England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London
		Wednesday 31 July 2002

Wednesday 31 July 2002

JUDGMENT
1. MR JUSTICE NEWMAN: This is an application by the Secretary of State for the Home Department for judicial review. He seeks orders as follows: (a) a quashing order to quash the decision of the Mental Health Review Tribunal (London South Region) dated 12 March 2002, ordering the deferred conditional discharge of Mr Plinio G; and (b) a direction that the matter be remitted to a Mental Health Review Tribunal to consider Mr G's application according to law.
2. On 12 March 2002 the tribunal decided that:

"The patient SHALL BE DISCHARGED subject to the CONDITIONS set out at paragraph 1 below, but his/her discharge is DEFERRED until the Tribunal is satisfied that the necessary arrangements have been made to meet those conditions."

3. The conditions referred to were as follows:

"(a) that he reside in the community at accommodation specified by the clinical team

(b) that he participate in appropriate treatment groups and other activities as directed by the clinical team

(c) that he continue to be compliant with medication when in the community as directed by his RMO."

4. Rule 23 of the Mental Health Review Tribunal Rules 1983, so far as material, provides in rule 23(2) as follows:

"The decision by which the tribunal determines an application shall be recorded in writing; the record shall be signed by the president and shall give the reasons for the decision and, in particular, where the tribunal relies upon any of the matters set out in section 72(1) .... of the Act, shall state its reasons for being satisfied as to those matters."

5. The form of that rule follows the terms of section 72 of the Act (namely the Mental Health Act 1983) prior to its amendment in November 2001, which amendment was required in order to make the section compliant with the European Convention on Human Rights. I am not aware that any consequential amendment to rule 23(2) has occurred, but plainly, in so far as amendment has taken place, the rule must be read in accordance with section 72(1) as it now appears. That gives rise to no particular complexity.
6. The Secretary of State raises three grounds of challenge: (1) that there was a failure to consider whether the discharge criteria under the Mental Health Act were satisfied; (2) that the decision to defer the conditional discharge was improper and unlawful; and (3) that the tribunal gave inadequate reasons. I propose to take the third ground of challenge, namely the challenge based on the inadequacies of the reasons, first of all.
7. The tribunal did rely upon the matters set out in section 72(1) of the Act. So much must be plain, because it could not have ordered a conditional discharge under section 73 unless it did so. Section 73, as amended, provides:

"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if -

(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (b)(ii) of section 72(1) above; and

(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) above -

(a) paragraph (a) of that subsection applies; but

(b) paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient."

8. For convenience I will now refer to subsection (7) of section 32, which provides:

"A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction .... "

9. It follows that, since the tribunal must be taken as having considered section 72(1) and must be taken to be satisfied as to the matters in section 72(1), it was under a mandatory requirement in accordance with the rules to "state its reasons for being satisfied as to these matters"; or, as to be regarded as consequentially amended, state its reasons for not being satisfied as to these matters.
10. The first point made by Mr Chamberlain for the Secretary of State is that paragraph 2 subparagraphs (a) and (b) of the written decision, which takes the form of a pro forma layout, provided the tribunal with an opportunity to state, under the heading "The legal grounds for the tribunal's decision", whether or not it was satisfied as to the matters in section 72(1). It provided as follows:

"(a) The Tribunal is/is not satisfied that the patient is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment.

(b) The Tribunal is/is not satisfied that it is necessary for the health or safety of the patient or for the protection of other persons that he/she should receive such treatment."

11. In this case the tribunal simply put a line through (a) and (b). The only part of the pro forma under the heading "The legal grounds for the tribunal's decision" which the tribunal adapted to reflect its decision was subparagraph (c), which states:

"The Tribunal is satisfied that it is appropriate for the patient to remain liable to be recalled to hospital for further treatment."

12. Mr Chamberlain, in my judgment correctly, conceded that the mere failure to adopt the format of the pro forma statement of reasons for the tribunal's decision, so far as the legal grounds were concerned, was not in itself determinative of the ground of challenge which he advanced as to the inadequacy of the reasons, because, he rightly accepted, one had to look at all the reasons which were required to be stated and one could look at such reasons as had been stated elsewhere. Certainly it is true that the pro forma in this regard is not mandatory but, as I shall develop, it is a very useful and salutary guide and aid to focussing a tribunal's attention on the matters of law to which it should address itself.
13. In my judgment, there can be no doubt that the tribunal on this occasion was required to state (1) whether or not it was satisfied of the matters set out in section 72(1) of the Act; and (2) to state its reasons for being satisfied. Having regard to the decision to which the tribunal came, namely to conditionally discharge the interested party, and on the assumption that the tribunal lawfully reached that decision, the tribunal must be taken to have decided that it was not satisfied as to the matters in 72(1)(b)(i) or 72(1)(b)(ii). Thus questions arise in connection with the identification of the matters upon which it was not satisfied and why was it not satisfied. I therefore turn to the reasons, which were given in paragraph 6 of the decision.
14. For the purposes of this judgment it is essential that I should read the reasons in their totality:

"Plinio G is a 55 year old man who since 1967 has suffered from a schizoaffective disorder. He has had a number of relapses requiring hospital admission. The index offence occurred in Feb 2000. He was initially remanded in custody, subsequently transferred under S48 [of the Mental Health Act] & has been at Springfield Hospital since May 2001.

Dr Vince, his RMO, told us that the patient's condition is chronic, episodic & relapsing but that in the last 3 months there has been a significant improvement. He has always been compliant with medication & has not been, in any way a management problem. He has engaged in a number of sessions with the clinical psychologist Dr Rogers which has proved beneficial. He has undertaken a work scheme which Dr Vince regarded as successful & encouraging. He is willing to participate in treatment groups dealing with alcohol & drug awareness, & illness awareness. We note that the Home Office's reservations to his discharge are based in part on his not addressing these 2 two issues.

Despite this progress, it is Dr Vince's view, which we accept, is that important issues still remain to be addressed. He told us that compliance with medication is crucial & has concerns were Mr G to indulge in alcohol. In his view Mr G's acknowledgment of these 2 facts is guiding. He continues to be stable & that the next important step is a programme of community leave. We note the Home Office has refused permission for this. We would strongly urge that they accede to this request as we accept it is an essential step in his rehabilitation & important for his ongoing assessment.

Dr Vince said he regarded a period of six-eight months as appropriate to explore the question of suitable accommodation in the community & to continue the therapeutic assessment. Mr Wilson the ASP, concurred.

On the basis of this evidence, we thought it right to grant Mr G a conditional discharge but to defer it for a period of 6 months. The tribunal proposes to reconvene on Tuesday 10 September 2002."

15. In my judgment, a proper analysis of those reasons discloses the following conclusions were reached:

(1) that the interested party has since 1967 suffered from a schizoaffective disorder, having had a number of relapses requiring hospital admission.

(2) Dr Vince, his RMO, had stated that his condition is chronic, episodic and relapsing but in the last three months there had been a significant improvement.

(3) As to the adverse effect of alcohol and substance abuse on the effectiveness of his medication, and his lack of awareness into his illness, matters in respect of which the Secretary of State was concerned and had expressed his concern as part of his objection to discharge, Dr Vince had reported to the tribunal that the patient was willing to participate in treatment groups dealing with alcohol, drug abuse and illness awareness.

(4) Despite the progress summarised in paragraphs (2) and (3) of this paragraph of this judgment, the tribunal accepted Dr Vince's view that (a) important issues still remained to be addressed; (b) compliance with medication was crucial; (c) there were concerns should the patient indulge in alcohol; (d) since the patient had acknowledged the need for medication and the danger of alcohol, "the next important step is a programme of community leave", which the tribunal regarded and accepted as an essential step in his rehabilitation and as important for his on-going assessment; and (e) a period of six to eight months was appropriate to explore the question of suitable accommodation in the community and to continue the therapeutic assessment.

16. It is plain that it was the evidence which gave rise to these conclusions, which the tribunal must be regarded as having accepted, which formed the basis for the decision to order a conditional discharge and to defer it for six months. In my judgment the reasons so given do not disclose whether or not the tribunal were satisfied as to the matters in section 72(1)(b)(i) or (b)(ii); nor the reasons for being so satisfied. On the contrary, in so far as it is necessary for this court to endeavour to interpret the decision and the reasons, the evidence, which the tribunal expressly accepted, in the judgment of this court points to a likelihood that the following conclusions were the ones to which the tribunal came:

(1) The tribunal were satisfied that the interested party was then suffering from mental illness of a nature or degree which made it appropriate for him to be liable to be detained in a hospital for medical treatment. That much, in my judgment, follows from the fact that the tribunal accepted that he suffered from a chronic, episodic and relapsing condition and the tribunal expressly stated and accepted that the next important step was a programme of community leave. That, of course, could only arise if he were liable to be detained and, indeed, in its terms, when read with the requirement that there was a need for an on-going therapeutic assessment of his condition, in my judgment confirms that it must have been contemplated that the home leave and the therapeutic assessment would take place whilst he was detained in a hospital and not whilst he was discharged according to any conditional discharge.

(2) The evidence in my judgment points to the conclusion that the tribunal were satisfied that it was necessary for the health or safety of the patient, or for the protection of other persons, that he should receive such treatment. If the next essential step was community leave, the next essential or required step could not be a discharge. If further assessment was required, having regard to the risks which the consumption of alcohol and drug abuse presented, and the limited evidence constituting a willingness to participate in group discussion, in my judgment the likelihood is that the tribunal must be taken to have concluded that it was satisfied that it was necessary for the health or safety of the patient, or for the protection of others, that he should receive such treatment, namely treatment whilst detained in hospital.

17. From this limited exercise of examining and analysing the reasons, it is in my judgment plain that it cannot be said the tribunal disclosed its reasons for coming to such conclusions, which in themselves are not clear, as to whether it was not satisfied as to the matters in section 72(1)(b)(i) or (b)(ii). For the reasons that I have already canvassed, the likelihood is that the reasons disclosed are that the tribunal were satisfied as to both the matters in section 72(1); but nevertheless considered it open to them to order a conditional discharge.
18. A short examination of the notes of evidence would support this conclusion. Dr Vince's, in his evidence as noted by the tribunal (he being a witness that they accepted), is recorded as having stated that "the patient was not detainable on degree of condition but nature". There was in the course of argument by Mr Chamberlain some discussion as to whether the tribunal's reasons were defective because they did not disclose particularly whether their decision was based upon nature or degree. Further, Mr Chamberlain drew attention to the evidence of another clinician who had given evidence, namely Dr Nayani, who had made a legal submission to the tribunal that nature on its own was insufficient: it had to be nature and degree. That submission was plainly wrong on the face of the section. It is "nature or degree". One has to observe that it is not particularly helpful if those who are giving evidence as clinicians to the tribunal engage in making legal submissions which, by reason of the authority or experience of the person or proper regard the tribunal might have for the person making the points, can lead to error. The observation is, in my judgment, as I shall later disclose, of importance to the way in which the tribunal decided this matter.
19. But returning to Dr Vince's evidence, the lay member of the tribunal asked questions of Dr Vince. He appeared to answer, in response to a question about absolute discharge, that he would be reasonably confident, but that would only be over time. There could be lapses; work was necessary and he had in mind six to eight months as being a period of time for such a decision. As to the statutory criteria, he affirmed that his view was that it was nature, not degree, and the note records:

"in interests own health & protection of others & own safety",

which again would appear to indicate that Dr Vince was making a statement as to the matters under section 72(1) which, if it was in the terms in which it appears in the notes, was subsequently disregarded by the tribunal. When cross-examined by counsel for the interested party, Dr Vince, according to the notes, stated:

"no need to detain him to [address] 2 [outstanding] matters of illness awareness & alcohol.

He'd need be clear they were conditions.

My reservation is that his engagement is somewhat guiding".

20. Then he added: "I [could] agree to CD [which I take to be conditional discharge] deferred".
21. Dr Vince was interposed later to deal with two aspects of Dr Nayani's evidence with which he firmly disagreed, firstly that which I have just referred to, namely Dr Nayani was wrong when he was saying that nature was insufficient; secondly he stated, according to the notes, "also disagree fundamentally with his view of risk of sexual reoffending".
22. It follows from my conclusions, simply by reference to an analysis of the reasons, that the tribunal are not likely to have addressed the criteria with which they were principally concerned, and indeed required to be concerned before they could grant a conditional discharge. On one view, it would seem, they plainly had no power to order a conditional discharge, because they had not come to the necessary prior conclusions as to the criteria; but, alternatively, even if I am wrong in that regard, or that is regarded as too harsh an interpretation of the reasons on the material before the tribunal, it is in my judgment well made out that this particular decision and its reasons cannot stand the third challenge as to the adequacy of the reasons given.
23. I have said enough, therefore, to demonstrate that this decision must be quashed. But in fairness to the tribunal and to the arguments advanced and the other grounds of challenge, I should add the following.
24. The notes of evidence provided by the tribunal disclose that counsel for the interested party indicated at the outset that one result which he sought was conditional discharge, and he was guarded in his terms as to absolute discharge, which it was suggested could be considered because he was asking the tribunal to reconvene in a number of months at some other stage. Then, it is recorded in the notes, it was suggested that in the interim counsel would ask for leave (by that I mean the leave which lies at the hand of the Secretary of State to grant by way of community leave), to be unescorted, and that he was differing from Dr Vince in this regard.
25. There was a body of evidence (namely Dr Vince in his addendum report, Dr Vince under cross-examination by counsel for the patient, and a Mr Wilson) being of the opinion that the risk of non-compliance with medication outside the hospital could be adequately catered for by conditions, namely a conditional discharge. It was submitted by counsel for the patient that Dr Vince's view that further work needed to be done was not considered by him, Dr Vince, to be a pre-condition of conditional discharge. The relevant notes of the cross-examination suggest that the basis for that submission is the answer to which I have already drawn notice, namely "I [could] agree to CD deferred". It is also to be noted that counsel for the patient accepted in his submissions that the balance of evidence was in favour of clinical intervention rather than discharge today, and it is to be noted that in his final submissions counsel again asked for the tribunal to reconvene in six months, making reference to the possibility of an agreement being reached by that date.
26. It seems tolerably clear that the tribunal were led off course by a combination of the clinicians and counsel for the patient, into believing that, although no assessment to permit discharge could be made at the hearing on the occasion in question, in particular in respect of danger (it being accepted that he was liable to be detained because of the nature of his mental condition), the way out of the matter was to defer the conditional discharge until the assessment was available. As Mr Chamberlain submitted, and the Secretary of State by his challenge has asserted, this was in my judgment an improper and unlawful reason to defer: see R v Nottingham Mental Health Review Tribunal ex parte Secretary of State for the Home Department; R v Trent Mental Health Review Tribunal ex parte Secretary of State for the Home Department The Times, October 12, 1998 CA.
27. Mr De Mello relied in response to this part of the argument for the Secretary of State upon paragraph 71 of the judgment of the Master of the Rolls in R (on the application of IH) v Secretary of State and the Home Department and others: neutral citation [20002] EWCA Civ 646. In paragraph 71 the Master of the Rolls stated as follows under the rubric "The new regime":

"Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. Such a change may be demonstrated by fresh material placed before or obtained by the Tribunal. Such material may, for instance, show that the patient's condition has relapsed. It may show that the patient's condition has improved. It may demonstrate that it is not possible to put in place the arrangements necessary to enable the conditions that the Tribunal proposed to impose on the patient to be satisfied. The original decision should be treated as a provisional decision, and the Tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time."

28. In my judgment, Mr De Mello can obtain no support for the submission that the tribunal can in this case be saved from its error because the Master of the Rolls was indicating either that the decision was a provisional decision or because he was stating that changed circumstances after the decision were ones which the tribunal were entitled to take into account.
29. In my judgment it is important to remember that the regime of the Mental Health Act in these particular sections is concerned with the liberty of the subject. As a result, Parliament determined that the provisions of the Act had to stipulate for timeous certainty. The tribunal are required to conclude whether or not the discharge criteria are satisfied; or perhaps more aptly whether or not the criteria for detention still prevail at the date of the hearing, being the terminology which would reflect the amendment to the section. It is inherent to the legality of the regime that a decision is made one way or the other at that date, and it is in the fundamental interests of a patient that the decision is made at that date, adverse or otherwise. Deferral under section 73(7) is permitted for the express purposes of ensuring that such arrangements as appear to the tribunal to be necessary for the conditional discharge have been made to the tribunal's satisfaction.
30. The only gloss which the judgment of the Court of Appeal and the Master of the Rolls in the case of IH has added to this approach is that the unfairness which could otherwise arise if there was no opportunity to consider a change of circumstance by the time the date for the direction for discharge was reached, should be met by and in the manner set out in paragraph 71 which I have already quoted. The paragraph acknowledges that the matters can be looked at again after deferral should a change of circumstance have arisen, but the Master of the Rolls did not state that deferral can take place to wait and see whether any change of circumstance might arise and thus provide and make available material which will point to the correct decision in the application, which decision the tribunal are bound to reach on the evidence it has heard at the hearing. As Mr Chamberlain pointed out, it is always open to the Secretary of State (section 71 of the Act) to refer the question of discharge to the tribunal at any time.
31. Mr De Mello submitted, in response to the challenge based on the inadequacy of the reasons, that the Secretary of State could have written to the tribunal to clarify the position. There may be cases in which it would be appropriate for the Secretary of State, on a point of mere clarification, to write for such to be obtained. But in my judgment, the character and deficiency of the reasons in this case went far beyond anything which clarification could rectify.
32. Next Mr De Mello submitted that the reference to on-going assessment was in truth a reference to the conditions which were, according to the decision of the tribunal, to prevail after discharge. I accept - indeed, it is obvious -- that an assessment would continue after the contemplated discharge. That much is obvious because that was the whole purpose of one of the conditions. But that was not, in my judgment, the purpose of the deferral of the discharge. Contrary to Mr De Mello's submission, this was in my judgment a "wait and see" decision; not for the proper objective of seeing whether the nature of the accommodation was to be available or for other matters in connection with arrangements, but for the purpose of seeing the results of the therapeutic assessment and the results of the community leave, which the tribunal anticipated would be taking place, as a response to their exhortation to the Secretary of State to change his view and to permit it.
33. It is not often that the court exhorts the use of a pro forma. But in this instance, where the statute requires, and for that matter the rules stipulate, a specific reasoned decision by reference to particular matters, adherence to it will be salutary. It will serve to focus the minds of those making the decision upon the principles to be considered and applied, and also provide useful protection against solutions which the clinicians may consider are available, but which Parliament has stated are not.
34. For all those reasons, this challenge succeeds and therefore there should be relief in the terms sought by the Secretary of State, namely the decision should be quashed and the matter is remitted for a consideration by a tribunal according to law.

MR CHAMBERLAIN: There is an application for the usual legal aid costs order. I understand that the position now is that one applies for costs order with the assessment deferred, and that the matter of the amount of the costs order, if any, should be considered by the costs judge. So I would ask for the usual legal aid costs order in those terms.

MR JUSTICE NEWMAN: Yes, thank you. Mr Jaisri, yes.

MR JAISRI: My Lord, the only other issue in relation to this is that Mr G is legally funded in this matter.

MR JUSTICE NEWMAN: Do you disagree with the form of order that is sought?

MR JAISRI: Not in that form, no, my Lord.

MR JUSTICE NEWMAN: Well then, you can have your order for costs in those terms, Mr Chamberlain. Thank you very much indeed. By the way, I did not mention at the beginning, but I had received the transcript of the Court of Appeal Criminal Division result. You no doubt received it as well.

MR CHAMBERLAIN: Yes. It turns out that your Lordship's judgment has not been completely academic.

MR JUSTICE NEWMAN: I can assure you that I received the judgment last night, so before I even sat down to prepare the judgment this morning, I knew that I had to give it rather than be absolved from having to give it.

MR CHAMBERLAIN: I rather thought that might be the position.

MR JUSTICE NEWMAN: Thank you. Thank you both very much indeed.