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R (ON THE APPLICATION OF ASHWORTH HOSPITAL AUTHORITY) v. EALING, HAMMERSMITH & HOUNSLOW HEALTH AUTHORITY [2001] EWHC Admin 901 (9th November, 2001)

		Neutral Citation Number: [2001] EWHC Admin 901

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand,
London, WC2A 2LL

9 November 2001

B e f o r e :

THE HONOURABLE MR JUSTICE STANLEY BURNTON
____________________

THE QUEEN ON THE APPLICATION OF ASHWORTH HOSPITAL AUTHORITY
Claimant

- and -

THE MENTAL HEALTH REVIEW TRIBUNAL FOR WEST MIDLANDS & NORTH WEST REGION
Defendant

- and -

H (A PATIENT) (1)

LONDON BOROUGH OF HAMMERSMITH & FULHAM (2)

EALING, HAMMERSMITH & HOUNSLOW HEALTH AUTHORITY (3)
Interested Parties

THE QUEEN ON THE APPLICATION OF

H (A PATIENT)
Claimant

- and -

ASHWORTH HOSPITAL AUTHORITY (1)

LORRAINE BERRY (2)

EDWARD SILVA (3)

MELANIE FRANCES CROY (4)
Defendants

- and -

EALING, HAMMERSMITH & HOUNSLOW HEALTH AUTHORITY
Interested Party

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Alison Foster and Kristina Stern (instructed by Morgan Cole) for Ashworth Hospital Authority, Edward Silva and Melanie Frances Croy
Jenni Richards (instructed by the Treasury Solicitor) for the Tribunal
Paul Walker QC and Jonathan Butler (instructed by Hogans) for H
Stephen Knafler (instructed by the Legal Director, Sefton M.B.C.) for Lorraine Berry
Fenella Morris (instructed by the Legal Services Division of the L.B. of H & F) for the London Borough of Hammersmith & Fulham and Ealing and Hammersmith & Hounslow Health Authority
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

MR JUSTICE STANLEY BURNTON:

The proceedings before the Court

H has been a patient in Ashworth Special Hospital (which I shall refer to as “Ashworth” or “the Hospital”) since September 1994. Until 22 March 2001, he was detained there under section 3 of the Mental Health Act 1983 (“the Act”). On that date, the Mental Health Review Tribunal for West Midlands and North West Region discharged him from detention under the Act. The Tribunal’s decision was announced at about 1.55 p.m., and they directed his discharge with effect from 2 p.m. that day. In the first claim for judicial review before me, the Hospital seeks an order quashing that decision.

The Interested Parties in the first claim, Ealing, Hammersmith & Hounslow Health Authority (“the local health authority”), and the London Borough of Hammersmith & Fulham (“the local authority”) as local social services authority, are the authorities on whom section 117 of the Act imposes a duty to provide after-care services for H on his leaving the Hospital. In addition, the local authority is the local authority that would be obliged, under the Housing Act 1996, to house H on his leaving the Hospital.

H did not leave the Hospital on 22 March. There was nowhere for him to go. He remained as a voluntary patient. On 26 March, Dr Melanie Croy, his responsible medical officer (universally referred to as RMO) under the Act, signed a report on H for the purposes of section 5(2) of the Act, as a result of which H was liable to be detained for a period of 72 hours from the time when the report was furnished to the managers of the hospital. On 28 March, 2 registered medical practitioners, Dr Croy and Dr Edward Silva, an independent psychiatrist, made written recommendations for his admission to treatment pursuant to section 3 of the Act. On 29 March, Miss Lorraine Berry, an approved social worker for the purposes of the Act who is employed by Sefton Metropolitan Borough Council, the local authority for the area in which the Hospital is situated, made an application for H’s admission and detention pursuant to sections 3 and 13 of the Act. On 29 March 2001 at 16.40, the managers of the Hospital acted on that application and have since that date detained H for treatment under the Act.

On 28 August 2001, Dr David Fearnley, who by that date had become H’s RMO in place of Dr Croy, completed and furnished to the managers of the Hospital pursuant to section 20 of the Act a report the effect of which was to authorise his continued detention for treatment. The reasons given by Dr Fearnley were as follows:

“(H) has paranoid schizophrenia and no insight into his condition. He believes that staff are telling lies about him and he is unwilling to engage in his treatment plan. He refuses to see a number of people involved with his care. (H) has a history of violence, related to his lack of insight and his mental illness and requires treatment in a high security setting. He would be non-compliant with treatment in a less secure setting.”

The Hospital’s claim for judicial review of the Tribunal’s decision was commenced on 29 March 2001. In essence, the Hospital contends that the decision of the Tribunal was one that no reasonable Tribunal could properly have come to on the evidence before it, and that the reasons for its decision were wholly inadequate. On the same date I granted the Hospital permission to apply for judicial review and I granted interim relief: I made an order staying the decision of the Tribunal and granting an injunction prohibiting H’s release pursuant to that decision. The order provided that H and the Interested Parties had liberty to apply on 48 hours’ written notice to set it aside, laid down short timetables for the filing of acknowledgments of service and the service of evidence, and provided for the substantive hearing of the claim to be expedited. In the event, no application was made on behalf of H or anyone else to discharge or to vary the order of 29 March. For reasons that were not investigated during the hearing of these proceedings, the substantive hearing did not begin until 15 October 2001.

The second claim for judicial review before me is H’s claim to quash the recommendations of Dr Croy and Dr Silva made on 28 March 2001 and the application of Ms Berry of 29 March 2001, together with the decision of the managers of the Hospital to detain H on the basis of those recommendations and that application, essentially on the ground that they failed to take into account sufficiently, if at all, the decision of the Tribunal of 22 March 2001: i.e., that the Defendants to that claim acted under a mistake of law. It was common ground that if an order were to be made that had the effect of quashing H’s detention under section 3, the renewal of his detention in August 2001 would fall away, since the renewal of detention under section 20 depends on the validity of the section 3 detention in March 2001. It follows that Dr Fearnley’s report is not a bar to relief being granted to H. However, in my judgment Dr Fearnley’s report is relevant to the exercise by the Court of its discretion to grant relief.

At the end of submissions on the Hospital’s claim for judicial review, Miss Foster submitted that a decision in favour of the Hospital in those proceedings would mean that H’s proceedings were academic, on the basis that it was common ground that if the Tribunal’s decision were set aside H would continue to be lawfully detained under the previous section 3 authority for his detention and treatment. I declined to give judgment or to indicate my decision at that stage of the proceedings. I point out that the converse is also true: if H fails in his claim, he would continue to be lawfully detained under section 3, irrespective of the decision on the Hospital’s claim.

H’s claim for judicial review raises important questions as to the power of the Administrative Court to grant effective interim relief where a claim is made for judicial review of a Mental Health Review Tribunal decision to direct the immediate discharge of a patient, and as to the position of doctors, approved social workers and hospitals who consider that the continued detention of a patient in hospital pursuant to section 3 is necessary notwithstanding a decision of a tribunal to discharge him immediately, in circumstances where there are grounds for seeking judicial review of the decision.

This is my judgment in both cases.

The Hospital

Ashworth Hospital in Lancashire is one of 3 high security hospitals in England and Wales: see section 145(1AA) of the Act. These hospitals were formerly referred to in the Act as special hospitals. H was originally detained at Ashworth (rather than another hospital) because of his violence.

H’s medical history

Counsel for the Hospital helpfully provided a full chronology, the contents of which until the Tribunal decision were not the subject of real dispute. With minor amendments, and the excision of the summaries of the medical reports, the chronology is annexed to this judgment. Entries in the chronology prior to the date of the tribunal hearing are derived from the medical reports that were in evidence before the Tribunal on 22 March 2001. Numbers in brackets refer to the pages of the trial bundle which are the sources of the entries in the chronology.

The statutory framework

I can conveniently and gratefully adopt the summary in R v East London and the City Mental Health NHS Trust ex p Brandenburg [2001] 3 WLR 589, 593, at paragraph 7, and it is unnecessary for me to set it out again.

It is also important to keep in mind the provisions of Article 5 of the European Convention on Human Rights, especially paragraphs 1(e) and 4.

The duties and powers of a Mental Health Review Tribunal

In the present context, concerning a patient who is not a restricted patient, the function of a Mental Health Review Tribunal is, as its name suggests, on the application of a patient or his nearest relative, to provide an independent review of the compulsory powers exercised under Part II of the Act. Necessarily, therefore, a Tribunal must scrutinise the opinion of the patient’s RMO and where appropriate reject it.

Section 72 of the Act is headed “Powers of tribunals”, but in fact also imposes duties on a tribunal. Subsection (1) confers an unqualified discretion to direct the discharge of a patient, and in addition imposes a duty on a tribunal to direct the discharge of a patient if it is satisfied of either of the facts set out in subsection (1)(a)(i) or (ii) or of any of the facts set out in subsection (1)(b)(i), (ii) or (iii). For that purpose the tribunal must have regard to the matters set out in subsection (2). Subsection (3) confers power on the tribunal to direct the discharge of a patient at a future date, and a power, if it does not direct the discharge of a patient under subsection (1), with a view to facilitating his discharge at a future date, to recommend that he be granted leave of absence or transferred to another hospital or into guardianship, and to further consider his case if the recommendation is not complied with. The power to order discharge at a future date may be exercised in cases where, by reason of the tribunal’s satisfaction as to one or more of the matters set out in subsection (1)(a) or (b), discharge is compulsory: R v Mental Health Review Tribunal for North Thames Region, ex parte Pierce (1996) 36 BMLR 137. Only a patient’s RMO has power to make an application for supervised discharge: a tribunal has no power to make an order for the supervised discharge of a patient. However, section 72(3A) confers power on a tribunal to recommend that the RMO consider whether to make a supervision application in respect of the patient, and further to consider his case if no such application is made.

The procedure of a Mental Health Review Tribunal is to a significant extent inquisitorial. Rule 11 of the Mental Health Review Tribunal Rules 1983 (“the Rules”) requires the medical member of the tribunal to examine the patient to form an opinion of his mental condition. Rule 14 confers power on the Tribunal, for the purpose of obtaining information, to subpoena any witness to appear before it or to produce documents, and Rule 15 provides that the Tribunal may before or during any hearing call for such further information or reports as it may think desirable, and may give directions as to the manner in which and the persons by whom it is to be furnished.

The Tribunal proceedings of 22 March 2001

The Tribunal had before it the decisions of the Mental Health Review Tribunals of 24 September 1997 and 19 November 1999, no less than 9 medical reports, a nursing report and 2 social workers’ reports. Annex 2 to this judgment lists the documents before the Tribunal.

Certain features appear from the medical history of H. First, and most importantly, he had a history of violence. There was an issue as to whether his violence was due to his illness or, as only Dr Williams opined, to poor impulse control, but clearly if his violence was due to his mental illness, and if he were to relapse in the community, he would present a danger not only to himself but to others.

Secondly, he had not been violent for a period of more than 3 years preceding the Tribunal hearing. The improvement followed the increase in his medication prescribed by Dr Croy, in November 1998.

Thirdly, at the date of Tribunal hearing, he had been in Ashworth since September 1994, over 6 years. He had not had any period of leave of absence under section 17 of the Act, or been the subject of supervised discharge under section 25A ff.. There was no recent experience of him in the community. In addition, he was reluctant to attend off-ward activities. There had been therefore limited opportunity to see him interacting with other people.

Fourthly, previous discharges into the community had failed. H had failed to co-operate with follow-up in 1983; he had failed to attend out-patients in accordance with his after-care plan in December 1985 and violence had followed; his discharge against the advice of his RMO in 1991 had failed and been followed by more violence in July 1992; his release at the request of his nearest relative had again been unsuccessful, having been followed by the incident in December 1992; his discharge in February 1993 was followed by rapid deterioration; in August 1993 he had abandoned medication; and in June 1994 he had failed to comply with his medication; in June 1994 leave under section 17 was followed by a relapse and violence.

The documents before the Tribunal

The documents before the Tribunal are listed and the conclusions of the various reports summarised in Annex 2 to this judgment.

In summary, there was a formidable body of written evidence before the Tribunal. The reports of Doctors Williams, Croy, Duncan, Cole, Lomax and Heads were subsequent to the last tribunal hearing in November 1999. Of those, only Dr Williams thought that H was ready for discharge. There were 2 other reports of psychiatrists who had been instructed by H’s solicitors, those of Dr Duncan and of Dr Lomax. They were, of course, entirely independent of Ashworth. Neither of them considered that H was suitable for discharge into the community. Dr Croy favoured transfer to a medium security unit, but was unable to effect this in the face of Dr Heads’ opposition. Dr Williams’ recommendation was supervised discharge, but he regarded it as unviable. He accepted the need for professional help to resettle H in the community; indeed, he seemed to regard its need as obvious.

The hearing before the Tribunal

The medical member of the Tribunal, Dr Cashman, a consultant psychiatrist, unavoidably arrived late. He did not have time to consider the Hospital’s notes on H before he interviewed him. Dr Croy was told that Dr Cashman saw H for only a few minutes in the Tribunal suite. Dr Cashman’s evidence is that he carried out a full examination of H, and had the Hospital notes with him and considered them during the course of his examination.

Dr Croy presented the case for the Hospital. H was represented by counsel, Mr Butler, and the London Borough of Hammersmith and Fulham (but not the local health authority) by counsel, Mr Mulrooney. The only doctors present, who gave evidence orally were Doctors Croy and Williams. Mr Miles gave evidence. H gave evidence, and was cross-examined extensively by Mr Mulrooney. It was apparent from the written and oral evidence that no plans had been made for after-care in the community.

The hearing lasted some 3 hours. There is no transcript of the hearing. H’s solicitor’s (Mr Lloyd’s) note of the hearing is in evidence before me. Mr Walker confirmed that it is a note dictated after the hearing from notes made during the hearing, and so it reads. I am sure that it is to some extent coloured by Mr Lloyd’s representation of H and his sympathy for him, and by the result of the hearing, but with some exceptions it is accepted as a largely accurate account of the proceedings. At the conclusion of the evidence and submissions, the Tribunal asked the parties to retire. At about 1.55 p.m., the Tribunal announced their decision, namely that H be discharged with effect from 2 p.m.. According to Dr Croy’s witness statement of 28 March 2001, the chairman, Mr Simms, said that the Tribunal were not minded to defer H’s discharge as, in his experience, it did not matter how long matters were deferred, nothing ever happened. Mr Lloyd’s notes are to a similar effect. The relevant passage of Mr Lloyd’s note is as follows:

“It became clear that the Tribunal accepted the evidence of Dr Williams. They specifically stated that they did not accept the evidence of Dr Heads or of the other doctors in this case. They were therefore discharging (H). Consideration had been given as to whether such discharge should be deferred in order to provide time for the appropriate Section 117 after care package to be put in place. On the basis of the experience of the Tribunal no matter how often matters were deferred in Ashworth Hospital nothing ever happened. They had decided to make that discharge effected (sic) as from 2.00 p.m. and (glancing at the clock on the wall) stated ‘… which is in approximately 12 minutes time’.”

Mr Simms disputes this: according to his witness statement:

“… I disagree with the reported explanation (in Mr Lloyd’s note) for the tribunal’s decision to absolutely discharge the patient. … In fact I have never previously discharged a patient from Ashworth. I have in appropriate cases deferred the discharge of patients from other hospitals. The tribunal’s reasons for not deferring discharge in this case are set out in paragraph 22 below.”

The written decision of the Tribunal was produced and given to the parties immediately after the announcement of their decision. The reasons given for their decision were brief:

“The Tribunal accepted the medical evidence that the patient suffers from a mental illness namely schizophrenia which manifested itself in the 1980s in assaultative behaviour paranoid ideas and auditory hallucinations. This behaviour extended to the 1990 [sic]. Since 1997 there have been no further episodes of violence. The patient accepts that he has a mental illness and complies with medication – he states he will continue to do so. He presented well to the Tribunal and responded appropriately to questions. Dr Williams has known the patient for some years and we accept his evidence of:

(1) an assurance of compliance

(2) the recent three year non-violent history

(3) the level of insight

(4) a period of recent stability and the maintenance of a job.”

Paragraph 22 of Mr Simms’ first witness statement, setting out the Tribunal’s reasons for non-deferment of discharge, is as follows:

“Although this issue is not specifically addressed in the reasons, the Tribunal did consider whether it should defer discharge to enable a care plan to be put in place for (H). It is, of course, the responsibility of the Health Authority and Local Authority to have a draft care plan in place in time for a patient’s discharge (see paragraph 21 of the Claim Form). The authorities had failed to put such a care plan in place. In light of its conclusions under s.72(1) of the Mental Health Act and its clear view that the patient did not need to be in hospital, the Tribunal was reluctant to defer his discharge because of the failings of the after-care authorities and considered that a deferral would be of no benefit to the patient. The Tribunal had no reason to believe that such after-care as (H) required could not be made available to him. ”

Events following the Tribunal decision

The Hospital was surprised at the Tribunal’s decision. No one in the Hospital had considered H’s discharge a realistic possibility. Indeed, it is clear that there was consternation on the part of the Hospital and the local authority, and subsequently the local health authority, none of whom believed that the immediate discharge of H was justified under the Act or in his or the public interest. Neither the local authority nor the local health authority had made arrangements for H’s accommodation or after-care. H was naturally delighted at the decision. There was, however, nowhere for him to go. On 22 March he signed an agreement to remain in the Hospital as an informal patient until he or the Hospital could find suitable accommodation and to abide by hospital rules. It stipulated that he was free to leave the Hospital between 10.00 am and 5.00 p.m.

David Worth, the Assessment and Advice Manager of the local authority’s Homelessness and Advice Service, was informed of the Tribunal’s decision on the afternoon of 22 March 2001. An urgent case conference was convened for the following day. According to Mr Worth:

“At the meeting I expressed my concerns that (H)’s anticipated discharge from Ashworth, effectively with no notice, meant that the Housing Department’s ability to find him suitable and safe accommodation was highly limited. ... Given (H)’s history, both in terms of his own mental health and his violent behaviour, I was concerned that a placement for (him in bed and breakfast or other short term accommodation) would be unsuitable and would pose an unacceptable risk to his own integration into the community and to other residents, many of whom are vulnerable persons

B and B is high density accommodation and is known to be stressful to residents. … I also confirmed that … it could not be guaranteed but any B and B accommodation would be available within Hammersmith and Fulham.

Given my concerns and the general position (as to the shortage of accommodation) I advised the Case Conference that the Housing Department would seek to find self contained accommodation for (H) if and when he applied as a homeless person. … I confirm that, to date (17 April 2001), no suitable accommodation has been found.”

He concluded:

“The decision of the Mental Health Tribunal to discharge (H) with no notice and without an adequate care package denies the department the opportunity to find suitable appropriate accommodation for (H) We are left only with the option of providing unsuitable accommodation in B and B type accommodation which may well involve unacceptable risk to his own mental health and to other vulnerable people if he were to relapse into violent behaviour Had the Tribunal itself recommended a period of further assessment and treatment in a medium secure hospital setting then we would have been able to liase with colleagues there to make appropriate arrangements for his housing in a sensible time scale in the interests of (H) himself as well as the wider community.”

Immediately after the Tribunal’s decision, the Hospital sought legal advice as to the possibilities of judicial review, and that is reflected in the discussions on 23 March referred to in the chronology. By Monday 26 March 2001 the Hospital had been advised that there were grounds for seeking judicial review and instructions had been given to commence proceedings. H was informed and the position explained. According to the Hospital notes:

“H informed Dr Croy that he was now aware of the impending challenge and was going to leave hospital. Dr Croy then informed H that she did not think that he should leave hospital and to that end was applying a Section 5(2), Dr Croy explained briefly what this meant and told Henry that if the challenge was unsuccessful she would lift this section tomorrow. SW Tim Miles then attended the ward to give H further information regarding the Section and to reassure him that he was still going ahead with finding him accommodation in the community. H has taken this news calmly and maturely. However nursing staff should observe for any change in presentation.”

The next note reads:

“I saw H in the morning and passed on to him the points from Dave Worth, Housing Manager. H said he had decided he wanted to leave and go to B and B whilst a flat came up in case he got into any bother with other patients or in case anyone did anything to change the Tribunal decision.”

The reference to the points from David Worth is to the unavailability of suitable accommodation from the local authority.

A subsequent hospital note records that “By late morning it was still not clear if injunctive relief could be obtained or whether we should seek to re-section H”.

During 26 March, Dr Croy signed Form 12, a report under section 5(2) of the Act, with the consequence that H became liable to detention until the evening of 29 March.

On 28 March, Dr Croy informed H of the decision to re-apply Section 3. Dr Croy and Dr Silva made their recommendations for the purpose of section 3 on 28 March and Ms Berry completed her application for his detention under that section on the following day, when it was accepted by the management of the Hospital.

The reasons given by Dr Croy in her report on H for the purposes of Section 5(2) were as follows:

“He suffers from paranoid schizophrenia. He is relatively settled on medication, but is likely to stop taking this if he leaves hospital with consequent deterioration and aggression. He has no current after-care package (which is being examined) and has now become aware of a legal challenge to a Tribunal decision to discharge him … and is therefore unlikely to stay informally.”

The text of Dr Croy’s grounds for her medical recommendation for the admission of H, dated 28 March 2001, was as follows:

“He suffers from paranoid schizophrenia which is under reasonable control with depot medication. He is unable to identify any symptoms of this illness – and expresses concern about his medication. He is difficult to engage and remains somewhat prickly in presentation. He has a history of a number of violent episodes which he fails to fully acknowledge.”

She gave as the reasons why informal admission was not appropriate:

“H was given a discharge at a Tribunal on 22 March 2001. This decision is being challenged. Meanwhile it is felt that there is currently no suitable after-care package available at present to manage the risks in the community. He is unlikely to stay informally now he is aware of a legal challenge. He would be unlikely to engage in after-care to any meaningful extent and previous discharges into the community have failed within a few months with a relapse in his condition and further violent episodes.”

Dr Silva’s grounds and reasons were as follows:

“He has a long history of psychotic illness characterised by various delusions and mood disturbances, accompanied by violence. He continues to demonstrate paranoid beliefs relating to his hospital notes. Whenever he has been discharged in the past he has defaulted from treatment and follow-up – relapsed and been violent. He has not engaged with his RMO or Social Worker, nor has he demonstrated that he understands the need to comply with his medication (although he gives an assurance he will). He must show evidence of change in those respects before his illness is of a nature which no longer requires detention.”

He gave as the reasons why formal admission was not appropriate:

“Hammersmith and Fulham Social Services Department have indicated since his last MHRT that neither a care-plan nor accommodation are available to meet (H)’s needs if he were to leave hospital. He does not wish to remain an in-patient. I am aware that an MHRT recently discharged (H) from detention and have read the Tribunal’s decision and reasons. However I believe that he should be detained in hospital. This was a view that was shared by all of the psychiatrists whose evidence was presented. Though Dr Williams spoke of supervised discharge within S25A of the MHA 1983 (see para 3 of his report) he stated that this was not viable due to a lack of after-care arrangements. I believe that (H)’s violence is associated with his mental illness (they are both delusional driven and poor impulse control – as a result of mental illness), and the absence of serious incidents in the last two years is the result of increased medication and better control of his mental illness, so proper control of his mental illness is I believe essential to reduce the risk of violence. This is not currently possible in the community, mainly due to the nature of his disorder.”

Dr Silva also sent to Dr Croy a letter dated 29 March giving her opinion on H. In it he stated the following in relation to his short interview with H:

“(H) then said, in a brief and superficial way, that he would agree to see a Psychiatrist, Social Worker, take medication and keep away from his former partner. When asked of his progress when previously discharged in the past he told me that he did not want to talk about it. When explained that I had read reports detailing his past, he told me that they were all lies and wrong. He then left the interview.

His belief that reports of his past progress on release from hospital were lies, is evidence of ongoing psychopathology. He has repeatedly expressed the view that notes have either been maliciously written about him or tampered with in order to detain him further. This is at the very least a paranoid belief.”

The letter continued:

“His violence which is not obviously delusionary driven, is I believe a manifestation of his psychotic illness.

I am concerned that on every occasion he has been discharged in the past, he has either defaulted from follow-up treatment, then relapsed and behaved in a dangerous fashion. There is no real evidence of change in his understanding of his condition, the need to take medication or comply with follow-up. Although he gives a superficial assurance that he will, he has not engaged with either yourself or his Social Worker and, until he can do this, his illness is of a nature which warrants detention in hospital for the treatments which so obviously benefit him.

Before interviewing (H) I read the Tribunal’s decision. It was the opinion of every psychiatrist whose opinion was presented to the Tribunal, that (H) should be detained in hospital. Although Dr Williams spoke of (H)’s suitability for supervised discharge within Section 25A of the Mental Health Act 1983, Dr Williams explained … that this was not “visible”(sic) (viable). The Tribunal did not explain why the opinions of yourself, Dr Lomax and Dr Williams were rejected.

Further, when I met you prior to interviewing (H), you explained that as far as you were aware, the medical member had not consulted the Ashworth medical notes prior to the Tribunal and the medical member’s examination had amounted to a few words in the Tribunal ante-room. I also noted that the Tribunal did not use its power to delay the discharge for arrangements to be made and this had been explained by a panel member stating words to the effect that – ‘there was no point as that never happened’.

I understand that an application has been made for a Judicial Review of the Tribunal decision.

Bearing in mind (H)’s current mental state, his previous history of violence associated with mental illness, relapse, failure to engage with yourself and the social worker, and the opinion of all the doctors whose evidence was heard by the Tribunal, I believe that it is appropriate that he is detained.”

It appears from Dr Croy’s witness statement dated 2 July 2001 that there were two matters that induced her to seek H’s detention. The first was her concern that he would not comply with restrictions and procedures, such as room searches, rub down searches and locking off of various areas, that apply to patients in Ashworth. The second was his (disputed) retraction of his agreement to stay voluntarily; he saying that he was going to leave and stay in B and B on the following Wednesday in case he got into bother with other patients or there was anything done to change the Tribunal decision. The last paragraph of her witness statement is as follows:

“I feel I should say that it is my clear view as a clinician that it is not at all in his best interest to be discharged rapidly into an environment where he is likely to relapse, may even cause harm to others and, certainly, will not further the process of his becoming well. I had well in mind, having taken advice, the latest learning in this area from the Court of Appeal and I made my Section 3 application in the full knowledge of the Tribunal decision on other matters that had gone before. My clinical judgment remained the same, and, in the light of the legal view which had been expressed in the Tribunal decision was, arguable, challengeable and unlawful, therefore it is my duty to proceed under Section 5 and Section 3.”

The hospital clinical notes for 26 March 2001, taken by Nurse Jordan and Mr Miles, bear out Dr Croy’s evidence that on 26 March 2001 H stated that he would leave Ashworth and go to B and B, as do their witness statements.

Dr Silva’s evidence enlarged upon his reasons for recommending the detention of H under Section 3. He commented on Dr Williams’s report. His witness statement included the following:

“10. Further, I could not deduce from the Tribunal’s decision any reasoned rejection of the cogent (and overwhelming) written evidence in favour of his continued detention in hospital. I was given to understand that Ashworth had received advice that the Tribunal’s decision could be challenged as arguably unlawful and that such challenge was being made.

15. In addition to the matters I have set out above, it seemed to me that there (were) material matters that had come to light of which the Tribunal appeared unaware: they did not appear to know there was no accommodation available – information from Hammersmith and Fulham. There was evidence available to me from my time with (H) of clinical psychosis which was (it seems) a significant change of circumstances from the patients presentation in the Tribunal. I say this because it is impossible to believe that they would have released him had he presented to them as he presented to me.

16. An important aspect of this was his real failure to co- operate which was significant in the context of the failure to engage with the RMO, and given the real pressures he would face in the Community, few of which would be to his liking or of his choosing. For these reasons I also considered that it would be unlikely that he would co-operate with supervision or treatment by a psychiatrist in the community voluntarily.

17. For all these reasons it was my clear, considered clinical judgment that (H) required detention under the Mental Health Act in hospital for treatment in the interests of his own health and for the protection of others.”

Ms Berry was given H’s case during the morning of 29 March. At some time before 12.30 p.m. that day, Mr Lloyd telephoned Ashworth’s solicitors and stated that H was willing to remain in hospital as an informal patient. Mr Lloyd sent a fax confirming that H would remain at Ashworth voluntarily to allow reasonable time for an appropriate section 117 aftercare plan to be set up and suitable community care arrangements to be put in place. The fax stated:

“It is perfectly clear that several weeks will be needed to put in place appropriate Community Care arrangements. My client’s willingness to remain as an informal patient during this period has never been in doubt. Indeed, he had expressed during his evidence to the Tribunal his awareness that he would be dependent on good community support if her were to succeed with living in the community.”

Ms Berry’s witness statement shows that she gave careful consideration to the question whether should make the application for H’s detention. She interviewed H and considered the information provided to her. She stresses that she was working on limited information about the proceedings before the Tribunal and its decision, as to which she had “only a short handwritten note of the Tribunal’s decision”, that she had to make an urgent decision based on her interview with H and the information given to her by the Hospital. She knew of the judicial review proceedings brought by the Hospital and the interim relief granted by the Court. However, she was told that Ashworth were not pursuing the injunction in accordance with their own legal advice that detaining H under section 3 was preferable; and she therefore thought that the injunction would lapse and there would be a need for further detention under the Act. She knew of Dr Williams’ recommendation of supervised discharge; she was told that no care package was in place; and she took into account the views expressed by Doctors Croy and Silva and Mr Miles and Ms Slater, a social worker employed by Hammersmith and Fulham. Ms Berry summarised her case as follows:

“I would respectfully suggest that, given the information which was available to me, the level of concerns which were being expressed to me and my own views following on from my interview with Mr H, the decision which I reached was both reasonable in the circumstances and also it was made in entirely good faith seeking to protect Mr H and the public as I felt to be necessary.”

H’s case was discussed at the most senior levels within Ashworth. According to the witness statement of Dr James, Ashworth’s Medical Director:

“5 I was told myself and raised specific concerns about the legal position for the administration of medicine if (H) remained in hospital after an injunction or pursuant to Section 5(2) of the MHA. It was my firm view that an appropriate framework for the administration or treatment needed to be put in place. The clinical opinion was that the only appropriate section pursuant to which (H) could be treated under the MHA was Section 3. Legal advice about the consequences of injunctive relief was taken. The usual powers of the MHA were certainly understood more clearly by the clinicians involved and the opinion was that, given that the legal effect of the injunction in this regard was not clear, the powers of the MHA provided the most straightforward and easily understandable means of regulating both detention and treatment, from the standpoint of both clinicians and Mr Thomas.

6 I was also aware, given the complexity of the case, it would be necessary for us to consider very carefully whether or not it would be lawful to re-section (H).

7. …..

8 On 28 March 2001 I received a letter by fax from Mr Kevin Beale, Principal Community Services Solicitor of the London Borough of Hammersmith and Fulham. Mr Beale expressed grave concerns that (H) should be free to leave Ashworth and noted that the particular concern related to him leaving with no after-care plan and no appropriate accommodation. Mr Beale explained that – “Social services were extremely worried that if (H) is discharged into the community without a satisfactory after-care plan and suitable accommodation he is likely to default on his medication. Given (his) history there must be a high risk that he will pose a very real danger to others should he default on his medication. Immediate discharge places his ex-partner and his parents, his children, the public at large and indeed professionals who seek to have dealings with him, in danger.

9 On 28 March 2001 I had on the basis of the information given to me significant concerns about the safety of others if (H) left hospital without a satisfactory care-plan. The Concern was discussed with the Chief Executive of Ashworth Hospital Authority, Mrs Lezli Boswell, on 23 March 2001. She was kept informed of the concerns. The degree of concern was such that the usual briefing mechanisms when we highlight major incidents to the North West Regional Office NHS Executive were put into place.”

Dr James statement explains the reasons for the admission of (H) under Section 5(2).

“A decision had already been taken, on legal advice to judicially review the decision. This is because, we believed and were advised that the decision was arguably unlawful. Accordingly, we were aware that the decision of the Tribunal was not to be accorded the same weight as it would otherwise have been. Secondly, it was not clear to us on reading the decision that the Tribunal had grappled with the important issues in relation to (H). Even after discussion with Dr Croy we were not able to satisfy ourselves that the Tribunal had grappled with the relevant issues. Thirdly, we were very well aware that there were no after-care arrangements in place and that if (H) were discharged he would have nowhere to go. Fourthly, we were concerned about the risk posed by (H) were he to be discharged into the community in these circumstances

12 I should add that (H) had, by then, been discussed at the most senior levels. Very great consideration was given to the prospect of re-sectioning (H). Following this, the view was taken that in the circumstances the appropriate assessments should be undertaken which could lead to completion of the medical recommendations and application for admission. In reaching this view we were fully aware of the undertaking signed by (H) on 22 March 2001. We were not, however, convinced that it would be appropriate for us to rely wholly upon the undertaking given (H)’s history of going back on his assurances as to treatment and conduct generally. In any event, it was brought to my attention that on 26 March he indicated a present indication to leave the hospital immediately. Moreover, Dr Croy in her Section 5(2) Report stated that – ‘He has no current after-care package (which is being examined) and has now become aware of the legal challenge to the Tribunal decision to discharge him … and is therefore unlikely to stay informally’.

13 Equally, when it was decided to apply for admission of (H) under Section 3, on 29 March 2001, the managers decided to accept the admission, we were of the firm view that notwithstanding the injunction, this was necessary.”

From 29 March 2001, therefore, H was detained at Ashworth under section 3 of the Act. Nonetheless, a further Section 117 meeting was held on 4 April 2001. There were ten persons at the meeting, representing Ashworth, the local authority, Three Bridges RSU and the local NHS mental health trust. According to the minutes of the meeting:

“ TF (Trevor Farmer, Divisional Manager of the Social Security Department Mental Health of the local authority) outlined the purpose of the meeting which was to address the serious concerns raised by all parties involved in the care of (H) at the decision of the Mental Health Review Tribunal to discharge him from Ashworth. It is of great importance to all concerned to challenge this decision in view of (H)’s past history.”

There would appear to have been a consensus at the meeting that (H) should remain in secure accommodation for some time yet, and should be transferred to medium secure accommodation when a place became available. Dr Baxter, from Three Bridges, reiterated that their view was that he should remain at that stage in high security accommodation. It was felt that if the original decision of the Tribunal to discharge from Ashworth was upheld, “after-care arrangements were of paramount importance.”

The minutes continue:

“It should be strongly put to the Court that because of the levels of violence involved, without interim steps for a planned programme for release into the community, those present feel it would not be safe for (H) to return to the local area

Because of the level of violence and lack of insight involved in the incidents both before he was transferred to Ashworth and since he has been there, it was felt to be essential that (H)’s reintroduction to living in the community should be planned very carefully and slowly as part of a programme of rehabilitation It is worrying that he is apparently dealing with his fear of conflict by isolating himself and not taking up opportunities for rehabilitation but this was a significant risk factor in the past (Dr Baxter) emphasised that (H) does not make himself accessible to supervision in Ashworth and that is a concern about how much he would comply with the care plan in the community.”

Mr Miles’ note of the meeting ends:

“It was felt that the … care plan fell short of what was needed in that it afforded little guarantee of avoiding a repetition of previous negative community care outcomes.”

In April 2001, Mr Farmer, the Divisional Manager of the local authority’s social services, asked Dr Frank Kelly, a consultant psychiatrist and Clinical Director at West London Mental Health NHS Trust, who have the lead responsibility for the provision of mental health services in the area of the local authority, to consider the appropriateness of providing RMO cover for H should he return to the borough. Dr Kelly reported back to Mr Farmer by letter dated 4 May 2001, in which he commented on the various reports on H that he had considered and concluded that he and his RMO colleagues in Hammersmith and Fulham agreed with Mr Farmer and that they had the “gravest reservations” about H’s release into the community and their ability to provide him with RMO supervision.

Subsequently, Dr Kelly attended 2 CPA meetings, the first on 24 September 2001 and the second on 28 September 2001. The minutes of the first meeting are in evidence. Before it Dr Kelly had interviewed H. The consensus at the first meeting was that it was not appropriate or safe for H to be managed in the community. It was the clear view of Dr Fearnley, the current RMO (who, however, had had a very limited interview of H), that H needed to remain in high security accommodation, with a view to later transfer to the Regional Secure Unit. Dr Kelly’s witness statement describes his interview with H and his discussions with the nursing staff at Ashworth. He concluded:

“The view that I have formed is that I do not believe it will be safe for H to be managed in a community.

…

A general consensus, a view that I share is H will need to be re-admitted compulsorily because of deterioration, before/after harming himself and/or others. He has spent the last seven years at Ashworth and a release into the community after such an extensive period is likely to subject him to stresses that he has not experienced for a while or before. While there is an argument that he be given the benefit of any doubt, the potential consequences of failure are damaging..

…. I believe H, by being released at this stage into the community, would be being set up to fail.”

Dr Kelly also expressed concerns at the security of social security and nursing staff who would deal with H. He said that it was not intended to offer H medical services otherwise than at a ward at Charing Cross Hospital, and that he would not be met at any other place or on his own. At any prearranged meeting, appropriate security would be put in place.

Lastly, by letter dated 11 October 2001, Mr Worth informed H that the local authority was holding a one-bedroom sixth floor flat in Hammersmith available for him as temporary accommodation as an alternative to bed and breakfast or hostel accommodation.

General points

A number of general points need to be made at this stage. First, there are a number of factual issues between H and other parties. For example, H denies indicating on 28 March 2001 that he would leave Ashworth prematurely, before appropriate accommodation and an aftercare package were in place. H disputes that Ms Berry saw him for an adequate time before making her application under section 3. There is an issue as to the reason why and the circumstances in which Dr Silva’s interview of H was relatively short. H takes issue with important entries in the hospital records. It was common ground before me that the Court cannot resolve the factual issues between the parties in these proceedings. (It should be noted however that the hearing of the cases before me took place before the judgment of the Court of Appeal in Wilkinson [2001] EWCA Civ 1545, The Times 2 November 2001) For the purposes of these claims for judicial review, where there is any factual dispute I shall assume that the facts are as stated in the contemporaneous documents.

Secondly, and this is to some extent connected with the first, H and those representing him accept that all those concerned in these cases have at all times acted in good faith. It is not suggested that Dr Croy and her colleagues at Ashworth and Lorraine Berry have been seeking to do other than what they consider to be in the best interests of H and of the public.

Thirdly, although I have felt constrained to summarise in this judgment the psychiatric reports relating to H, it is not for this Court in determining these claims to seek to resolve any medical and psychiatric issue. That is a matter on which I shall comment below.

The lawfulness of the Tribunal decision

I can dispose of certain of Ashworth’s contentions immediately. Miss Foster submitted that the medical member of the Tribunal, Dr Cashman, failed to fulfil his role lawfully because of the brevity of his interview of H and his failure to consider the hospital medical records. I have no expert evidence before me supporting the contention that Dr Cashman could not in the time in question and without any medical records have conducted a sufficient examination of H. In any event, there is an issue as to the duration of the interview and it is unclear what medical records Dr Cashman had with him when he interviewed H. When I add to these factors the fact that Dr Cashman observed H for a considerable time and under stress when he gave evidence, and that a number of the psychiatric reports sent to him before the hearing included a full medical history, I conclude that there is nothing in this point.

Secondly, Miss Foster submitted that the Tribunal erred in law in arriving at their decision, in that they must have incorrectly assumed that the local authority and the local health authority were under absolute duties under section 117 to provide appropriate after-care for H, an assumption shown to be incorrect by the decision of the Court of Appeal in R (K) v Camden and Islington Health Authority [2001] 3 WLR 553. The reasons given by the Tribunal do not refer to after-care, and in my judgment the alleged misapprehension of the tribunal is neither explicit nor implicit in their reasons. This submission too therefore fails.

I can therefore turn to what I consider to be the most substantial of the grounds relied upon by Ashworth, namely, the alleged Wednesbury unreasonableness of the decision and the alleged inadequacy of the reasons given by the Tribunal. To some extent these grounds are inter-related. The reasons given by a tribunal may show that its decision is perverse; conversely, it is conceivable that reasons may reasonably explain what might otherwise appear to be an inexplicable and perverse decision. In the present case the Chairman of the Tribunal has in his witness statements enlarged upon the original written reasons for their decision. In addition, it is alleged that not all of what was said when the decision was announced appears in the written decision: I refer to the reason alleged to have been given orally for directing H’s immediate discharge.

It appears from a number of cases cited to me that it used to be the common practice on applications for the judicial review of their decisions for Mental Health Review Tribunals to supplement the reasons for their decisions in affidavits or witness statements. However, that practice must now be reconsidered in the light of the decision of the Court of Appeal in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302. I sought to summarise the law resulting from that decision in my own judgment in Nash v Chelsea College of Art [2001] EWHC Admin 538, The Times 25 July 2001. However, as Mr Walker QC pointed out, the statement in paragraph 34(i) of my judgment in that case is too widely expressed, in that it fails to reflect the general rule, as stated in Ermakov, permitting the admission of evidence that merely elucidates original written reasons.

Under rule 24 of the Rules, the Tribunal is under a statutory duty to communicate its decision, including the reasons, to all the parties. In my judgment, this case is therefore indistinguishable from Ermakov, and indeed Mr Walker did not argue otherwise. It follows that, given that no exceptional circumstances are suggested, the Court should not accept reasons justifying the Tribunal’s decision that go beyond elucidation of the written reasons. It also follows, in my judgment, that if the original written reasons were inadequate, the tribunal’s decision will not normally be saved by subsequent enlargement of its reasons.

However, it does not follow that the Court should shut its eyes to what is said by the Tribunal when it exercises its discretion under rule 24 to announce its decision immediately after the hearing. If what is said then leads to the conclusion that the Tribunal’s decision is unreasonable, or that it was made under a mistake of law, or that it is otherwise unlawful, the Court may quash the decision. Similarly, if the evidence filed by the Tribunal on judicial review of its decision demonstrates that its decision was unlawful, the Court cannot ignore that evidence and may grant relief based on it.

In any event, however, I propose to take into account the reasons given in the witness statements of the Chairman, other than the reasons relating to the decision not to defer discharge, on the basis that they are elucidatory of the Tribunal’s written reasons. As a result I do not have to decide whether Mr Walker’s submission that a more liberal attitude to subsequent reasons is appropriate where the result of a quashing order would be to deprive a citizen of his liberty is well-founded. While I see the force of this submission, in the light of Article 5 of the European Convention on Human Rights and the decision of the Court of Appeal in H v Mental Health Review Tribunal for London North and East Region [2001] 3 WLR 512, it is also right to bear in mind that the premature or unprepared discharge of a patient into the community may be damaging to him as well as to others.

Unreasonableness

It is convenient to consider first the issue of the alleged unreasonableness of the Tribunal’s decision: was their decision one that a reasonable tribunal, correctly applying the law to the facts before it, could have arrived at? Or, to put it differently (see Secretary of State for Education and Science v Tameside MBC [1971] AC 1015, 1064E), was the Tribunal’s decision one which no sensible tribunal acting with due appreciation of its responsibilities would have made? I shall consider under this head also the allegation that the Tribunal failed to take into account the evidence of Miss Ariola.

The Tribunal’s decision was against the weight of the written evidence before it. Mr Walker submitted that the Tribunal was entitled to form its own view of H, he having been interviewed by the medical member and all of them having seen and heard him give evidence and been subject to cross-examination. I agree that this Court cannot normally interfere with a tribunal’s decision based on its assessment of the evidence before it. The tribunal are entitled to decide to prefer the evidence of one psychiatrist to that of several, if there is good reason for them to do so, and are entitled to form their own view of the patient and the state of his mental health. Furthermore, if Dr Williams went further in his oral evidence than the recommendation of supervised discharge in his second report, and particularly if his evidence was consonant with the medical member’s own findings, the Tribunal could in appropriate circumstances accept that oral evidence, although one would expect them to be very cautious if they were to do so. Subject to the matters to which I refer below, the Tribunal was entitled to come to a positive view of the state of H’s mental health and his prognostication.

However, I am concerned that the Tribunal misunderstood Dr Williams report of 8 March 2001. Dr Williams recommended supervised discharge, which implied that H was liable to be detained under the Act: see section 25A(1)(a). The statement in paragraph 3 of Dr Williams’ report that H “no longer requires further compulsory treatment in a hospital setting” can only be reconciled with the statutory requirements of conditional discharge, recommended in the very next sentence of his report, if Dr Williams was referring to supervised discharge of a person who fulfilled the requirements for his continued detention as an alternative to compulsory treatment within hospital. The only alternative is that Dr Williams was contradicting himself. But Mr Simms, in his first witness statement, summarised Dr Williams’ report as follows:

“Dr Williams considered that his illness was no longer of a nature or a degree which required treatment in hospital …”

If that were the case in any unqualified sense, Dr Williams could not sensibly have recommended supervised discharge. It is also noteworthy that Mr Simms’ statement makes no mention of this recommendation.

I turn to the issues raised by the immediacy of the discharge directed by the Tribunal.

It was common ground before the Tribunal, and indeed obvious, that if H were to be discharged successfully into the community, it was essential for his benefit and the safety of others that suitable accommodation was available for him and suitable after-care arrangements were in place. Dr Williams’ recommendation of supervised discharge itself implied that “there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons or of the patient being seriously exploited, if he were not to receive the after-care services to be provided under section 117”: see section 25A(4)(b). In the case of a patient who, if discharged into the community, will require after-care, satisfaction of the criteria for the discharge of a patient under section 72(1)(b) may depend on the availability of suitable after-care. If no such after-care is available, it may follow that it is appropriate for the patient to be liable to be detained, or that it is necessary for him to receive treatment in a hospital.

It was obvious from the evidence before the Tribunal that there was no accommodation allocated to H in the community and that there were no after-care arrangements in place. (Indeed, it is evident from Mr Simms’ disputed statement, to which I refer below, made when he announced the decision of the Tribunal, and from Mr Simms’ evidence, that the Tribunal appreciated that this was the case.) Mr Simms stated in his first witness statement that “The Tribunal had no reason to believe that such after-care as H required could not be made available to him.” Regrettably, this statement overlooks the statement of Tita Ariola:

“If (H) is indeed discharged from his Section 3 now the local authority will not be able to provide appropriate accommodation for him as he still needs a high level of care and supervision.”

It may be that the Tribunal took the view that H did not need a high level of care and supervision, but their written reasons do not address this.

Mr Walker and Ms Richards submitted that the Tribunal was indeed entitled to assume that the local authority and the local health authority would comply with their duties under section 117, that in due course suitable after-care arrangements and accommodation would be put in place, and on the basis of their findings as to H’s mental health to believe that he would behave sensibly and not leave Ashworth until they were in place. Even if nothing had been said about after-care when the Tribunal announced its decision, I should have rejected Mr Walker and Ms Richards’s submissions on this issue. The Tribunal had no information whatsoever as to what after-care arrangements could be put in place or when. Given H’s past violence and the previous failures of discharge into the community, it was necessary to know that suitable arrangements would be in place when H was discharged. I should have expected the Tribunal to have sought information as to the arrangements in place or available for H before directing his discharge, so that they could form a view as to their sufficiency, and to have adjourned for that purpose. If necessary, the Tribunal could have used their powers to require the attendance of witnesses for this purpose, although I very much doubt that that would have been necessary. As it was, the Tribunal had no information as to the after-care arrangements that could be made. Its reasons addressed only the question of medication, which is not the entirety of after-care. The Tribunal took a step in the dark that was unnecessary and unjustified, unfair to H and to the local authority and local health authority, and involving potential risk to the public.

Furthermore, although the Tribunal may have expected H to remain at Ashworth until suitable arrangements had been made, the Tribunal were unable to assess how long that would be or whether, if the delay were significant, H might lose patience and leave. It would not have been appropriate for the Tribunal to proceed on the basis that if H left prematurely, he could be re-sectioned.

In his first witness statement, Mr Simms, the Chairman of the Tribunal, stated:

“It was moreover the experience of the Tribunal members that deferrals often have limited effect: if a discharge is deferred, the care plan tends only to be put into place at the very last minute. A care plan proposal can be put into place very quickly once it is decided that a patient should leave the hospital. The Tribunal was confident that this was the case here.”

This passage suggest that the Tribunal did not understand the concerns of the psychiatrists and the local authority, had not taken into account the statement of Ms Ariola, and had no understanding of the difficulties of local authorities in London in providing suitable accommodation at short notice: difficulties that I would have thought were notorious. Even taken at face value, Mr Simms’ statement indicates that a short deferment was appropriate.

In general, in a case in which after-care is essential, and satisfaction of the discharge criteria depends on the availability of suitable after-care and accommodation, as in H’s case, a tribunal should not direct immediate discharge at a time when no after-care arrangements are in place and there is no time for them to be put in place. The Tribunal should consider whether to exercise its power under section 72(3A) to recommend that the RMO should make a supervision application. If it considers that to be inappropriate (and it should be borne in mind that the previous unwillingness of an RMO to make an application may not persist in the face of the Tribunal’s views) or unnecessary, and there is uncertainty as to the putting in place of the after-care arrangements on which satisfaction of the discharge criteria depends, the tribunal should adjourn pursuant to rule 16 to enable them to be put in place, indicating their views and giving appropriate directions: c.f. Ex parte Hall [2000] 1 WLR 1323, per Kennedy LJ at 1352D.

If the tribunal are sufficiently assured that the necessary arrangements can be put in place, the tribunal should defer discharge to enable them to be put in place, as was done in Brandenburg. The deferment should be as short as possible, regard being had to the right of the patient to his liberty and the duties of the section 117 authorities to make appropriate arrangements.

If, therefore, the evidence before the Tribunal gave sufficient confidence concerning after-care arrangements, I should have expected them to have deferred discharge for a sufficient time to permit arrangements for H to be put in place. Given that time was required to put after-care arrangements in place, even if the Tribunal had formed the view that the section 72 criteria for continued detention were not satisfied, there was no good reason for the Tribunal to order immediate discharge. In fact, however, the evidence before the Tribunal could not have given them confidence that suitable after-care arrangements would be in place.

It is at this point that I must also bring into account what was said by the Chairman when the Tribunal’s decision was announced. Regrettably, I cannot accept Mr Simms’ rejection of the statement attributed to him by Dr Cory and Mr Lloyd to the effect that immediate discharge was ordered because otherwise nothing ever happens at Ashworth. The evidence of Mr Lloyd’s almost contemporaneous notes and its substantial agreement with Dr Cory’s statement made without sight of those notes compels me to conclude that something to this effect was said. If so, it reveals in my judgment an unreasonable motivation for the decision not to adjourn until it was known what after-care arrangements were in place, or to defer discharge to enable suitable arrangements to be put in place, involving placing immediate and unnecessary pressure on the authorities charged under section 117 with responsibility for after-care. The responsibilities for those arrangements were not Ashworth’s, but those of the local authority and the local health authority in London. The local health authority was not represented before the Tribunal, and no steps were taken to elicit its position. The delay before accommodation other than bed and breakfast or hostel accommodation could be made available, and the concerns of the section 117 authorities, could and should have been taken into account by the Tribunal before discharge was made effective. In deciding as they did, without adjourning and requiring the section 117 authorities to provide information as to what after-care and accommodation would be available for H if an order for discharge were to be made, the Tribunal made it impossible for them to take these matters properly into account. It is no answer that the section 117 authorities should have already prepared their after-care plan for H, particularly given that they had not anticipated the Tribunal’s decision. The Tribunal had to deal with H’s case on the facts as they were, not as they might have been.

Furthermore, I do not consider it appropriate to assume that the Tribunal had reason to believe that immediate discharge was necessary to ensure that arrangements were put in place. Quite apart from the question whether it is appropriate for a tribunal to act in this peremptory and high-handed fashion, there is no evidence that the Tribunal had any justification for such a belief. Indeed, the Chairman’s denial that he had ever previously discharged a patient form Ashworth indicates the contrary. Nor is it any answer to say (as does the chairman in his first witness statement) that care plans are put in hand at the last minute: as I stated above, that might justify a relatively short deferral of discharge, but it does not justify discharge without a care plan.

This case is the converse of Ex parte Hall [2000] 1 WLR 1323. In Hall, a decision of a tribunal to conditionally discharge a restricted patient, imposing stringent conditions concerning after-care, was upheld, although those conditions were difficult to comply with. Here, no conditions could be imposed, but the Tribunal took a step in the dark by excluding from its consideration the problems of after-care. In the case of H, the relationship between the availability of suitable after-care and the discharge criteria in section 37 required the Tribunal to consider after-care.

Mr Walker submitted that a failure of a tribunal to defer discharge, or to give reasons for not deferring discharge, should not lead to the quashing of its decision to discharge, particularly in a case where the patient has voluntarily remained in hospital after the tribunal’s decision. In many cases that submission may well be well-founded. However, in the present case the question of after-care was fundamental to the issues before the Tribunal. In addition, in my judgment the Tribunal did not properly take into account the evidence of Miss Ariola. If they had done so, they would have adjourned and called for information from the section 117 authorities. They could speedily have learnt of the concerns of those authorities as expressed in the meetings to which I referred above. It is far from clear that the Tribunal would have directed discharge in the face of the concerns and difficulties to which they would have been alerted.

In my judgment, therefore, the Tribunal’s decision was one which no sensible tribunal acting with due appreciation of its responsibilities would have made.

The Tribunal’s reasons

I was helpfully referred to the authorities on the need for and the adequacy of reasons given by a tribunal, and in particular a Mental Health Review Tribunal, for its decision. In my judgment the following propositions set out the relevant law:

(a) Proper adequate reasons must be given that deal with the substantial points that have been raised: Re Poyser and Mills’ Arbitration [1964] 2 QB 467, 478, the classic statement of Megaw J, made, it should be noted, in the context of an arbitration award.

(b) Reasons must be sufficient for the parties to know whether the tribunal made any error of law: Alexander Machinery Ltd v Crabtree [1974] ICR 120.

(c) Where, as in the case of Mental Health Review Tribunals, Parliament has required that a decision be given with written reasons, those reasons have to be adequate. They may be elucidated by subsequent evidence, but in general, inadequate written reasons cannot be saved by such evidence: R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302.

(d) A Mental Health Review Tribunal’s reasons must deal with the entirety of its decision, and not only its decision on the issues set out in section 72(1)(a) or (b) of the Mental Health Act: Bone v Mental Health Review Tribunal [1985] 3 All ER 330.

(e) It is unnecessary for a tribunal to set out the evidence and arguments before it or the facts found by it in detail: Varndell v Kearney & Trecker Marwin Ltd [1983] ICR 983.

(f) It is often difficult to explain why one witness is preferred to another. Generally speaking, a tribunal’s decision will not be inadequately reasoned if it does not give such an explanation.

(g) In assessing the adequacy of reasons, one must bear in mind that the decision will be considered by parties who know what the issues were (R v Mental Health Review Tribunal ex p Pickering [1986] 1 All ER 99, 102; R v Mental Health Review Tribunal ex p Booth [1997] EWHC Admin 816, per Laws J at paragraph 29.

(h) However, the reasons must sufficiently inform both the patient and the hospital as to the findings of the tribunal: Pickering at 104. This consideration has been given added significance by the decision of the Court of Appeal in Brandenburg. A tribunal must also bear in mind that its decision may have to be considered by those who were not present at or parties to the hearing, such as Dr Silva and the local health authority in the present case. Furthermore, in my judgment there is no real difference in the requirements of reasons where the decision of the tribunal is to discharge a patient and where its decision is to refuse to do so, at least in a case such as the present, where inappropriate discharge may create risks for third parties, whose own Convention rights under Articles 2 and 5 may be in play.

(i) In considering the adequacy of reasons the Court is entitled to take into account the fact that the tribunal has a legally-qualified chairman, and that in the case of Mental Health Review Tribunals the reasons do not have to be given immediately. Rule 23 does not require its decision or its reasons to be recorded in writing immediately after the hearing, and Rule 24 gives the Tribunal 7 days in which to communicate its written decision and reasons.

The judgments to which I was referred include a number of cases in which the tribunal’s reasons were brief in the extreme, yet the decisions were upheld. However, the adequacy of reasons must depend on the context, the issues and the evidence. The decisions of Mental Health Review Tribunals are at the most important end of the spectrum of tribunal decisions. In the course of his submissions Mr Knafler unkindly but graphically submitted that the reasons of the Tribunal in this case would barely be adequate for a refusal of a dog licence. Certainly, they compare unfavourably with the reasons given by the adjudicators in immigration cases, another area where decisions are important and the pressure of work on tribunals substantial.

It follows from proposition (d) in paragraph 77 above that I reject Mr Walker’s submission that a decision to defer discharge, or a decision not to defer discharge in circumstances that suggest that a deferral is appropriate, is outwith the scope of the statutory duty. I do so on the authority of Bone, on the basis of the wording of rules 23 and 24, and on the general principle that statutory obligations to give reasons should be liberally, and not narrowly, construed.

I fully accept the submissions of counsel for the Tribunal and H that the Tribunal’s written reasons show that they preferred the evidence of Dr Williams to that of Dr Croy, and that they did not accept the written reports that were inconsistent with Dr Williams’ evidence. It is clear that the Tribunal formed a favourable view of H as he presented to them. The Tribunal gave reasons why they preferred Dr Williams’ evidence: the good presentation of H and the fact that Dr Williams had known H for some years. (Parenthetically, I find the latter reason surprising. Dr Williams had ceased to be H’s RMO in 1997. He had known H just as well in 1997, when he had reported that he was suitable for discharge. H’s medical history later in 1997, summarised in the chronology, amply justified the contrary views of other psychiatrists at that date and the refusal of the Tribunal to discharge him in September 1997.) The Tribunal gave reasons for their being satisfied that the discharge criteria were met. However, the Tribunal’s written reasons gave no indication as to whether they had considered H’s after-care arrangements. They gave no reason for not deferring discharge until those arrangements could be put in place. Moreover, this case is indistinguishable from The Queen on the application of Wirral Health Authority and another v Dr Finnegan and DE [2001] EWHC Admin 312, in which the Tribunal had failed to explain why a substantial body of opinion that disagreed with the views of one psychiatrist was rejected, and Demetri [1997] EWHC Admin 622. Furthermore, the written reasons of the Tribunal did not address after-care other than medication.

I am left concerned that the Tribunal did not grapple with major issues: the well-reasoned preponderance of medical opinion against discharge; the fact that in the past when discharged into the community H had failed to comply with medication (although it must have been thought that he would) and had relapsed; that he had not been subject to or tested under the stresses of life in the community for a considerable time; that he needed professional help in the community, and that there were known questions in relation to after-care, as shown by Ms Ariola’s report and Dr Williams’ own report: all against the background that if he relapsed in the community he would pose a high risk to himself and to others. The reasons did not sufficiently address these matters.

As can be seen, my criticisms of the reasons of the Tribunal largely reflect my criticisms of the reasonableness of their decision. In my judgment the written reasons of the Tribunal were inadequate, and on this ground too its decision is liable to be quashed.

Other matters

The above grounds alone justify the quashing of the decision of the Tribunal. However, there are additional concerns as to the procedure of the Tribunal. These matters were not specifically addressed in the claim form or in evidence, and I do not base my decision on them. I have, however, found them troubling, and I mention them because the first two of them may be relevant to Tribunals in future cases.

First, according to Mr Lloyd’s note, the Tribunal did not at any time give any indication that it was proposing to reject the evidence of the psychiatrists who had given written reports on H but were not at the Tribunal hearing. Indeed, the Tribunal’s reasons do not refer to the written reports. I am also troubled by the fact that in his first witness statement the Chairman, Mr Simms, while giving reasons for rejecting the opinions of Dr Croy and Mr Miles, gives none for rejecting those expressed in the written psychiatric reports of the psychiatrists who differed from Dr Williams. Mr Simms states only and uninformatively that the Tribunal’s decision was made “having considered the reports”. He summarises the reports of Doctors Lomax, Burke and Heads, but does not mention the report of Dr Duncan.

In R v South West Thames Mental Health Review Tribunal ex p Demetri [1997] EWHC Admin 622, Kay J, at paragraph 53 of his judgment, stated that in the circumstances of that case the tribunal was under a duty to draw to the attention of the legal representative of the applicant that the unavailability for cross-examination of one of the doctors materially affected the weight that the Tribunal proposed to give to his evidence, so as to give the legal rep of the applicant an opportunity to ask for an adjournment so that the doctor could be called. In my judgment, the Tribunal in the present case were under a similar duty if they proposed (as they did) to reject the evidence of the several doctors whose recent written reports were before them and who were of the opinion that H should not be discharged. Particularly given the preponderance of that opinion in the written reports, it was inappropriate for the Tribunal to determine the issues before them as if the only significant evidence was the oral evidence, and in any event without giving the Hospital and the local authority the option of calling Dr Heads or Dr Lomax (neither of whom, incidentally, could be said to be other than independent of Ashford), provided that could be done without undue delay.

Secondly, it appears from Mr Lloyd’s note that at no stage of the hearing before the Tribunal announced their decision were the parties before the Tribunal informed of the findings of Dr Cashman as a result of his interview with H. The parties should be given the opportunity to address and to comment on any significant findings of the medical member, both because fairness so requires and because they may have comments or evidence to put before the Tribunal that may lead it to depart from the provisional opinion formed by the medical member. That this should be the practice is supported by the guidance from Regional Chairmen of Mental Health Review Tribunals referred to at page 159 of the Leggatt Report on Tribunals and in paragraph 57 of the judgment of Crane J in The Queen on the application of H v Mental Health Review Tribunal (Case number CO/2120/2000, unreported, 15 September 2000).

Thirdly, the Tribunal misunderstood of Dr Croy’s opinion. She supported H’s transfer to a medium secure facility in his home area, provided they agreed that they could manage him in their unit. The reason he had not been transferred to a MSU was that Dr Heads, from Three Bridges, did not consider that he had made enough progress for transfer there. Indeed, the decision of the 1999 Tribunal shows that Dr Croy had expressed to them the view that consideration should be given to H’s transfer to a MSU. Yet according to Mr Lloyd’s note, the first question asked of Dr Croy on 22 March 2001 by the medical member of the Tribunal was as follows:

“The medical member asked Dr Croy how long she wanted H to be free of violence before she would contemplate supporting a move on from conditions of maximum security.”

The question suggests that Dr Cashman had not reviewed the papers for the Tribunal hearing. My concerns are augmented by the following passage in Mr Simms’ first witness statement.

“When asked why the patient should be detained at Ashworth, Dr Croy answered that it was because no other institution would have him. The Tribunal was not impressed by this answer.”

Dr Croy’s answer was factual. Psychiatrists from Three Bridges had twice rejected H as unsuitable for transfer to their MSU, most recently Dr Heads in her report of 2 October 2000. Neither counsel for H nor counsel for the Tribunal gave me any satisfactory explanation why Dr Croy’s answer was regarded negatively by the Tribunal.

The section 3 application of 28 and 29 March 2001

H seeks an order quashing his detention under section 3 essentially on the grounds that in making their recommendations and report on 28 and 29 March 2001 Doctors Croy and Silva and Ms Berry erred in law in failing to respect the decision of the Mental Health Review Tribunal of the previous week, as did the Hospital in accepting the application; that they acted unreasonably; and that in view of H’s willingness to remain voluntarily and the interim relief granted by the Court it was unnecessary for H to be detained under section 3.

H also disputes that Ms Berry saw him for an adequate time before making her application under section 3, and denies that he ever expressed an intention to leave the Hospital before an appropriate after care package and suitable accommodation were in place. However, as mentioned above, I shall consider the lawfulness of H’s sectioning on the basis of the facts set out in the contemporaneous documents.

Interim relief

By the time she made her application under section 13 Miss Berry was aware of the interim relief that had been granted by the order of 29 March 2001. I initially considered that where interim relief of this kind has been given by the Administrative Court an approved social worker cannot reasonably be of the opinion that it is necessary and proper for an application her application to be made. However, having heard Miss Foster’s and Mr Knafler’s submissions on the availability and effectiveness of such interim relief, I have concluded that Miss Berry was rightly advised that such relief did not render her application unnecessary.

Two orders were made on 29 March 2001: an order staying the decision of the Tribunal of 22 March and an injunction restraining the release of H pursuant to that decision. I shall consider those orders separately.

The grant of a stay is authorised by CPR Part 54.10. There is no reason to think that the meaning of “stay of proceedings” in Part 54 differs from its meaning in the previous RSC Order 53.

There are two conflicting decisions concerning the availability and effect of orders to stay proceedings: the decision of a strong Court of Appeal in R v Secretary of State for Education and Science, ex parte Avon [1991] 1 QB 558 and that of an equally strong Judicial Committee of the Privy Council in Minister of Foreign Affairs, Trade and Industry v Vehicle and Supplies Ltd [1991] 1 WLR 550. The former decision was not cited to the Privy Council in the latter case, and only the successful Minister was represented. I am in any event bound by the decision of the Court of Appeal in Avon. I have to say that while I see the practical benefits of the decision in Avon, I find it difficult to fault the logic of the statement of the Privy Council at [1991] 1 WLR 550, 556D to 557D.

However, the present case differs significantly from the facts in Avon. In that case, a stay of proceedings was ordered in respect of ministerial decisions that had not yet had effect. The legal consequences of the decision in question are set out by Glidewell LJ at [1991] 1 QB 562F-H, including the incorporation of the initial governing body of the school in question and the transfer to it of the school’s property. The Court of Appeal held that, although those consequences were stipulated by statute, the Court could by granting a stay defer them until the review proceedings were concluded.

In the present case, however, by the time a stay had been ordered the decision of the Mental Health Review Tribunal had had effect. H was discharged as from 2 pm on 22 March 2001, and as from that time the Hospital ceased to have power to detain him or to treat him against his will. A stay may defer the legal consequences of a decision of a tribunal or of the executive, but, in my judgment, it cannot turn the clock back to undo what has already been done. It follows that the stay ordered on 29 March was of no effect.

The Administrative Court clearly has power, under section 37 of the Supreme Court Act to grant an injunction prohibiting a patient from leaving a hospital, and requiring him to agree to treatment. Having heard argument and considered the authorities, however, I have to say that I cannot think of circumstances in which it would be proper to use this power. The Court should not deprive a person of liberty by injunction or compel him to submit to treatment, except in the most exceptional cases. Moreover, an injunction cannot authorise a doctor to treat a patient: it can only require the patient to agree to treatment. If¸ notwithstanding the injunction, the patient does not agree to the treatment in question, the only remedy is committal for contempt. Difficulties would also arise in specifying the treatment in question. Furthermore, as Miss Foster pointed out, some compulsory measures are taken in hospitals such as Ashworth that are not treatment in any sense, such as searches of patients without their consent (as to which see R v Broadmoor Special Hospital ex p S, H and D an unreported judgment of the Court of Appeal given on 5 February 1998). In addition, detention by injunction would deprive the patient of the safeguards provided under the Act.

Those being my conclusions on the remedies of stay and injunction, which are derived from statute or delegated legislation, I cannot think that the Court has any inherent power to do what it could not or should not do by means of those remedies: see F v West Berkshire Health Authority [1990] 2 AC 1. The position is different where children are concerned: see Re C (Detention: Medical Treatment) [1997] 2 FLR 180, or where what is sought is a declaration (as in F v West Berkshire Health Authority). Mr Walker did not suggest that effective interim relief could be granted in the form of an interim declaration under CPR Part 25.1, and I assume it could not. In any event, any assumption of powers on the basis of a doctrine of necessity assumes that no appropriate powers are available under the Act: and that begs a large question.

My conclusion is one that I have arrived at with reluctance. In my judgment, except possibly in the most exceptional cases, the Court has no power to grant effective interim relief in a case in which judicial review is sought of the decision of a Mental Health Review Tribunal to direct the immediate discharge of a patient.

It follows that the advice communicated to Miss Berry as to the doubtful effects of the order for interim relief in this case was correct. It also follows that if effective relief is to be sought in a case in which a hospital seeks to challenge a decision of a Mental Health Review Tribunal to direct the immediate discharge of a patient, it must be sought under the provisions of the Mental Health Act.

The position of ASW’s and doctors immediately following a tribunal decision that is the subject of judicial review

The Court of Appeal in Brandenburg considered the position of approved social workers and doctors following a decision of a Mental Health Review Tribunal to discharge a patient. They cannot use their powers to cause a patient to be detained under section 3 in order to override or to circumvent the Tribunal’s decision. If they could do so, the statutory provision of review by independent tribunals would be rendered illusory. Where detention is considered immediately after a tribunal decision, some convincing reason is required to justify detention under the Act.

Miss Foster submitted that the statements in the Court of Appeal as to the legal position of mental health professionals in the period immediately after a tribunal decision to discharge a patient are obiter dicta, and not binding on me. I do not think it necessary to decide whether those statements are strictly binding on me. I see no justification for not following such recent considered and authoritative statements of the Court of Appeal in cases to which they apply.

However, in Brandenburg there was no challenge to the lawfulness of the decision of the Mental Health Review Tribunal. The Court of Appeal did not consider the position of mental health professionals or of a hospital in a case where the tribunal has ordered the immediate discharge of the patient, and hospital is advised, on substantial grounds, that the decision of a tribunal is arguably unlawful, that judicial review proceedings, which have been or are about to be commenced, have a reasonable prospect of success, and no effective interim relief is available. It is clear that such advice was given in this case: see paragraph 11 of Dr James’s witness statement. As appears from my judgment, there were reasonable grounds for such advice to have been given.

In DE, Scott Baker J said, at paragraph 83:

“To section under section 3 immediately after a release under section 37 by a tribunal, just because the sectioning doctors disagree with the tribunal’s decision would, in my judgment, be an abuse of process as it would effectively usurp the tribunal’s decision. But that is not this case, where I am satisfied (a) that efforts were made to see if the decision of the Tribunal’s could be implemented; and (b) there were genuine grounds for thinking, and in the event it has proved to be the case, that the Tribunal’s decision was unlawful.”

That statement is applicable in the present case. However, when they make their decisions the ASW and the doctors cannot know whether the decision of the Tribunal will subsequently be held to be unlawful. In my judgment, it is sufficient if they are advised, on substantial grounds, that the decision is unlawful, and that either proceedings for judicial review of the decision have been commenced or that such proceedings are imminent. In circumstances such as those of the present case, where the Court cannot order a stay of the Tribunal’s decision, I do not think that the professionals are required to give to the Tribunal decision the authority that it may subsequently be held not to have. A social worker or doctor who takes into account the alleged unlawfulness of the Tribunal’s decision, and therefore discounts it, is not acting irrational or improperly. In such circumstances, the professionals must act in accordance with their professional judgments. The patient’s remedy is to apply to the Mental Health Review Tribunal.

The lawfulness of the doctors’ recommendations, the ASW’s application and the Hospital’s decision in the present case

I am satisfied that Dr Croy, Dr Silva and Miss Berry and the management of Ashworth Hospital all acted in accordance with their professional judgments when they caused H to be detained under section 3, and indeed the contrary is not alleged. It is true that Dr Silva was misinformed of or misunderstood certain facts, but in my judgment the Court should be slow in the extreme to quash a doctor’s recommendation on such grounds, certainly where, as here, the Court has no reason to believe that those matters were of decisive effect and it cannot be said that the doctor acted perversely. In my judgment, the detention of H under section 3 was lawful.

It will be borne in mind that H was not left without remedy. He could have applied once more to a Mental Health Review Tribunal. Whether, if he had done so, it would have agreed with the conclusions of the Tribunal that gave the decision of 22 March 2001 cannot be known.

I also consider that by 28 and 29 March, Doctors Croy and Silva and Miss Berry had sufficient reason to cause H to be detained under section 3 notwithstanding the decision of the Tribunal, assuming it to have been lawful and valid. In view of my decision on the Hospital’s claim for judicial review, and my conclusion on the legal position following the Tribunal’s decision, I shall set out my reasons summarily. By 28 March, H was aware of the legal challenge to the Tribunal’s decision and, according to the Hospital notes, and had stated that he would leave to go to bed and breakfast accommodation that the professionals involved considered unsuitable, when there was no after-care plan in place. Dr Croy could not have thought that this situation had been reasonably envisaged by the Tribunal. It is true that Dr Croy adhered to opinions, such as the likelihood of H’s ceasing to take medication after leaving hospital, that may have been inconsistent with the findings of the Tribunal. However, once a situation had arisen that the Tribunal could not have envisaged, I do not think that Dr Croy was bound to discard her professional judgment on matters where she differed from the Tribunal: her duty was to apply her professional judgment to the facts as she saw them. The same applies to Dr Silva; and in this connection I must take into account the last sentence of paragraph 15 of his witness statement. Equally, in the circumstances as they appeared to Miss Berry, I find it impossible to find her action unreasonable or irrational. The position of the Hospital management does not call for separate discussion.

For the sake of completeness, I mention that I reject Mr Walker’s submission that a failure by the doctors or the ASW to take reasonable steps to obtain information before sectioning a patient does not justify judicial review unless their failure amounts to perversity or leads to a perverse decision, or there is a failure to take into account something that it is mandatory for them to take into account. The Court need not and should not embark on the kind of enquiry envisaged by this submission when there is an alternative tribunal, namely a Mental Health Review Tribunal, that can fully review the patient’s detention.

It follows that the detention of H pursuant to section 3 on 29 March 2001 was lawful.

I should in any event have refused to quash the 29 March detention of H under section 3 in the exercise of the discretion of the Court, having regard to the more suitable alternative remedy of application under section 66 to another Mental Health Review Tribunal, and the fact that since then another doctor has certified that he is detainable: I refer to Dr Fearnley’s section 20 report of 28 August 2001. Given the opinions of Doctors Silva, Kelly and Fearnley, quite apart from those of Doctors Lomax and Croy, and the risks to H and to other persons if he is discharged inappropriately, in my judgment an order should not be made that would result in his discharge without consideration of his current mental condition. That can best be done by a Mental Health Review Tribunal. Mr Walker’s argument that any new decision by a tribunal to discharge H would have been the subject of judicial review proceedings depends on assumptions as to the evidence at the second tribunal hearing and the adequacy of its reasons for its decision that the Court should not make.

Final comments

I should not want to leave this case without expressing my appreciation of counsel’s comprehensive and informative submissions. I had the benefit of hearing counsel with wide experience of Mental Health Review Tribunal cases, of which I am the beneficiary.

Secondly, I strongly endorse the recommendation of the Leggatt Report that there should be a second-tier tribunal to hear appeals from Mental Health Review Tribunals and their proposed successors. Mental Health Review Tribunals make decisions as important as those of criminal courts, and it is unthinkable that there should not be a right of appeal from every criminal court. Furthermore, as mentioned above, the hearing before the Tribunal in this case took about 3 hours. The hearing before me took nearly 5 days. It focussed, necessarily, on the tribunal hearing, the evidence before it, its reasons, and the actions of Doctors Croy and Silva and Miss Berry on 28 and 29 March 2001. An appellate tribunal, the members of which would include a judge and a psychiatrist of appropriate qualifications, would have been able to focus on H’s mental health at the date of the hearing before it, to have determined the issues as to H’s mental health, and could hear medical evidence for that purpose; and it could have taken into account the evidence of the section 117 authorities. I am strongly of the view that such a hearing would have been shorter than a hearing of an application for judicial review. Moreover, if successful, an appeal leads to an effective decision rather than the quashing of the decision that is the subject of review and an order for a rehearing, with attendant delay and further costs.

IN THE HIGH COURT OF JUSTICE CASE REF CO/1226/2001

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

ASHWORTH HOSPITAL AUTHORITY

Claimant

and THE MENTAL HEALTH REVIEW TRIBUNAL

Defendant

and H (a patient) (1) LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2) EALING HAMMERSMITH AND HOUNSLOW HEALTH AUTHORITY (3)

Interested Parties

ANNEX I TO JUDGMENT OF STANLEY BURNTON J CHRONOLOGY TO 30 MARCH 2001

4 Aug 1961	H born in Grenada, parents leave same year, lives with grandparents
1966	Comes to UK to care of parents
1976	H received into aunt’s care- ran away; placed in hostel
1978	Leaves school following suspension, (intermittent employment)
1979	Begins cohabiting with JE (has 3 children with her) (37-42)
1982	First contact with psychiatric services admitted as an outpatient to Charing Cross Hospital later September 1982 admitted to hospital – damage to property in hospital. Broke JE’s arm with iron bar (31; 42)
	Reported to have started cannabis abuse in connection with his beliefs at about this time (165)

1983	3 admissions to hospital (mostly precipitated by violence) – violence to property. Burned son’s arm with cannabis pipe. Discharged, failed to co-operate with follow-up (31, 42, 44, 56, 162)

1983	Convicted of theft offences. Serious assault on JE’s mother and sister and 2 year old son; broke JE’s mother’s arm; hit another sister’s baby with an iron (GBH – sought to escape court and prison in course of sentence) (163)
27 Nov 1984	Transferred to hospital under section 47/49 MHA. Assaulted staff (42)
	Admitted to RSU
6 Dec 1984	Transferred to Broadmoor, denying psychiatric symptoms and blaming others for his predicament remained there about 1 year, mental state appeared to improve; (42) (163)

3 Dec 1985	Report of Dr Treasaden noted he had not heard voices since at least 21 Feb 85 although tense and marked denial of previous psychiatric symptoms and almost all previous episodes of violence. Not a management problem, and attending therapeutic sessions. Continued maximum security detention recommended until better insight gained (163)
Dec 1985	Discharged by MHRT from Broadmoor (31, 42)
	Failed to attend out patients as per aftercare plan (163)

May 1986	Violence against JE – chased with saw – psychiatric examination, assaulted prison officers charged with GBH, malicious wounding, arson and criminal damage (31, 42, 56)

Feb 1987	3 years Probation Order (42, 44)
	Several probable admissions to local psychiatric hospital (31)
Aug 1987	Assault – admitted to hospital – convicted (42); appears did not comply with probation order follow up (32)
Jan 1988	2 years’ probation order (189)
May 1988	Chased mother round house threatening to kill her, criminal damage – admitted to hospital, violence at hospital to a patient, threatened staff, absconded from Horton Hospital (32, 42)
16 Sept 1988	Section 37 Order – 2 year restriction under section 41 re-admitted to Broadmoor (32)
	Treated and improved.

1991	Discharged by MHRT against advice of RMO; follow-up arranged with psychiatrist at local hospital, but continuing problems with his co-operation (32)

May 1992	Admitted to Charing Cross Hospital under section 2

Jul 1992	Charged with affray and 3 counts of assault against a passer by in the street. Initially admitted to open ward for 2 weeks, then threatening towards nurse and transferred to locked ward (163)
	Readmitted to locked ward in local hospital Horton Hospital, grandiose and deluded (32)
	Released after request by JE as nearest relative
	Irregular attendance at outpatients (32)
Dec 1992	Readmitted to Horton Hospital under section 3 psychotic, after shouting in street and assaulting policeman. Medicated, and mental state improved.(32, 163)
	But when moved to open ward, although he initially appeared calm, he left hospital and assaulted JE. Had idea JE’s baby not his and had to be killed (32)

Jan 1993	Returned to locked ward, started on anti-psychotic medication (163)
Feb 1993	When subject to an unprovoked attack by another patient who was secluded, tried to break into seclusion room with a saw, transferred to St Bernard’s hospital and thence to Llanarth Court Hospital. Threatening but showed rapid improvement with medication. (32)
	JE applied for discharge as nearest relative: given improvement, H was discharged and returned to London for follow up at Horton Hospital – rapid deterioration, readmission on section 3 briefly (32)
Aug 1993	Abandoned depot medication, and later, oral medication also, mental state began to deteriorate (32, 38, 163)

8 Mar 1994	Readmitted to Horton Hospital with threatening behaviour, thought disorder, and paranoia s. 4 then s. 3 MHA (38)
Apr 1994	s. 17 leave granted (33)
Jun 1994	Leave rescinded because failed to comply with medication
	Mental state improved with further medication (33)
	Further s 17 leave – leading to further relapse
July 1994	While out of hospital on leave broke down JE’s door and threatened to kill her threatening her with a kitchen knife in presence of the children – no criminal proceedings brought (33, 38)
	H returned to Horton Hospital under s3
8 Sept 1994	In Horton Hospital abused and assaulted social worker, kicked down 2 se cure doors, threatened to kill a civilian worker, damaged property and assaulted a junior psychiatrist (punching him 20 to 30 times in the head) and his secretary when tried to telephone for help; (33) (38) (163)
27 Sept 1994	Following the incident H was secluded and after 2 weeks transferred to Ashworth (38) Hostile to medication (45)
Oct 1994	Secluded for violent behaviour (42)
Nov 1994	Incited other patients to attack staff (42)
	At Ashworth re-commenced on depot anti-psychotic medication: weekly Clopixol started 300 mgs weekly (45)

6 Feb 1995	MHRT application: No discharge (241)
May 1995	Alleged that H tried to strangle another patient - strenuously denied by H (42)
	Noted that he has a tendency to become uncommunicative at times and to stay up all night (166)
12 Oct 1995	MHRT application: No discharge, transfer recommended (unspecified) (241)
	Settled period until December 1996 (43, 166)

Late Dec 1996	Incidents of abuse to staff, agitated and aggressive; physical threats to and spat at other patients; verbal abuse and intimidation

Jan 1997	10 sessions of anger management initiated
Mar 1997	Seen by an independent psychiatrist on his behalf, Dr Burke for MHRT; considered well enough for discharge by him but MHRT recommended transfer to lesser security (33)
May 1997	Paranoid, agitated, crying and wailing; acute psychosis, over aroused and angry (45) (166)
May 1997	MHRT adjourned for a 117 meeting, full definite aftercare plans needed to be in place before any decision regarding a section 3 discharge (160)
4 Aug 1997	Section 117 case conference recorded a high level of concern amongst the community authorities at the risks of H’s discharge to the community and advised a referral should be made to 3 Bridges regional secure unit where a more gradual rehabilitation into the community might be possible (160)
24 Sept 1997	MHRT sat again, and refused discharge but made a recommendation for transfer to 3 Bridges – if no transfer by 1^st December then the MHRT stated it would re-convene (155-157)
Sept 1997	Seen by Horton Hospital Dr Alcock for referral to Three Bridges (because Horton closing)
15 Oct 1997	Report of Dr Baxter and Atkins of 3 Bridges: illness partially treated, poor insight, and limited engagement with clinical team; should remain in hospital prior to discharge to community – via an MSU. Continues to blames JE for his continued detention (160-169)
	H voices paranoid ideas and is aggressive to RMO
21 Nov 1997	Serious assault on staff on ward at Ashworth through frustration, punched female nurse unconscious (away for 1 year)
Dec 1997	Threats to staff reported

7 Jan 1998	Dr Croy becomes H’s RMO (207).
Feb 1998	H angry and paranoid; threatening to kill staff, abusive, dose of Copixol increased to 400mg weekly (43, 45, 60)
May 1998	Abusive and threatening “You were lucky you did not get a smack, you should have warned him to leave me alone” (43)
Aug 1998	Dr Burke supports discharge but to Liverpool area. Not suffering from mental illness. Has a personality disorder (170-177)
	Increase in medication alleviates some of symptoms
9 Sept 1998	MHRT application: No discharge (241)
Nov 1998	Denying responsibility for November 1997 assault, no remorse and blaming others (232)
	Sessions with primary nurse to examine coping with feelings of aggression, increasing insight into his illness and its effect on his behaviour (214)
	Medication changed to fortnightly: 800 mgs of Copixol every 2 weeks (215)


3 Feb 1999	Routine cannabis search provoked accusations of racism, hostility and verbal hostility (43, 62)
June 1999	Aggressive and abusive to nurses “I’ll fucking knock you out” when asked to wait for scales to weigh himself (46)
July 1999	Regularly up all night (46)
Aug 1999	Aggressive in manner towards staff (46) (see instances recorded pages 62-63)
Nov 1999	Dr Duncan of Stockton Hall Hospital considers H ready for a move to medium secure conditions
19 Nov 1999	MHRT application: No discharge (198-200)
Dec 1999	Dr Baxter and Dr Cole re-assess, further rehabilitation in longer term medium secure provision recommended

Jan 2000	Verbal altercation with a patient (46)
May 2000	Verbally abusive
2 Oct 2000	Dr Heads Report (41-49).

20 Oct 2000	Report of Dr Lomax (first independent expert instructed by H) (30-36)

27 Nov 2000	Susan Sookoo Report – Nursing Report for Hammersmith and Fulham (50-53)

21 Feb 2001	Report of Tita Ariola (Social Services) of Hammersmith and Fulham (37-40)

16 Feb 2001	Report of Tim Miles (TM) Ashworth Social Worker since H’s admission (1994) (66-67
26 Feb 2001	Dr Croy’s Report for the MHRT (54-65)

22 Mar 2001	Hearing of application before MHRT
	H agrees to stay in Ashworth until a flat is found for him (pm) (120, 341)
23 Mar 2001	TM tells H and his solicitor of a possible judicial review by the statutory authorities. Solicitor agrees to write to housing authority giving them 2 weeks to provide accommodation and prepare an aftercare plan
	Dave Worth, Emergency housing manager telephones TM; says LA will only commit to temporary accommodation pending assessment but intended to seek accommodation for H and given the two weeks grace thought it likely something would be available, the first place to come up would be held for H. Keen to avoid Bed and Breakfast since would increase risks, if at all, would only be used for as a short a time as possible (342)
	H sees Dr Croy – tells her he will stay 2 months top get a flat then speaks about going out next week and taking his depot early before he goes (342)
	Seen on ward by Ward Manager Nurse Jordan in afternoon – seemed content to remain in Ashworth while arrangements are looked regarding future placement (343)

26 Mar 2001	Monday morning – TM told H about Dave Worth’s telephone call. H said he had decided to leave and go to B&B while a flat comes up – in case he got into any bother with other patients or in case anyone did anything to change the Tribunal decision. He wanted to go on Wednesday (28^th March) and wanted TM to help get his belongings (344)
	TM learned that Ashworth are considering re-detaining H, and that they plan to challenge the MHRT decision. TM informed H’s representatives

26 Mar 2001	5pm: section 5(2) application by Dr Croy(121)
	TM informed H of his rights after 5(2) and explained about the proceedings assuring him that he and Dr Croy are agreed it will not stop them trying to sort accommodation and plan for his discharge (345)
28 Mar 2001	About 3.00pm, Dr Croy told H she will proceed with section 3 application and that over the next 24 hours he would be seen by another doctor and someone from social services (344)
	4.00pm Ashworth medical director (Dr James) met with Dr Croy, TM and others (345)
	6.15 TM, Croy and Silva meet and Dr Silva attended H on the ward. H walked out after short time, Dr Silva remained on ward until about 10pm and completed the section 3 documentation
29 Mar 2001	Application for permission for judicial review made; Judge grants permission and interim relief.
	Morning; relevant documents assembled for Sefton social worker (Lorraine Berry)’s visit to carry out potential admission interview (345)
	Arrangements discussed in the event that no section 3 application is made, noting that as there has yet to be proper involvement by the London authority this cannot be construed as effective aftercare (346)
	H seen by Lorraine Berry in presence of TM and Ward Manager Jordan. LB told H at the end of her interview with him that she would make an application for his admission under section 3 H told he is now on section 3 subject to acceptance by the Hospital Managers.
	Emergency Duty Officer in Hammersmith planned in event that section 3 being ineffective, Hammersmith forewarn of potential emergency and B and B provision needed
	Ashworth accepted section 3 application (paragraph 12, H’s witness statement dated 3/5/2001).

Case No: CO/1226/2001 and CO/1818/2001

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 9 November 2001

B e f o r e :

THE HONOURABLE MR JUSTICE STANLEY BURNTON

- - - - - - - - - - - - - - - - - - - - -

THE QUEEN ON THE APPLICATION OF

	ASHWORTH HOSPITAL AUTHORITY	Claimant
	- and -
	THE MENTAL HEALTH REVIEW TRIBUNAL FOR WEST MIDLANDS & NORTH WEST REGION	Defendant
	- and -
	H (A PATIENT) (1)
	LONDON BOROUGH OF HAMMERSMITH & FULHAM (2)
	EALING, HAMMERSMITH & HOUNSLOW HEALTH AUTHORITY (3)	Interested Parties
AND
	THE QUEEN ON THE APPLICATION OF
	H (A PATIENT)	Claimant
	- and -
	ASHWORTH HOSPITAL AUTHORITY (1)
	LORRAINE BERRY (2)
	EDWARD SILVA (3)
	MELANIE FRANCES CROY (4)	Defendants
	- and -
	EALING, HAMMERSMITH & HOUNSLOW HEALTH AUTHORITY	Interested Party

- - - - - - - - - - - - - - - - - - - - - Annex 2 to the Judgment:

Documents before the Mental Health Review Tribunal Mr Justice Stanley Burnton:

1.	26.3.97	RMO Report by Dr Williams
2.	24.9.97	Decision by the Mental Health Review Tribunal
3.	15.10.97	Psychiatric Report by Dr Atkins and Dr Baxter from the Three Bridges Regional Secure Unit.
4.	5.8.98	Independent Psychiatric Report by Dr Aggray Burke
5.	20.11.98	Counselling Report by Stan Lockley
6.	16.11.99	Independent Psychiatric Report by Dr Alice Duncan of Stockton Hall Psychiatric Hospital.
7.	19.11.99	Decision of the Mental Health Review Tribunal
8.	8.12.99	Psychiatric Report from Dr Cole of the Three Bridges RSU.
9.	13.9.00	RMO Report by Dr Croy
10	30.10.00	Independent Psychiatric Report by Dr Lomax of Kemple View Psychiatric Services.
11.	2.10.00	Psychiatric Report by Dr Heads at Ealing Hammersmith & Fulham Mental Health NHS Trust
12.	27.11.00	Nursing Report by Susan Sookoo of Ealing Hammersmith & Fulham NHS Trust
13.	16.1.01	Statement by Responsible Authority Part A.
14.	Undated	Social Work Report by Tita Ariola of London Borough of Hammersmith and Fulham Social Services
15.	16.2.01	Social Work Report by Tim Miles, Ashworth Hospital Social Worker
16.	26.2.01	RMO Report by Dr Croy
17.	8.3.01	Independent Psychiatric Report by Dr Williams
18.	21.12.00	Patient’s Application

The earliest report before the Tribunal was Dr Williams’ report dated 26 March 1997. Dr Williams was then his RMO. It was a short report, opining that H’s aggressive behaviour was due to poor impulse control rather than his mental illness, but giving no reason for this view. He concluded:

“(H) suffers from mental illness within the meaning of the Mental Health Act and he is presently detained under Section 3 of the Mental Health Act. I am of the opinion that he should be suitable for discharge after the proposed Discharge Planning Meeting has taken place and adequate after care plans have been formulated for his after care in the community.”

As the chronology shows, H was not in fact discharged. 8 months later, on 21 November 1997, H committed a serious assault on a member of staff at Ashworth.

The reasons given by the Tribunal who considered H’s application for discharge in September 1997 included the following:

“The evidence of the RMO (Dr Williams), whilst ambivalent as to whether the patient should be discharged or not, did result in his agreement that the patient required treatment in a hospital, the risk being best contained in a hospital. Initially the RMO had agreed with the transfer of the patient to a RSU, but then changed his evidence to a Community Hospital.

“There has been a considerable history of violence by the patient to his partner, his family and also a police officer. He represents a danger which is contained in a maximum security hospital such as Ashworth, but he needs to be “tried-out” in conditions of lesser security. This was agreed by all parties at the Tribunal.”

The Psychiatric Report of Dr Atkins and Dr Baxter, of Three Bridges Regional Secure Unit, dated 15 October 1997, was far fuller than that of Dr Williams. It included a full history. The conclusions included the following:

“1. (H) had a major mental illness characterised by auditory hallucinations, persecutory, religiose and grandiose delusions, associated with excitability, hostility and poor insight. For example, he does not understand the need for depot maintenance treatment, and has a long history of non-compliance with medication and follow-up.

2. ...

3. His threshold for violence is lowered by acute illness. However, the relationship between the symptoms of his mental illness and his violent behaviour (towards people and property), is unclear. In particular, the motivation for his violence is probably understood; his violence is apparently unpredictable and at times very serious.

4. His partially treated illness, poor insight, limited engagement with the clinical team, including only a limited treatment programme, continuing hostility to his ex-partner, minimisation of his violence and risk of absconsion, together require, in my opinion, further assessment and treatment in maximum security. An on-going assessment of risk is required which attempts to take account of the relationship between his mental illness and his violence. However, it would be entirely appropriate that, after a period of stability, he should be transferred to conditions of medium security and our Team’s care at the Three Bridges Unit, to allow a graded return to the community, in collaboration with (H).

5. We would recommend strongly that (H), on the grounds of his health and risk to others, should remain in hospital at present. However, should the Tribunal decide to discharge him, we feel that it is essential that supervised discharge powers under Section 25A MHA (1995) are used, and we would be prepared to be involved with the care of (H) at the request of, and in partnership with, local psychiatric services at Charing Cross Hospital in West London.”

The independent Psychiatric Report of Dr Burke, dated 5 August 1998, included the following in the section setting out his opinion:

“… I do believe that he suffers from a personality disorder along with a mood disorder.

The prognosis for this patient’s condition does not seem to be good. His history does not suggest that he would be easily accepted in an after-care facility. He needs to receive a package of care which begins to meet his important needs for security and not being put down. He needs contact with his children, if only by telephone, and letters. He needs to have a sense of hope and without this, treatment does seem to be unlikely to be effective.

At the present time I do not believe that the patient can be transferred from hospital without a package of care/after-care. The care programme should strive for him to be rehabilitated into the community. I believe that there is the possibility that he can be rehabilitated and I would be willing to work closely with others in making this possible. I would suggest that initially the patient should be rehabilitated in after-care facilities in Liverpool. Currently the patient is not suffering from mental illness in my opinion.”

Dr Duncan’s report, dated 16 November 1999, had been commissioned by H’s solicitors for the Mental Health Review Tribunal hearing of November 1999. It was a very full report, sixteen pages long. It concluded:

“In my opinion the discharge criteria have not been met. He will require further treatment and rehabilitation as well as assessment and management in conditions of lower security with a full comprehensive discharge care plan when he is ready to move into the community.

(H) shows that he can adequately care for himself in a supportive environment like a hospital and previously in the community when he was living with his ex-partner but he is likely eventually to neglect himself and become depressed and isolated in the absence of adequate psycho social support. A significant part of any rehabilitation package when Mr Thomas moves on to lower security should include the establishment of consistent professional network as well as helping Mr Thomas form his own psycho social support network in the community.”

The November 1999 Tribunal rejected H’s application for discharge. The Tribunal’s reasons were principally as follows:

“1. We are satisfied that (H) is suffering from Mental Illness, namely paranoid schizophrenia, and he should be detained in hospital for treatment both for his own health and safety and for protection of others.

2. Dr Croy, (H)’s RMO, expressed the view, reflected in the conclusion of Dr Alice Duncan’s independent report that careful consideration should be given to moving to a RSU.

3. We have decided that it is premature for the Tribunal to recommend such a move although we do encourage the taking of all positive steps to facilitate a move to RSU.”

Dr Cole’s report, dated 8 December 1999, had been prepared at the request of Dr Croy, H’s RMO. H had been referred for assessment with regard to his suitability for conditions of long-term medium security. The report includes a detailed account of Dr Cole’s interview with H on 19 October 1999. The whole of the opinion and recommendations of Dr Cole are relevant, but for present purposes it is sufficient to cite paragraphs 4 and 5:

“4. At present, his guarded manner and his reluctance to discuss his previous symptoms or violent behaviour make a detailed examination of his mental state extremely difficult. Although he appears to have some degree of insight into his mental illness, he denies or minimises his violent behaviour. He is unwilling to discuss his relationship with (his ex-partner) and his possible ideas about her infidelity. His past history suggests that his history is a major component in his violent behaviour, since his violence has coincided with unsettled periods in terms of his mental state, or where his medication has been reduced there is evidence of a dissocial personality disorder, which would also increase his propensity for violence. Immediate precipitance of his violent acts have included frustration at his demands not being met by his multi disciplinary team.

5. It is our opinion it would be appropriate to consider his further rehabilitation in long-medium security. However, it is clear that there are many issues which remain to be addressed, such as his attitude to medication in lesser security, his insight into his violent behaviour, his ability to engage in therapeutic activities, his relationship with his ex-partner, his history of drug misuse, and his history of poor compliance with community follow-up. … At the current time there remains the risk of serious violence to others in the absence of a graded plan of rehabilitation, and his detention under section 3 MHA 1983 remains appropriate.”

Dr Croy’s first report, dated 13 December 2000, was a full report. She expressed the view that:

“It seemed unclear to what extent his assaults were driven by his psychosis or his attitude about himself and towards others”.

Her opinion was as follows:

“Mr Thomas suffers from paranoid psychophrenia, which is a mental illness within the meaning of the Mental Health Act 1983. Although he is much improved on his current levels of medication, there are times when he appears somewhat different in presentation and it is thought that this is due to symptoms of his mental illness. This mental illness makes it appropriate for him to continue to be detained in hospital for treatment in the interests of his own health, his own safety and, more particularly, for the safety of others.

H has gradually improved since his medication was increased in March 1998 and there have been less documented reports of him being hostile or abusive. He does, however, continue to deny the symptoms of mental illness which have been documented in his records, suggesting that he has limited insight into his condition. His lack of insight and openness with staff, along with his general level of hostility, would make it very difficult to supervise him in the community. He, therefore, remains appropriately detained in hospital for the continued treatment of his mental illness.”

Dr Lomax’s report, dated 30 October 2000, had been prepared on the instructions of H’s solicitors. Dr Lomax had interviewed H, had spoken with staff involved in his care, and reviewed his case file held at the Hospital. His opinion was as follows:

“From my examination I conclude that (H) has a paranoid schizophrenia illness of long duration; at the present time this is well controlled with medication. The pattern of his history suggests, however, that control of his symptoms can be brittle and (H) has a history of repeated relapse when not in in-patient care. At the present time I consider his mental illness is of a nature which warrants his detention in hospital and I feel unable to make a recommendation for discharge at this time, believing that further work, particularly in the area of anger management, relapse prevention skills and compliance with treatment needs to be completed.

I consider that his detention is necessary in the interests of his own health and safety and for the protection of others.

However, I did not form the impression that this needed to be carried out in conditions of maximum security and would recommend that he be transferred to a medium secure facility. … It would seem appropriate, if the Tribunal were minded to support such a recommendation, that that option be further explored.

With respect to the possibility of discharge from hospital, whilst I do not consider this to be an option at this time, nevertheless should the Tribunal consider that it would be appropriate then I would recommend that he be placed under a Community Supervision Order rather than simply be made informal.”

Dr Heads saw H in order to assess his suitability for transfer to a long term medium secure service. For the purposes of preparing his report, he had read H’s Hospital and Three Bridges medical files; he had interviewed H on his ward and discussed his case with the Team Leader on his ward. Dr Heads report also is a full report, of more than eight closely-typed pages. She reported that during her interview of H on 11 September 2000, he had told her that “he was extremely worried about the side effects of clopixol, particularly regarding sexual problems. He was very concerned about this and is wondering if he should stop medication.”

Her conclusion was as follows:

“Given the seriousness of the problems noted above I consider that (H) continues to require care and treatment in conditions of maximum security. I do not consider that he has made enough progress to move to a long term medium secure service. There is an on going risk of serious violence which in my opinion can be best managed by the staffing and procedures of a special hospital. Given his attitude to his illness, lack of understanding of the need for hospital and psychiatric care and antagonism to psychiatric services I would also consider that he would pose a significant absconding risk were he to be in a less secure environment”.

Dr Croy’s second report, dated 26 February 2001, did not add substantially to her earlier report. She had last interviewed H on 22 February 2001, on that occasion, on attempting to explore issues further, H had informed her that he no longer wished her to be his RMO and would not see her again. She thought that he remained appropriately detained in hospital for continued treatment of his mental illness. The penultimate paragraph of the report was as follows:

“Should the long-medium secure facility in (H)’s home area agree that they could manage him in their unit, then I would support his transfer there. However, given their express concerns, it remains appropriate for him to be treated at Ashworth Hospital.”

The last psychiatric report was Dr Williams’ second report, dated 8 March 2001. Like Dr Lomax’s, it had been prepared at the request of H’s solicitors. Dr Williams had read the then four most recent Psychiatric Reports on H, with the exception of that of Dr Heads. Dr Williams had interviewed H and had had the opportunity to discuss him with members of the nursing staff on his ward. It appears that he had not considered the hospital notes. Dr Williams set out under 7 heads H’s progress at the Hospital over the past two years. I shall set out Dr Williams’ opinion and recommendation extensively:

“1. I am of the opinion that (H) suffers from paranoid schizophrenia, a form of mental illness within the meaning of the Mental Health Act 1983, but the illness is no longer of a nature or degree that continues to require treatment in a hospital setting. The symptoms of the illness are well controlled by antipsychotic medication, the patient complies with his treatment and he has gained full insight into illness. He intends to continue with his treatment on discharge and appreciates that he would need professional help to resettle in the community.

(H) does not suffer from the severe form of the illness. … I strongly disagree with Dr Cole, acting under the supervision of Dr Baxter, that (H) requires long term medium secure facilities.

2. H had poor impulse control but over the past six and a half years he has benefitted from at least two courses of anger management and he has not behaved in a significantly aggressive manner in the past two years. In the absence of objectively and consistent features of a personality disorder, (H)’s poor impulse control, should it re-emerge, would not amount to psychopathic disorder within the meaning of the Mental Health Act. Hence, he would not be detained under the Mental Health Act and could appropriately be dealt with by the criminal justice system.

3. … (H)’s significant achievements as well as the remission of his mental illness, his insight into the illness and compliance with treatment, indicate that (H) no longer requires further compulsory treatment in a hospital setting.

4. I am of the opinion that it would be appropriate for (H) to be discharged from Section 3 of the Mental Health Act 1983 and made subject to Section 25 Supervised Discharge under the terms of the 1995 Mental Health (Patients in the Community) Act.

Supervised Discharge would ensure that (H) receives adequate after care for his own health and safety and would also ensure that the interests and safety of others including his children and ex-wife and partner (whom he does not wish to contact) receive appropriate attention and action. However appropriate and objective this recommendation is, regrettably it is not (viable) in the absence of a named supervisor and a community responsible medical officer from Ealing, Hammersmith and Fulham NHS Trust, who would be required to provide the necessary after care services under Section 117 of the Mental Health Act 1983.

5. I am acutely aware of the limitation of the powers of the Tribunal with regard to transfer recommendation but if the Tribunal were minded to conclude that (H) remains detainable but in conditions of lesser security and that he does not fulfil the criteria for supervised discharge, I would respectfully implore the Tribunal to strongly recommend (H)’s transfer to conditions of lesser security on a trial leave basis under Section 17 of the Mental Health Act 1983. Should his mental state deteriorate during the period of trial leave, (H) would be returned to Ashworth Hospital before the Authority for Detention expires in July 2001.

6. From my assessment of (H) and a review of his progress particularly in the last two years, I am satisfied that a supervised discharge is the most appropriate step forward for his own health and safety and for the protection of others.”

The last four paragraphs of the social work report of Tita Ariola, a Senior Social Worker of the London Borough of Hammersmith and Fulham were as follows:

“… The medical and nursing staff’s general feedback suggest that (H) has made some improvement in his mental state. It is thought this could be due to the increase and regular intake of medications.

(H) has been at Ashworth Hospital for six years. His eventual discharge to the community and how best to manage him and provide for his needs is a major concern to Social Services. With his repeated history of violence, non-compliance to treatment in the community and lack of insight indicates his need for a more comprehensive management and treatment plan. This is viewed as a necessity to prevent further recurrence of his psychotic symptoms and violent assaults on people. If (H) is indeed discharged from his Section 3 now the local authority will not be able to provide appropriate accommodation for him as he still needs a high level of care and supervision. When in his flat, (H) was quite lonely and isolated and finding it difficult to cope and as a result he returned to his ex-partner and children. When he was discharged from Broadmoor Hospital without due care and attention to his after care in the community, (H) relapsed quickly and committed a similar violent offence. His relatives are anxious that this decision and the incident are not repeated.

The London Borough of Hammersmith and Fulham are hopeful that (H) will soon respond to treatment and rehabilitation. It seems however, that an adequate and appropriate treatment management can still only be effected at Ashworth Hospital at this stage. Indeed Dr Heads’ report suggested that (H) still requires care and treatment in conditions of maximum security. The view of the local authority is that (H) meets the criteria for Section 3 of the Mental Health Act 1983.

In view of this, Social Services feel that perhaps a transfer to a medium secure unit could be looked at again after reassessment at a later date by a Forensic Psychiatrist at Three Bridges. If this is the decision of the Tribunal, gradual reintroduction to the community can then be effected from the Regional Secure Unit.”

The conclusion of the report dated 16 February 2001 of Tim Miles, who had been H’s Hospital Social Worker since his admission, was as follows:

“I would accept that it is appropriate for (H) to remain detained in hospital for treatment. (H)’s violence within institutions has been occasional but serious which makes both prediction of incidents and judgment of progress more difficult, and his tendency to deny or minimalise his past offending behaviour makes counselling difficult. Given his long term problems, his previous violence in the community and the failure of previous community care, it would seem advisable for his rehabilitation to be via an MSU where it could proceed by stages and where he and his potential Community Supervisors could establish a relationship prior to his eventual discharge.”