England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		Tuesday, 13th June 2000

Tuesday, 13th June 2000

JUDGMENT
1. MR JUSTICE SCOTT-BAKER: There is before the court an application for judicial review of a decision of The North East Thames Mental Health Review Tribunal of 19th March 1999, who conditionally discharged the Applicant rather than granting him an absolute discharge.
2. The history of the Applicant can be fairly briefly stated. In February 1991, he was admitted to Kneesworth Hospital under Sections 37 and 41 of the Mental Health Act 1983, following a conviction for armed robbery. In January 1992, he was conditionally discharged under Section 73 of that Act. He was subsequently recalled.
3. On 20th September 1993, he was again conditionally discharged. The conditions are to be found at page 5 of the bundle and they were as follows:

"(a) he should accept medication as directed by Dr Hamilton; (b) he should attend Dr Hamilton's clinic as and when required; (c) he should receive social supervision from Mr Jones; (d) he should reside at 73 Sydney Boyd Court, West End Lane, London, NW6."

4. On 14th March 1996, the Mental Health Review Tribunal considered the Applicant's request for an absolute discharge. It found that he had shown a resilience and maintained progress to a degree which was unexpected and laudable. It was nevertheless satisfied that the Applicant should remain liable to recall. Shortly afterwards the tribunal removed the condition that he should accept medication as directed by Dr Hamilton, he complied and made good progress. However, he was convicted of offences of theft and handling and was sentenced to an 18-month prison sentence, but there was no relapse into mental illness during the course of that sentence.
5. He again asked the Mental Health Review Tribunal for an absolute discharge. The application was made in May 1998, but not heard until March 1999. The reasons for the tribunal's decision to decline an absolute discharge and grant a conditional discharge are to be found at page 56 of the bundle. I quote:

"1. We had a report from the RMO Dr L Hamilton and heard evidence from him, we had a report dated July 28, 1998 from Mr Pattison and heard evidence from him. We had a report dated 14 August 1998 by Dr D Somekh and heard evidence from him.

Dr Hamilton and Mr Pattison and, Dr Somekh recommended that the conditional discharge should be lifted in favour of an absolute discharge. We have taken those recommendations fully into account and the reasons on which they are based.

"Further, we accept that over the last 5 years since the conditional discharge was imposed [on Mr B.] Mr B. has behaved well, has co-operated fully with the psychiatric team, has taken his medication, even though the condition requiring him to take medication has been lifted for the last 2 years. The only breach in his behaviour was a conviction of theft and handling for which he was sentenced to 18 months in prison in 1997.

"However, notwithstanding this positive behaviour, we are very concerned that there is a severe risk that if the section was lifted, that he would, or at least might, stop taking medication which would cause a relapse. Dr Hamilton stated in evidence that he thought it was likely that when Mr B. was no longer liable to be re-called he would want to reduce and eventually stop his medication.

"2. The patient is concerned about his own physical health and the fact that he suffers from high blood-pressure and that the medication may be affecting his kidneys, Dr Hamilton said that it was not possible to conclude that those concerns were delusional. The patient considers that his physical condition, namely high blood-pressure and the effect on his kidneys may be caused by the medication, further reason for stopping it.

"3. His daughter is coming from Jamaica, she is aged 7, to stay with him in the summer and he wishes her to remain. If she remains we consider this could give rise to the stresses of parenthood in respect of which continuous Social Supervision could be important and helpful.

"In all the circumstances and the totality of the evidence put before us, taking fully into account the patient's evidence in particular that he said that if Dr Hamilton told him to continue medication he would continue it and that he had not taken illicit drugs for the last 2 years, we consider that the patient should not be absolutely discharged."

6. So the ground of challenge is that the tribunal should not have gone against the views of Dr Hamilton, Mr Pattison and Dr Somekh. In particular, they were not justified in concluding that there was a severe risk that if the conditional discharge was lifted, he might stop taking his medication, which could cause a relapse.
7. It is said that that decision was irrational. The Applicant appears to have taken the decision refusing him a conditional discharge very badly. At any rate, what happened next was that on 11th August 1999, he was recalled by warrant by the Secretary of State.
8. On 21st September 1999, Mr Justice Tucker gave permission to apply for judicial review on the papers. It seems to me from the documents I have seen, although one cannot be absolutely certain about it, that Mr Justice Tucker was not furnished with the highly material information that the Applicant had in fact been recalled by warrant some six weeks previously.
9. I should perhaps add this: it seems to me that had this information been before Mr Justice Tucker on 21st September, it is highly likely that he would have adjourned the application for an oral hearing with notice to the Secretary of State so that the factual situation could be clarified. It may very well be that having been clarified leave would not have been given. However, this is not an application to set aside leave and to that extent that is water under the bridge.
10. On 30th November last year, a differently constituted tribunal decided afresh that the Applicant should again be conditionally discharged. That tribunal's decision is to be found at page 68 and subsequently in the bundle. It is not necessary to read all of the reasons for the decision, but there is an important passage at page 71. It reads:

"His RMO was Dr Hamilton and his social worker Lee Paterson and he undoubtedly had a good relationship with both of them.

Each of them, together with Dr Somekh recommended that he be absolutely discharged [this is going back to the decision in respect of which review is sought] but a mental health tribunal in March 1999 rejected these recommendations. On all accounts Mr B. took this decision very badly.

"He suffered a further disappointment when his daughter and mother failed to visit him from Jamaica at Christmas and summer 1999. He was further disturbed when both his RMO and social worker were changed in April 1999. It is very probable that he took drugs over a much longer period than he admitted to, judging by the state of his flat as described by two police officers and from the written evidence of two others. We think it highly probable -- but not certain -- that he suffered a relapse in his mental illness as a result of the stresses we have referred to above and that his recall was justified as a result. Even so his failure to attend four appointments with the RMO and one appointment with his social worker on any view justified his immediate recall."

11. I now quote from over the page:

"The tribunal now find that there are no signs of current mental illness to make it appropriate for him to be detained in hospital for medical treatment since the treatment is available in the community (i.e. counselling, medication, and support). Although he has got a mental illness the symptoms are now under control with medication. The tribunal grants a conditional discharge which will need to be deferred because in view of his history it would not be appropriate for him to return to his previous address (besides which a possession order is likely to be issued against him at his current address). It is absolutely essential that before he is discharged into the community the following conditions are arranged or met as the case may be.

"1. He resides at a staffed hostel specified by his multi-disciplinary team; 2. That he attends upon the RMO and follows his directions; 3. He attends upon the designated social worker and CPN and follows their directions; 4. He takes medication as directed; 5. He abstains from illicit drug taking and submits to drug testing as directed by his RMO; 6. He remains liable to recall.

"Mr B. should remain liable to recall because it is very probable that he suffered a relapse recently.

It is also reasonably clear that drug taking contributes to a relapse and although it is very much hoped that he will remain drug free on discharge it cannot be ruled out that he would return to them."

12. No complaint whatever is made about the decision of that tribunal presided over by Mr Gary Flather, OBE QC.
13. It is plain to me that the tribunal considered the Applicant's case with the very greatest care. In the present circumstances, Mr Singh argues that there is no practical purpose and that it is inappropriate for this court to consider now the lawfulness or otherwise of the decision in March 1999.
14. Matters have moved on since then. There has been a hearing before another tribunal and not only would a hearing and a decision now be academic, in respect of the March 1999 tribunal, it would not be in the public interest to proceed with the application and there is no realistic benefit for anybody in doing so, even on the assumption that it was an unlawful decision in March 1999.
15. Ms Fenella Morris, for the Applicant, argues that there is good reason for proceeding with the application. She says that it is an important issue for the future whether the Applicant's response to being refused an absolute discharge was delusional and a consequence of his mental condition, or was a reasonable response to disappointment. This is something, she contends, that future tribunals ought to be able to decide about on a proper basis, and that it is therefore material to know whether the March 1999 decision of the tribunal was unlawful or not.
16. In my judgment, one has to approach a problem of this kind in a realistic manner. One has to consider the situation as it now is. That means that one has to bear in mind that on 30th November 1999, a tribunal went carefully into the facts of the Applicant's case on the basis that they then were. Miss Morris says there is another reason for proceeding with this application because if it succeeds then the likelihood is that the Applicant will succeed in obtaining an earlier review of the case than if he has to wait for a year from November 1999. It seems to me that any benefit there would be marginal at best.
17. I bear in mind that the court here is considering a public law jurisdiction, and that even if unlawfulness is established with regard to the March 1999 decision, the court nevertheless has the remedy of whether or not to grant the Applicant any relief.
18. In my judgment, it is inconceivable, and I have read the papers throughout very carefully in this case, that even if the Applicant succeeded, he would be in the circumstances granted any relief. What is plain, from the decision of the 1999 tribunal, is that there appears to have been a number of reasons for the breakdown that led to the Applicant's recall by the Secretary of State. Not the least of them being, finding that it was very probable that he had been taking drugs over a much longer period than he had admitted.
19. In these circumstances, I expressly make no findings about the lawfulness or otherwise of the decision of the tribunal in March 1999 because I am satisfied that this is not a case in which it is in the public interest to proceed with the application.
20. The application will therefore be refused.