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 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:

Although the decision of the First-tier Tribunal under reference MP/2009/058, made on 14 December 2009, involved the making of an error on a point of law, it is NOT SET ASIDE.

Reasons for Decision

1.           This appeal is brought by a patient who was and remains detained in Rampton Hospital under section 3 of the Mental Health Act 1983. The respondent is the health authority responsible for that hospital. The First-tier Tribunal gave the patient permission to appeal.

A.          History and background

2.           The patient has been detained under section 3 of the Act since 2004. I do not need to set out his personal circumstances or his medical history, neither of which is relevant to the issue raised by this appeal.

3.           On 12 August 2009, his case was considered by the First-tier Tribunal. It decided that he was not to be discharged. It did, though, make a recommendation under section 72(3)(a) of the Act:

With a view to facilitating discharge on a future date, the Tribunal recommends that the patient be transferred to another hospital. In the event of any such recommendation not being complied with by 12.12.09 the Tribunal will decide whether to reconvene. In coming to its decision, the Tribunal will take into account any representations made by the parties on or before that date.

The tribunal did not explain why it made this recommendation. All it said was: ‘Having considered all the evidence the tribunal has decided the patient is ready for transfer to another hospital.’ It then named that hospital.

4.           On 28 October 2009, the patient’s responsible clinician wrote to the patient’s solicitors to say that the Gatekeeping Assessment had been requested. The solicitors believed it would not take place until mid-late January 2010. On 8 December 2009, the solicitors made representations to the tribunal that it should defer reconsideration until the Gatekeeping Assessment was available and applied for consequential directions.

5.           On 14 December 2009, the tribunal decided not to reconvene. It explained its decision:

1. There is a crucial distinction between ordering and recommending and the Tribunal must take into account the need for the agreement of the others which are, in this case, the clinical team and the gate-keepers. The gate-keepers have not completed their assessment. Accordingly there is no purpose in reconvening.

2. The patient’s solicitor argues that a decision as to whether to reconvene should be deferred until after the assessment is received (mid to late January 2010). However, a reconvened hearing would not be proportional to the issue in the case and would run counter to the overriding objective set out in rule 2 of the 2008 Rules which both the Tribunal and the parties are required to follow.

3. The patient can consider whether to apply for another tribunal once the gate-keeper’s assessment is available.

6.           The patient’s solicitors applied to the First-tier Tribunal for a review of that decision or for permission to appeal to the Upper Tribunal. The tribunal decided not to review but gave permission to appeal.

7.           The appeal was received by the Upper Tribunal on 8 April 2010. In accordance with normal practice, it was allocated to a judge who gave directions. The judge asked a number of questions about statutory recommendations and invited the Secretary of State for Health to consider making a submission.

B.          The submissions

8.           The health authority responded to the appeal, saying that the issue was one between the patient and the First-tier Tribunal in which the authority had no interest. In those circumstances, the authority applied to be removed as a party.

9.           The Secretary of State declined to make any submissions. However, the head of Mental Health Act Policy did make some observations. I am grateful for those observations which I record. Section 72(3)(a) is a consolidation of the provision introduced into the Mental Health Act 1959 by section 39(3) of the Mental Health (Amendment) Act 1982. The idea of a statutory recommendation was mooted in the Department of Health and Social Security’s consultation on A Review of the Mental Health Act 1959, which it issued in 1976, at paragraph 8.16. The subsequent White Paper Review of the Mental Health Act 1959 (1978 Cmnd 7320) included this as a recommendation, at paragraph 6.5. It was not included in the original Bill of the 1982 Act, but was proposed as an amendment by Jim Lester: House of Commons, Special Standing Committee, 15 June 1982, col 545. The Minister of Health, Kenneth Clarke, responded at col 546, accepting the proposal. Having set out that background, the head of Policy commented:

Clearly, the Department cannot speak to the intentions of those who proposed and accepted this amendment in 1982. However, it appears to us that the intention (and effect) of what is now section 72(3) is to put in statute the power of the tribunal to make recommendations about certain matters for certain purposes, and to give added weight to those recommendations by allowing (but not requiring) the tribunal to return to the patient’s case if the recommendations are not followed. The mere possibility that the tribunal could return to the case – whether or not there is any realistic possibility that the patient would, in fact, then be discharged – seems to have been designed to ensure that the tribunal’s recommendations, once given, did not simply disappear into the ether.

10.        On 15 July 2010, the patient’s solicitors replied. I am sorry to say that nothing was then done until the case was referred to me by the Chamber President on 4 January 2011. That was clearly unacceptable and I apologise for the unnecessary delay that has occurred. I gave directions to discover the patient’s current position on 6 January 2011 and the solicitor replied on 19 January 2011. I was then taken ill, which has further delayed the decision until today.

C.          Removal of the health authority as the respondent

11.        I refuse this application. I understand the authority’s position, but that does not justify removing it as a party. A respondent is not required to respond, but a lack of formal interest in the decision is not a reason for removing the respondent as a party. The authority’s removal might have the effect that it was not bound by the Upper Tribunal’s decision, which would be an inappropriate result.

D.          The tribunal’s decision

12.        The power to make statutory recommendations is discretionary for the tribunal, but it must be exercised, like all a tribunal’s discretions, judicially. And once begun, it must be followed through fairly. It is obviously designed to assist in identifying the best way forward for the patient. But it operates by moral pressure and moral authority, not by order. The tribunal must be mindful of that limitation when deciding whether to make a recommendation in the first place. If it does so, it must carry the process through judicially, although the exercise of its powers will be tempered by the reality that it has no power to coerce.

13.        In this case, the tribunal did not explain why it made its recommendation. It may be that that was clear to all concerned from the evidence and submissions before the tribunal, but I do not know. It would certainly assist those responsible for the patient’s care and detention to know the tribunal’s reasoning and it may not be wise to rely on that information being conveyed by those present at the hearing. The reasons may also provide a basis for considering how to proceed if the recommendation is not complied with, although they will of course be known to the tribunal.

14.        The tribunal complied in form with the terms of its recommendation in August 2009 by considering any representations received from the party. The parties knew the tribunal’s target date and it was left to them to make any representations they wished by that date. It was not for the tribunal to remind the parties or seek out their views. However, a tribunal may have to ask for information in order to decide whether or not to reconvene.

15.        I regret to say that I do not understand the tribunal’s reasons for refusing to reconvene. In short, the tribunal was saying that the assessment was not ready so it would not reconvene. It knew that the gate-keeper assessment was not yet ready, but it did not know why. That knowledge was surely essential. If the assessment had been delayed for some reason, that would not indicate that the authority was unwilling or unlikely to comply with the tribunal’s recommendation. Indeed, finding out what had happened and why might be a useful exercise of the tribunal’s moral pressure on the authority to take its recommendation seriously. Given the tribunal’s lack of information, it was not possible to decide that it would be disproportionate to reconvene whether on the fixed date or later. I consider the tribunal’s reasons inadequate. I am not saying it was wrong to decide as it did. There may have been excellent reasons for doing as it did, but they were not set out in the tribunal’s decision.

16.        I make no criticism of the tribunal’s original decision to make a recommendation. I am sure it was made for the best of reasons and I have no information on the thinking that led to it. The experience of this case may, though, provide a useful lesson for the future. It is surely undesirable to give a patient false hope. The first question is whether to make a recommendation at all. The more obvious the recommendation, the more likely it is that the authority will consider it anyway. So recommendations are likely to be made in those cases where the authority has not considered the possibility or would be unlikely to do so. If the tribunal does make a recommendation, it has to take account of the tenuous nature of its control. This makes it essential to consider very carefully the timescale and the directions that the tribunal might give in order (i) to apply its moral pressure on the authority and (ii) to be fully informed by the time it has to decide whether to reconvene. It may, for example, be appropriate for the tribunal to direct that a progress report be provided shortly before a specified date so that it can decide if there is any practical purpose in reconvening. Finally, the tribunal has to decide whether to reconvene. In making that decision, it has to decide what practical value this would serve. It has no power to enforce the recommendation and is not reconvening for that purpose. It has the power to embarrass the authority into explaining its thinking or, possibly, into compliance. But it has to make a judgment on what it can practically achieve, if anything. That is where the issue of proportionality comes in. It may be that that is what the tribunal had in mind in its reference to proportionality.

E.          Disposal

17.        Given that the tribunal gave inadequate reasons for its decision, I have to decide how to dispose of the appeal. It is now more than a year since the tribunal made its decision. The patient remains where he was. It is clear that the authority did not accept the tribunal’s recommendation. What would be the point at this stage of requiring the tribunal to reconvene or, at least, to consider again whether to do so? I can see none. The authority has made its decision. There is nothing to suggest that the authority might be persuaded to change its mind. Any hearing would realistically be limited to obtaining an explanation. After so long, applying moral pressure is unlikely to have any effect. The claimant’s solicitor says that the patient’s condition appears to be unchanged, so a discharge does not seem a possibility. In those circumstances, the most appropriate order would be to identify the error in the tribunal’s decision but to make no order on the appeal.