Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No. M/695/2009

ADMINISTRATIVE APPEALS CHAMBER

Before: UPPER TRIBUNAL JUDGE ROWLAND

Representation: Mr Rory Dunlop of counsel, instructed by Steel & Samash, solicitors of London SE1, represented the Appellant.

The Respondents neither appeared nor were represented.

Decision: This appeal is dismissed.

REASONS FOR DECISION

1. The Appellant, who was aged 60 at the time of the hearing before the First-tier Tribunal, killed his two young children at home in October 1977. The elder, aged 9, he poisoned and then drowned in the bath. The younger, aged 5, he poisoned on the following day and then suffocated. Eight days later he attempted suicide by poisoning and it was following that that he was arrested. On 14 March 1978, he was convicted on two counts of manslaughter and hospital orders and restriction orders were imposed under the Mental Health Act 1959. He was admitted to Broadmoor Hospital on 6 April 1978 and transferred to Ashworth Hospital for administrative reasons in 1983. On 19 March 1986, he was conditionally discharged from Ashworth Hospital.

2. On 26 November 1997, he was recalled to hospital, after sending threatening letters to his probation officer and to mental health professionals involved in his treatment, and he was admitted to a secure unit in London, in circumstances that were described by the First-tier Tribunal (see below). On 4 November 1998, he was again conditionally discharged by a mental health review tribunal and he has not been recalled to hospital since then.

3. On 11 June 2008, the Appellant applied to a mental health review tribunal for a direction under section 75(3)(b) of the Mental Health Act 1983 (“the 1983 Act”) that the restriction order imposed on him should cease to have effect so that he would cease to be liable to be detained pursuant to the hospital order.

4. On 3 November 2008, mental health review tribunals in England were absorbed into the First-tier Tribunal. On 18 November 2008, the First-tier Tribunal considered the Appellant’s application and rejected it, despite the fact that the application was supported by the responsible clinician who had been treating the Appellant, his social worker and an independent psychiatrist. Only the Secretary of State had opposed the application.

5. In view of the grounds upon which the First-tier Tribunal’s decision is challenged, it is desirable to set out a large part of the statement of reasons. After referring to R (SC) v Mental Health Review Tribunal [2005] EWHC 17 (Admin); [2005] MHLR 31 and recounting the early history of the case, the tribunal continued –

“7. He was recalled to the [hospital] by warrant of the Secretary of State dated 24 November 1997. The circumstances leading to that were that in November 1997 [the Appellant] saw a report written by his social supervisor describing [the Appellant] as ‘murdering’ his two children. [The Appellant] became angry and showed that by repeatedly sending faxed aggressive letters to the social work department. Over the weekend of 23/24 November [the Appellant] sent a fax message to his psychiatric supervisor criticising his social supervisor and naming a member of the Mental Health Unit. Later the same member of staff at the Mental Health Unit received a threatening fax message from [the Appellant]] reminding her of the details of his index offences and warning her to recall him or he would ‘respond in kind’, either to her or her supervisor. In addition some of the threats made indicated that [the Appellant] had been drinking heavily which was a feature of the index offences in 1977.

8. On the evidence of Dr Hukin, the Responsible Clinician, we find that [the Appellant] continues to suffer from mental disorder consisting of a personality disorder with mainly features of borderline type with some dissocial traits. He has a history of abnormal emotional development dating from early adolescence marked by anxiety concerning his body and confusion in relation to sexuality, and difficulty with interpersonal relationships. In the past he has marked feelings of inferiority and a tendency to use grandiose conversational style. Gambling and alcohol remain persistent problems.

9. We are not satisfied that it is not appropriate for [the Appellant] to remain liable to be recalled for the following reasons.

10. [The Appellant] continues to suffer from mental disorder of the nature and degree described above and the index offences were among the most serious possible offences.

11. He was subject to recall from conditional discharge in 1997 in circumstances that gave rise to serious anxiety as to the safety of members of the public and in response to appeals by [the Appellant], accompanied by threats, to be recalled.

12. Since his conditional discharge his life has not been without difficulties. He has been able to cope but we are satisfied that the support he received under his conditional discharge was very important to his capacity to cope.

13. Although both members of his present support team, Dr Hukin and Mr Oguntoyinbo, support absolute discharge, their evidence, both written and oral, was that [the Appellant] is well supported in his present arrangements and, even more important, benefits from that support and related support such as the availability of the services of Dr Hillier-Davies. [The Appellant] in his evidence confirmed all of that.

14. The report of the independent psychiatrist, Dr Boast, states as follows:

‘5. In conclusion it can never be said that someone is not a risk. Individuals who kill have a higher risk of killing again than the general population. On the other hand … [the Appellant] falls into a group of restricted patients who are relatively unlikely to seriously re-offend again.

6. In addition he seems to appreciate that not being on a restriction order is not the same thing as not having input from a psychiatric team. He is someone who should have ongoing indefinite input because there is an element of vulnerability and he could have the sort of difficulties in the future that he had had since he left hospital; in 1989.’

We accept all of Dr Boast’s analysis of [the Appellant’s] position but do not share his conclusions. We agree that [the Appellant] is ‘relatively unlikely to seriously offend again’ but we cannot conclude from that that it is not appropriate for him to be liable to recall. We agree also that he continues to have vulnerabilities that may well entail the necessity of psychiatric intervention and, we would say, possible recall.

15. We have considered all the evidence before us very carefully and are satisfied that although, with his present level of support under his conditional discharge, [the Appellant’s] condition is stable, it can, at most, be said, as Dr Boast states, that ‘he is relatively unlikely to seriously offend again’. We bear in mind the index offences and the circumstances that led to his recall in 1997 as set out in Para 7 above. He is a man with continuing vulnerabilities.

16. Our conclusion is that there remains a real risk to the public and to [the Appellant] from his mental disorder with an attendant risk of his recall to hospital.

17. We consider that the present conditions (modified earlier this year by the tribunal in its decision of 27 May 2008), meet any such risk admirably and with those conditions in place such risk is minimised. We conclude that it is desirable to continue the present conditions and that is our order.”

6. The Appellant now appeals against that decision under section 11 of the Tribunals, Courts and Enforcement Act 2007 with the permission of a Regional Judge of the First-tier Tribunal. The appeal is unopposed – a matter about which I will make further observations below – but the absence of any effective submission from anyone other than the Appellant does not remove from me the burden of considering the merits of the Appellant’s case.

7. Although three numbered grounds of appeal are advanced, there are really only two, because, as Mr Dunlop, who appeared on behalf of the Appellant, accepted, the second numbered ground (irrational failure to deal adequately or at all with the medical and social work evidence) is merely an aspect of the first (inadequate reasons). Even the third numbered ground (conflation of two issues that should have been kept separate) is related to the tribunal’s reasoning.

8. Mr Dunlop’s submission in respect of the adequacy of the First-tier Tribunal’s reasons was that the tribunal had failed to give any reasons for rejecting the unanimous view of Dr Hukin, Mr Oguntoyinbo and Dr Boast that the tribunal should direct that the restriction order should cease to have effect. He referred me to R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699, where Mann J held a mental health review tribunal had erred in law when it failed to give adequate reasons for rejecting the evidence of two expert witnesses. However, the Court of Appeal has recently warned of the danger, in the context of considering the adequacy of reasons, of “elevating into general principles what are statements by judges made by reference to the facts and circumstances of particular cases but taken out of context” (H v East Sussex County Council [2009] EWCA Civ 249 at [15]). In considering any challenge to the adequacy of a tribunal’s reasons, it is important to have clearly in mind both what the issue before the tribunal actually was and what the evidence was.

9. In Clatworthy, the issue was whether the patient was suffering from a mental disorder and, more particularly, a psychopathic disorder. The two expert witnesses with whom the tribunal disagreed had given detailed reasons for their view that the patient was not suffering from a psychopathic disorder. The tribunal’s only reasons for rejecting that evidence were that it considered that the patient had “the features of psychopathic disorder as defined in the Act and repeatedly diagnosed by doctors at Rampton Hospital” and that there was no sign of a change since his first admission to Rampton Hospital. That reasoning was inadequate because, against the detailed reasoning of the two expert witnesses, the tribunal did not state what features of psychopathic disorder they had identified in circumstances where that was not obvious from the evidence and because the diagnoses from Rampton not only predated the relevant statutory definition of psychopathic disorder but were also not “the subject of exposition before the tribunal”. Had those diagnoses been reasoned, the tribunal might possibly have been taken to have preferred that reasoning to the reasoning of the expert witnesses if the reasoning had answered the points made by the expert witnesses who had appeared before the tribunal (see Hampshire County Council v JP [2009] UKUT 239 (AAC) at [37] and [39]) but, in the absence of such reasoning, the tribunal had to supply its own reasons and had failed to do so.

10. In the present case, the nature of the First-tier Tribunal’s disagreement with the expert witnesses was rather different. It is convenient first to consider the legal issue before the First-tier Tribunal. The powers to impose hospital orders and restriction orders are now to be found in sections 37 and 41 of the 1983 Act. Section 37 enables a court to impose a hospital order where a person has been convicted of an offence punishable by imprisonment but has been found to be suffering from mental disorder making it appropriate for him to be detained in hospital. Section 41 provides that a restriction order may be made in addition to a hospital order if “it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set free, that it is necessary for the protection of the public from serious harm so to do”. Section 73 makes provision as to the circumstances in which, in England, the First-tier Tribunal must discharge a restricted patient and, in particular, provides in subsection (2) (when read with subsection (1)(b)) that a patient must be conditionally discharged, rather than absolutely discharged, if the Tribunal is not satisfied that “it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment”. Where, as in the present case, a restricted patient has been conditionally discharged and not recalled to hospital, section 75(2) provides that the patient is entitled periodically to make an application to the First-tier Tribunal. Section 75(3) then provides –

“Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the Tribunal may –

(a) vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or

(b) direct that the restriction order … to which he is subject shall cease to have effect;

and if the tribunal give a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order …”

11. In R (SC) v Mental Health Review Tribunal, Munby J considered the approach to be taken to section 75(3) and said –

“[56] Section 75(3) applies only to a restricted patient who, like SC, has been conditionally discharged. Bearing in mind the provisions of ss 37, 41 and 73 of the Act, one can, as it seem to me, readily identify the most important of the factors that are likely to feed into the exercise of discretion under s 75(3). Any patient applying under s75(3) will, by definition, have been, just as SC was:

(i) convicted of a criminal offence sufficiently grave as to merit a possible sentence of imprisonment: s37(1);

(ii) found to be suffering from mental disorder meriting his detention in hospital for treatment: s37(2)(a)(i);

(iii) found to be someone whose risk of reoffending is such that a restriction order is “necessary for the protection of the public from serious harm”: s41(1); and

(iv) found by the Tribunal (unless previously discharged by the Secretary of State under s42(2)) to be someone who, although not requiring for the time being to be detained in hospital for medical treatment (ss 72(1)(b), 73(1)(a), 73(2)(a)), should nonetheless remain liable to be recalled to hospital for further treatment: s73(2)(b).

[57] It is against this background that the exercise by the Tribunal of its powers under section 75(3) takes place. Accordingly, the Tribunal when exercising these powers will need to consider such matters as the nature, gravity and circumstances of the patient’s offence, the nature and gravity of his mental disorder, past, present and future, the risk and likelihood of the patient reoffending, the degree of harm to which the public may be exposed if he re-offends, the risk and likelihood of a recurrence or exacerbation of any mental disorder, and the risk and likelihood of his needing to be recalled in the future for further treatment in hospital. The Tribunal will also need to consider the nature of any conditions previously imposed, whether by the Tribunal or by the Secretary of State, under ss 42(2), 73(4)(b) or 73(5), the reasons why they were imposed and the extent to which it is desirable to continue, vary or add to them.

[58] As Mr Ward submits, in exercising the powers under s75(3) questions as to the patient’s mental health, his safety and questions of public safety are evidently relevant. …

[59] … Moreover, as Mr Ward points out, s73 also points the way to a crucial question which the Tribunal will need to consider when exercising its powers under s75(3). The consequence of an order under s75(3)(b) is that the restriction order ceases to have effect; in other words, that what was previously only a conditional discharge becomes in effect an absolute discharge. But, as s73 demonstrates, the difference between the two is the difference between the patient who is, and the patient who is no longer, liable to be recalled to hospital for further treatment. So, in effect, one of the key questions that the Tribunal will wish to ask itself is whether it is – as s73(1)(b) puts it – ‘satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment’. If the Tribunal is not so satisfied, then it is difficult to see that it could be appropriate for it to make an order under s75(3)(b).

[60] Mr Pezzani correctly points out that s73 ‘shall not apply’ to an application under s75(2). But this, with respect to him, does not mean, as he puts it, that the matters which are referred to in ss 72(1)(b)(i) and 72(1)(b)(ii) are ‘excluded’ by s75(3) from the Tribunal’s consideration of an application under s75(2). Nor, specifically, does it mean that there is ‘explicitly excluded’ from consideration by s75(3), as Mr Pezzani submits, the question of whether it is appropriate that the patient remains liable to be recalled. As Mr Ward rightly submits, the effect of s75(3) is not to preclude the Tribunal from considering the kind of factors which fall for consideration under s73. Rather as he puts it, the effect is that the Tribunal, when exercising its discretion under s75(3), is not constrained by the mandatory terms of s73, which bind the approach of the Tribunal when considering the exercise of its powers under s73.”

12. The First-tier Tribunal clearly had Munby J’s judgment at the forefront of its mind because it set out verbatim most of paragraph [57] and some other parts of paragraphs [56] to [60] and it summarised the rest of those paragraphs.

13. I turn to the evidence and the factual issue before the First-tier Tribunal. As Mr Dunlop submitted, the evidence was consistent.

14. Paragraph 8 of the First-tier Tribunal’s decision more or less reproduces the first paragraph of the last section of Dr Hukin’s report. Dr Hukin had dealt with the history in some detail. She described the Appellant’s gambling which had in the past resulted in him accumulating large debts but which was now relatively well controlled. She also described his alcohol consumption, saying of his recent drinking –

“During my contact with [the Appellant] his pattern of drinking has changed. When I first met him in August 2005 he was drinking three times a week with a friend in the pub. He admitted to drinking only one pint. However, he is now drinking two to three cans of Fosters lager approximately three to four times a week and tends to drink this on his own stating that it is cheaper than going to the pub. He does not drink during the day. However despite this increase in alcohol usage over the last three years there has been no obvious detrimental effects on his mental state but his care coordinator and myself have talked to [the Appellant] about trying to reduce his alcohol intake.”

She mentioned that, when talking about the index offences at an interview on 30 July 2008, “he appeared a little upset which is the first occasion that either his care coordinator or myself have noticed any emotional response when discussing these events.” She also said that the Appellant “has some insight into his condition recognising that stress can adversely affect him; however he still has a tendency to minimise his problems.” Stress appears to have been a factor both in the respect of the index offences and the events leading to the Appellant’s recall, in respect of which Dr Hukin referred to him having become “increasingly concerned about the stress of living with his brother Len over the weeks prior to his readmission”. In the final section of her report, after the paragraph reproduced by the First-tier Tribunal, she said –

“The index offence appears to have been triggered by feeling abandoned by his wife and the stress that induced and having to look after his two children whom he believed at the time would lead unhappy and unfulfilling lives. The index offence occurred in the context of stress and substance misuse.

In recent years [the Appellant] has been stable in mental state and as with many people with personality disorders there has been an improvement in his mental state and personality traits. He has engaged well with social services. He has agreed should he receive an absolute discharge to continue regular contact. He has coped well with the death of his brother whom he was carer for; this did not lead to a major deterioration in his mental state. [The Appellant] continues to drink alcohol and to gamble and I believe is likely to continue to do so. Fortunately, he is not in any debt and takes pride in managing his finances.

Currently I believe the risks are low to [the Appellant] and others. He appears to have gained a little insight although this could improve. I believe that he will continue to engage with mental health services and would respectfully recommend an absolute discharge for him. This is also the opinion of his care co-ordinator and psychologist. If this was granted he would continue to be seen regularly by his care co-ordinator from the forensic team and myself. He would also have ongoing access to seeing the forensic psychologist.”

15. The reports from Mr Oguntoyinbo, the social worker, and Dr Hillier-Davies, the psychologist, were to similar effect. The former said –

“… I feel that he has responded well to psychological and psychosocial treatment and even though he remains medication free his mental state remains stable, and triggers to his possible deterioration and the risks that have been of concern is [sic] very minimal.”

Dr Hillier-Davies said in his concluding comments –

“As part of the risk management, it [sic] is important is that [the Appellant] remains positive and motivated to maintain links with the mental health services as he has over recent years, and that he feels that he has access to social or psychological support should this become necessary at some future date.

My view is that the restriction order is not clinically required as [the Appellant] is fully compliant. Clearly potential risks related to gambling and drinking will be on-going. However, [the Appellant] states that he is committed to maintaining contact with Dr Hukin and/or other mental health staff on a regular (quarterly) basis and, should discharge conditions for medical and social supervision and support be considered necessary, he would fully accept this arrangement.”

16. The First-tier Tribunal also had before it an independent psychiatric report from Dr Boast. He expressed similar views about the Appellant and he then made observations on the issue before the First-tier Tribunal. First, he made the point that the issue was whether a restriction order was needed to protect the public from serious harm, as opposed to any harm. Secondly, he made the point that the purpose of restriction orders is not to protect patients from themselves. Thirdly, he said –

“The greatest worry with this man would be if he were in a situation of an intense relationship, with conflicted and angry feelings. In this respect in contrast to other things he said to me I found his friendship with a man, who he described as personality disordered, potentially worrying. He said this man had been in prison, he drank heavily and argued. [The Appellant] however seemed to be keeping detached from this man and I think that is an appropriate way of him dealing with the risk. His solution of not getting involved in intense relationships is likely to be protective.”

He concluded –

“5. In conclusion it can never be said that someone is not a risk. Individuals who kill have a higher risk of killing again than the general population. On the other hand, for the reasons that I have set out above, [the Appellant] falls into a group of restricted patients who are relatively unlikely to seriously re-offend again.

6. In addition he seems to appreciate that not being on a restriction order is not the same thing as not having any input from a psychiatric team. He is someone who should have ongoing indefinite input because there is an element of vulnerability and he could have the sort of difficulties in the future that he has had since he left hospital in 1999.

7. Thus on balance [the Appellant] should no longer be liable to recall to hospital but can be dealt with as an ordinary psychiatric patient.”

17. Against that background, it seems to me that the reasons given by the First-tier Tribunal fully explain why it reached the decision that it did. It did not disagree with any of the assessments of the Appellant’s mental health or of the likelihood of him ceasing to engage with the mental health team or reoffending. That is an important distinction between this case and Clatworthy. Here, the First-tier Tribunal merely disagreed as to the conclusion to be drawn from the assessments when it came to considering whether the restriction order should cease to have effect. That was the kind of judgment for which it is difficult to give reasons beyond those required to show that the tribunal has directed itself correctly as to the law and to show to what matters the tribunal has had regard. I am satisfied that the reasons given by the First-tier Tribunal in those respects were adequate. Indeed, if one looks just at the issue of whether it was necessary for the restriction order to continue in the light of the assessment of the Appellant’s current mental health, as opposed to whether it was possible to manage him in the community, the reasoning in the reports is no more detailed than that of the First-tier Tribunal and arguably less so save in the case of Dr Boast.

18. As to the law, the First-tier Tribunal’s extensive references to R (SC) v Mental Health Review Tribunal are enough to show that it had the correct legal test in mind. It rightly said that it did not necessarily follow from the fact that the Appellant was “relatively unlikely to seriously offend again” that there could not be a sufficient risk to justify keeping the restriction order in force. As to the relevant considerations in assessing the risk, the First-tier Tribunal had regard to the “vulnerabilities” acknowledged in the reports, which plainly included the Appellant’s personality disorder with the attendant, even if small, risk of developing stressful relationships, together with his continuing problems with gambling and, more importantly, alcohol consumption and the effect that stress had on his mental health. It also had regard to the seriousness of the index offences, which were two deliberate killings, to the circumstances of the Appellant’s recall and to the fact that alcohol consumption had been a factor in both the index offences and the events leading to his recall. Those are all material considerations which together amply justify and explain the conclusion reached by the First-tier Tribunal that the risk of serious harm to the public was such that it was appropriate for the Appellant to remain subject to recall.

19. In the grounds of appeal, it is specifically argued that the First-tier Tribunal should have given reasons for disagreeing with Dr Boast’s view that the Appellant could be managed as an ordinary psychiatric patient. This is related to the submission that it ought also to have given reasons for not accepting the view expressed in all the reports that the Appellant was likely to continue engaging with the mental health team and to the submission that the First-tier Tribunal conflated the need for ongoing psychiatric input and the need for the Appellant to be liable to recall and reasoned from the need for psychiatric input that the Applicant should be subject to recall.

20. I do not accept the premises upon which these submissions are based. The First-tier Tribunal has not given any indication that it did not accept that, for the foreseeable future, it was probable that the Appellant would continue to engage with the mental health team and could be managed as an ordinary psychiatric patient. Nor is there any indication that it continued the restriction order in order to secure continued co-operation with the mental health team that was not otherwise likely to be forthcoming or that it did not accept Dr Hillier-Davies’ view that a restriction order was “not clinically required” (my emphasis).

21. Mr Dunlop referred to paragraphs 12 and 17 of the First-tier Tribunal’s decision where it was said that “”the support he received under his conditional discharge was very important to his capacity to cope” and that the conditions “admirably” met the risk there was to the public. I do not consider that the First-tier Tribunal was saying any more than that the Appellant’s capacity to cope was not based on particularly firm foundations and that the conditions imposed would ensure that, if he did cease to engage with the mental health team with the consequent risk that he might cease to be able to cope, consideration would be given to his being recalled. Those were perfectly proper matters for the First-tier Tribunal to take into account.

22. What Munby J makes clear in R (SC) v Mental Health Review Tribunal at paragraph [57], is that the question whether a restriction order should remain in force depends on an assessment of risk having regard to, among other things, the patient’s prognosis as regards the nature and gravity of any mental disorder from which he might suffer in the future. Indeed, it is not necessary for the continuation of a restriction order that the patient currently be mentally disordered at all (see R (Secretary of State for the Home Department) v Mental Health Review Tribunal [2004] EWHC 1029 (Admin); [2004] MHLR 184, where Moses J referred to the clear effect of section 73). Therefore, the criteria for directing that a restriction order should cease to have effect are very different from the criteria for directing the discharge of a non-restricted patient subject to a community treatment order (see section 72(1)(c) of the 1983 Act). That is important in the present case because the reports before the First-tier Tribunal focused on the position in the relatively short term, as might have been appropriate had the continuation of a community treatment order been in issue, whereas the First-tier Tribunal had also to consider what might happen in the long term.

23. It is important to note that Mumby J also said that regard had to be had to the gravity of the index offence and, indeed, in assessing “the risk and likelihood of the patient reoffending, the degree of harm to which the public may be exposed if he re-offends”, it would appear that regard should also be had to the gravity of other past offences since section 41(1) makes it clear that a person’s antecedents are relevant to whether a restriction order should be imposed in the first place.

24. The gravity of past offences is partly relevant because, as Dr Boast acknowledged, the seriousness of past offending may be a guide to the possible seriousness of any future offending and because, as with any assessment of a risk of serious harm, one must have regard both to the likelihood of the harm occurring and to the seriousness of the harm that might occur if the risk materialises. The more serious the harm that might occur if the risk materialises, the more one needs to guard against even a relatively low chance of its occurrence.

25. The gravity of past offences is also relevant because, where an offence is serious enough to be punishable by a sentence of life imprisonment, Parliament has given a particularly powerful indication that a long-term view of risks must be taken. Such a sentence does not usually have the effect that the offender remains in prison for the rest of his life but it does have the effect that after his release he remains on licence, and therefore subject to possible recall to prison, for the rest of his life. It would be surprising if a different approach were required to be taken to the assessment of risk where a hospital order has been imposed on a person convicted of such a serious offence and the question for the court is whether a restriction order should also be imposed or the question for a tribunal is whether a restriction order should cease to have effect.

26. It seems to me that this provides an answer to Dr Boast’s concern that “[i]f … the standard is to have no evidence of the mental disorder for which a hospital order was made, then it would be only the very occasional patient in full prolonged remission who could achieve an absolute discharge”. As I have mentioned, evidence of current mental disorder is not actually required in all cases. Nonetheless, I would accept that the mere existence of current, or possible future, mental disorder is not enough to justify the continuation of a restriction order. The First-tier Tribunal must also have regard to the seriousness of any risk of harm to others.

27. However, manslaughter may, and murder must, be punished by a sentence of life imprisonment. It therefore cannot be regarded as surprising that a restriction order imposed in a case of manslaughter arising out of a deliberate killing – in this case, two deliberate killings – should remain in force for as long as that person continues to be subject to what the First-tier Tribunal here called “vulnerabilities”, even if that has the effect that, in some cases, it will remain in force for life. In this case, the First-tier Tribunal regarded the risk of harm to others to be sufficiently serious to justify the continuation of the restriction order. Reading its decision as a whole against the background of the evidence before it and a proper understanding of the law, there can be no doubt as to why it reached that conclusion or that the decision was one it was entitled to reach. Accordingly, I dismiss this appeal.

28. I recognise that this decision will be disappointing to the Appellant. He has plainly made substantial progress. However, that by itself is not an adequate reason for removing a restriction order.

29. I regret that this case has taken far longer to be determined than should have been the case. A substantial reason for the delay, although not the only one, has been the failure of the Respondents to engage with the Upper Tribunal in this appeal. The Appellant not being actually detained in a hospital, some time was taken trying to persuade the Respondents to make submissions when they first showed a reluctance to do so. I note that in BB v South London and Maudsley NHS Foundation Trust [2009] UKUT 157 (AAC), the same two respondents appear to have taken no part in the proceedings.

30. This lack of engagement may be partly because the right of appeal to the Upper Tribunal is a new one. In the past, challenges to decisions of mental health review tribunals were brought by way of proceedings in the Administrative Court for judicial review. The tribunal was the respondent and frequently actively resisted applications, leaving the managers of hospitals and, in a case where a patient was subject to a restriction order, the Secretary of State as interested parties who did not need to take an active part in proceedings if they did not wish to do so. Now there is a statutory appeal on a point of law to the Upper Tribunal. The First-tier Tribunal is not a party to such an appeal and the managers of the hospital are a respondent, with the Secretary of State for Justice also being a respondent in a case where a patient has been subject to a restriction order.

31. There is no obligation on respondents to oppose appeals; they may equally well support them. However, it is extremely unsatisfactory for public authority respondents to make no submission at all, even where the question of law that arises is concerned with the conduct of the First-tier Tribunal rather than a serious dispute as to the interpretation of the law. There is a public interest in appeals at this level being properly argued because decisions of the Upper Tribunal on questions of legal principle bind the First-tier Tribunal and so have an impact on the standard of adjudication in the First-tier Tribunal and on the development of the law generally. Hospitals, collectively, and the Secretary of State have an interest in the standards of adjudication in mental health cases. One might also expect them to take an interest in the way mental health law is developed and, as this case illustrates, what appears at first sight to be a routine case concerned with the adequacy of a tribunal’s reasoning may on closer inspection raise an issue of more general interest and importance. However, I acknowledge that individual NHS trusts may not have in-house expertise and may consider that responding to appeals is disproportionately expensive in the absence of a central point administered by the Department of Health to which cases might be referred.

32. As far as the First Respondent in this case is concerned, it is unfortunate that the Upper Tribunal initially sent the documents to the responsible clinician, rather than to the Mental Health Act Administrator, but I find it odd that, having decided that the documents appeared to relate to a “legal matter requiring a response by a suitable legal professional”, the responsible clinician merely replied to the Upper Tribunal in those terms and did not refer the documents to the Trust’s solicitors. When I indicated that I wished to know whether the Trust, which appeared to have supported the Appellant’s case before the First-tier Tribunal remained of the same view and also whether it supported the Appellant’s submission that the First-tier Tribunal’s decision was flawed, I received an answer to the first question, but not the second. A further request for a submission merely elicited the response that the Senior Mental Health Act Co-ordinator had passed the letter to the responsible clinician. Eventually, when an oral hearing was directed, the documents in the case reached the Trust’s solicitors who made it plain that they did not wish to advance any argument on the appeal. In view of the fact that the issue both before the First-tier Tribunal and on this appeal was essentially between the Appellant and the Secretary of State, I was content to accept that position.

33. As far as the Secretary of State is concerned, the Casework Manager at the Mental Health Unit made it clear in her initial response that the Secretary of State remained of the same view as he had advanced successfully before the First-tier Tribunal but she did not made any submission as to whether the First-tier Tribunal’s decision was erroneous in point of law, which is the principal issue to be determined by the Upper Tribunal on an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007. When I indicated that I wished to have a fuller submission, the Mental Health Unit referred the case to the Treasury Solicitors, who made a submission setting out in detail the history of the case that I already knew but then said that the Secretary of State did not oppose the appeal but would advance no grounds in support of that position. That was not very helpful, given that proceedings in this sort of case are not truly adversarial. Unfortunately, I failed to anticipate that they would also not respond to the notice of hearing and I was not made aware of the lack of response until just before the hearing. Had I been aware of the lack of response, I might have given some indication as to why I had been unwilling to allow the appeal on the papers.

34. The question on an appeal to the Upper Tribunal is often not so much whether the First-tier Tribunal reached the right conclusion as whether the process by which it reached its conclusion was flawed. If the process was not flawed, the appeal to the Upper Tribunal will usually fail. If the process was flawed, the appellant will generally be entitled to a new hearing before the First-tier Tribunal. However, it must be remembered that, on an appeal, the Upper Tribunal has far greater powers to substitute its own decision for a decision it has set aside for error of law than the Administrative Court does in judicial review proceedings. Although the Upper Tribunal is unlikely to exercise those powers in cases where the specialist knowledge of expert members of the First-tier Tribunal might be required, it may do so in other cases where it has sufficient evidence before it or it can rely upon findings made by the First-tier Tribunal that are not vitiated by the error of law.

35. Thus, a respondent who opposes an appellant’s absolute discharge may nonetheless accept that the First-tier Tribunal erred in law. Such a concession, if well made and accompanied by an indication as to whether it is necessary for the case to be remitted to the First-tier Tribunal, is likely to assist the Upper Tribunal to dispose of an appeal quickly. Appropriate opposition to an appeal may, on the other hand, assist the Upper Tribunal by either narrowing the issues or drawing attention to different considerations and by requiring the appellant to focus on particular points in his or her reply. Deciding whether to support or oppose an appeal may concentrate a respondent’s mind on what the issues really are.

36. Involvement in proceedings before the Upper Tribunal should seldom give rise to the level of expense incurred by public authorities in proceedings in the Administrative Court, particularly as the Upper Tribunal need not always hold an oral hearing, non-lawyers may write submissions and have rights of audience and, in mental health cases, there is no power to order one party to pay another party’s costs (although a wasted costs order may be made against a representative if the circumstances warrant it). The Department for Work and Pensions has for decades trained non-lawyers to write submissions on points of law for the Upper Tribunal and its predecessors, although it is always represented by lawyers at hearings. The non-lawyers have access to legal advice and representation and so a proportionate but informed response can be made in all cases. Perhaps the caseworkers in the Mental Health Unit of the Ministry of Justice could similarly be trained to make submissions on points of law, with cases being referred to the Treasury Solicitors only when they consider it necessary.

37. I cannot compel respondents to take part in proceedings before the Upper Tribunal but I hope that those likely to be regular respondents will give some thought as to whether they ought to do so and can do so without undue expense. It seems particularly unsatisfactory that no-one appears to represent the public interest in cases where patients are subject to restriction orders.

38. There are also some lessons that the Upper Tribunal has learned from this case, including the need to identify accurately the person at a hospital to whom documents should be sent, the need to identify accurately cases in which the Secretary of State is a party, the need automatically to ask all parties at an early stage whether they want a hearing and the need to keep track of responses to hearing notices. Hopefully, even cases where the patient is not actually detained will be dealt with considerably more expeditiously in the future.

MARK ROWLAND

8 February 2010