England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th November 2005

Mr Justice Bean :

1. BR is 39 years of age. In December 1988 he killed his father. He was convicted of manslaughter on the grounds of diminished responsibility and detained pursuant to sections 37 and 41 of the Mental Health Act 1983. In November 1999 he was conditionally discharged by a Mental Health Review Tribunal (MHRT) but the discharge was deferred because conditions, in particular of residence in accommodation approved by the Responsible Medical Officer (RMO) could not be met. On 28^th February 2002 a tribunal again directed his conditional discharge, which actually took place on 4^th November 2002.
2. On 19^th May 2004 an application was made on behalf of BR to the MHRT requesting a hearing to consider whether he could now be absolutely discharged. However, on 8^th September 2004 he was recalled to hospital – the Shaftesbury Clinic, Springfield University Hospital, South West London – following concerns about his mental state caused by drug use. His case was referred in the usual way to a tribunal and after two adjournments was heard on 12^th April 2005. It is the decision of that tribunal which is challenged by the Home Secretary in this court.
3. The tribunal had before them a plethora of reports on BR from 1996 onwards. In a report dated 6^th January 2005 Dr. Oyebode, expressing the views of the Forensic Mental Health Services clinical team at Springfield Hospital, wrote:-

"B.1 [BR] has been diagnosed as suffering with a schizophrenic illness, a diagnosis he has had for a considerable period. However, over a period of time, this diagnosis was being questioned by many members of clinical teams under whose care he has been.

B.7 In view of the fact that he has not manifested the classic features of a paranoid schizophrenic illness for a considerable period over the years whilst on medication, and most recently when he has been on no medication for a continuous period of 3 months, the Clinical Team considers that this supports the view expressed at the Trust Forensic Directorate's Clinical Case Presentation that a diagnosis of paranoid schizophrenia cannot continue to be sustained. "

Dr Oyobode wrote that he and his colleagues considered that BR should now be described as having "an acute and transient psychotic disorder". He went on :-

"B.11 The team consider that as his psychotic episodes have over the years been precipitated by his drug use, it is logical to conclude that these are drug induced and it will therefore not be appropriate for him to continue to be classified under the legal category of Mental Illness, and a legal category of Psychopathic Disorder will be more appropriate. Further he does not currently suffer from a mental illness of a nature or degree which makes it necessary for him to continue to receive medical treatment in hospital.

B.12 If the Mental Health Review Tribunal were to consider it appropriate for him to be re-classified under the category of Psychopathic Disorder, the team considers that at present, it is not necessary for him to continue to receive medical treatment for this in hospital as enunciated by Julia Houston in her report which is quoted above, as such treatment can be provided as an out-patient. He has had extensive psychological input in the past, benefits of which have been variable, and further in-patient work for this is not indicated at present.

B.13 However, the Clinical Team considers that if he were to be re-classified under the legal category of Psychopathic Disorder, and the Tribunal considers that a discharge is appropriate in this case, he should remain liable to be recalled to hospital if a deterioration in his behaviour were to occur and he begins to manifest seriously aggressive behaviour or irresponsible conduct in view of his past history. He is unlikely to comply with treatment voluntarily considering his past history of being difficult to manage even on a Restriction Order. The Clinical Team therefore does not support an absolute discharge in this case, but proposes a conditional discharge with the following conditions:

1. To reside as directed by the RMO abd Social Supervisor.

2. To attend regular appointments with members of the Care Team as directed.

3. To attend local drug rehabilitation services as directed. To submit to regular urine tests as directed.

4. To engage with the day programme as planned with the Clinical Team.

(there is no para B.14)

B.15 If the Tribunal does not consider a re-classification to a legal category of Psychopathic Disorder from Mental Illness appropriate, the Clinical Team then strongly recommends that he is absolutely discharged as we believe that it is no longer appropriate for him to continue to be detained under the single legal category of Mental Illness or to be liable to recall under this legal category."

In a supplementary report dated 9^th March 2005 Dr Oyebode confirmed that:-

"the team does not support an absolute discharge in this case and proposes a conditional discharge with the conditions stipulated in the report of 6^th January 2005"

4. Dr Somekh, a consultant forensic psychiatrist instructed by BR's solicitors, also wrote a report dated 6^th Jan 2005. His view was as follows:-

"I believe that there are good grounds to consider an Absolute Discharge in this case. It would indeed be appropriate depending on where he ended up living that the Multi Agency Protection Panel procedure was activated. [BR] has expressed the wish to be engaged with the local drug team to help him stay off cocaine and this seems appropriate and could be organised with the help of the current forensic team depending on where his accommodation is located.

As to his diagnosis, it seems to me that looking at the history since the index offence in December 1988 the evidence to support a continuing diagnosis of Mental Illness has been extremely limited and certainly using the reverse test currently there are absolutely no grounds for detaining him.

I understand it has been suggested by his current RMO that he might consider asking the Tribunal to re-classify [BR]. The fact is that the grounds for categorising him as suffering from Psychopathic Disorder within the meaning of the Act are even more flimsy than those for categorising him as suffering from Mental Illness. [BR] does not have an extensive pattern of previous offending, he has certainly abused substances over the years and he is somewhat immature. However, there is very poor evidence to support the notion that his personality disorder is such that it has led him to behave in a way which puts the public at serious risk unless one uses the circular argument associated with the existence of the index offence in 1988."

Dr Somekh concluded that the logical course would be for BR to be given an absolute discharge contingent on appropriate accommodation being found for him and links being established with the appropriate substance misuse team.

5. The evidence before the Tribunal was thus that both doctors considered that BR should no longer be detained, nor even liable for recall, under the category of a patient suffering from mental illness. Dr Oyebode recommended that BR should be re-classified as suffering from psychopathic disorder and conditionally discharged. Dr Somekh, on the other hand, put the view that the evidence for this re-classification was flimsy and that BR should be absolutely discharged provided that appropriate arrangements could be made.
6. At the Tribunal hearing on 12^th April 2005 the RMO and BR's solicitors agreed that the panel should consider as a preliminary question "the current diagnosis and whether there should be a re-classification."
7. The tribunals decision, recorded on printed form 'H', was that the patient should be absolutely discharged. The legal grounds for the Tribunal's decision were :-

"a. The Tribunal is not satisfied that the patient is suffering from Mental Illness, Psychopathic Disorder, Severe Mental Impairment or Mental Impairment 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 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.

c. The Tribunal is not satisfied that it is appropriate there are grounds in law for the patient to remain liable to be recalled to hospital for further treatment. [Deletion as made by the Tribunal; words underlined added by the Tribunal in manuscript]."

8. The reasons for the Tribunal's decision were as follows:-

"Dr Oyebode and Dr Somekh agree that patient does not have an enduring mental illness and that the index offence was committed during an active and transient psychotic episode.

While Dr Oyebode considers that patient should be reclassified as having a psychopathic disorder, Dr Somekh considers that the examples of unreasonable/irresponsible behaviour relied on by Dr Oyebode do not amount to evidence of psychopathic disorder and prove no more than that patient has an emotionally unstable personality disorder.

Tribunal is satisfied that patient has not been shown to have psychopathic disorder for the reasons outlined by Dr Somekh.

Tribunal considers that there is insufficient evidence to conclude that patient has an enduring mental disorder.

Accordingly Tribunal finds that no detainable condition under the Mental Health Act is made out and patient is entitled to an Absolute Discharge."

9. Section 72(1) of the 1983 Act provides, so far as material:-

"(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 …..

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 [admission for assessment] above if they are not satisfied –

(i) that he is then suffering from mental illness, psychotic 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 him to be liable to be detained in a hospital for medical treatment; or

(ii) that it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment….."

10. Section 72(5) provides:-

"Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and the tribunal do not direct that the patient be discharged…..the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application order or direction, relating to him, direct that that application order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate"

11. Section 73(1) and (2) provide:-

"(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 para. (b)(i) or (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) para. (a) of that subsection applies; but

(b) para. (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient." [emphasis added]

12. There can be no challenge to the tribunal's finding, supported by both doctors, that BR was not suffering from mental illness. On the issue of whether he was suffering from psychopathic disorder, they accepted Dr Somekh's view that he was not in preference to Dr Oyebode's view that he was. Mr Martin Chamberlain, for the Home Secretary, argues that that decision was inadequately reasoned (see Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 and English v Emery Reimbold [2002] 1 WLR 2409), but I disagree. The tribunal, applying their experience in this specialised field, were entitled to find that even the symptoms as described by the RMO did not amount to psychopathic disorder. It was not necessary for them to embark on a detailed exposition of why that was their conclusion. Accordingly, the requirements laid down by section 72(5) for reclassification were not satisfied, and there was no longer any lawful basis for BR's detention.
13. But the nub of the case is a different point. It is quite plain that section 73(1) requires a tribunal, before directing the absolute discharge of a restricted patient, to answer each of two questions: (a) whether the patient is then suffering from one of the mental disorders listed in section 72(1)(b)(i), or alternatively whether it is necessary for the health and safety of the patient or the protection of other persons that he should receive medical treatment in hospital; and if not, (b) whether it is nevertheless appropriate for the patient to remain liable to be recalled to hospital for further treatment. In the Wilson case (R(Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 1029 (Admin)) Moses J said:-

"It is plain to me, even where the tribunal conclude that a patient is not suffering from a psychopathic disorder, or any of the other condition referred to in section 72(1)(b)(i), it is incumbent upon the tribunal in cases of restricted patients to go on to consider whether it is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. That is clear from the words of section 73(1)(b)."

14. Similarly in the case of G (R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2001] EWHC 849 (Admin)) ^[1] Pill LJ said:-

"The possible consequences for the safety of members of the public and the patient, when an order of absolute discharge is made, are such that the question of liability to be recalled must be dealt with expressly. That is confirmed by section 73(2) which requires that a course different from absolute discharge is to be taken, if the tribunal are not satisfied as to the matters referred to in para B."

15. The fact that the very experienced judge chairing this tribunal deleted the reference to whether it was appropriate for BR to be liable to recall and substituted a finding that the tribunal were not satisfied that there were grounds in law for such liability indicates clearly that the tribunal did not consider separately the question of appropriateness. In my view they should have done. It should in fairness be pointed out that they did not have the advantage of hearing submissions from Mr Kris Gledhill (for BR) and Mr Chamberlain and the citation of the authorities to which I have referred.
16. Mr Gledhill relied on Reid v Secretary of State for Scotland [1999] 2 AC 512, in which Lord Hope of Craighead said (at 530D) that a patient suffering from a psychopathic disorder which was not treatable would be entitled to be absolutely discharged since the only basis for a conditional discharge is the possibility of further treatment. But BR's case is different. There is no finding that if his mental disorder recurred it would be untreatable. Indeed, at least to a layman, the facts of his treatment over the last twelve months appear to suggest the contrary.
17. I therefore consider that the tribunal's decision to direct an absolute discharge must be quashed and the case remitted to the tribunal to decide whether or not it is appropriate for the patient to remain liable to be recalled to hospital for further treatment. Counsel were agreed that if I were to find for the Secretary of State on this issue only (but not on the alleged insufficiency of reasons), there is no reason why the same panel, or as many of them as are available to hear the case without delay, should not conduct the remitted hearing; and accordingly I direct that the case should be remitted to the same panel if available.
18. The effect of quashing the direction for absolute discharge appears to be that between now and the remitted tribunal hearing BR could once again be detained. Unless there has been a deterioration in his behaviour or condition since the tribunal decision of 12^th April, that would be anomalous and unjust. I hope that if the factual position is indeed unchanged since April the Secretary of State will give speedy consideration to the use of his powers of conditional discharge pending the hearing.
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MR JUSTICE BEAN: This is the case of BR. I have prepared judgment which I am handing down today quashing the Tribunal's direction that BR is to be absolutely discharged. I will now hear argument on exactly what the form of order should be.

MR HENSHAW: My Lord, I appear for the Home Secretary in place of Mr Chamberlain who is away from London. Mr Gledhill, as before, appears for BR. There has been some disagreement as to the form of order. I received a skeleton argument from Mr Gledhill just after 6pm yesterday which your Lordship may have received. It does seem, I am afraid, that the matter may take a little bit more than 10 minutes. Do you wish to deal with it now or set another date?

MR JUSTICE BEAN: I have to deal with it now because I am going to Leeds from next Monday until Christmas so unless you fancy coming there, we have to deal with it now. The court is in use at 10.30. I do not know if we can move. Let us carry on for the time being.

MR HENSHAW: My Lord, I think two essential questions arise. The first question is whether the Tribunal should be restricted as to the decisions it can make when it comes to reconsider the matter. The second question is what should happen in the meantime. As to the first question, even if your Lordship were to consider whether it is appropriate for any discharge to be conditional, and if so what conditions to impose under section 73, the Tribunal ought to be acting on up-to-date evidence. The Tribunal last considered the matter in April and the most recent evidence before it, excluding a short supplemental report from Dr Oyebode, dates from January 2005 and so it is now 10 months out of date. We have no particular reason to believe that up-to-date evidence taken by the Tribunal would point to anything other than absolute or conditional discharge. But it is possible, at least in theory, that the Tribunal may take a different view on the now available evidence before it. I submit simply that it would be wrong to fetter the Tribunal's decision by imposing what would in essence be an artificial limitation on the decisions it may take under the powers inferred by sections 72 and 73.

MR JUSTICE BEAN: Can we look at the decision document. The decision quashed is the decision on the first page: "Patient shall be absolutely discharged".

MR HENSHAW: Yes.

MR JUSTICE BEAN: You say that the Tribunal should start again on the question of whether they are satisfied that the patient is suffering from mental illness, psychopathic disorder and so forth?

MR HENSHAW: It is not necessarily a case of starting again, but it does need to revisit the view it takes of this patient. Were it to be the case that up-to-date evidence lets them take a view as to whether there should be a discharge, then the Tribunal ought to be in a position to take the appropriate decision on the evidence before it.

MR JUSTICE BEAN: Let us look into that. How long is this going to take? Have up-to-date reports been commissioned by the Secretary of State yet?

MR HENSHAW: We have done two things. We have first of all written a letter which I will hand up. (Handed). That is a letter written immediately following the hearing.

MR JUSTICE BEAN: Yes.

MR HENSHAW: Since writing that letter we have also asked the RMO for an updated report direct. We understand that the psychiatric team is the same and we have asked Dr Oyebode for a report. I understand from my learned friend that he has been on leave but he is expected back very shortly.

One of the reasons for seeking this evidence -- and I am slightly jumping ahead on to the second issue, but it is this. It may be that there does not need to be a further Tribunal hearing at all because if the up-to-date evidence indicates that there has not been a deterioration and that the right thing to do is conditional discharge, then the Secretary of State can himself do that acting under section 42.

MR JUSTICE BEAN: Conditional discharge?

MR HENSHAW: Yes.

MR JUSTICE BEAN: Mr Gledhill would say that he is not content with that; that the issue for the Tribunal, assuming no deterioration is whether discharge should be conditional or absolute.

MR HENSHAW: Yes. If he is not content, what may then happen is provided the up-to-date evidence which we hope to get fairly soon supports this course of action, then he could be conditionally discharged pending the Tribunal hearing. Then the Tribunal will have to form a view on whether there should be discharge and, if so, whether it should be absolute or conditional. Mr Gledhill's client has the remedy then, making an absolute discharge if the Tribunal arrives at that decision. The Secretary of State also has power to direct absolute discharge.

MR JUSTICE BEAN: Going back to the practicalities, Dr Oyebode has been on leave but he is back next week.

MR HENSHAW: This week, I am told.

MR JUSTICE BEAN: Splendid. How soon can he see the patient and prepare a report?

MR GLEDHILL: My Lord, can I just assist on this in the sense that BR has seen Dr Oyebode five or six times since the discharge and in fact has an appointment to see him on the 16th.

MR JUSTICE BEAN: Well, one would have thought that if there had been cause for concern prior to the hearing before me someone would have mentioned something. I appreciate what you say the position in law is, but one possible way of dealing with this is to say that the order of this court should be adjourned for another 14 days. That would enable Dr Oyebode to see BR, to prepare a report and then it could be seen whether there is actually any issue. If the situation after Dr Oyebode has seen BR is that there is no view put forward by anybody that he should once again be detained, then would not the answer be that if he wishes the Tribunal to consider the question of conditional or absolute discharge and the Secretary of State does not feel able to go as far as absolute discharge under his statutory powers, the order could then be drawn up, the decision formally quashed, the Secretary of State directs conditional discharge for the time being and then when the Tribunal can be reconvened they consider whether it stays at that or proceeds to an absolute discharge.

I appreciate that you say if Dr Oyebode's view is there has been a sudden deterioration or evidence of seriously disturbed behaviour in the last three or four weeks then that may be different, but I am not keen to embark on the interesting jurisdictional questions which Mr Gledhill raises, still less suggest that the Court of Appeal should have to grapple with them if the reality is that in a week or two all this is going to be sorted out.

MR HENSHAW: My Lord, I fully see the practicality of that course. The difficulty is that because we do not have up-to-date evidence, we are not in a position to agree that BR should remain at liberty until we have the up-to-date medical evidence.

MR JUSTICE BEAN: No, I understand that. Do you submit that it would be wrong to direct that the order of the court should not be drawn up for a fortnight and if you do so submit then why?

MR HENSHAW: I do so submit because your Lordship has held that the decision arrived at by the Tribunal was, in effect, unlawful. On that footing, it would be wrong to perpetuate that decision in the interim by suspending its quashing. That would be to arrive at a result which would not have existed but for the unlawful decision of the Tribunal. The pre-existing state of BR, following his recall in September 2004, is as a detained patient. If, as you have held, the Tribunal was wrong in law then the consequence of that decision ought not to be delayed. It comes out in the question of risk.

Obviously one has to draw a balance, but in the absence of current evidence as to the condition of the patient or former patient, first of all, it would not be rational for the Secretary of State without having seen that evidence to decide for himself that BR ought to be released pending a consideration of the evidence, either by the Secretary of State and/or by the Tribunal. I would submit that similar considerations ought to apply to this court. In other words, unless and until there has been a consideration of current evidence which would justify a different result, there is nothing which should be done to disturb the pre-existing state of BR as a detained patient. That is really the logic of the argument. I can, of course, address you on the legal points raised.

MR JUSTICE BEAN: If you want to develop the submissions we will have to find out whether there is any time today in this building when we can find a room. The court was not informed in advance that more than 15 minutes would be needed. It seems to me that quite major issues have been raised. How long is it going to be?

MR HENSHAW: I think I would take 10 to 15 minutes myself.

MR JUSTICE BEAN: Right. Well, make a start. We may be told to go away and come back at some other time, but do what you can do.

MR HENSHAW: The first point is that there is no doubt that if the Tribunal's decision to discharge is quashed, then that decision is void and so BR's pre-existing status under the Act applies. That is clear from the Wirral case which my learned friend cited.

MR JUSTICE BEAN: I do not have that.

MR HENSHAW: May I hand a copy up. (Handed). My learned friend suggested that one can distinguish this case on the basis that there was evidence there that the patient needed to be detained, but the decision arrived at as to the effect of a quashing order does not turn on that. The reasoning on that point is set out at paragraphs 16 to 18 of the judgment. Could I invite your Lordship to briefly look at those paragraphs. This is from the --

MR JUSTICE BEAN: I do not know anything about the case, so if you want me to dive in, that is fine.

MR HENSHAW: It is really a point of general principle about the effect of quashing a Mental Health Tribunal decision.

MR JUSTICE BEAN: I would have thought that was plainly right. I would like to see the context: what was being appealed against and so forth.

MR HENSHAW: Yes. One can see from paragraph 1 that DE was detained in Ashworth. He was the subject of a transfer order following from a criminal trial.

MR JUSTICE BEAN: I have been given the Mental Health Law Reports. Perhaps if I read that.

MR HENSHAW: Yes.

MR JUSTICE BEAN: Yes. Thank you. I have read that.

MR HENSHAW: He was detained under section 37. The Tribunal directed his discharge. That decision was then quashed and the question in issue was whether the effect of the quashing was to restore his previous status or whether one simply could not go back and restore his status. It was held that one does revert to one's pre-existing status under the Mental Health Act. That is also agreed with by Mance LJ at paragraph 22.

MR JUSTICE BEAN: I have that point. The effect of an order of this court being sealed quashing the decision of the Tribunal is that at that very moment BR becomes a detained patient.

MR HENSHAW: Yes.

MR JUSTICE BEAN: Why then should the drawing up of the order not be postponed until Dr Oyebode has seen BR, prepared a report, and those advising the Secretary of State have had a couple of days to examine it? Then it can be seen whether there is in fact any basis for BR to be detained.

MR HENSHAW: Because that would be to pre-empt the result of the consideration of the medical evidence.

MR JUSTICE BEAN: I do not understand why it pre-empts it. If the gist of the report were that BR's condition has deteriorated since the decision of the Tribunal and the Secretary of State had a rational basis for saying "In that case, I am not prepared to grant conditional discharge", the order of the court would be drawn up and BR would be detained again. Mr Gledhill would be back to square one, having to submit to a fresh Tribunal that notwithstanding the change they should order some form of discharge. I do not at present see why you say that it would be wrong to postpone BR's potential for detention for that period. In answering that, would you also tell me whether you submit that I have no jurisdiction to order that.

MR HENSHAW: I do not submit that you have no jurisdiction per granting the order. I do submit that it would be wrong to do so, essentially because there is no reason why that should be done. It would, in effect, be a leap of faith. Having concluded that the decision to discharge was unlawful, BR has his status under the Act, he was validly recalled in December 2004, I simply submit that until one has the up-to-date evidence there is no proper ground on which that status should be disturbed. That is really it, in a nutshell.

MR JUSTICE BEAN: Can you tell me this. How long would it take Dr Oyebode to produce a report from the time of seeing the patient and how long would it take those instructing you to consider the report? I should have thought, absent some persuasive reason why not, the answer to each of those should be two or three days each. But please tell me if that is not the case.

MR HENSHAW: May I briefly take instructions. My Lord, on the first question we are not in a position to say how long it should take the RMO to produce a report, but approaching it from a late point of view it is hard to see why, given appropriate warnings about urgency, it should take more than a few days to produce a report. It may be that my learned friend can assist you further. As to the second point, how long it would take for the Secretary of State to arrive at his decision, we anticipate it should be possible to do that within two to three days. But there is one further point which I am instructed is a complicated factor and it may be we need to look into this. I am instructed that the Secretary of State is not able to simply give a conditional discharge pending the outcome of the Tribunal hearing, the problem being that if the Secretary of State were to decide conditionally to discharge the patient then it is not possible for the patient within one year then to go back to the Tribunal to seek an absolute discharge. I am trying to give your Lordship chapter and verse of the matter.

MR GLEDHILL: My Lord, it is the effect of section 75 of the Act. I think your Lordship still has the manual.

MR JUSTICE BEAN: I do. Section 75.

MR GLEDHILL: It provides that a conditionally discharged patient may apply to a Tribunal. It is a combination of section 75 and section 66 which gives rights of application to the Tribunal.

MR JUSTICE BEAN: That would apply to me as well. I think that I cannot cut this knot by directing a conditional discharge now, pending the Tribunal hearing.

MR GLEDHILL: No. There are arguments that in criminal proceedings this court can substitute an order. I cannot find any basis for suggesting that that applies here. Your Lordship may remember from a chronology of this case as well that at the time that this recall hearing took place which led to the decision being challenged, BR at that stage had an outstanding application to the Tribunal to transfer his existing conditional discharge to an absolute discharge. That fell by the wayside by virtue of the further Tribunal hearing brought about by virtue of the recall. There is a problem there and it is one of the reasons why I will be submitting that part of your Lordship's consideration should be towards directing the Tribunal to have a speedy hearing such that it is set up to consider the case as of the day your Lordship issues the appropriate order.

MR JUSTICE BEAN: I will certainly direct an expedited hearing but that is not the problem. I have not looked at section 75.

MR GLEDHILL: Section 75(3) gives the Tribunal the power, in relation to a conditional discharge patient, to alter the conditions on the restriction order. In other words, making the discharge absolute. But the right to apply to that Tribunal is, in my recollection, after one year and thereafter every two years from the date of conditional discharge.

MR JUSTICE BEAN: Yes. Thank you.

MR HENSHAW: Obviously one does not know what decision the Secretary of State will arrive at. It might be absolute discharge. It would depend on the evidence, in particular, of the RMO. If Mr Gledhill's client was concerned about risk of the conditional order only and wanted to have a shot, as it were, at an absolute discharge then convening a speedy Tribunal hearing would appear to be the only way to ensure that he has the ability to make that application, in the short term.

MR JUSTICE BEAN: Yes.

MR HENSHAW: Those are the submissions I wish to put before your Lordship.

MR JUSTICE BEAN: Thank you very much.

MR GLEDHILL: My Lord, I am not particularly concerned whether we go down the legal route or the practical route. The concern is to make sure that BR does not have to go into a position of detention when no evidence justifies that. The starting point has to be -- and this is where, in my respectful submission, my learned friend has it wrong -- that he is out unless there is evidence which justifies that he goes in. The whole approach of the Home Secretary is the other way round. That cannot be right.

Might I just point out a couple of factual matters as well. Your Lordship may recall from the grounds of review that no application was made in this case for interim relief. In other words, no application was made for a stay of the Tribunal decision which would have had the effect of reverting BR to the state of detained patient pending the review. The reason for that is set out at page 10 of the bundle, paragraph 23.

"Because the expert evidence before the Tribunal was unanimous that BR should be discharged, the Home Secretary does not seek interim relief in this case."

He has to be consistent, in my submission, not adopting a position now which has, in effect, the same result, namely that BR goes back into detention when he does not need to be.

MR JUSTICE BEAN: What is the best way of achieving that result within the framework of the statute? I am not going to declare, certainly not in the next half an hour, any provision to be -- it seems to me to take a slow hammer to crack a nut. On the whole, I prefer the practical to the scholarly legal if the practical is an alternative.

MR GLEDHILL: I am perfectly content with that. The practical situation, as I understand it, is that Dr Oyebode's secretary has confirmed that he will be able to provide a report within days of seeing BR on the 16th. So getting the report and getting it considered by the Home Secretary within a matter of two weeks should be possible.

My only concern about relying on the Home Secretary, aside from the jurisdictional point, is that additional point that my learned friend has raised, which I was going to raise in any event, that if the Home Secretary grants a conditional discharge, which frankly is much more likely than an absolute discharge, that precludes BR from going to a Tribunal for at least a year. There is no way around that.

MR JUSTICE BEAN: Even if I have quashed the first Tribunal case and directed holding the second one.

MR GLEDHILL: The Tribunal's jurisdiction is dependant upon the existence of the patient in a particular status. The application that is outstanding under section 75 -- which is what this Tribunal that your Lordship's decision has quashed was -- is dependant on him being a recalled patient. He is no longer recalled if he is conditionally discharged because he is at liberty. I am perfectly content to go back to the Tribunal if need be and argue that they have jurisdiction, but I think I would be having an uphill struggle on that. That is why, in my submission, the appropriate solution, before your Lordship decides on the timing of the delay between today and the sealing of the order, is to make enquiries of the Tribunal as to how quickly they can get a Tribunal to meet to consider the existing question. If they get in and make a decision before the Home Secretary, then they can grant an absolute discharge, and frankly they are more likely to do so than the Home Secretary.

MR JUSTICE BEAN: What will the basis of their jurisdiction be? Suppose the order were drawn up today and they sat tomorrow, under what section would they be sitting?

MR GLEDHILL: Section 75, considering the test set out in 73 which is normal: he is a detained patient therefore we have the opportunity to give him conditional discharge. They would be sitting pursuant to the recall and the reference to them under section 75 by virtue of a recall. If a conditional discharge, however, is put in place by the Home Secretary, the only basis on which they sit is section 75 of the later provisions which allow them to modify or grant an absolute discharge.

MR JUSTICE BEAN: So you say that there may be a jurisdictional barrier to anybody granting a conditional discharge between the date of order being drawn up and the date of Tribunal hearing?

MR GLEDHILL: No, I do not say that. As soon as the Tribunal decision is quashed by virtue of the order of this court, by virtue of his status then as a detained patient the Home Secretary can operate under section 42 to grant a conditional discharge or an absolute discharge. Equally, there would be an extant Tribunal decision under section 75 applying the section 73 criteria as to whether or not discharge should be absolute or conditional.

MR JUSTICE BEAN: Yes, but I cannot exercise the Secretary of State's power under section 42.

MR GLEDHILL: No. I perfectly well accept that all the Home Secretary can do is say he will consider the matter on the basis of up-to-date medical evidence.

MR JUSTICE BEAN: What I had in mind, Mr Gledhill -- and tell me if you want to submit either that it is technically impossible or inappropriate -- is to say that my order quashing the Tribunal decision should not be sealed for, I think, 21 days, that in the meantime the Tribunal should be requested to fix a hearing date as soon as practicable. By 21 days, as far as I can see, Dr Oyebode's report should have been produced, available to both sides and there is time for the Secretary of State's advisors to consider it. At that point one of two things will happen. Either those advising the Secretary of State will advise him to exercise his section 42 power pending the hearing, in which case the pressure is off, or they will say on the basis of the up-to-date evidence he cannot advise that, therefore BR will have to be detained pending the Tribunal hearing and you will presumably have the opportunity to consider that it is unlawful to make a fresh application to the High Court to quash that decision, if it was worthwhile depending on whether the Tribunal hearing is going to be three days ahead, three weeks ahead or three months ahead.

MR GLEDHILL: Yes. My Lord, can I raise two additional points on that. One is I am perfectly content with 21 days, provided that there is also a liberty to apply if things do not go according to plan. I can see that your Lordship's plan is very practical. The second issue to raise is this. Anybody who is detained can be granted leave under section 17 of the Mental Health Act.

MR JUSTICE BEAN: Yes.

MR GLEDHILL: In the case of a restricted patient, the granting of leave which is indicated by the Responsible Medical Officer has to be approved by the Home Secretary. So there is one further option which would allow the Tribunal to retain its jurisdiction which would be that if BR ends up back in hospital, subject to the RMO and the Home Secretary agreeing because they are the decision-makers, he could be granted leave pending any Tribunal decision. There is that further practical alternative which may be of assistance. In effect, I do not want your Lordship to limit the possibilities because there is that further possibility as well which would make BR technically liable to detention but actually at liberty.

MR JUSTICE BEAN: Again, I cannot order the RMO and Secretary of State what to do. It seems to me, if I may say so, that if it turns out that no-one is content that BR should be detained in the long run, what you have just suggested may be an appropriate temporary measure which avoids any jurisdictional issues about section 75 and so forth. But that is not a matter for me. If the order were not drawn up for 21 days but is then drawn, then your client would be a detained patient liable to recall at the end of 21 days, subject to any conditional discharge granted by the Secretary of State under section 42, any leave granted by the RMO with the Secretary of State's consent under section 17, any order made by the Tribunal, or any fresh order made by the High Court.

MR GLEDHILL: Yes. I accept your Lordship cannot direct anything. All I am keen to ensure is the various options making sure BR is not in detention when the criteria are not met. There is no suggestion that they are. All the options are available.

MR JUSTICE BEAN: Thank you very much. Do you want to add anything, Mr Henshaw?

MR HENSHAW: Yes, my Lord. First of all, just to explain where we are coming from, because the patient was granted absolute discharge we have not been receiving information as we otherwise would. That explains our position. We are not taking this position just to make life difficult. We do oppose leaving matters to run on for 21 days because that, in substance, would be giving a discharge under another name without having an evidential basis to warrant the patient's current status.

In answer to Mr Gledhill's point about status, one could make the same point a week before the last Tribunal hearing. If you look at the situation a week before the Tribunal met, could it have been said for BR that since the evidence suggested he should get a discharge of some sort or another, it was no longer lawful for him to be detained pursuant to his recall in September 2004. The answer to that, I submit, is "No". He was and is lawfully subject to detention following the September 2004 recall unless and until there is a lawful decision by the Tribunal or the Secretary of State to change that position. In a sense the onus is the other way around.

The further point is that the possibility of granting leave may assist in getting over the point about conditional discharge in the sense that were appropriate evidence to come along in the next few days which justified it, it would be open to the Home Secretary to grant leave which may have conditions attach to it without affecting the jurisdiction problem that goes with a conditional discharge. Our starting point is that unless and until one gets that evidence, the patient's status should remain as is.

MR JUSTICE BEAN: Yes. Thank you. I handed down a judgment this morning quashing the decision of the Mental Health Review Tribunal on 12th April that the patient should be absolutely discharged. As is apparent from that judgment, the only dispute between the parties on the evidence as was before the Tribunal was whether BR should be absolutely discharged or conditionally discharged. No-one was intending that he should remain detained.

Mr Gledhill tells me, and I accept, that BR has in fact seen the RMO, Dr Oyebode, on a number of occasions since his absolute discharge. There is no report with a date subsequent to the Tribunal decision on 12th April, but it seems to me that had Dr Oyebode had serious cause for concern I would have been told about it at the hearing.

However, the effect of quashing the Tribunal's decision once the order of the court is drawn up would be, as Mr Henshaw appearing today for the Secretary of State submits, that BR would become a detained patient again. That is apparent from the wording of the Act and from the decision of the Court of Appeal in R (on the application of Wirral Health Authority) v Mental Health Review Tribunal and DE [2001] EWCA Civ 1901. The concern of the Secretary of State, which is legitimate as far as it goes, is that if BR's condition or behaviour has deteriorated since April so that there were now grounds for his detention, it would not be appropriate to pre-empt the decision of the Tribunal at the fresh hearing and that decision might be, if there were such matters of new evidence forthcoming, to refuse any form of discharge at all. As a question of jurisdiction I think that is so, although I would say that if there is no such new evidence forthcoming, BR would have some interesting points to raise as to whether the Secretary of State should be able to reopen, essentially on the technicality, an issue decided in BR's favour at the April hearing.

I am concerned with practicalities, however. Dr Oyebode is seeing BR again on 16th November. It is accepted that a report can be written by him within a few days of 16th November and considered by the Secretary of State's advisors within two or three days of receipt. It may very well be that that report will indicate that Dr Oyebode's view is unchanged from the time of his report of 9th March 2005. If that is the case then once again no-one would be contending that BR should be detained. If that were to be the case, it would seem to me to be anomalous and unjust that he should be detained on a technicality pending a decision by the Tribunal at a resumed hearing as to whether his discharge should be absolute or conditional.

Mr Henshaw accepts that I have jurisdiction to direct that the order of the court should not be sealed for 21 days, but submits that it would be wrong for me to exercise that jurisdiction. He submits that this court, having held that the Tribunal's order of 12th April was unlawful, should not let it remain in force for a moment longer. Technically attractive though this submission is, I reject it. I think, as I say, that in the absence of any evidence before me that BR has deteriorated since April, I should seek to achieve justice rather than have BR sent back to hospital on a technicality.

I will direct that the quashing order of this court should not be sealed for 21 days. In the meantime, the Tribunal is to be requested to arrange the earliest possible hearing date. I hope that when Dr Oyebode's report is available it may be possible for the position of BR, pending the hearing, to be resolved by agreement. There are, as I understand it, a number of options open to the Secretary of State such as conditional discharge under section 42 or the grant of leave as a decision by the RMO with the approval of the Secretary of State under section 17. I am in no position to dictate, I simply express my concern that if there was no real issue on the facts as to whether BR should be detained it would, as I say, be wrong for him to be detained on a technicality.

Is there anything else for today?

MR GLEDHILL: My Lord, just one point. Given the Tribunal is not here, might we have a transcript of that part of your Lordship's judgment so that we can communicate that to the Tribunal?

MR JUSTICE BEAN: Yes, certainly. Mr Henshaw, the associate says that the Secretary of State is usually asked to pay for the transcript in these cases. We will obtain agreement to that. I think it would be in everyone's interest.

MR HENSHAW: Indeed. There is only one further matter which is the draft order which was under consideration between the parties was that the matter should be remitted to the Tribunal in the same constitution as sat before, if possible. I think the qualification "if possible" is necessary in case that causes problems on timing, or "if practicable".

MR JUSTICE BEAN: I think if you could add: "if this is practicable without delaying the hearing".

MR HENSHAW: Yes. I am grateful.

MR JUSTICE BEAN: As so often, it is perhaps a question of the presiding judge or listing officer balancing people's availability.

MR HENSHAW: If there is a difficulty it would be better to bring it on earlier.

MR JUSTICE BEAN: It is certainly not my view, subject to anything either or you says, that the Tribunal on resumption has to be all the same or none the same. It was put to me in the Employment Appeal Tribunal. It seems to me quite misconceived. If two people are available and one is on holiday then I think it should be the two who were there last time and somebody else to make up the panel of three.

MR HENSHAW: Yes, I am grateful.

MR JUSTICE BEAN: Presumably no order as to costs except for Community Legal Service detailed assessment?

MR GLEDHILL: Yes, my Lord.

MR JUSTICE BEAN: Any other business?

MR HENSHAW: No, my Lord.

MR JUSTICE BEAN: Thank you both for your assistance.

Note 1   I wonder whether law reporters would consider citing these cases as re Wilson, re G and so on. The citation R(Secretary of State for the Home Department) v Mental Health Review Tribunal is not helpful.    [Back]