QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KW||(CLAIMANT)|
|AVON AND WILTSHIRE MENTAL HEALTH PARTNERSHIP NHS TRUST||(FIRST DEFENDANT)|
|BRISTOL CITY COUNCIL||(SECOND DEFENDANT)|
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(Official Shorthand Writers to the Court)
MISS J RICHARDS (instructed by Bevan Ashford, Bristol, BS1 4TT) appeared on behalf of the FIRST DEFENDANT
MR S KOVATS (instructed by the Legal Department, Bristol City Council) appeared on behalf of the SECOND DEFENDANT
Crown Copyright ©
"We are in the early stages of assessing this young man who has presented with an unusual history. He appears to have been a gregarious young man with relationships, a job and a family up until two years ago. Since that time he has become increasingly isolated and showing increasingly odd behaviour. His mental state has been inaccessible to those closest to him. He has put himself at risk by not drawing any money and being entirely dependant on others for food and drink. When this system of support has broken down he has taken no action to help himself, putting himself at extreme physical risk. His behaviour has been ritualistic with an increasing insistence on doing things in a particular way at a particular time. At times he appears not to have understood the risk posed to others by his actions. The history and KW's current behaviour is suggestive of a paranoid psychotic illness".
"Having read and listened to the evidence we are not satisfied that the Authority have shown that KW has a mental disorder".
The Tribunal then added that:-
"Having said that and discharged the section we strongly recommend that KW stays informally for a few more days, if only to get the results of some tests regarding his physical health and that he accepts the help that is being offered to him".
Summary of the grounds of challenge to the Tribunal's decision
(i) the Tribunal failed to give adequate and intelligible reasons for its decision (Ground One);
(ii) the Tribunal's decision was perverse, having regard to the evidence before it (Ground Two);
(iii) there was a lack of fairness in the Tribunal's decision-making process (Ground Three).
Ground 1 - Failure to give adequate and intelligible reasons
"The decision by which the Tribunal determines the 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".
"(1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the Tribunal may in any case direct that the patient be discharged, and –
(a) the Tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied –
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons".
"if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy argument. It does require the judge to identify and record those matters which were critical to his decision … The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge's decision".
"It must at least indicate the reasoning process by which it has decided to accept some and reject other evidence". 
Ground 2 - Perversity/lack of evidence
Ground 3 - Lack of fairness
"at no stage in the hearing before the tribunal announced their decision were the parties before the tribunal informed of the findings of Dr. Cashman [the medical member of the tribunal] 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 R (H) v Mental Health Review Tribunal (unreported) 15 September 2000".
"It is common ground that, if the judge was right to quash the decision of the tribunal, then H was lawfully detained at the hospital under the procedures put in place prior to that decision and that H's challenge to the decisions of Doctors Croy and Silva, Ms. Berry and the managers of Ashworth fall away. That challenge is based on the premise that the tribunal's decision was lawful. If the tribunal's decision was lawful, the question whether he was lawfully detained remains, and that depends on the lawfulness of the decisions which led to his readmission on 29 March ". 
Later, he said:-
"If the order is ultimately quashed it will be treated as never having had any legal effect at all: see R (Wirral Health Authority) v Finnegan  EWCA Civ 1091. If that occurs it will be treated as if had never been made, and the patient will once again become subject to the Mental Health Act regime to which he was subject before the order was made". 
"(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
"(ii) it will ordinarily be irrelevant that the Claimant is legally aided;
"(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
"(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
"(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.
"(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."
Mr Westgate says that this case falls within the fourth category because it is obvious that KW's claim, if fought to a conclusion, would have led to him being successful.
"The tribunal is the court whose function it is to perform the role identified in article 5(4). In the absence of material circumstances of which the tribunal is not aware when it orders discharge, in my judgment it is not open to the professionals, at any rate until and unless the tribunal's decision has been quashed by a court, to resection a patient."
"It seems to me that, when considering whether to resection a patient who has only very recently been discharged by a tribunal, the question that the professionals must ask themselves is whether the sole or principal ground on which they rely is one which in substance has been rejected by the tribunal. If it is, then in my view they should not resection. In deciding whether the grounds on which they rely are ones which have been very recently rejected by the tribunal, they should not be too zealous in seeking to find new circumstances."
Mr Westgate submits there is no rational basis for asserting that there was material available to the Trust which was not before the Tribunal. He also points out that the Trust failed to respond to a letter from KW's solicitors asking for details of the change in the circumstances which led to KW being resectioned. He says that the inference can be drawn from that that, if there had been, then it would in fact have been relied upon.
"Nothing that I have said affects the ability of the professionals to resection a patient if he does or threatens to do something which imperils or might imperil his health or safety, or that of members of public."
So she says that it seems clear that in that passage the use of the words "nothing that I have said affects" by Dyson LJ indicate that this ability to resection is an overriding right which has to be borne in mind.
"In conclusion I agree with Burton J that Mr Gordon has failed to establish the premise upon which he has based his case, namely that as a matter of statutory interpretation of the Act an application and admission of a patient under sections 2 or 3 of the Act cannot lawfully be made after the patient has been discharged by a tribunal unless either the relevant professionals have satisfied themselves that there has been a relevant change of circumstances or it is not reasonably practicable for them to do so."
The importance of that passage is that the Master of the Rolls and Buxton LJ were saying that there are alternative tests of either a change of circumstances or that it was not reasonably practicable for them to do it. In his judgment, Sedley LJ says at paragraph 41:
" ... neither the Act nor the Convention inhibits the detention by a proper decision-making process of those who, although recently discharged, have deteriorated or whose mental wellbeing otherwise requires admission."
Miss Richards says that shows that it certainly is not obvious what the legal test would be in this case.