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
		19th September 2008

1. MR JUSTICE BURNETT: This is an application to quash the decision of a Mental Health Review Tribunal (Northern Region) following a hearing on 29th February 2008 whereby they decided that GK did not suffer from any mental illness and should be discharged from Rampton Hospital. The claimant in these proceedings is the trust responsible for Rampton Hospital. GK is an interested person, who has been represented today by Ms Machin. The decision was reduced to writing and bears a date stamp of 10th March, when I infer it was received by the Trust, and maybe also by others.
2. The grounds of challenge are essentially three-fold. First, that the decision of the Tribunal was irrational in a public law sense; secondly, that the reasons given for the decision were inadequate; and, thirdly, that the medical member of the Tribunal was biased.
3. It is unnecessary for the purposes of this judgment to set out in great detail the background that led to GK being in Rampton and the proceedings occurring before the Tribunal at the end of February. It is enough to say this: in February 1991 GK was convicted on two counts of indecent assault concerning a 10-year-old girl and in October 1991 GK was sentenced to 14 years' imprisonment following convictions of rape, robbery and indecent assault.
4. The initial part of GK's sentence was served in ordinary prison, but in October 1999 he was transferred to Rampton Hospital under the provisions found in sections 47 and 49 of the Mental Health Act 1983. Those provisions enable the Secretary of State responsible for prisons to effect a transfer of a prisoner who is suffering from mental illness.
5. The sentence of imprisonment has expired and so it was that from 2001 the basis of GK's detention at Rampton was what is known as a notional section 37 hospital order. That is a reference to the Mental Health Act.
6. The condition from which GK was diagnosed as suffering was catatonic schizophrenia. As I have indicated, the hearing took place on 29th February 2008. It occurred at Rampton Hospital. The legal chairman was Mr Parkinson, the medical member was Dr Sidahmed and the lay member was Mr Khangura. GK was represented then, as now, by Ms Machin. The responsible authority was not legally represented. It is unsurprising that they considered that it was unnecessary.
7. The Tribunal had before it a very large body of written evidence, as one would expect, and additionally heard oral evidence. The evidence can be summarised as follows:

1. A psychiatric report from Dr Milne, who was (and is) GK's responsible medical officer, dated 8th December 2007;

2. A psychiatric report of Professor Sashidharan, who is an independent psychiatrist instructed on behalf of GK, dated 14th December 2007;

3. A social circumstances report of Corrina Wray dated 26th November 2007;

4. A psychological report from Ilona Kruppa, a psychologist, dated 21st December 2007;

5. A report from Iain Young, a senior forensic social worker, dated 13th November 2007;

6. A statement of the responsible authority; and

7. A report of Mr Bachner, the named nurse, dated 27th February 2008.

The Tribunal heard oral evidence from Dr Milne, Ilona Kruppa, Corrina Wray, Michael Carroll, who was a staff associate nurse, and also from GK and his mother. I should record that GK's mother is in court today.

8. At the time of this hearing there was a common view held by Dr Milne, who had been RMO for 10 years, and Professor Sashidharan that GK suffered from mental illness. Dr Milne was confident in his diagnosis of catatonic schizophrenia, from which Professor Sashidharan did not demur. Indeed, Ms Machin has told me today that the claimant himself was at that time of the view that he suffered from a mental illness. It was the common position of the RMO and the claimant that he suffered from a mental illness and that it was appropriate for arrangements to be made for his transfer to a medium secure unit. That was also the view of Professor Sashidharan. I should note, however, that GK's mother does not accept that her son suffers from any psychiatric illness. I should also note that GK himself and his family are of the strong belief that he was wrongly convicted in October 1992 of the extremely serious sexual offences to which I referred.
9. Before the Tribunal, it would appear to be Dr Sidahmed, the medical member, who took a fundamentally different view from Dr Milne and Professor Sashidharan. Dr Milne produced a report which is extremely detailed and carefully reasoned. The report covers 54 closely-typed pages. It sets out the background to this matter, concerning GK in particular, and provides what, on their face, are cogent reasons for all of his conclusions. As I have said, he also gave oral evidence.
10. Professor Sashidharan did not give oral evidence, no doubt because those acting for the claimant considered his conclusions to be uncontroversial. In those circumstances, it would have been a disproportionate use of money to get him along to give evidence. In no material respect did he disagree with Dr Milne.
11. The written decision of the Tribunal contained a section headed "Reasons for the Tribunal's decision":

"The evidence provided to the Tribunal by the Clinical Team was that the Patient suffers from Catatonic Schizophrenia. Although the Team accepted the degree of the illness was now stabilised they stated that the nature of the condition meant that the Patient would fall into a catatonic state should he suffer a relapse. Such a relapse in his condition would be precipitated by non-compliance with medication and any cessation of nursing care.

It was however recognised that the Patient no longer required the level of security offered by Rampton Hospital and Dr Milne on behalf of the Team was able to confirm to the Tribunal that an assessment for a placement in a medium secure had been completed recently. Thus it was anticipated that such a placement should become available within the next few months.

Therefore the Clinical Team sought a recommendation for a transfer of the Patient to such a level of secure accommodation. This was supported by the Patient's representative and also the independent report commissioned on behalf of the Patient.

Dr Milne stated further that it was arguable that the Patient's last criminal offending was associated with his underlying mental illness. If this view were correct it was submitted that the Patient presented a clear risk to others should a relapse in his condition lead to repeat offending.

It was felt that as the Patient continued to deny the offending or at least offer any explanation for the same there was further therapeutic input required before the Patient could move towards discharge.

Before moving on to consider the joint request for a recommendation for transfer however the Tribunal needed to be satisfied that the Patient was indeed suffering from the disorder referred to and that the nature or degree of the same warranted further detention to effect treatment and prevent relapse.

After considering all the reports provided and the further evidence given at the Tribunal itself the following points were noted by the Tribunal:

• The Patient received a 14 year sentence for his last offences

• At the time the sentence was imposed he was examined by a Psychiatrist (Dr Briscoe) who had some 'concerns' but not sufficient to found a complete diagnosis or to recommend detention under Section

• The Patient was admitted both to a local hospital and to Ashworth Hospital (twice) while serving his sentence in prison. Full assessments were carried out during these admissions

• The results of these assessments were considered at a case conference in May 1998. The case conference concluded there was evidence of past psychosis but diagnosis remained unclear

• Throughout these admissions and to the present the Patient maintained his behaviour was a 'protest' against perceived injustices and nothing more.

• Further assessments by Dr Milne and other Psychiatrists continued however and culminated in the Patient's admission to Rampton Hospital in 1999. At that time he was again unresponsive but was noted to have recovered by 2000.

• Since that time there had been some instances of the apparent stuporous state but for some years now the Patient's condition has been stable.

• Thus Dr Milne and the Clinical Team feel it is time for him to move to a less secure environment but if he relapsed the Patient would suffer 'life-threatening episodes of stupor'. In such a case Dr Milne felt there was a risk to others if a 'sub-catatonic relapse' occurred. Relapse was being prevented by medication and full nursing care.

The independent report prepared on behalf of the Patient supported this view.

As well as these historical factors however the Tribunal took note of the fact that the suggested schizophrenic episodes were limited in time and not continuous. Even during such 'episodes' it was noted that the Patient would still eat at times; did not require catheterisation; urinated under his own control and volition; and, if in a state of catatonia appeared inconsistently communicative with others whenever he wished.

If the only plausible diagnosis for what was stated to be 'atypical' symptomology was catatonic schizophrenia the Tribunal was concerned at the absence of the more usual predominant symptoms associated with such a condition being automatic obedience; negativism; and, waxy flexibility. None of these factors appeared to be present in the case of this Patient.

Likewise the Tribunal took note of the fact that there was no clear evidence provided of an active schizophrenic illness by way of delusional beliefs or passivity. The Patient was not said to have suffered any deterioration in cognitive functioning nor have an acute lack of self-care.

It was not possible to be definitive about whether the Patient's explanation of the apparent catatonic states as being a protest against injustice was correct. It was noted however that in the less secure environment of his current placement at Rampton there was no evidence of a relapse in his condition. The Patient explained that he had decided continued protests were pointless. Again this could not be tested objectively but appeared consistent with his overall explanation for his conduct.

Thus after considering all the evidence provided on the balance of probabilities the Tribunal was not satisfied that the Patient was indeed suffering from a mental illness or disorder of the nature described or otherwise. In reaching this conclusion the Tribunal considered the evidence provided in the reports of both the Clinical Team and the independent Psychiatrist but on balance felt that the evidence was inconclusive as to the nature of the disorder in the absence of the predominant symptoms referred to above.

While the Tribunal accepted the Patient's past criminal offending was most serious there was no convincing evidence to link the last two (serious) sets of offending to any mental disorder. The evidence relied upon to make such a link was inevitably based on behaviour which post-dated his offending and if there remained a risk of reoffending this would be dealt with by both aftercare provision and the inherent pre-emptive safeguards within the criminal justice system so far as possible. If this regrettably failed to be effective it was a matter for the Criminal Justice authorities rather than the mental health services.

The Patient would therefore be discharged from detention. This discharge would be deferred however until 3^rd of June at 9.00 am to allow time for the following community requirements to be satisfied:

1. A community RMO to be identified

2. A care Co-ordinator to be identified and appointed

3. A full assessment of the Patient's needs and his mother's accommodation to be undertaken

4. A Section 177 meeting to be held as soon as practicable

5. Appropriate day care placements to be identified"

12. It can be seen that the Tribunal noted the views of the clinical team led by Dr Milne. In summary, but not necessarily exhaustively, they were:

1. That the patient suffered from catatonic schizophrenia;

2. That his illness was stabilised;

3. That the nature of the condition was such that the patient could relapse into a catatonic state;

4. That such a relapse would be precipitated by non-compliance with medication and lack of nursing care;

5. That medium security, as opposed to high security, was recommended as soon as it could be made available;

6. That the patient's representative and independent report supported transfer to medium secure facilities;

7. That the patient's last criminal offence, that is to say the serious offending in October 1992, was arguably linked to his mental illness;

8. That being so, there was a risk that if a relapse occurred there could be reoffending; and

9. That further therapeutic input was required to deal with the patient's denial of the offence.

13. The decision arrived at by the Tribunal was that GK was not suffering from the mental illness identified by Dr Milne, or any other mental illness. It was in those circumstances that the Tribunal ordered his release, but they deferred release for a period of 3 months to enable suitable aftercare plans to be put in place.
14. Miss Khalique, who has appeared today on behalf of the claimant Trust, submits that the reasoning of the Tribunal, which I have set out in full, is self-evidently defective. The Tribunal had in effect rejected the whole corpus of expert evidence submitted by those who knew GK best, together with that of his own expert adviser, without beginning to explain why they had done so or engage with any of the important details.
15. The Tribunal has a statutory duty to give reasons, which is located in Rule 23(2) of the Mental Health Review Tribunal Rules 1983. The necessary quality of those reasons has been explored and explained in many decisions of this court and the Court of Appeal. First I should note that the length of reasons, and these were relatively short, is not itself necessarily a reflection of their quality. Short reasons can be adequate. Indeed, there is a lot of virtue in making reasons relatively short. However, it is clear that the reasons of this Tribunal, when dealing with expert evidence, must satisfy, whether short or long, a particular standard.
16. In the case of R (H) v Ashworth Hospital Authority & Ors [2002] EWCA Civ 923, Dyson LJ, in the course of his judgment, dealt with a Tribunal case where the psychiatric evidence of the majority of those who had appeared in writing and orally had been rejected. He said this at paragraph 80 of the judgment:

"[A Tribunal which is rejecting expert evidence] must at least indicate the reasoning process by which they have decided to accept some and reject other evidence."

In coming to that conclusion, as respects a Tribunal, Dyson LJ was echoing the standard that is applied on judges giving their reasons in the ordinary courts. He referred to a passage from the judgment of Henry LJ in the case of Flannery v Halifax Estate Agencies Limited [2000] 1 All ER 373, where between 381G and 382D the learned Lord Justice said this:

"Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases."

17. It was the view of Dyson LJ in the Ashworth case that the exhortation contained in the citation from Flannery applied with greater force where a Tribunal decided to reject most of the expert evidence. The same sentiments have been more recently echoed in the case of R (KW) v Avon and Wiltshire Mental Health Partnership Trust and Bristol City Council [2003] EWHC 919 (Admin), where Silber J confirmed that where a Tribunal rejected the psychiatric evidence before it, it had to give reasons.
18. It can thus be seen that the duty to give reasons has been equated, for the purposes of the Tribunal, with the general duty in courts to give their reasons, rather than the sometimes less exacting standard applied to ordinary administrative decision-making and reflected in a large number of authorities dealing with the planning context. That is not surprising because the issues which mental health tribunals deal with are extremely important ones. On the one hand, their decisions affect the liberty of the subject; on the other, their decisions affect the potential risk that members of the public might run by releasing a patient. In both circumstances it is extremely important that those concerned in the process have been provided with adequate reasons which explain why the Tribunal has come to the conclusion it reached.
19. The evidence of an RMO is likely to be of particular centrality in any hearing before a Tribunal of this sort. That is because the RMO is likely to have a much more intimate day-to-day understanding of the condition of the patient than anyone else. He will have that understanding through his own dealings with the patient, which will be frequent. Additionally, he forms an integral part of a wider team that has constant contact with the patient. The importance of his evidence, and the way in which a Tribunal should approach it, has again been touched upon in a decision in the Court of Appeal of Dyson LJ in R (K) v West London Mental Health NHS Trust [2006] EWCA Civ 118. He said this at paragraph 70:

"The weight to be given to the opinion of a RMO must be a matter for the decision-maker having regard to all relevant circumstances. It is not appropriate to attempt an exhaustive definition of what these might be. But they will include how long the RMO has been in charge of the treatment of the patient, the strength of conviction with which the RMO's clinical judgment has been expressed, the weight of other clinical opinion and the reasons given by other medical practitioners for their disagreement with the opinion expressed by the RMO."

I have rehearsed Miss Khalique's central submission, that the reasoning of the Tribunal is self-evidently deficient. It seems to me that that submission is well made. Ms Machin, who appears on behalf of GK, has emphasised that GK does not accept that the decision was flawed, in the sense that it was inadequately reasoned. Realistically, and very responsibly, Ms Machin has recognised that there is in fact very little that can be said as a matter of law to support the submission that the reasoning was adequate.

20. I should note at this stage that the Tribunal itself takes no part in these proceedings and would have been content for the decision to be quashed by consent on grounds of inadequate reasoning.
21. The concern articulated by Ms Machin is that although it is clear that the decision of the Tribunal is likely to have been driven by Dr Sidahmed, we do not have the benefit of any additional reasoning from Dr Sidahmed which might illuminate his reasoning. It is for that reason that in separate proceedings GK sought to challenge the decision of the Tribunal to take no part in these proceedings and to signify its consent to an order. What GK hoped to achieve by one route or another was to force Dr Sidahmed to provide an explanation in the hope that it would be adequate. In those circumstances, even if the original reasons were inadequate, it might have been possible for Ms Machin, on behalf of GK, to submit that additional reasons cured any defect. But there are no such additional reasons before the court and it is impossible for me to do other than to conclude that the reasoning set out in the pages from which I have quoted fell short of the standard required of Tribunals under the rule, as interpreted by the courts.
22. Having reached that conclusion, it is unnecessary for me to deal with the detailed arguments on irrationality that were developed in writing and orally by Miss Khalique. Perhaps it is sufficient to understand their flavour to touch on one of them.
23. The Tribunal concluded that GK demonstrated atypical symptoms of catatonic schizophrenia. The Tribunal appeared to be concerned at the absence of three usual, predominant symptoms, which they identified as automatic obedience, negativism and waxy flexibility. For that reason, it would appear that the Tribunal thought that the diagnosis of catatonic schizophrenia was inconclusive.
24. As one would expect, well-known standard works available to psychiatrists, and more widely to us, deal with diagnostic classification of a range of psychiatric disorders. They are very well known in these courts. There is a different classification system in Europe from the classification system available in the United States. Sometimes there can be healthy debate between experts in courts, and no doubt elsewhere, about which of the diagnostic criteria are to be preferred. But the three usual, predominant symptoms identified by the Tribunal do not appear in ICD-10, which is the European standard, or in DSM-IV, which is the American standard. That is common ground between Miss Khalique, on the one hand, and Ms Machin on the other. It may be sufficient to say that that single feature of the reasoning illustrates its central difficulty.
25. Having concluded that the reasoning was inadequate, it is unnecessary for me to go on to consider the claim based on perversity or irrationality. Similarly, although there is a separate ground of challenge, which is based on the contention that Dr Sidahmed was biased, having reached the conclusion that I have, it is unnecessary for me to deal with it.
26. Before leaving this judgment, I would wish to say something about the position of GK himself and the position of his mother and family. The circumstances in which they collectively find themselves, as a result of the decision of the Tribunal at the end of February 2008, is very unfortunate indeed. None of the problems that have emerged are of their making. Even if the decision of the Tribunal was something of a surprise, as it must have been, given the position being adopted by GK and his advisers, it was nonetheless a decision of a competent Tribunal. It raised the hopes and expectations of GK and his family that he was going to be released into the community in the very near future.
27. The legal process, even in cases of this sort, is a relatively slow one. So it was that in the weeks that followed the decision the process was set in train of engagement between GK and those who might be providing him with support after his release, which no doubt raised his expectations even further and, I know, raised the expectations of his mother. So it is extremely unfortunate that the legal error, as I have found it was, made by the Tribunal when it gave its reasons at the end of February has caused so much uncertainty, anxiety and anguish to GK and his family. However, the position is that I must quash the decision of the Tribunal and remit the matter to be redetermined.
28. Miss Khalique has submitted that, in view of the facts that would have underpinned the bias argument, which have not been contradicted by the Tribunal, it would be appropriate for this matter to be remitted to a differently constituted Tribunal. Ms Machin has resisted that submission on behalf of GK, submitting that it would be convenient for it to go back to the same Tribunal, that is the same constitution, not least because its members have some knowledge of what is a relatively heavily documented case. Having considered what has been said by both Miss Khalique and Ms Machin, it is my view that the matter should be remitted to a differently constituted Tribunal. Whether the evidence would have been sufficient to found a separate public law challenge in bias is a point that is now moot, but it gives sufficient concern, in my judgment, for it to be right that this matter go back to a different tribunal.
29. Thank you. Have I covered everything?
30. MISS KHALIQUE: Yes, your Lordship, that has been very helpful, thank you. My Lord, can I just make this submission, your Lordship will be aware of the consent order, that there was an agreement between the Treasury Solicitors, representing the MHRT, and those instructing me that the issue of costs would be dealt with by way of written submissions.
31. MR JUSTICE BURNETT: It would be unfortunate if further costs are run up by anybody in this case.
32. MISS KHALIQUE: Yes.
33. MR JUSTICE BURNETT: So let us just stand back and look at it with your help and Ms Machin's help. I noticed that in a letter written by your instructing solicitors what may have been a slightly formulaic, but nonetheless hair-raising, suggestion was made that if the consent order was not signed then a wasted costs order might be sought against the solicitors of GK. I see you shake your head. I am relieved to see that, because I know these things are said in correspondence from time to time, but, in the context of a case where on any view GK and his family have been adversely affected by errors made by others, it was perhaps a little unfortunate.
34. So far as the Tribunal is concerned, from the outset they have said, "We are not going to contest this".
35. MISS KHALIQUE: My Lord, it is simply on Boxall principles that I make the application. They did concede at an early stage. However, the fact remains that they made a decision which was, in your judgment, clearly wrong. That has resulted in these proceedings.
36. MR JUSTICE BURNETT: Ordinarily, when considering a position of a judicial body that does not contest the proceedings -- if they come along here to fight it, that would be a different matter -- the usual principle is that unless the error is especially egregious or verging on bad faith or something of that sort, then there is no order for costs.
37. MISS KHALIQUE: That is the fallback position, my Lord.
38. MR JUSTICE BURNETT: It may be your fallback position.
39. MISS KHALIQUE: I am inviting the court to have regard to the entirety of the claim, even though perhaps your Lordship has not dealt with the quantum bias in its entirety, but there has been no resistance to any aspect of the claim in essence.
40. My Lord, can I also make one separate submission in relation to the approach of the interested party in these proceedings? Whilst one has a huge amount of sympathy for the position of the patient's family and the patient, as a result of the Tribunal's decision, the fact remains that arguably the costs of today should be met, if not by the MHRT, by the interested party, because we have been successful in quashing that order, something which was mooted at an earlier stage. A significant amount of costs have been incurred as a result of this. I accept my Lord's observations right at the start: even by consent the court still has the administrative duty of determining whether or not that --
41. MR JUSTICE BURNETT: True it is that if GK had signed a consent order it would have been a 5-minute job not engaging a great deal of legal expense.
42. MISS KHALIQUE: In fact, my Lord, that is the position that Miss Machin, my learned friend for the patient, has taken, quite candidly, right at the outset. It must be said that, having regard to what Cranston J said in the most recent order -- I forget the date -- it became abundantly clear by that stage that he was not ordering Dr Sidahmed to produce a statement. It must have been very obvious at that stage that there was no real argument.
43. MR JUSTICE BURNETT: Yes, and you would say the other one was renewed this morning and I rejected it, but there was a glimmer of light, I suspect, in the essence of Ms Machin's answer, until her parallel application was dismissed.
44. MISS KHALIQUE: Yes.
45. MR JUSTICE BURNETT: Well, I have your submissions.
46. MS MACHIN: Thank you, my Lord.
47. MR JUSTICE BURNETT: I need not trouble you, Ms Machin. There is an application for costs made on behalf of the Trust against the Mental Health Review Tribunal and, failing the Mental Health Review Tribunal in whole or in part, against GK. In my view, the appropriate order, as between all the parties in this case, is no order for costs for these very short reasons.
48. So far as the Mental Health Review Tribunal is concerned, essentially from the moment that these proceedings were intimated, their position was made abundantly clear that they would not contest them. They moved quickly and responsibly to agreeing a consent order with the Trust. Although there are circumstances in which it is possible to make an order for costs against a Tribunal that has behaved responsibly in that way and has subsequently taken no part in the proceedings, this case does not seem to me to be one of them.
49. So far as GK is concerned, in the course of my reasons a little earlier this afternoon I sought to explain the very unfortunate position in which he has found himself. It seems to me that, even though there turned out to be no real argument that could be responsibly advanced to resist the claim based in reasons, it was entirely reasonable for GK to be involved in these proceedings. They are, after all, about him.
50. Until I dismissed the parallel application for permission to apply for judicial review earlier today, to which I referred in my judgment, there was a chink of light still left, which might have enabled GK to advance arguments which, as it turned out, were effectively denied him. So for those reasons there will be no order for costs.
51. You are publicly funded I assume, Ms Machin?
52. MS MACHIN: That is right, my Lord.
53. MR JUSTICE BURNETT: So you would like a detailed assessment under the regulations, the name of which I am afraid continues to escape me, but we all know what we mean.
54. MS MACHIN: Yes, thank you.
55. MR JUSTICE BURNETT: I am very grateful to the two of you, both for your help and also I am very glad that GK's family -- I will call him GK because otherwise I will make a mistake -- that is how he is known in these proceedings -- have been able to be here to hear the proceedings and my judgment, even though the outcome will be disappointing to you.
56. MISS KHALIQUE: My Lord, can I thank you for your considerate approach this morning.