England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		30th August 2007

1. MR JUSTICE SULLIVAN: In this rolled up permission and substantive hearing, the claimant Secretary of State seeks a quashing order in respect of the decision of the Mental Health Review Tribunal, the defendant, dated 4th December 2006 in which the Tribunal directed the deferred conditional discharge of a patient, "JC", and a further order remitting the reference in respect of JC to a differently constituted Tribunal.
2. The Tribunal decision states that the Tribunal had decided that "the patient shall be discharged subject to the conditions set out at paragraph 1 below, but his discharge is deferred until the tribunal is satisfied that the necessary arrangements have been made to meet those conditions". The conditions were:

"that the patient do reside for the foreseeable future at the Langley House Trust establishment, Longcroft, Lancaster, and abide by its rules, in particular not to leave the establishment unescorted and not to take any alcohol, provided (i) trial leave or leaves have been undertaken satisfactorily; (ii) the Home Office agrees to the move; (iii) MAPPA agrees to the move; (iv) the proposed RMO reports on having met the patient and agrees to accept him".

3. The legal grounds for the Tribunal's decision are then set out. They record:

"(a) The Tribunal 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 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."

4. The Tribunal did not reclassify. The reasons given for the Tribunal's decision were as follows:

"See reasons given at previous hearings on 12/6/06 and 26/9/06. We fully appreciate that Dr Naismith (RMO), Deborah Flack (psychologist) and Caroline Rust (social worker) believe [JC] is appropriately detained in his present medium secure situation, but Dr Turner and the gentlemen from Longcroft felt he should be tried out in a suitable low secure environment provided leaves could be escorted at all times.

Whilst we would have preferred to have heard from a clinician who knew Longcroft's regime and not just the two managers, we felt we had heard enough to form the view that [JC] should be given the chance to move on.

It seems to us that the alternative can only be that [JC] would remain at St Lukes for the rest of his life. It is 20 years since his last conviction and he is now 63.

The view that he continues to pose a high risk of further sexual offending cannot be ignored but there has been no evidence of recent inappropriate behaviour presented to us. Our support for the move to a low secure regime pursuant to an order of conditional discharge does not allow for any unescorted leave in the foreseeable future, in any event.

Although the patient has not been willing to engage in therapeutic interventions so far, as he refuses to admit some of his past alleged behaviour, there is a possibility that he would do so in the future.

Cumbria County Council, we understand, are willing to support the move financially provided it is agreed that the patient is accepted and allowed to go to Longcroft. We propose to reconvene, if necessary, on Monday 19th March, 2007, 2 for 2.30 pm."

5. In the judicial review claim form the Secretary of State contended that the Tribunal decision was unlawful and should be quashed on three grounds.
6. Firstly, it was contended that the imposition of a condition that JC be escorted at all times when he leaves Langley House Trust establishment amounted to a deprivation of liberty, so the Tribunal had no power to impose that condition when directing discharge. Pausing there, in effect it was being said that the decision took away with one hand what it was purporting to give with the other.
7. Secondly, it was said that the Tribunal's decision to direct a conditional discharge was irrational because there was no evidence before it on which it could conclude that the statutory criteria for conditional discharge could be fulfilled. Those criteria are to be found in section 72(1)(b) of the Mental Health Act 1973 (as amended):

"the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied -

(i) that he is then 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 him to be liable to be detained in a hospital for medical treatment; and

(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 ..."

8. Thirdly, it was said that three of the conditions, firstly, that trial leave be satisfactorily undertaken by JC and, secondly, that both the Secretary of State and MAPPA agreed to the conditional discharge, could not lawfully have been imposed.
9. In response to that challenge, the Tribunal accepted that its decision had been unlawful and signed a consent order agreeing to the quashing of the decision and the re-determination of the matter by a fresh panel. The reasons given in the consent order signed by the Tribunal were:

"The Defendant acted unlawfully in granting a conditional discharge to [JC] in imposing a condition amounting to continued detention of the patient and in particular, that [JC] is unable to leave his accommodation unescorted. In addition, the criterion as set out in Sections 73(1) and 72(1)(b) of the [Mental Health Act] have not been met and therefore discharge could not be conditionally granted in accordance with Section 73(2) [of the Act]."

10. The first of those reasons, that is to say whether the condition that JC was unable to leave his accommodation unescorted and should reside at Longcroft amounted to continued detention, raises a number of interesting issues which are explored in Mr Bowen's skeleton argument on behalf of JC. In my judgment, it is unnecessary to resolve those issues in this case, and indeed undesirable, in view of the concession by the Tribunal itself that the relevant statutory criteria were not met. Mr Bowen sought to persuade me in effect that that was a concession made in error and that the Tribunal's decision could not be said to be irrational. Out of deference to those submissions, it is necessary to explore that issue in a little more detail.
11. Firstly, it will be noted that the Tribunal referred to reasons that were given at previous hearings. The reference to the hearing on 26th September 2006 does not take the matter any further because that, in effect, adjourned the matter until December 2006 without further reasons on the basis that more information was required and was still awaited, but on 12th June 2006 the Tribunal had decided that JC should not be discharged. It had set out its view that it was satisfied that the patient was 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 made it appropriate for the patient to be liable to be detained in a hospital for medical treatment, and that it was satisfied that it was necessary for the health or safety of the patient or for the protection of other persons that he or she should receive such treatment. But what it then said was:

"The patient is aged 63 and was last convicted 20 years ago. He causes no trouble on the ward and while escorted outside the hospital. The RMO will not take the risk himself of relaxing his regime (medium security) although he has recently obtained permission for a single escort rather than for two escorts.

We feel the patient should be given the responsibility of taking a step forward to low security and unescorted or shadowed gradual leave. However it does not appear that this can take place at St Lukes as the Tyne Ward to which he could go, although secure, does not really meet his needs any more than his present ward.

We feel he needs to move to another hospital, either on the NHS or privately run, where he can be tested without running into potentially vulnerable visitors in the grounds. No such place has been identified yet but we feel the funding authority for this patient, Cumbria County Council, should be asked to provide a list of hospitals (both private and NHS) where they would be willing to 'buy' a place for the patient and to try to secure a place for him.

We would also like to find out about the hostel run by the Langley House Trust in Lancaster to which the patient might go in the longer distant future if the steps we envisage for him are successful."

So the Tribunal decided to adjourn until September to find out what progress had been made. As I have indicated, no progress had been made by September and so the matter was further adjourned until December. So that was the background referred to in the reasons given in December.

12. On the face of it, it would appear that at least in June the Tribunal was quite satisfied that JC did suffer from psychopathic disorder - there has never been any dispute about that amongst the clinicians. It was also satisfied that the disorder was of a nature or degree which made it appropriate for JC to be detained in a hospital for medical treatment, and it was satisfied it was necessary for the protection of others that he should receive such treatment in a hospital, but what the Tribunal wanted was a hospital with lower security. If that worked, then it thought that in the longer term a move outside a hospital, i.e. discharge, might be acceptable.
13. The question really is whether there was anything that could rationally have altered those conclusions when the Tribunal considered the position in December. The views of the RMO, the psychologist and the social worker remained the same. Dr Turner, whose report is referred to by the Tribunal, wrote a letter dated 17th November 2006. It would appear that Dr Turner did not disagree with the previous assessments of others that JC did have a severe personality disorder and there was a high risk of re-offending. What he said, however, was that JC had "progressed from high to medium security without successful treatment and there is therefore no reason why he should not also progress to low security in the same way (provided he can be safely managed there)". He considered the questions, could he be managed in conditions of low security and was Bede Ward the most suitable option. In answering those questions, he said that he saw no difficulty if the intention was merely to place JC in long term low security, but he said that Bede Ward was not appropriate for various certain reasons. As to the second question, he said:

"My understanding is that a low secure placement is being considered to facilitate further testing out with a view to eventual discharge. The difficulty here, however, is that there is a consensus that [JC] poses a significant risk to the public and that this risk may not be realised until he is actually discharged. Therefore, if the longer term risk is to be reduced then [JC] will have to be able to build up relationships and other stabilisers in the community in which he will eventually live before he is discharged. It would clearly be difficult to do this from Bede Ward and I would suggest that transfer from the Hutton Centre to a local (Cumbria) placement would be a more appropriate move."

Mr Bowen submitted that since there was no other local Cumbria placement than Longcroft, what Dr Turner must be understood to have been recommending was discharge out of hospital to the hostel in Longcroft.

14. I am afraid I am unable to read Dr Turner's letter in that way. Once one looks at the letter as a whole, in my judgment the better reading is that Dr Turner was envisaging placement in low secure conditions in a hospital setting to facilitate further testing with a view to eventual discharge; he was most certainly not recommending discharge at that stage.
15. The Longcroft assessment did not take issue with the current diagnosis of JC's mental health. It also noted the concern:

"Also of great concern is the wide range of sexual offending for which [JC] has been convicted, involving young girls initially, followed by adult females and latterly young boys."

And said:

"If [JC] were to come to Longcroft he would be under a strict protocol which would include being escorted in the community, with a view to this being tapered off when considered appropriate. Our MAPPA partners would help to manage the high risk of re-offending that [JC] poses with regular reviews. Our high staffing ratio would allow for strict monitoring of [JC] and to move very cautiously towards any greater freedom. This would allow a clearer assessment of the risk [JC] now presents to the public within a supervised setting whilst improving the quality of life for [JC]."

16. The various conditions imposed at Longcroft would not include one-to-one supervision all the time during waking hours, but there would be regular contact by staff and frequent monitoring every hour at the absolute minimum. Between 23.00 and 08.00 in the morning JC would be allocated to an alarmed room using a zoned system. JC would be allowed out for a maximum of two hours each day, but on each occasion he would be escorted by a member of staff, and each escorted trip out would need to be assessed and agreed in advance for risk management purposes. So that is what was being approved, and it is against that background that the Secretary of State's contention of irrationality and the Tribunal's express acceptance that the statutory criteria were not met has to be considered.
17. Whilst I accept that there might be certain infelicities in some of the correspondence from the Treasury Solicitor in terms of where the "burden of proof" lies in terms of the Tribunal's obligation to satisfy itself of the statutory criteria, it is nevertheless plain that what was being said to the Tribunal was that the statutory criteria were not satisfied because, firstly, JC did continue to suffer from a defined mental disorder and, secondly, all of the medical evidence showed that he continued to be a high risk to the public and therefore required to be detained in a hospital setting rather than conditionally discharged.
18. There appears to be no dispute whatsoever as to the first of those matters. As to the second, Mr Bowen submits that it was not irrational for the Tribunal to conclude that the risk was not such as to warrant detention in hospital, but could properly be managed at Longcroft. The difficulty with that submission is that it flies in the face of the Tribunal's express acceptance that the statutory criteria were not met, and it also cuts across the grain of the Tribunal's reasoning when one considers the earlier reasoning in June 2006 which the Tribunal itself referred to and in which the Tribunal was making perfectly clear that what was required was not discharge from hospital, but transfer to another hospital with lower security as a preclude to discharge. That very strong impression is reinforced by the four conditions or provisos which were attached by the Tribunal, in addition to the requirement that JC reside for the foreseeable future at Langley House and not leave that establishment unescorted.
19. As the Secretary of State's detailed grounds point out, the conditions that trial leave is satisfactorily undertaken and that both the Secretary of State and MAPPA agree to the conditional discharge are not conditions of discharge, they are pre-conditions to discharge. Mr Bowen concedes on behalf of JC that conditions (i), (ii) and (iii) were not lawful. He submits that the proper course for the court to adopt would be effectively to adopt a blue pencil test to delete the offending conditions rather than quash the entire decision. He says that that will then enable the matter to go back to the Tribunal and the Tribunal will be able to decide whether or not the conditions were of such fundamental importance to its decision that the decision to conditionally discharge should be rescinded; or the Tribunal may decide that the conditions were of such peripheral importance that the decision could be maintained without them.
20. I do not accept that it is possible to isolate out the conditions in that way. When viewed against the remainder of the Tribunal's reasoning and the considerations that I have set out above, the conditions powerfully reinforce the view that this was not a tribunal that had been satisfied that the statutory criteria were met so that detention in hospital was not necessary. Rather, it was a case of the Tribunal saying that if certain provisos were met, then, but only then, would the criteria be satisfied; the first proviso being that trial leave or leaves had to be undertaken satisfactorily.
21. It is common ground that the Tribunal could not lawfully impose a condition which effectively made conditional discharge subject to the agreement of some other body, such as the Home Office. What in truth appears to have been happening is that the Tribunal, rather than considering that conditional discharge from hospital was appropriate, was in effect of the view that a transfer to a lower security hospital was appropriate. Recognising that the Secretary of State under section 19 would have to consent to such a transfer and recognising that the Secretary of State might wish to see trial leaves in order to decide whether or not to give consent, the Tribunal in effect imposed conditions which would be more appropriate when recommending a transfer than when deciding upon conditional discharge. Certainly the imposition of the conditions is a powerful indication that, far from being satisfied that the criteria were met which would enable conditional discharge to be ordered, the Tribunal was not at that stage persuaded and could not have been persuaded on the evidence before it that the statutory requirements for discharge were met.
22. Thus, the irrationality challenge and the challenge to the conditions succeed, and it is unnecessary to decide the first ground of challenge, namely whether the condition requiring residence at Longcroft coupled with the condition that JC was not to leave the establishment unescorted amounted to a deprivation of liberty, so the Tribunal was, as it were, giving with one hand and taking away with the other. It is unnecessary to resolve that issue. The decision must be quashed.
24. MR PATEL: My Lord, I set out at paragraph 28 the orders that I ask the court to make. I ask the court to make those orders except for paragraph 5, where my instructions are not to seek the costs of the claim, that there is to be no order for costs, and obviously there needs to be a detailed assessment of my learned friend's costs.
25. MR JUSTICE SULLIVAN: Yes. Because this is a rolled up application, clearly you need the grant of permission.
26. MR PATEL: Yes.
27. MR JUSTICE SULLIVAN: Having heard Mr Bowen argue persuasively, but not quite persuasively enough for some time, it would be churlish of me to suggest that this was not arguable, so I certainly grant permission. I do so for the purpose simply of disposing of the substantive claim by allowing it. The decision is quashed, the matter is remitted to a differently constituted tribunal. The Treasury Solicitor is not going to ask for costs from his opposite number, the other side of the fire wall, or the Chinese wall, whichever it is.
28. MR PATEL: Certainly not, there should be no order as to costs.
29. MR JUSTICE SULLIVAN: No order as to costs, other than detailed assessment of publicly funded costs.
30. MR BOWEN: I am obliged. My Lord, can I just try and persuade you that the matter should be remitted back to the same tribunal. It strikes me that there is nothing in my Lord's judgment which necessarily will disqualify any of the Tribunal members from reconsidering this matter afresh. Essentially what my Lord's judgment amounts to is, on the basis of the evidence that you have, drawing certain interferences about the conclusions they can and cannot have made on the evidence before them. It will powerfully reinforce the requirement that if they did mean what I said they meant, they will be a little bit clearer next time about what they meant, but they have been seised of the matter since June of last year. I can see no reason why they are disqualified from reconsidering the matter. It will have the advantage that they know the case.
31. MR JUSTICE SULLIVAN: Yes.
32. MR BOWEN: And it will probably be resolved more quickly.
33. MR JUSTICE SULLIVAN: Yes, they have a huge amount of background knowledge, clearly. One normally remits it to a different tribunal because of concerns that the patient feels that it would be a bit unfair, that someone has taken against him for a reason that is not a proper reason. That does not really apply, I suppose, to the Secretary of State.
34. MR BOWEN: He does not like the decision, but he is only saying that there are certain processes they have not gone through. Obviously, if there were allegations that they had fallen below a particular standard, that might be another matter, but I can see no reason why they should be disqualified.
35. MR JUSTICE SULLIVAN: What do you want to say about that, Mr Patel? Certainly there are, as it were, practical consequences in terms of another tribunal will have to be established, there will be delay, they will have to completely get up the facts all over again, but --
36. MR PATEL: Can I make two points.
37. MR JUSTICE SULLIVAN: Yes. If there is a policy reason why it ought to be a different one or a good reason, I will hear it.
38. MR PATEL: The first point is that the MHRT themselves in the consent order suggest that it should go to a different panel, and clearly that was the decision that they took following instructions from their own clients and consideration of the claims that were in the judicial review. The second point is that if you restrict it, my Lord, to the same panel, I do not know, I am afraid, given that I do not act for the MHRT, what the availability of those panel members are, whereas if you are not restricting it to the same panel you have a choice of panel members, it may be -- I cannot put it any higher than that -- that this matter can go back to the Tribunal much quicker than it would otherwise. My Lord, those are the points I make. I think the first one is slightly more persuasive, which is that the Tribunal themselves have actually said that it ought to go back to a different panel.
39. MR JUSTICE SULLIVAN: I just wonder the extent to which that is, as it were, a reflection of what is normally done. What I do wonder is whether the sensible course would be to give the Tribunal, if you like, the option. I can see there could be something, for all I know the circuit judge has retired and/or the psychiatrist has gone off to America and whatever, so I simply do not know. What I wonder is if the order could be remitted to the Mental Health Review Tribunal, they arrange a fresh hearing to determine JC's application as soon as practicable, but to leave them a discretion, as it were, and to say whether that hearing is conducted by the previous panel or by a fresh panel, one can leave that to the Tribunal to decide. JC has made it perfectly clear that he would be more content with the original panel probably. I do not know if the Secretary of State has really got any very good reason to object to the original panel, they have not disclosed themselves to be biased against the Secretary of State or anything like that, and it does seem to me if we leave that open --
40. MR PATEL: I think I am content with that because I do not have instructions from the MHRT.
41. MR BOWEN: I think that is an appropriate course, my Lord, yes.
42. MR JUSTICE SULLIVAN: Let us do that because I think that meets your point as best we can, Mr Bowen. We do not want to tie them to the original panel if that is going to cause problems.
43. MR BOWEN: I think that is all that I need to say on the consequential orders, my Lord.
44. MR PATEL: My Lord, shall I sort the order out with the associate?
45. MR JUSTICE SULLIVAN: Would you do that and agree a form of words with Mr Bowen to reflect what I have said and give it to the associate. That is most helpful. Thank you very much indeed.