Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. JR/3066/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Lord Justice Carnwath SPT

Mr Justice Walker CP

Upper Tribunal Judge Rowland

 

 

For the Applicant: Mr Simon Burrows of counsel, instructed by O’Donnells Solicitors of Preston.

 

For the Respondent: Mr Matthew Barnes of counsel, instructed by the Treasury Solicitor.

 

The Interested Parties neither appeared nor were represented.

 

 

Order: The decision of the First-tier Tribunal dated 30 July 2009 is quashed and there is substituted a decision setting aside the First-tier Tribunal’s decision dated 29 May 2009 insofar as it set aside its decision dated 24 April 2009 and granting the Secretary of State for Justice permission to appeal to the Upper Tribunal against the decision dated 24 April 2009.

 

 

REASONS FOR DECISION

 

Introduction

 

1.               Under section 9 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) the First-tier Tribunal is given power, with certain exceptions, to review a decision made by it on a matter in a case. The present application for judicial review concerns the exercise of that power. As it raises important issues in that regard it has been heard by a three-judge panel.

 

The facts

 

2.               The Applicant (“RB”), who is now 75 years of age, is detained in a hospital managed by the First Interested Party (“the Trust”). He suffers from a mental illness in the form of a persistent delusional disorder, which has caused him to be a life-long paedophile attracted to boys aged between approximately 9 and 13 years and strongly misogynistic. His detention arises under a hospital order and restriction order made – following his conviction for indecent assault of a boy under 16 – on 30 June 1999 under sections 37 and 41 respectively of the Mental Health Act 1983 (“the 1983 Act”). The Respondent is the First-tier Tribunal to which the functions of mental health review tribunals in England were transferred on 3 November 2008. The Second Interested Party is the Secretary of State for Justice.

 

3.               For some time those caring for RB have supported a conditional discharge to enable him to move to a registered care home, provided that he does not have unrestricted access to the community, and RB has been willing to consent to conditions designed to satisfy this proviso. On this basis RB applied in 2007 to a mental health review tribunal for conditional discharge, indicating that he would agree to a condition that he be accompanied at all times by nursing staff when taking any leave of absence from the care home. However on 10 July 2007 the tribunal refused the application. It concluded that a conditional discharge with such a condition attached would be unlawful because the condition would represent a deprivation of liberty. In its written reasons the tribunal canvassed the possibility that discharge with such a condition might be permissible if the condition were imposed principally in the patient’s own interests. In RB’s case, however, the condition would be for the protection of the public and accordingly a conditional discharge would not be appropriate.

 

4.               In the following year, RB made another application which came before the First-tier Tribunal at a hearing on 27 February 2009. The hearing was adjourned to give the Secretary of State an opportunity to comment on information about the care home and so that the manager of the care home could attend the next hearing.

 

5.               On 24 April 2009 the adjourned hearing took place before a differently constituted panel (His Honour Peter Smith, Dr Matthews and Dr Henderson). RB was represented by Mr Burrows. The Trust was not legally represented. Its responsible clinician gave oral evidence supporting conditional discharge. He had earlier provided a report dated 13 December 2008 stating that “the current supervision and treatment arrangements could be effectively replicated in the less physically secure and residential-scale setting of [the care home].” The Secretary of State was also not represented. He had submitted written statements opposing conditional discharge not only because of concern whether the necessary conditions would be a deprivation of liberty but also because RB “would represent a serious risk of offending if he were discharged into the community.” Regrettably the statements did not make clear whether, if the proposed conditions were lawful, the Secretary of State would be satisfied that they adequately addressed the risk and, if not, why not.

 

6.               After hearing from, among others, the manager of the care home the First-tier Tribunal gave its decision (“the original decision”) that RB should be discharged subject to conditions. However it deferred discharge until it could be satisfied that the necessary arrangements had been made. For that purpose it decided to reconvene no later than 10 July 2009. The conditions specified by the First-tier Tribunal were –

 

“[1] That he resides at [the care home]

[2] That he abides by the rules of that institution

[3] That he does not leave the grounds of [the care home] except when supervised

[4] That he accepts his prescribed medication

[5] That he engages with social supervision

[6] That he engages with medical supervision”.

 

7.               The First-tier Tribunal gave just over four pages of reasons for the original decision. It concluded that security needs would be well met at the care home. In its view the conditions restricted RB’s liberty but did not deprive him of liberty for the purposes of article 5 of the European Convention on Human Rights. Alternatively if they would otherwise have constituted a deprivation of liberty then RB’s “valid and meaningful consent to a move to [the care home] (a move which would manifestly be in his best interests) would prevent the deprivation of [RB’s] liberty from being a breach of Article 5 of his Convention rights.”

 

8.               The Secretary of State applied to the First-tier Tribunal for permission to appeal on a point of law to the Upper Tribunal under section 11 of the 2007 Act. His application came before Regional Tribunal Judge Wright for consideration on the papers. In a decision (“the May decision”) dated 29 May 2009, Judge Wright reviewed the decision of 24 April 2009 under section 9 of the 2007 Act, set it aside and directed that the application be “re-decided” (to use the inelegant statutory term rather than Judge Wright’s more conventional language) by a freshly-constituted panel of the First-tier Tribunal. The reasons for his decision run to 41 numbered paragraphs over 13 pages. His conclusion was that “it is impossible to argue that the proposed restrictions in RB’s case would amount to anything less than a deprivation of liberty”, that RB’s consent made no difference and that the decision of 24 April 2009 was erroneous in point of law.

 

9.               The May decision was made in accordance with rule 49 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008/2699) (“the HESC Rules”, see paragraphs 19 and 21 below). As required by rule 49(3) it included a notification to the effect that any party that did not have the opportunity to make representations could apply for the action taken following review of the original decision to be set aside and for the original decision to be reviewed again. RB had not had such an opportunity and he wished the action taken following review of the original decision to be set aside. Curiously, rather than applying for that action to be set aside, his legal team lodged an application dated 12 June 2009 seeking review of the May decision and, in default, permission to appeal the May decision to the Upper Tribunal. This application was misconceived: the May decision reviewed and set aside the original decision and was an “excluded decision” under section 11(5)(d)(i) and (iii) of the 2007 Act so that there was no right of appeal under section 11(1). It could therefore not itself be reviewed (other than to correct accidental errors in the decision or in a record of the decision – see section 9(1) and (9) of the 2007 Act).

 

10.           This too came before Judge Wright for consideration on the papers. In a three page decision (“the July review decision”) dated 30 July 2009 he concluded that there should be no change to what he had decided should happen in May, and that RB should be refused permission to appeal from the May decision. Unfortunately he used a form of a rather confusing design. It referred to an application by RB for “permission to set aside [the May decision] and for the decision to be reviewed again.” At the outset the form stated that Judge Wright had “decided to review the decision pursuant to rule 49(3) and has decided to take no action in relation to the decision, or part of it, under Rule 49.” What was intended by this form of words is unclear. It seems at least possible that Judge Wright was reviewing the May decision in circumstances where he had no jurisdiction to do so. The appropriate course in our view was to use the First-tier Tribunal’s powers expressly set out in rule 50 of the HESC Rules (and in any event inherent in rule 2 and rules 5-7) to treat the application for review of the May decision as if it were an application to set aside the action taken following review of the original decision. The result which Judge Wright wished to achieve could then have been brought about either by refusing to set aside the action taken in May, or by setting that action aside for lack of notice but then proceeding – after consideration of RB’s representations – to take the same action.

 

11.           In any event, having been refused permission to appeal against the May decision, RB applied to the Upper Tribunal for permission to appeal against that decision. That application was rejected by Upper Tribunal Judge Jacobs on the papers on 8 September 2009 on the ground of lack of jurisdiction. At an oral reconsideration on 10 November 2009 Mr Burrows accepted that Judge Jacobs was correct and that the May decision was indeed an “excluded decision” under section 11(5)(d)(i) and (iii) of the 2007 Act so that there was no right of appeal under section 11(1). Walker J directed that RB’s application to the Upper Tribunal for permission to appeal against the May decision be treated as an application for permission to apply for judicial review of the July decision. Such an application may be made to the Upper Tribunal by virtue of sections 15 to 18 of the 2007 Act where it does not seek a declaration of incompatibility under the Human Rights Act 1998 and it is within the scope of Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327 made by the Lord Chief Justice of England and Wales under section 18(6) of the 2007 Act. The Practice Direction specifies, with immaterial exceptions, “[a]ny decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal”. The July decision falls within that specification. On that footing Walker J on 10 November 2009 also granted permission to apply for judicial review.

 

The parties’ submissions

 

12.           On behalf of RB Mr Burrows submitted that, in the circumstances of this case, Judge Wright should have taken the simple and straightforward course of granting permission to appeal to the Secretary of State in May and, if not then, in July. The original decision gave rise to “legitimately contentious issues of law” – but the matter was not so clear cut in favour of the Secretary of State as to warrant setting aside of the original decision. Alternatively on setting aside the original decision Judge Wright had not needed to refer the case to a fresh panel: he could and should have re-decided the case himself – inevitably, given his view of the matter, against RB – and then given RB permission to appeal. Mr Barnes, who has been instructed on behalf of the First-tier Tribunal, has submitted detailed grounds for resisting the application, on the basis that Judge Wright was entitled to regard the earlier decision as being based on a “clear error of law” and therefore suitable for review. Mr Barnes also submitted that Judge Wright was entitled, having set aside the original decision, to refer the matter to another panel. It was important that the First-tier Tribunal could consider all relevant facts and matters. After a fresh panel had done this it would be open to the losing party to seek permission to appeal to the Upper Tribunal, at a stage when the First-tier Tribunal decision would have been framed in its proper context.

 

13.           Neither of the Interested Parties has taken any part in the proceedings. This is understandable in the case of the Trust, which had supported RB’s case on the merits before the First-tier Tribunal. It is less understandable in the case of the Secretary of State.

 

The respective roles of the First-tier Tribunal and the Secretary of State on judicial review

 

14.           It was perfectly appropriate for the First-tier Tribunal, as the respondent to these judicial review proceedings, to lodge a submission setting out what had happened procedurally and raising points for consideration on the procedural issues arising in the case. The First-tier Tribunal has relevant practical experience on those issues and our decision on them may have some bearing on the way it functions in the future. We doubt, however, whether it is appropriate for an independent tribunal to seek to defend the merits of its decision, particularly in circumstances where, as here, there is a party – in this case the Secretary of State – with an interest to oppose the application for judicial review and where the issue is a matter of contention between parties who have been, and are likely again to be, parties before the First-tier Tribunal. Moreover, questions of law arising under the 1983 Act are likely to raise broad policy issues of which a tribunal may be ignorant and that are certainly more appropriately articulated by the Secretary of State. By the same token it was unfortunate that the Secretary of State was not represented before us. It would have been helpful to have had his views not only on the use of the review power, but more generally on the policy (as opposed to purely legal) reasons for his challenging the original decision. We hope that in future cases raising issues of general significance before the Upper Tribunal, we can look for appropriate assistance from the relevant Government Department.

 

15.           Mr Burrows and Mr Barnes invited us to decide the substantive question whether the original decision was one the First-tier Tribunal was entitled to make. It is, however, unnecessary to decide that question in order to determine the application for judicial review. It is preferable that the substantive question be decided in the framework of an appeal rather than by a side-wind on the present application for judicial review in which the Secretary of State has declined to play a part.

 

 

 

 

Reviews – the legislation

 

16.           Part 5 of the HESC Rules makes procedural provision in respect of, among other things, applications to the First-tier Tribunal for permission to appeal to the Upper Tribunal under section 11 of the 2007 Act and reviews under section 9.

 

17.           Rule 47(1) and 2 provides –

 

“47.—(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 49 (review of a decision).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.”

 

18.           The power to review decisions is conferred by section 9(1) of the 2007 Act which provides –

 

“9.—(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other then a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9).”

 

19.           Rule 49(1) of the Rules, made under section 9(3), cuts down the width of that power.

 

“49.—(1) The Tribunal may only undertake a review of a decision—

(a) pursuant to rule 47(1) (review on an application for permission to appeal) if it is satisfied that there was an error of law in the decision; …”

 

20.           Section 9(4) to (6) of the 2007 Act makes provision as to the action that may be taken following a review.

 

“(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following—

(a) correct accidental errors in the decision or in a record of the decision;

(b) amend reasons given for the decision;

(c) set the decision aside.

(5) Where under subsection (4)(c) the First-tier Tribunal sets a decision aside, the First-tier Tribunal must either—

(a) re-decide the matter concerned, or

(b) refer that matter to the Upper Tribunal.

(6) Where a matter is referred to the Upper Tribunal under subsection (5)(b), the Upper Tribunal must re-decide the matter.”

 

21.           Rule 49(2) and (3) then makes further procedural provision –

 

“(2) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.

(3) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.”

 

The exercise of the power to review a decision

 

22.           The power to review decisions is an important and valuable one. It is common ground that the power of review on a point of law is intended, among other things, to provide an alternative remedy to an appeal. In a case where the appeal would be bound to succeed, a review will enable appropriate corrective action to be taken without delay.

 

23.           In this regard paragraph 100 of the explanatory notes to the 2007 Act states –

 

“Sections 9 and 10 provide powers for the First-tier and Upper Tribunals to review their own decisions without the need for a full onward appeal and, where the tribunal concludes that an error was made, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made, because, for instance, it is important to have an authoritative ruling.”

 

24.           It cannot have been intended that the power of review should enable the First-tier Tribunal to usurp the Upper Tribunal’s function of determining appeals on contentious points of law. Nor can it have been intended to enable a later First-tier Tribunal judge or panel, or the original First-tier Tribunal judge or panel on a later occasion, to take a different view of the law from that previously reached, when both views are tenable. Both these considerations demonstrate that if a power of review is to be exercised to set aside the original decision because of perceived error of law, this should only be done in clear cases

 

25.           There are, of course, degrees of clarity and there are practical reasons for taking a flexible approach. An important consideration may be the likelihood of the party in whose favour the original decision was made objecting to the review. In the event of an objection, the review may well cause delay rather then reducing it.

 

26.           Rule 49(3) enables the First-tier Tribunal to take a robust approach when it first receives an application for permission to appeal – for it enables it to take a decision without calling for representations by the other side, on the basis that if the other side objects there can be an application to set aside. However, if the tribunal receives an application to set aside the action it has taken following a review, it must consider afresh whether that action was appropriate, in the knowledge that it is contentious. Moreover the tribunal is not obliged to take the robust approach permitted by rule 49(3) and in many cases it will be preferable to invite representations before concluding that an original decision should be set aside.

 

27.           We agree with Mr Barnes that consideration whether or not to review a decision involves a large element of judgement or discretion. Indeed, even if the First-tier Tribunal is satisfied that there is a clear error of law, it may decide not to review a decision but instead to give permission to appeal. The error may be a common one and, for that or other reasons, it may be helpful to have an authoritative decision of the Upper Tribunal on the point.

 

28.           We also accept Mr Barnes’ suggestion that there are occasions when it is desirable for a case to be reconsidered by the First-tier Tribunal so that further findings may be made even if it is likely to go to the Upper Tribunal eventually. The key question is what, in all the circumstances of the case including the degree of delay that may arise from alternative courses of action, will best advance the overriding objective of dealing with the case fairly and justly – see rule 2 of the HESC Rules. The answer will depend on a large number of factors, to some but not all of which we have drawn attention.

 

29.           One possible cause of delay is the need in many circumstances for a reviewing judge to refer a case to a different judge or panel for it to be re-decided. We reject Mr Burrows’ submission that it was not necessary for Judge Wright to do that in his May decision. Where the First-tier Tribunal is to re-decide a case, the composition of the tribunal must be the same as was required for the original decision, although the particular judge and members may be different. Thus, in a mental health case, where the original decision was one that disposed of the application to the First-tier Tribunal, the First-tier Tribunal must, as Judge Wright decided, be composed of a judge and two expert members (see paragraph 3 of the relevant practice statement made by the Senior President of Tribunals in exercise of the duty to determine the composition of the First-tier Tribunal imposed on him by article 2 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835)).

 

Challenges to review decisions

 

30.           The substantial element of judgment or discretion is no doubt a reason for review decisions not being appealable and it is also a reason for expecting that the Upper Tribunal will seldom interfere with review decisions when judicial review proceedings are brought. Moreover, the Upper Tribunal might in an appropriate case refuse permission to apply for judicial review on the ground that the applicant should wait for the case to be re-decided and then, if less successful than before, consider appealing on the ground that the review was unlawful.

 

31.           In the present case the question we ask ourselves is whether the reviewing judge properly directed himself as to the law governing the power of review. In particular, did he focus upon the need to make sure that the review did not usurp the Upper Tribunal’s function of determining appeals on contentious points of law? This was a case where the law had to be particularly clear if a review was to be justified. The very issues in respect of which Judge Wright found the panel sitting on 24 April 2009 to have erred had been specifically raised by Mr Burrows before the panel and the panel, with a retired circuit judge presiding, had addressed those issues in its decision, referring to the leading authorities.

 

32.           One indication that it is not clear that the original decision was erroneous in point of law in this case is the length of the review decision. If an error of law is clear it should be possible to give reasons in a couple of paragraphs. Often a single sentence is sufficient, where, for instance, all that needs to be done is to draw attention to an overlooked authority or statutory provision or to agree with a ground of appeal. Moreover, as review decisions are appropriate only where an authoritative decision is not necessary – because permission to appeal to the Upper Tribunal should be given when an authoritative decision is considered desirable – we would expect review decisions generally to be addressed only to the parties, to the judge or panel whose decision has been set aside and to the judge or panel who will re-decide the case, in which circumstances it will seldom be necessary to set out the facts or the background legislation or to cite at length from authorities. There is no need for review decisions to be written in the style of those decisions of the Upper Tribunal or appellate courts that need to be self-contained because they are intended to be read by people with no other knowledge of the background to what is being decided. However, it is necessary for us to consider the substance of the review decision, rather than just its style and length, and this requires consideration of the issues raised by the Secretary of State’s application for permission to appeal.

 

Conditional discharges – the legislation and case law

 

33.           Section 73 of the 1983 Act provides –

 

“73.–(1) Where an application to is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if –

(a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and

(b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) above –

(a) paragraph (a) of that subsection applies; but

(b) paragraph (b) of that subsection does not apply

the tribunal shall direct the conditional discharge of the patient.”

 

Subsection (7) makes provision for deferring conditional discharges.

 

34.           The matters mentioned in section 72(1)(b)(i), (ii) and (iia) are –

 

“(i) that he is then suffering from mental illness or mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or

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

(iia) that appropriate medical treatment is available for him”.

 

35.           It has been common ground between the parties that the First-tier Tribunal is not entitle to impose conditions under section 73(2) of the 1983 Act if the effect is that the patient is deprived of his liberty for the purposes of Article 5 of the European Convention on Human Rights and that the distinction between deprivation of liberty and mere restriction of liberty is a matter of degree or intensity. The second of those propositions is well supported by authority and cannot be disputed. The first proposition appears also to be widely accepted and it was central to the decisions of both the mental health review tribunal that sat in 2007 and the First-tier Tribunal sitting on 24 April 2009, as well as Judge Wright’s review decision. It is the premise on which this case has been argued and is said to be derived principally from three decisions of the courts.

 

36.           The first is a decision of the Court of Appeal, R.(Secretary of State for the Home Department) v Mental Health Review Tribunal [2002] EWCA Civ 1868; [2003] MHLR 202. In that case, the mental health review tribunal directed a deferred conditional discharge. Conditions 3 and 4 were –

 

“(3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security;

(4)  [PH] shall not leave the accommodation without an escort.”

 

37.           The Secretary of State argued that the effect of the conditions was that PH remained detained. The Court of Appeal rejected that argument. Keene LJ, with whom the other members of the Court agreed, said at [24] –

 

“I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty.”

 

38.           One consideration that seems to have been of some weight was that the conditions appeared to have been imposed largely for PH’s benefit, rather than to protect the public, but specific reference was also made at [24] to there being “some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable PH to go out with an escort whenever he chose to do so”.

 

39.           The second case is R.(G) v Mental Health Review Tribunal [2004] EWHC 2193 (Admin); [2004] MHLR 265. In that case the tribunal directed a deferred conditional discharge with a condition that the patient reside at a named hostel. Unfortunately, it was not possible for him to live at that hostel and no other could be found before the end of the deferment, so that the patient would have to continue to live in a rehabilitation flat within the grounds of the secure hospital, subject to the same regime as already applied to him. The tribunal found that “[t]he hospital would be totally in control of his movements” and decided that, in those circumstances, he had to be regarded as detained in a hospital with the consequence that he could not be conditionally discharged. Collins J dismissed a claim for judicial review. He said that “the purpose of any measure of restriction, while a relevant consideration, must not be given too much weight” but held that the practical effect of the restrictions imposed on G while living in the rehabilitation flat would be such that he would remain detained. At [22] and [23] he decided that the patient’s consent to the continuing deprivation of liberty made no difference.

 

40.           The third case is R.(Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 2194 (Admin); [2004] MHLR 273, which was heard by Collins J immediately after G and, indeed, was argued by the same counsel. In this case, the tribunal directed a deferred conditional discharge of the patient, MP. Two of the conditions were –

 

“(2) The patient shall reside at accommodation with properly qualified round-the-clock staff experiences in working with violent sexual offenders and such that he is unable to leave it without an escort who is a member of the accommodation’s permanent staff.

(3) The patient shall, when not in the accommodation, at all times be escorted by a member of the accommodation’s permanent staff.”

 

41.           Collins J said that it was, in his view, “quite impossible to argue that what is proposed could amount to anything less than a deprivation of liberty”.

 

Discussion

 

42.           In our judgment, it cannot possibly be said that there is no arguable response to the Secretary of State’s proposed appeal when it is necessary for the Secretary of State to distinguish the Court of Appeal decision in which the patient was successful, when neither of the Administrative Court decisions in which the patient was unsuccessful is on all fours with this case and where it is also arguable that the decided cases do not in any event support the principle for which it appears widely to be accepted that they stand. It is possible that, upon full consideration, Judge Wright’s analysis would be found to be correct, but we do not accept that the contrary is unarguable.

 

43.           The Secretary of State’s grounds of appeal seek to distinguish the Court of Appeal’s decision in PH’s case on the basis that, in the present case, the First-tier Tribunal imposed the conditions for the benefit of the public, rather than RB, whereas, in PH’s case, the reverse appears to have been true. However, while that is a distinction, it is arguable that that factor was not determinative of the Court of Appeal’s decision and that the patient’s likely ability to choose when to go out would have assumed greater significance had the conditions been imposed for the protection of the public. Collins J appears to have considered in MP’s case at [10] that the Court of Appeal had regarded the purpose of the conditions as determinative but in G at [12] said that that factor must not be given too much weight. The parties have not pointed to any other factor that clearly distinguishes this case from that of PH.

 

44.           The two decisions of Collins J are arguably distinguishable from the present case on the facts because of the far greater control the staff of the place of residence would have over the movements of the patients. In the second of those two cases, the condition was that the patient should be “unable” to leave the premises without an escort and it appears that that would also have been the case in G. In the present case, such a degree of restraint is not required by the conditions and in practice, as we understand the evidence, while the premises would be locked at times, RB would merely be monitored at other times and his not simply walking out would depend largely on his willingness to abide by the conditions. Under s 73(4)(b) of the 1983 Act the patient “shall comply” with conditions. Non-compliance may lead to recall but it is less clear that anyone would have the right to prevent RB from leaving or to bring him back unless he were recalled. The First-tier Tribunal therefore had to be satisfied that he would comply with the conditions.

 

45.           Although the issue of consent was considered by Collins J in G, it was an issue only raised by him during the hearing before him and was therefore not fully argued or researched by counsel. In our view, the issue deserves further consideration. It may well be that consent is meaningless if the patient’s confinement does not depend on his or her consent as in the two cases before Collins J, but it is arguable that consent – displayed by a willingness to abide by conditions in circumstances where there is some element of practical choice – does have some significance in the present case.

 

46.           If the conditions imposed in this case would amount to detention for the purposes of the Convention, one is left with the paradox to which the First-tier Tribunal referred in the original decision –

 

“… that, on the interpretation of the law contended for by the Secretary of State, [RB] could not move to [the care home], where he would be happier and better housed and where public protection was maintained and where he was keen to move to, because thereby his own Convention rights would be assaulted”.

 

The First-tier Tribunal pointed out that the Secretary of State contended not only that RB could not be conditionally discharged to the care home but also that he could not be transferred there administratively even if the Secretary of State were to be satisfied that that was appropriate, because it was not an independent hospital falling within the extended definition of “hospital” for the purpose of the relevant parts of the 1983 Act (see sections 34(2), 55(5) and 79(6)).

 

47.           It seems to us that one possible answer to this paradox, if it arises, may be that the main principle for which the cases mentioned above stands is not as wide as is generally accepted and is merely that, where a conditional discharge is directed because the First-tier Tribunal is not satisfied as to the matters mentioned in section 72(1)(b)(i) of the 1983 Act, conditions cannot be attached if the effect would be that the patient remains “detained in a hospital for medical treatment” for the purpose of that provision, simply because the precondition for the conditional discharge would not then be met. It is relevant that, in PH’s case, condition (3) would at the time that it was imposed almost certainly have had the effect that PH would have had to be accommodated in a registered mental nursing home falling within the extended definition of “hospital” as it was in force before 1 April 2002. Arguably, therefore, that case says nothing about the power to impose conditions in respect of people who are not to be accommodated in a hospital. G was certainly to be accommodated in a hospital. MP’s case was argued, perhaps erroneously, on the basis that it was fundamentally indistinguishable from G, but the result may in any event be justifiable on the ground that no institution other than a hospital could properly have accommodated MP under the conditions imposed. If this approach were correct, the First-tier Tribunal would be entitled, as a matter of purely domestic law, to impose conditions requiring residence in a care home on terms that would amount to a deprivation of liberty for the purposes of the Convention and the question would arise whether that would fall within the scope of the lawful detention of persons of unsound mind for the purposes of Article 5 of the Convention, the conditions having been imposed by an independent tribunal.

 

48.           It appears that substantial limits may be imposed on the liberty of other residents of the care home under consideration in this case, which specialises in “offering accommodation to very high risk offenders … where the referral has been made via the Home Office Public Protection and Licence Recall Unit”. If those individuals are accommodated in a manner which does not infringe their Convention rights then exercise of powers under the 1983 Act requiring RB to be similarly accommodated may not infringe the Convention either.

 

49.           We do not decide any of these points. We merely consider that they are plainly arguable.

 

Conclusion

 

50.           For all these reasons in our view it was not open to Judge Wright to conclude that the original decision was clearly erroneous in point of law. In reaching his decision he did not focus upon the need to avoid usurping the Upper Tribunal’s function of determining appeals on contentious points of law. We are accordingly satisfied that the July decision involved an error of law. We quash the July decision and substitute the only decision that the First-tier Tribunal could properly have reached, which is to set aside the May decision insofar as it set aside the original decision and to give the Secretary of State permission to appeal against the original decision.

 

51.           If the Secretary of State does appeal, the appeal should be expedited. However, we do not abridge the time for appealing because the Secretary of State may wish to consider what we have said before settling his grounds of appeal. If he decides not to appeal, it would be helpful if he would write to the First-tier Tribunal and the hospital to that effect, so that they can make the necessary arrangements, including fixing a new date for the matter to come before the First-tier Tribunal again under section 73(7) of the 1983 Act.

 

 

 

 

 

Lord Justice Carnwath

Senior President of Tribunals

 

 

 

 

 

Mr Justice Walker

President of the Administrative Appeals Chamber

 

 

 

 

 

Upper Tribunal Judge Rowland

 

 

28 May 2010