Upper Tribunal (Administrative Appeals Chamber)

BB [2009] UKUT 157 (AAC) (07 August 2009)
Mental health
All

Permission to appeal was granted by the First-tier Tribunal. An oral hearing of the appeal took place at Harp House in London on 5 August 2009 before Mr Justice Walker CP, Upper Tribunal Judge Levenson and Upper Tribunal Judge Jacobs.

DECISION

dated 7 August 2009

The decision of the First-tier Tribunal involved the making of an error of law, but in the exercise of the discretion under section 12(2)(a) Tribunals, Courts and Enforcement Act 2007 it is not set aside.

REASONS

Background

1. On 8 September 1993 BB was convicted of two counts of unlawful wounding. The Crown Court made a hospital order under section 37 of the Mental Health Act 1983 and a restriction order under section 41 of that Act. He was conditionally discharged in October 1996. With the exception of an admission to hospital in 1998 and a further admission in 2001, he remained on conditional discharge until 1 July 2004. On that date recall occurred as he had been non-compliant with medication and had been smoking cannabis. On 27 September 2004 he was discharged on conditions which included participation in a drug counselling course and random drug testing. On 16 January 2007 he was recalled by the Ministry of Justice after admitting non-compliance with medication and cannabis misuse. After a period of 3½ months in hospital the Mental Health Review Tribunal on 4 May 2007 granted a conditional discharge. BB then remained on conditional discharge until events in the summer of 2008 described below. After recall on 14 August 2008 BB's case was referred on 2 September 2008 by the Ministry of Justice to the Mental Health Review Tribunal.

The hearing before the First-tier Tribunal

2. A hearing pursuant to the reference was scheduled for 3 November 2008. On that day relevant provisions of the Tribunals, Courts and Enforcement Act 2007 were brought into force, and the functions of the Mental Health Review Tribunal were transferred to the First-tier Tribunal. Under relevant transitional provisions the hearing on 3 November 2008 accordingly took place before the First-tier Tribunal ("the tribunal"). After hearing evidence from the responsible clinician and others the tribunal decided to adjourn so as to enable the preparation of an independent psychiatric report. Such a report was prepared by Dr. Jonathan Cripps on 24 November 2008. A further hearing then took place on 9 December 2008. At that hearing Dr. Cripps gave oral evidence. The responsible clinician gave oral evidence and was cross-examined by BB's solicitor, Ms Wolton. Oral evidence was also given by the author of a social circumstances report and by BB. Late that afternoon the tribunal gave its decision, which was that BB should not be discharged. A manuscript document entitled "Reasons for Decision" ("the Reasons for Decision") was prepared by the presiding judge that day and made available to the parties.

Appeal to the Upper Tribunal

3. On 4 February 2009 a regional tribunal judge granted permission to appeal. A notice of appeal was received by the Administrative Appeals Chamber ("the Chamber") on 20 March 2009. The notice of appeal explained that BB's solicitor had not been informed of the grant of permission until 13 February, that legal services funding was sought on 20 February, and that a certificate of funding had been received only on 20 March. Urgent consideration was sought. Regrettably the matter did not come before a judge of the Chamber for case management directions until 19 May 2009. On 20 May 2009 Judge Jacobs issued directions for the appeal to be listed in London for half a day on a date fixed in consultation with representatives of the parties. No substantive response to these directions was received from any party other than BB. There was no attendance at the hearing on behalf of any party other than BB. For reasons which need not be examined here the hearing did not take place until 5 August 2009. We regard the delay which occurred between 20 March and 5 August 2009 as unsatisfactory. Arrangements have been made to look into what occurred with a view to learning lessons for the future.

The two categories of complaint

4. In oral submissions on behalf of BB Mr Stephen Simblet accepted that the grounds of appeal fell into two broad categories. First, complaint was made of various findings by the tribunal. Second, it was submitted that the Reasons for Decision did not give an adequate explanation for the tribunal's conclusion. We can deal briefly with the first category. We did not have before us notes of the oral evidence given to the tribunal. Without such notes of evidence, we are simply not in a position to say whether particular findings are open to challenge, either on grounds of natural justice or on grounds of unreasonableness. The specific challenges to particular findings must necessarily fail.
5. Mr Simblet was on much stronger ground in relation to the second category. Indeed the regional tribunal judge when granting permission to appeal was plainly influenced by the importance of identification of the circumstances in which the quality of reasons may not meet the legal standard required.

Legal test for adequacy of reasons

6. The legal test when determining the adequacy of reasons is not in doubt. It is fully discussed in the decision of the Court of Appeal in R (H) v. Mental Health Review Tribunal for North and East London Region [2001] EWCA Civ 415, [2002] QB 1. Adopting what was said in English v. Emery Reimbold & Strick Limited [2002] EWCA Civ 605, [2002] 1 WLR 2409, the essential requirement is that what the tribunal says should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the decision. The tribunal should provide an explanation as to why it has accepted the evidence of one expert and rejected that of another. As these cases make clear, the test is the same regardless of subject matter. Accordingly if tribunals are unsure about what is required when giving reasons they may find assistance from cases outside the specific area of law that they are dealing with.

Adequacy of reasons in the present case

7. In the present case there was a marked difference between the position prior to the hospital and restriction orders in February 1993 and the position from the first conditional discharge in October 1996 onwards. BB was first diagnosed as suffering from a schizo-affective disorder in 1983. At that time it was noted that there was a history of cannabis misuse since adolescence. It was common ground that occasions of cannabis misuse featured both before and after the hospital and restriction orders in 1993. It was also common ground that failures on the part of BB to comply with medication featured both before and after 1993. What was markedly different was that – and again this is common ground – after a substantial period of admission to hospital from 1993 to 1996, and following his conditional discharge in October 1996, violent behaviour was no longer a prominent feature of BB's conduct.
8. Prior to BB's conviction and the consequent hospital and restriction orders of 8 September 1993, there were numerous incidents of violence. The admission to hospital in 1983 occurred after BB had cut his wrists. In 1989 he attacked a nurse at Queen Mary's Hospital, and a conviction for assault while in a psychotic state led to a prevention order. On 19 March 1990 he committed the offences which resulted in the convictions on 8 September 1993: he entered the front office at Hampstead Police Station, and attacked two police officers by slashing them in the face with a Stanley knife. In 1992 there were three serious violent incidents. The first was an attack on a shop worker. The second, an attack on an acquaintance, involved the use of a metal bar. The third occurred at the mental health assessment following this second incident when BB assaulted his father. On 31 December 1992 after hearing voices for the previous 10 days and using cannabis BB climbed into the lions' enclosure at Regent's Park Zoo and suffered serious injuries as a result.
9. By contrast the occasions when BB was recalled after October 1996 did not involve violence on his part. The reasons for recall prior to 2008 are summarised in paragraph 1 above. The recall on 14 August 2008 arose after BB had written two letters to Prince Charles. The letters were not aggressive and they contained no suggestion of violence. As the tribunal noted in the Reasons for Decision, the letters did not justify recall. The Reasons for Decision explained how recall had come about in this way:

"But after professionals visited the patient, in response to concern about the letters, it was apparent to them that his mental health was breaking down. So recall was sought and ordered. The patient spoke of 'demons possessing his body and the battle that was raging inside him between good and evil for the possession of him'. He spoke also of an outside body which had entered and lodged in his stomach. He was using cannabis then."

10. At the hearing on 3 November 2008 the tribunal had before it a psychiatric report by the responsible clinician dated 21 October 2008, a nursing report dated 22 October 2008 and a social circumstances report dated 24 October 2008. There was also a statement by the Secretary of State dated 30 October 2008. Oral evidence was given by the authors of each of the three reports and by BB. That evidence, of course, could only address the position as it was at the time of the hearing. The adjournment for the preparation of an independent report was something which the tribunal itself suggested. It necessarily had the consequence that the tribunal would have to re-examine the position by reference to all the circumstances, including developments between 3 November 2008 and the date of the adjourned hearing. In this regard the report of Dr. Cripps prepared for that hearing explained that he had reviewed the clinical notes relating to BB for the whole duration of the current admission. It set out entries which Dr. Cripps considered significant, including entries concerning the period after 3 November 2008.
11. What was it that the tribunal had to decide on 9 December 2008? BB sought a conditional discharge. This meant that he accepted that it was appropriate for him to remain liable to be recalled to hospital for further treatment. What he contested was whether the criteria for detention in hospital were still met as at that date. The onus of showing that those criteria are met is on the detaining authority. Accordingly the tribunal could only refuse a conditional discharge if it were satisfied that BB suffered from a mental disorder of a nature or degree which made it appropriate for him to be liable to be detained in hospital for medical treatment. It was common ground that BB suffered from a mental disorder. It was also common ground that BB did not by 9 December 2008 suffer from a degree of mental disorder sufficient to make it appropriate for him to be liable to be detained in hospital for medical treatment. Thus the only issue for the tribunal was whether the nature of BB's mental disorder was such as to make it appropriate for him to be liable to be detained in hospital for medical treatment.
12. In order to form a view on this issue the report of Dr. Cripps began, in substance, with a short description of the background to the current admission. It described BB's progress during the current admission by reference to the clinical notes (see paragraph 10 above). The report then described the current medication and the hospital's proposed treatment plan, before giving an account of an interview with BB. In a section headed "Opinion" Dr. Cripps noted that BB had for many years suffered from a mental illness characterised by a variety of delusional beliefs, auditory hallucinations, mood changes and associated behavioural disturbances. Although the illness may have been exacerbated by the use of cannabis, it was clear that there was an independent underlying illness. The symptoms responded to medication, but the evidence suggested that BB's mental state was relatively fragile and that symptoms could recur quite quickly. Dr. Cripps thought BB had some recurring delusional beliefs which might actually be present to some degree much of the time. These included a belief that he was being attacked by forces of good and evil. His symptoms were likely to recur, or to become more intense, if there were even short periods of non-compliance with medication, or if he used cannabis. Dr. Cripps discussed BB's symptoms on the recent recall and his current systems, along with the likely benefits of further treatment. His report then turned to the question of risks upon discharge, on which it stated:

"There would be a risk to [BB's] mental health if he were to discontinue medication. However, it appears that he was complying with medication after his last discharge and he expresses consistent intention to comply now.

[BB] has behaved in a manner which is dangerous to himself in the past. There has been no recent behaviour of this kind (other than occasionally slapping himself) and no evidence that he would be likely to put his own safety at risk if discharged from hospital now.

[BB] has behaved violently in the past, which is likely to have been in the context of active symptoms of mental illness. There has been no violence and little aggression in recent years. The circumstances of this recall did not involve any violent or threatening behaviour.

In my opinion, the evidence suggests that [BB] would only be likely to behave violently in future if his mental state relapsed severely and he was not quickly identified as having deteriorated. Based on his history any future victims of violence would be likely to be figures of authority or others with whom he is in close contact. Such persons tend to be incorporated into his delusions.

The risks of non-compliance with treatment and disengagement with services are much reduced by being under the conditions of the conditional discharge."

13. The final section of the report of Dr. Cripps was headed "Conclusions and Recommendations." This read as follows:

"Statutory criteria for detention

Mental disorder

As explained above, I believe that [BB] suffers from schizophrenia or schizoaffective disorder. In clinical terms, these are mental illnesses and clearly amount to mental disorder in terms of the Mental Health Act 1983.

Nature and degree of mental disorder

In relation to nature, I agree that he has a chronic mental illness which is prone to relapse in the absence of treatment or in the presence of substance misuse. Relapse has been associated with serious risks to himself and other people.

However, [BB] has generally been compliant with treatment and after-care recently and I believe that the potential risks can be adequately managed by the powers of a conditional discharge and the associated close supervision by the clinical team. There would be some concern that he would not divulge worsening symptoms readily to the team. However, his recent worsening of symptoms did not result in any threat to his own safety or that of others even though it was a few weeks until the contents of the letters reached the clinical team. The records suggest that he has probably remained symptomatic to some degree for significant periods outside hospital.

In relation to degree of mental disorder, my assessment concurs with the recent conclusions of the clinical team, as expressed in the medical report i.e. [BB] does not currently have psychotic symptoms or any marked mood disturbance.

As explained above, whilst I believe that continued psychological sessions will be beneficial to [BB] generally I do not think that detaining him in hospital for these is necessary.

I therefore conclude that [BB's] mental disorder is not currently of either a nature or degree which make it appropriate for him to be liable to be detained in hospital for medical treatment.

I believe that it is appropriate for [BB] to remain liable to be recalled to hospital for further treatment.

Therefore, in my opinion, [BB] should now be granted a conditional discharge.

I believe that it would be appropriate for him to be discharged with similar conditions to his previous conditional discharge. One further condition which might be useful would be for him to give blood samples as required for plasma levels of his prescribed medications."

14. The Reasons for Decision identified at an early stage that the issue for the tribunal concerned the nature of BB's mental illness. The responsible clinician said that the nature of the illness was such as to meet the relevant test, while Dr. Cripps said it was not. At that point the tribunal immediately stated that it preferred the analysis and evidence of the responsible clinician. He had extensive knowledge of BB and had added personal responsibility as responsible clinician. BB's mental illness, stretching back over 25 years, was a relapsing condition causing him to suffer delusions and hallucinations on which he had acted. Reference was made in that regard to things that BB had done prior to 1993, and to the observation by Dr. Cripps that his mental state was relatively fragile and symptoms could recur quite quickly.
15. The Reasons for Decisions then referred to BB's use of cannabis. The tribunal considered that there was a total lack of insight on BB's part as to the exacerbation done by cannabis to his mental disorder. Taking into account all these matters, the tribunal found that the responsible clinician was to be preferred. If discharged BB would either suffer recurrence of symptoms while complying with medication, or would discontinue full compliance with medication, or cannabis would activate his symptoms. The tribunal did not accept BB's assertion that compliance with medication would be maintained if he were discharged. Accordingly it took a different view from that of Dr. Cripps who thought BB would comply. The tribunal then set out the account of events in the summer of 2008 which we have summarised above.
16. The Reasons for Decision did not contain numbered paragraphs. The Senior President's Practice Statement on Form of Decision and Neutral Citation provides that First-tier Tribunal and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering. For ease of reference we have numbered the paragraphs ourselves. As so numbered, the remainder of the Reasons for Decision read as follows:

" 7. We consider that if discharged now his health is likely to deteriorate. If it deteriorates he is likely to be a danger to others. The report of what he said before recall supports this.

8. There is agreement that suitable treatment is available in hospital, though Dr. Cripps says it could as well be provided outside hospital.

9. We point out that for at least 15 years there are no known incidents of violence. He has been compliant with medication, albeit using cannabis at the same time. Despite this, his illness has recurred causing him to be recalled at increasingly frequent intervals.

10. It is to his credit that he reported an apparent error in his prescribed medication when one drug was reduced by 50%. He noticed a change in his mood and reported this. But this indicates the fragility to which we have referred. It is therefore important for his health that his medication is correctly received by him to avoid such deterioration.

11. The evidence from all professional witnesses is that he is inappropriately detained on a P.I.C.L. He has had no leaves, so he cannot prove himself in the community. This is unfortunate. We were told today that he would soon be moved to an open ward.

12. The hearing on 3.11.08 was adjourned to today to obtain independent medical evidence the care plan has also since changed. A move to Farmfield L.S.U. had been expected. It is now the plan that he will move to Westways, a rehabilitation unit in Croydon. He will be tested by increasing leaves while receiving appropriate additional psychological therapies. Additionally he will be encouraged to become involved in the community and to find activities which will keep him engaged. Currently his own plan is to live alone and do little in his own small flat. On the last visit this was found to be covered internally in a layer of dust and giving the appearance of general ongoing neglect and impoverishment.

13. We were asked to order today a conditional discharge because we are satisfied that he is not fit today to be discharged – for the reasons set out above – we cannot order conditional discharge."

14. The treating team are working towards conditional discharge but they want to break the "revolving door" cycle of discharge and recall, to the patient this appears just to delay discharge."

17. It is not our function to decide whether Dr. Cripps was right. The only question for us concerns the adequacy of the tribunal's reasons for disagreeing with Dr Cripps. Mr Simblet submitted that it was not sufficient to rebut the careful and detailed analysis of Dr. Cripps simply to refer to the experience and role of the responsible clinician. If the tribunal were preferring the evidence of the responsible clinician over that of Dr. Cripps, then at the very least the tribunal needed to give some explanation as to the substantive content of what the responsible clinician had said in answer to Dr. Cripps and why it was a persuasive answer. It would of course be open to the tribunal to form its own views independently of those of the responsible clinician, but in the Reasons for Decision the tribunal gave no indication of whether or the extent to which it had adopted such a course.
18. We recognise that by producing the Reasons for Decision late in the afternoon of 9 December 2008 the tribunal was seeking to assist the parties with a prompt and full description of the matters that it had taken into account. Acknowledging that the document was produced with speed, we would nevertheless have expected the tribunal to analyse the key points made by Dr. Cripps and explain what, if any, answer had been given by the responsible clinician to those points. In Dr Cripps's report the tribunal had a coherent reasoned opinion expressed by a suitably qualified expert. We consider that in the circumstances of the present case the tribunal needed to state with clarity how and why it disagreed with the reasoning of Dr Cripps. The conclusions and recommendations of Dr. Cripps's report observed that BB had generally been compliant with treatment and after-care recently, and recorded Dr. Cripps's belief that the potential risks could be adequately managed by the powers of a conditional discharge and the associated close supervision by the clinical team. We cannot find anything in the Reasons for Decision which squarely tackles this fundamental point. The Reasons for Decision discusses the potential risks. It does not, however, explain why the treatment which is proposed needs to be carried out in hospital. Nor does it explain why the potential risks cannot be adequately managed by the powers of a conditional discharge and the associated close supervision by the clinical team. We would also have expected the tribunal to give consideration to the conditions which Dr. Cripps had proposed. These involved the re-imposition of earlier conditions, which included a requirement for random drug testing. There is no indication by the tribunal that it gave any consideration to whether such a condition would enable its concerns about the use of cannabis to be addressed. Taken as a whole, the point is made strongly by Dr. Cripps that BB's conduct since discharge in October 1996 has involved no violence and little aggression, and that under the regime for conditional discharge those occasions when there has been a worsening of his condition have been identified and appropriate steps taken. We cannot find in the Reasons for Decision any explanation as to why the same is not true now. Reference is made by the tribunal to a concern on the part of the responsible clinician that there was a pattern of a "revolving door". However there is no examination by the tribunal of the question whether the "revolving door" involved such serious risks as to make it appropriate that BB be detained in hospital for treatment.
19. For these reasons we are driven to the conclusion that the Reasons for Decision do not explain, either to BB or to the Upper Tribunal, why it is that the tribunal reached the conclusion that it did on the crucial question. In these circumstances we conclude that the making of the decision involved the making of an error on a point of law.

Should the decision be set aside?

20. Under s 12(2)(a) of the 2007 Act the Upper Tribunal, in a case such as the present where the making of the decision under appeal involved the making of an error on a point of law, may set aside the decision. This is a discretionary power: as s 12(2)(a) makes clear, the Upper Tribunal need not exercise the power. We do not seek to define the circumstances in which it may be appropriate to use the power. In the present case, however, we have no doubt that it must be relevant to consider whether setting aside the tribunal's decision could be of practical benefit to any of the parties.

21. Mr Simblet asks that we exercise our power under s 12(2)(a) and set aside the decision. With proper recognition of his duties as an advocate he explained that arrangements are already in hand for a fresh hearing in the First-tier Tribunal pursuant to an application for discharge recently made by BB. He acknowledged that we might in these circumstances conclude that we should not set aside the decision now under challenge because doing so would serve no useful purpose. Two reasons were given for submitting that setting aside would serve a useful purpose. First, reference might be made to the Reasons for Decision in reports being prepared for the fresh hearing, and indeed in the reasons given when the First-tier Tribunal gave its decision following the fresh hearing. We do not consider this to be a reason for setting aside the decision. BB's fresh application will examine the position as at the date of the hearing of that application. Those involved will no doubt have the benefit of our analysis set out above. In those circumstances there is no basis for concern that the decision of 9 December 2008 will be treated as anything other than erroneous in law.

21. The second reason advanced by Mr Simblet was a suggestion that there might be circumstances in which it will be appropriate for BB to have not only the opportunity of an examination of his position pursuant to his fresh application, but also to have the opportunity of a yet further examination by a tribunal which we direct to reconsider the matter. Mr Simblet did not identify any ground for thinking that there might be a problem in taking forward the fresh application that has now been made, or that there would be a practical advantage in having two tribunals consider the matter. In the absence of any such ground we do not consider that it is appropriate to set aside the decision of 9 December 2008 with a view to remitting it to a yet further tribunal.

Conclusion

22. For the reasons we have given above we conclude that the decision of the First-tier Tribunal involved the making of an error of law, but in the exercise of the discretion under section 12(2)(a) Tribunals, Courts and Enforcement Act 2007 it is not set aside.

(Signed on the Original)

Mr Justice Walker CP

Upper Tribunal Judge Howard Levenson

Upper Tribunal Judge Edward Jacobs

(Dated) 7 August 2009