Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the Mental Health Review Tribunal for Wales under reference 9A59989, made on 10 May 2010 , did not involve the making of an error on a point of law.

Reasons for Decision

A.          The parties

1.           This appeal is brought with the permission of the Mental Health Review Tribunal for Wales. The appellant is a mental patient detained under the Mental Health Act 1983. The respondents on the appeal are the managers of the hospital where he is detained and the Secretary of State for Justice.

B.          History and background

2.           The claimant was born in 1971. His detention under sections 37 and 41 of the Act relates to conviction for harassment as a result of forming an attachment to a young lady in 1998. On 25 February 2009, he applied to the Mental Health Review Tribunal for Wales seeking a conditional discharge. On 10 May 2010, the tribunal decided that he should not be discharged. The tribunal gave the patient permission to appeal to the Upper Tribunal. Neither respondent has responded to the appeal.

C.          An appeal on error of law

3.           An appeal to the Upper Tribunal can only succeed if ‘the making of the decision concerned involved the making of an error on a point of law’ (section 12(1) of the Tribunals, Courts and Enforcement Act 2007). The essence of the legal requirement for a tribunal’s decision is that: (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; and (iii) it answered the legal questions appropriately given its findings of fact. Additionally, the tribunal must: (iv) give the parties a fair hearing; and (v) provide adequate reasons. In simple terms, the issue is whether the tribunal did its job properly.

D.          The grounds of appeal

4.           These cover nine pages under seven heads. If the tribunal had indeed committed so many and such egregious errors, it would have been astonishingly incompetent. It is not necessary to take the individual heads, and the many points made under them, individually. It is convenient to deal with them compendiously under two headings: judgecraft and the tribunal’s reasoning on the evidence. Finally, I mention proportionality.

E.          Judgecraft

5.           Many of the points made in the grounds of appeal relate to fundamental matters such as the burden and standard of proof. They accuse the tribunal of failing to understand and apply the basic techniques and concepts of judicial craft.

6.           In deciding whether ‘the tribunal did its job properly’, the Upper Tribunal is entitled to make, and does make, assumptions. It assumes that the members of the tribunal understand the basic legal concepts that they must apply. The burden and standard of proof are good examples. As Wilson J said in Re P (Witness Summons) [1997] 2 FLR 447 at 455:

‘it is unarguable that, every time a judge addresses the issue of whether sexual abuse has been established on the balance of probabilities, she or he has to make specific reference to that dimension …’

This is linked to the adequacy of a tribunal’s reasons. The circumstances in which they are provided make it inappropriate to require polish and perfection. As Holman J said of a county court judgment in B v B (Residence Order: Reasons for Decision) [1997] 2 FLR 602 at 606:

‘it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or as thorough as it might otherwise be.’

Again to put the matter in simple terms, tribunals are assumed to know the essentials of what their work involves. They do not need to spell it out. The issue is whether there is anything to indicate that they have exceptionally failed to apply the basic tools of their craft.

7.           All this applies especially to tribunals exercising a mental health jurisdiction. I intend in no way to diminish the difficulty or importance of their task when I say that their work involves a limited number of questions. My point is that a specialist tribunal applying the same limited range of criteria repeatedly is unlikely to misunderstand the nature of its task.

8.           I can find nothing in the tribunal’s reasons to show, let alone cause me to suspect, that it did not know, understand and apply the basic tools of its craft. They form part of the background against which, and the context in which, the reasons are written. The argument is essentially that the tribunal failed to mention these matters rather than an argument from substance that the tribunal’s reasons show it did not do so. The patient’s solicitor has pointed to the way in which some particular sections are expressed. Picking isolated passages out from the reasons as a whole and divorcing them from their context is not sufficient to show that the tribunal misunderstood the basics of what it was doing.

F.           The tribunal’s reasoning on the evidence

9.           The tribunal’s reasons contain, as they always do, the legal questions that it decided. It might be better if tribunals were to set out their reasons under the headings provided by those questions. That would certainly make it easier to show that the tribunal had dealt with each of the questions and how. The tribunal’s approach in this case is more discursive. I accept that judges have their own styles, and the flow of the argument and the nature of the evidence may make it inconvenient to split the tribunal’s analysis under those headings. However the reasons are presented, I must consider the matter as one of substance.

10.        Although the patient denied having any mental disorder, this issue was not challenged by his solicitor. As summarised by the tribunal, the patient’s solicitor argued that he should be ‘discharged conditionally to his parents’ home in …, with discharge deferred for comprehensive care plans to be prepared and the community care team to be identified.’

11.        The tribunal did not accept the claimant’s own estimation of his mental state and ability to function safely in the community. He was not at the time of the hearing yet able to accept the reality of his behaviour or appreciate its potential effect on others. The medical evidence justified that approach. He remains mentally ill, although he has yet to acknowledge that fact and its consequences.

12.        Extracting and reordering the tribunal’s reasoning produces this summary. The patient has chronic paranoid schizophrenia with erotomania as part of that condition. That condition is remitting and relapsing. His condition had deteriorated in the past, when he refused medication, and did so again shortly before the hearing, when I believe he was taking medication. As a result of his condition, he remains obsessed with the lady for whom he had developed a strong romantic attachment. If he were in the community, she would be at risk, at least to her mental health, as would others for whom he might form an attachment in the future. His alcohol in-take and anti-social behaviour would put him at risk through retaliation by others. There was psychological treatment suitable for and available to the patient in the hospital. He can benefit from it and was at the time of the hearing beginning to do so, at least to the extent of improved engagement. The prognosis was that he could move on towards rehabilitation after six to 12 months of treatment. Providing the treatment for him in the community was problematic. The community care team in his parents’ home county had only one person available to do the psychological work that he required. In terms of effectiveness, there was the risk that the patient would not engage with treatment, as he had in the past with violent consequences. In short, the claimant’s treatment was ongoing and he was not yet at the stage when he could safely move towards the community.

13.        I consider those conclusions are soundly and rationally based in the evidence and the nature of the patient’s condition. They explain why the conditions for the patient’s continued detention were satisfied. They identify the existence of a disorder and make clear why it is appropriate that he remain detained for treatment. The risk to his previous victim is clear, even if it is only indirect through contact with her parents. The availability and suitability of the treatment was clear from the impact it was starting to have. Detention was required because at the present stage of his treatment it could not reliably be provided outside the control of detention.

14.        The patient’s solicitor has accused the tribunal of being selective in its use of the evidence. I do not accept that the tribunal has been selective in its analysis. I am sure it considered the evidence as a whole, as it was required to do. What it has been is selective in its references to evidence in its reasons. That is permissible. The tribunal is expressing its conclusions and explaining them. That is all it is required to do.

G.         Proportionality

15.        The claimant’s solicitor has repeatedly referred to proportionality. That is not a separate issue. Any issue of proportionality is amply covered by the terms of legislatio n and the allocation of the burden of proof. As I said in DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC):

‘27. … I do not consider that it is necessary either to introduce the concept of proportionality into the application of, or to extract it from the wording of, that section. Introducing it could divert attention from the wording of the legislation and bring with it connotations that are not appropriate in the mental health context. The tribunal must discharge the patient unless detention for treatment is necessary for the patient’s health or safety or for the protection of others. The legislation authorises detention by reference to the twin requirements of treatment and protection, moderated by the word ‘necessary’. That is a demanding test and provides ample protection for the patient without the need for any additional consideration of proportionality. I note that in R (CS) v Mental Health Review Tribunal [2004] EWHC 2958 (Admin), Pitchford J said at [52] that there was force in the argument that there was no additional requirement of proportionality.’

H.         Disposal

16.        I dismiss the appeal.