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
		4 April 2007

Mr Justice Munby :

1. This is a renewed application for permission to apply for judicial review to challenge a decision of a Mental Health Review Tribunal sitting at Broadmoor on 28 March 2006. Permission was refused on the papers by Ouseley J on 30 August 2006.
2. The background is shortly sketched in. The claimant, RD, is a restricted patient having been convicted at the Crown Court in 1997 of manslaughter on the grounds of diminished responsibility. A hospital order, restricted without limit of time, was made on 23 May 1998. RD has been detained at Broadmoor since 13 January 1998, having been diagnosed as suffering from paranoid schizophrenia.
3. The Tribunal decided that RD should not be discharged, expressing itself as satisfied, first, that RD was suffering from mental illness of a nature or degree which made it appropriate for him to be liable to be detained in hospital for medical treatment and, second, that it was necessary for his health or safety or for the protection of other persons that RD should receive such treatment.
4. Mr Roger Pezzani takes two points on behalf of RD. They are quite distinct and it is convenient to take them in turn.
5. The first point arises in this way. A Mental Health Review Tribunal consists of three members, a legally qualified President, a medical member and a lay member. Rule 11 of the Mental Health Review Tribunal Rules 1983, SI 1983/942, (as amended) provides, so far as material, as follows:

"At any time before the hearing of the application, the medical member … shall examine the patient and take such other steps as he considers necessary to form an opinion of the patient's mental condition; and for this purpose the patient may be seen in private and all his medical records may be examined by the medical member, who may take such notes and copies of them as he may require, for use in connection with the application …"

6. Rule 11 and the procedure to which it gives rise are compliant with the European Convention for the Protection of Human Rights and Fundamental Freedoms: see R (S) v The Mental Health Review Tribunal (Department of Health, interested party) [2002] EWHC 2522 (Admin) where Stanley Burnton J, having considered and analysed the decision of the Strasbourg court in DN v Switzerland (2001) 63 BMLR 221, rejected arguments that rule 11 was incompatible with Article 5.4 of the Convention. Mr Pezzani does not seek to go behind or challenge Stanley Burnton J's decision.
7. In DN at para [54] the Strasbourg court had referred to the need for "due impartiality." Picking up this phrase in S at para [32], Stanley Burnton J said this:

"In my judgment, "due impartiality" in the present context requires a member of a tribunal not to have a preconceived concluded opinion on the merits of the applicant's case. The European Court did not suggest that a provisional view formed before the commencement of the hearing is objectionable. If an otherwise impartial and independent member of a tribunal has a preconceived concluded opinion, or if he expresses himself in such a way as to give rise to reasonable apprehension that he has a preconceived concluded opinion, he lacks the necessary impartiality, but not otherwise."

He observed at para [34] that:

"Rule 11 clearly raises issues which must be handled sensitively. It is imperative that the medical member of the tribunal keeps an open mind until the conclusion of the hearing, and is seen to do so."

8. Stanley Burnton J added that the guidance in paragraph 7 of The Members' Handbook of the Mental Health Review Tribunals in England and Wales "must be observed." The critical part of paragraph 7 is in the following terms:

"[The medical member] must appreciate that he performs a dual role at the Tribunal as a fact-finder and as a decision-maker and it is therefore essential that his opinion of the patient's mental condition, if it differs significantly from that of RMO, should have been disclosed to the patient and the representative at the outset of the hearing. Thus, a situation will be avoided where the members of the Tribunal are acting on the basis of evidence known only to themselves which would, of course, be a breach both of a fundamental principle of natural justice and also of a Human Rights principle, and likely to invalidate the decision."

9. Mr Pezzani also referred me to paragraph 4.06 of the Guidance issued by the Mental Health Review Tribunal Regional Chairmen, quoted in para [19] of Stanley Burnton J's judgment:

"Medical Members must … be very careful not to disclose in the preview their own opinion as to discharge of the patient and must retain an open and judicial mind on the question of discharge until all the evidence has been heard."

10. Earlier in S at para [22], Stanley Burnton J had commented that:

"As a matter of our domestic law (by which I mean English law apart from the Human Rights Act), there can normally be no objection to members of a tribunal or court forming or discussing their provisional views of a case before the hearing. Judges and tribunal members are human, and cannot be prevented from forming an initial view of a case when they read the papers. The forming of an opinion before the hearing is normally objectionable only if it is not provisional, liable to be changed by the evidence adduced and the submissions of the parties, but is firm and concluded: in which case the hearing is an ineffective charade. The business of multi-member courts could not be carried on efficiently if their members were not able to discuss the issues and exchange provisional views before the hearing. It is common-place for the Criminal Division of the Court of Appeal, when dealing with appeals against sentence, in a case where it has formed the provisional view that a reduction in sentence is appropriate, to put its provisional view to counsel for the appellant at as early a stage as possible, so that he can decide whether he should make submissions that any further reduction is appropriate."

I entirely agree.

11. Referring specifically to the position of the medical member Stanley Burnton J continued at para [23]:

"In my judgment, as a matter of domestic law, there can be no objection to the expression of a provisional opinion by a medical member of a tribunal to his colleagues before the hearing, provided the other members are aware that it is only a provisional opinion and treat it as such, and provided that they understand that they are free to disagree with it if the evidence and submissions before them lead them to a different conclusion."

12. There is one other authority on this point to which I should refer. In In the Matter of an Application by Laurence McGrady for Judicial Review [2003] NIQB 15, Kerr J sitting in the High Court of Justice in Northern Ireland said this at para [24]:

"It is important to recognise clearly the nature of the role to be performed by the medical member in examining the applicant under Rule 11. He does not reach a final view on the question whether the applicant is suffering from a mental illness or severe mental impairment. His role is confined to a determination on a provisional basis of the patient's mental condition. He does not consider whether the mental disorder (if he finds it) is sufficiently serious to warrant detention in hospital and he discloses the conclusion that he has reached in the course of the hearing."

Kerr J had, of course, been referred to Stanley Burnton J's decision in S.

13. The Tribunal convened in the present case on 28 March 2006. Before the hearing, and in accordance with rule 11, the medical member, Dr Bullard, saw RD. The hearing began. At the outset of the hearing, as is common ground, the President of the Tribunal, Mr J L Cohen QC, gave an account of the medical member's interview with RD. He concluded by reporting a "preliminary view" that:

"[RD] appeared to be ready for transfer to medium security, but because of the length of time at Broadmoor, the lack of testing in the community, and concern about how he would manage in the community, he would appear to need the regime of a secure unit rather than community living."

The President said that this was "a very preliminary view, subject to anything we hear today."

14. Mr Pezzani complains that the medical member, Dr Bullard, went "far" beyond her remit under rule 11. Rule 11 required her to take steps to form an opinion of RD's mental condition; it did not, he says, require or permit her to do what in fact she did, namely to form an opinion as to whether RD should continue to be detained and then to communicate that opinion to the other members of the Tribunal before the hearing. There is, he says, a crucial distinction between an opinion of the patient's mental state and an opinion as to whether he should be discharged. The communication of the former by the medical member to the other members, he says, is legitimate; the communication of the latter is not.
15. Mr Pezzani submits that RD's right under Article 5.4 to an independent and impartial judicial determination of the lawfulness of his detention was thereby breached. He relies in support of this contention both on paragraph 4.6 of the Guidance and on what Kerr J said in McGrady in the passage I have quoted. He points to what he says is the unique and anomalous position of the medical member: the medical member, although part of a multi-member panel, is the only one with relevant professional expertise and, moreover, conducts the examination of the patient in private and in the absence of the other members of the Tribunal. The medical member is therefore, as he puts it, removed physically and professionally from the other members of the Tribunal and is, he says, in possession of a singular advantage, which makes it all the more important that the medical member does not travel outside the strict limits of rule 11.
16. Mr Jonathan Moffett, on behalf of the Tribunal, and Mr Martin Chamberlain, on behalf of the Secretary of State for the Home Department, make common cause in seeking to meet Mr Pezzani's complaints. In the first place they submit that there cannot be anything objectionable in the medical member expressing, as here, "a very preliminary view, subject to anything we hear today." No fair-minded and informed observer, they say, relying for this purpose not merely on DN and S but also on Sengupta v Holmes [2002] EWCA Civ 1104 at para [30], would regard the medical member as having expressed a "pre-conceived opinion" or as having "pre-judged the issue" or as having done anything to give rise to "an apprehension of a closed mind." The words used by the President to convey the medical member's "very preliminary view" made very plain, they submit, that she had done none of these things. The formation and expression of a preliminary view could not give rise to an apprehension of partiality.
17. Secondly, they submit that there is nothing in rule 11 – or elsewhere – to prevent the medical member, like any other member of this (or any other) Tribunal, from expressing a view, either at the outset of the hearing or to the other members of the Tribunal before the hearing, on any of the issues that arise in the case, provided, of course, that he or she makes clear that it is only a provisional view and is subject to the evidence and submissions that have yet to be heard.
18. I agree with Mr Moffett and Mr Chamberlain. Mr Pezzani is seeking to read far too much into paragraph 4.6 of the Guidance and into what Kerr J said in the passage in McGrady which I have quoted. In my judgment what happened here was plainly consistent with the requirements of Article 5.4 as elucidated by the Strasbourg court in DN, by Stanley Burnton J in S and by Kerr J in McGrady, just as it was also plainly consistent with rule 11.
19. The communication by the medical member of her "very preliminary" view was manifestly lawful, notwithstanding that it went to the ultimate issue and not merely to the question of RD's mental condition. There is nothing in rule 11 to disable the medical member from doing what she (like the other members of the Tribunal) would otherwise plainly be entitled to do, namely to discuss all aspects of the case with the other members of the Tribunal before the hearing and to express to them her preliminary views either on the case as a whole or on any particular aspect of the case, just as there is nothing in rule 11 to disable the medical member (like the other members of the Tribunal) from expressing to the parties at the outset of the hearing her preliminary views either on the case as a whole or on any particular aspect of the case. The contrary, in my judgment, is simply unarguable.
20. The challenge on this ground must fail.
21. The second point arises in this way. The Tribunal had before it a number of written reports including psychiatric reports from Dr Van Hoecke, RD's RMO, Dr Lock, a consultant forensic psychiatrist instructed by RD, and Dr Wood, a consultant forensic psychiatrist instructed by the Secretary of State for the Home Department, as also a social circumstances report by Mr Blower, a forensic mental health practitioner at Broadmoor. Dr Van Hoecke and Dr Lock also gave oral evidence.
22. Dr Wood and Mr Blower in their written evidence had recommended RD's continued detention; Dr Van Hoecke and Dr Lock recommended his discharge.
23. The views of Dr Wood and Mr Blower are conveniently and accurately summarised by the Tribunal in its written decision:

"Dr Wood felt that [RD] satisfied the statutory criteria for detention and that the risk he posed in the event of destabilisation was far from minimal and his adherence to plans and response to community testing was unknown. Whilst he could support a move to a RSU, a discharge into the community could not be seen as safe. His view was shared by Mr Blower."

24. In her latest report dated 10 January 2006, Dr Van Hoecke confirmed her earlier opinion that RD was suffering from a mental illness, paranoid schizophrenia, of a nature and degree such as to make him liable to be detained in hospital for treatment. She said that "a gradual transfer of [RD] to a medium secure level is preferable" but recognised that "the current practice in Broadmoor is very different and that patients often have to wait up to a year and a half between their acceptance by an RSU and their actual transfer." She continued:

"I cannot consciously [quaere, conscientiously] support this practice. If [RD]'s transfer cannot be organised within a reasonable span of time after his completion of the Violent Offender Group, I will support his request for a conditional discharge at that point in time."

25. Dr Lock's approach was similar. In his report dated 13 March 2006 he described the practice as unfortunate and regrettable. He said:

"In my opinion although community leave is desirable I cannot support a patient's continuing detention in hospital for treatment solely on the basis that they have not undergone such leave. In my opinion it is desirable but not absolutely essential. It appears to me that [RD]'s mental state has been settled for an extended period of time. He is very insightful into his illness and it is difficult to see that he would pose significant management problems in a suitable hostel. In my opinion [RD] no longer has a mental illness, of a nature or a degree, to warrant his continuing detention in hospital for treatment. I would support his conditional discharge deferred until the appropriate conditions can be met."

26. RD's application was also supported by a forensic psychiatric hostel, the manager of which, in a report dated 14 March 2006, stated that the hostel was willing to provide a placement and to devise the necessary care plan and risk management programme for RD.
27. At the end of its written decision the Tribunal expressed its conclusions as follows:

"We have not found this an easy case. We are in no doubt that [RD] suffers from an illness which is of a nature and degree which makes him liable to be detained in hospital for treatment. We remind ourselves that his illness has only been under control for 18 months when he was prescribed Risperdal Consta. Although he had drug free trials at his insistence without suffering a major relapse, even in the tightly monitored conditions of Broadmoor he became suspicious and irritable during them, suggesting that his mental state was deteriorating. If he did not take his medication his illness would resurface and he would be likely to present an unacceptable risk to others. The speed of any relapse would depend on the other pressures upon him.

The harder question is that posed at s. 72(1)(b)(ii). We have to bear in mind the gravity of what [RD] did in 1996. We have to give weight to the views of the two practitioners who know him best, Mr Blower and Dr Van Hoecke, who has been his RMO since 01.05. We think that Dr Van Hoecke was right in her conclusion in 1.06 as to [RD]'s fulfilment of the statutory criteria for detention and we find that there has not been a change since then which justifies a different conclusion.

That said we wish to record that [RD] has improved considerably since late 2004. He is compliant with his medication; he is more insightful into his condition; and he has gained from his therapy. We consider that [RD] does not need to be detained at Broadmoor once his Victim Offenders Group concludes later this month. We recite what the Home Office say in their statement of 22.3.06, namely that it fully supports a transfer to a RSU as soon as the Offenders Group is completed. We endorse that and recommend a speedy transfer to the identified RSU (…).

We think it would be wrong to assume the transfer of [RD] from Broadmoor into the community can safely be achieved without a phased and monitored rehabilitation. The risks around his index offence were in relation to his jealousy and aggression towards a female with whom he had a close relationship. New relationships, which he hopes to enter into, will need to be closely monitored as will his abstinence from drugs. The pressures upon [RD] are bound to be considerable and we believe that the risks can only safely be managed by a period in a RSU."

Mr Pezzani complains about what he says is the inadequacy of those reasons.

28. RD's principal contention before the Tribunal was that the use of conditions meant that the test for detention was no longer met, a proposition, according to Mr Pezzani, that was borne out by the evidence before the Tribunal. It was also submitted on RD's behalf that, for the same reason, his continued detention was a disproportionate response to the legitimate aim of maintaining his mental stability. The Tribunal was asked to direct RD's conditional discharge, deferred until the necessary arrangements to enable RD to meet those conditions had been made. The Tribunal, as I have said, declined to take this course, deciding that RD should not be discharged.
29. Mr Pezzani submits that the Tribunal's reasons did not grapple with what, he says, was the principal issue in the application, namely whether RD's detention was rendered inappropriate, unnecessary and disproportionate by the imposition of conditions on his discharge. He identifies the central proposition of law that lay behind that issue as being that the use of conditions can mean that the test for detention is no longer met, for which proposition he relies on Campbell v Secretary of State for the Home Department [1988] AC 120 and R (H) v Secretary of State for the Home Department [2003] UKHL 59, [2004] 2 AC 253. He relies also on R (H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415, [2002] 1 QB 1 and on R (H) v Ashworth Special Hospital Authority [2002] EWCA Civ 923, [2003] 1 WLR 127.
30. Mr Pezzani complains that the Tribunal's reasons do not explain (i) whether it accepted that proposition and (ii) if it did, why the use of conditions did not mean that the test for detention was no longer met in RD's case. He submits that whilst the Tribunal mentions the use of conditions in the first part of its decision, it did not return to the question at all in its conclusions. He says that the Tribunal's reasons are silent as to whether it accepted that RD would take his medication in the community, an issue on which, he says, a decision was clearly called for because that assertion formed an important part of Dr Van Hoecke's and Dr Lock's opinion in support of a controlled conditional discharge. He says that the Tribunal's reasons are little more than a recitation of the statutory criteria as opposed to reasons for a decision. The Tribunal does not explain why it disagreed with the evidence from Dr Van Hoecke and Dr Lock. Indeed, he says, the Tribunal does not even mention Dr Lock's evidence. In sum, he says, the Tribunal's reasons constitute a set of broad conclusions, not a set of reasons meeting the criteria in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409.
31. Mr Moffett and Mr Chamberlain do not differ from Mr Pezzani on the law. They submit that the Tribunal's reasons were adequate. In the first of the four paragraphs which I have set out in paragraph [27] above the Tribunal, they say, clearly set out its reasons in relation to section 72(1)(b)(i). The Tribunal gave four clear reasons for its decision and for departing from the views of Dr Van Hoecke and Dr Lock: the nature of RD's illness; the fact that it had been under control for only 18 months; his becoming suspicious and irritable, suggesting deterioration in his mental state, during drug-free trials in Broadmoor; and an unacceptable risk to others in the event that he did not take his medication and suffered a relapse (the speed of any relapse being dependent on the other pressures on him). In short, as Mr Chamberlain puts it, the Tribunal explained intelligibly and adequately why it considered that the nature and degree of RD's illness made it appropriate for him to be detained in a hospital for treatment.
32. The other three paragraphs, they say, gave the Tribunal's equally clear reasons in relation to section 72(1)(b)(ii). The Tribunal, as they point out, specifically rejected the suggestion that a transfer into the community "can safely be achieved without a phased and monitored rehabilitation." That conclusion, which they submit is adequately if concisely explained in the final three sentences, is, as they rightly say, the very converse of the proposition that the use of conditions would make detention unnecessary. Moreover, as Mr Moffett points out, the Tribunal had already recorded its conclusion that if RD stopped taking his medication and relapsed "he would be likely to present an unacceptable risk to others." That conclusion, as he observes, was clearly supported by evidence which the Tribunal was entitled to accept and act upon.
33. In sum, they say, there was no insufficiency of reasoning and the Tribunal gave adequate and intelligible reasons to explain and justify its conclusion that a conditional discharge into the community was inappropriate and that RD should not be discharged.
34. I agree with Mr Moffett and Mr Chamberlain. Despite Mr Pezzani's valiant attempt to pick holes in its reasoning and analysis, the Tribunal, in my judgment, quite plainly gave adequate and intelligible reasons which sufficiently identified and explained both its central findings of fact and its overall conclusions in relation to both section 72(1)(b)(i) and section 72(1)(b)(ii). The contrary is not arguable. There is, in my judgment, no even arguable merit in the point.
35. Ouseley J, when refusing permission on the papers, described the claim as not arguable for the reasons given by the Tribunal and the Secretary of State in their two acknowledgements of service. I agree.
36. This renewed application fails and must therefore be dismissed.