the appellant be granted leave. Further, the applicant’s solicitor was told that she would not be allowed to ask any questions on the subject of leave. Later in the hearing, when the solicitor attempted to ask such questions of Dr Maganty, the responsible clinician, she was stopped from doing so. 
8. The solicitor had also brought to the tribunal’s attention an entry in the appellant’s RIO computerised records, dated 22 August 2011, in which the responsible clinician had recorded that ‘…if the MHRT [sic] supports his request for escorted community leave then he will apply to the MoJ for escorted community leave further supported by the recommendation of the MHRT.’
8. The statement of reasons was brief and I need set out only paragraph 3 and paragraph 7.
 ‘3. The Tribunal were concerned that in view of the fact that the Team was considering community leave to be imminent that it would not be appropriate for the tribunal to enter into micro management and interfere with the professional judgment of the Responsible Clinician and his Team. When Dr Maganty gave evidence he informed the Tribunal that in fact the letter to the Ministry of Justice had been drafted seeking community leave and would soon be posted. The Tribunal saw nothing in the evidence to suggest that this was not the appropriate course of action.’
 ‘7. The Tribunal accepts the evidence of the clinical team that the patient is properly detained and that treatment is appropriate and the patient is progressing well and will shortly have properly monitored community leave.’ 
 […]       
10.  In the second case before me, (F), the hospital order and restriction order were made in 2006.  On a date not revealed in the documents before me, the patient made an application to the First‑tier Tribunal under section 70(b), which came before the First‑tier Tribunal on 20 September 2011.  The Appellant's statement of facts, which has not been challenged, says –  
 ‘6.  …Before any evidence has been heard, [the patient's] solicitor told the tribunal that what was sought was an extra‑statutory recommendation that he be transferred to less restrictive conditions of detention. 
7.  …According to the solicitor's note, the judge said 
'I am very reluctant to give an extra‑statutory recommendation.  The only value of extra‑statutory recommendations [is] if there are unreasonable obstructions to move by the MOJ.  This is my personal view and you will not shift me from this view.' 
8. During the course of the hearing the solicitor asked questions and made submissions in relation to the application for a recommendation.’ 
11.  The First‑tier Tribunal did not discharge the patient.  Its statement of reasons did not mention the request for an extra‑statutory recommendation at all." 
7.	Tribunals have in fact from time to time made recommendations for leave or transfer, or, in McNeill J's phrase in ex parte Smith, given "informal advice" in the case of restricted patients.  Mr Douglas Hogg, then Minister of State at the Home Office, gave a written answer about this in the House of Commons on 28 October 1987 as follows: 
"Any such recommendation received in the Home Office is acknowledged, and any comments are offered which can usefully be made at that stage. Correspondence with the tribunal is copied to the patient's responsible medical officer, since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on a tribunal's recommendation, full account is taken of the tribunal's views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the tribunal had made. [see Hansard, House of Commons, volume 121, columns 261 to 262 for 28 October 1987]."
8.	Although Mr Pezzani placed the main burden of his argument on section 72(1)(b)(iia), and I will of course come to that, I should deal first with the submissions as they were earlier advanced in his skeleton argument.
9.	First, there is an argument put forward based, or partly based, on the parliamentary answer of 1987 and what is said to have been the practice of Tribunals.  It is that the appellants enjoyed a legitimate expectation, enforceable as a matter of public law.  Now, plainly there could be no legitimate expectation that the FTT would make a recommendation.  Aside from anything else, it must be obvious that the FTT may conclude that on the merits no such recommendation would be justified.  Rather, the expectation suggested must be a procedural one, namely that the FTT would entertain submissions as to whether a recommendation should be made and take such submissions properly into account in deciding what to do.  But neither the Minister's statement of October 1987 nor the fact that from time to time the MHRT or the FTT have chosen to make recommendations in the case of restricted patients is capable on ordinary principles of generating any such expectation.  There is no evidence of a promise or practice for allowing representations or conferring procedural rights as regards the making of such representations or submissions.  The Upper Tribunal accepted (paragraph 21) that the written answer "may create a legitimate expectation as to how recommendations will be regarded by the Secretary of State".  It accepted also (paragraph 23) that "decisions arising out of extra‑statutory recommendations may sometimes be challengeable".  But none of this suggests or implies a procedural right to have arguments in favour of recommendations heard and considered.  There is, it is true, something of a debate, reflected in paragraph 22 of the Upper Tribunal decision, as to whether an affected restricted patient may enjoy procedural rights if and when the FTT has concluded that it will make a recommendation.  But even if one allows such rights, and I by no means hold that the court should do so, that is, as it seems to me, a very far cry from according a right at the applicant's choice to advance submissions in favour of a recommendation and have them considered.  Such a right would remove the question whether a recommendation should be contemplated out of the hands of the FTT and into the hands of the applicant.  That is a categorical difference.
10.	Before coming to section 72(1)(b)(iia) I should indicate that to my mind it is very difficult to see what might be the source of such a procedural right if there is no legitimate expectation, as I hold there is not.  Mr Pezzani cites well‑known authority on judicial review decisions which have no statutory source: ex parte Lain [1967] 2 QB 864; ex parte Datafin [1987] QB 815; and CCSU [1984] AC 374.  But these are cases of judicial review of substantive decisions.  There may also, in some cases at least, be review of decisions which have been affected by recommendations (see for example R (P) v Mersey Care NHS Trust and others [2003] EWHC 994.  In a case involving the statutory discretion to make recommendations under section 72(3) of the 1983 Act, there may be judicial review to uphold a duty to give reasons: R (H) V MHRT [2002] EWHC (Admin) 170, paragraph 24; R (B) v Nottinghamshire Health Care NHS Trust [2011] UKUT 73, paragraph 13.
11.	All these instances, however, relate either to public law decisions or the exercise of statutory public law functions.  The Secretary of State's guidance in a circular which Lord Fraser considered obiter to be reviewable in Gillick [1986] AC 112 was, if not strictly a decision, at any rate a substantive Act which the Secretary of State chose to put in hand and was, on the facts there, plainly going to have substantial influence on decisions made by medical practitioners.
12.	This case seems to me entirely different from all those instances.  The proposal for an extra‑statutory recommendation plainly involves no exercise of a statutory function.  What the appellants seek here is an enforceable right to put before the FTT a class of case which the FTT, being a creature of statute, has no statutory duty or authority to entertain.  It is to my mind striking that in each of the cases before us the appellants' sole purpose before the FTT was to obtain an extra‑statutory recommendation.  If the court acceded to the appellants' case we would, for all the world, be creating an analogue to the provision contained in section 72(3)(a) relating to recommendations in cases of non‑restricted patients.  But Parliament must be taken to have omitted any such analogue advisedly.
13.	I should add there is some authority to the effect that a failure to make a non‑statutory recommendation is not subject to appeal or review.  (See in the immigration context what Kennedy LJ said in Khatib‑Shahidi [2001] IAR 124, paragraph 37: his reasoning was applied in the present context by Maurice Kay J (as he then was) in LM [2002] EWHC (Admin) 170, paragraph 19 and by Stanley Burnton J (as he then was) in R (H) [2002] EWHC (Admin) 1522, paragraph 23.
14.	For all these reasons I would decline to accept Mr Pezzani's case as formulated in his skeleton argument.  What then of the argument based on section 72(1)(b)(iia), which, as I have said, was at the forefront of his submissions this morning?
15.	Mr Pezzani submits that leave of absence and transfer are, or may be, functions of a patient's treatment, sometimes an important part.  As a bare proposition, that is no doubt right.  Where those factors arise as treatment, or may so arise, it is said the FTT is accordingly bound to consider them, given the terms of section 72(1)(b)(iia).  Again, no contest.  In doing so, it is submitted the FTT will make all the findings necessary for a non‑statutory recommendation such as was in fact sought in these cases.  Its reasoned decision will have the same material effect as a recommendation.  
16.	Mr Pezzani refined the argument this morning.  He submits, as I have foreshadowed, that the language of recommendation is itself a distraction.  If it is suggested to the FTT, he says, that leave or transfer is on the facts a part of treatment, that must be listened to and findings made, and that amounts to the very exercise which the FTT would undertake if it received submissions for a recommendation.
17.	Of course, the FTT must fulfil its duty under sections 72 and 73.  Nothing could be more elementary.  In my judgment, it did so here (see the FTT's reasons in the C case, paragraphs 4‑7; in F, paragraph 2‑17).  The FTT dealt with the cases put before it on the facts.  The suggestion now made in relation to section 72(1)(b)(iia) was not put before the FTT.  The express case of each appellant in the FTT was, as I have indicated, to seek a non‑statutory recommendation.  To suggest either before the Upper Tribunal or here that the FTT have not properly considered what might constitute "treatment" is to raise a new factual case, a case which, in my judgment, the FTT cannot have been obliged to consider for itself.
18.	I should add that none of this is undermined or indeed affected by the terms of the Secretary of State's Mental Health Act Code of Practice issued under section 118 of the Act, to which we were referred this morning.  It is, however, worth noting paragraph 6.12 of that document: 
 “Medical treatment need not be the most appropriate medical treatment that could ideally be made available. Nor does it need to address every aspect of the person’s disorder. But the treatment available at any time must be an appropriate response to the patient’s condition and situation.”
19.	I accept that if the FTT are faced with a contention and with evidence that leave or transfer is a necessary part or desirable or available part of the patient's treatment, that is something which they must consider.  They must consider it because in effect sections 72 and 73 so enjoin.  But that is not what happened here.  Mr Pezzani's submission is elegant, but consists in factual points which are in truth being deployed as a surrogate for the straightforward but incorrect argument that the FTT should have received submissions to promote an extra‑statutory recommendation.  
20.	I would dismiss these appeals. 
Lord Justice Rimer:  
21.	I agree. 
Lord Justice Beatson:  
22.	I also agree.  In view of what was said when permission was granted, I add a few comments in my own words.
23.	Apart from Mr Pezzani's submissions on section 72(1)(b)(iia) of the Mental Health Act 1983 Act (as amended), the short answer to his submissions, in my judgment, is that since the Tribunals in the appeals before us are, as the Upper Tribunal said at paragraph 21 of its decision, creatures of statute, they had only the power that was given to them by statute.  In the case of restricted patients, unlike unrestricted patients, there was no provision for making recommendations.  The indications from the statute and section 72(3) are that there was a crafted distinction between the two categories.
24.	In those circumstances, it is difficult to understand how or why the Tribunal could be under a duty to consider making a recommendation.  It is difficult to see how a practice based on a written answer given by a minister some 25 years ago, even if there are useful aspects to it in practice, can confer jurisdiction on a Tribunal where the governing statute does not do so.  Mr Pezzani accepted that the Tribunal had no power, but relied on this practice which he submitted could give rise to a legitimate expectation.  I agree with my Lord, Laws LJ, that this point does not run.
25.	I also consider that, given the way that these cases were put to the First‑tier Tribunal, it is not arguable that the Tribunal fell into error in not considering the question of appropriate treatment and the section 72(1)(b)(iia) point which were not before it.  
26.	Leaving aside that point, in C's case, both the FTT and the UT did not consider that the appropriate medical treatment was not available or not being given (see the FTT at paragraph 7).  The FTT took account, as it was entitled to do, that the responsible clinician had already drafted and was about to send a letter to the Ministry seeking community leave.
27.	Similarly, in F's case the Tribunal made an express finding that appropriate medical treatment was available and being provided.  In neither case were these findings challenged before the Upper Tribunal.  In those circumstances there was no error in expressing a general reluctance to give an extra‑statutory recommendation or, in Mr Pezzani's reformulation, a ruling on appropriate treatment, save where the Ministry of Justice was unreasonably objecting to a course of action proposed by the responsible clinician.
28.	Furthermore, in a case in which appropriate medical treatment is not available as a result of the amendments introduced by the 2007 Act, the Tribunal will have to direct discharge.  Accordingly, the factual scenario which Mr Pezzani posited as the linchpin of his submissions on section 72(1)(b)(iia) is inconsistent with the contention that these cases are ones in which a patient is entitled to insist that a request for an extra‑statutory recommendation or a ruling on appropriate treatment is considered. 
Order:  Appeals dismissed