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 First-tier Tribunal under reference MP/2012/01686, made on 15 March 2012 at the Gordon Hospital, did not involve the making of an error on a point of law.

Reasons for Decision

A.         History and background

1.          Mrs H was born on 15 April 1976. She is married to Mr H and the couple have one child. Her psychiatric history dates back to mid-2000, when she had a diagnosis of schizo-affective disorder. Her diagnosis is now paranoid schizophrenia. At times, she was treated as an outpatient. At other times, she was admitted under either section 2 or section 3 of the Mental Health Act 1983. There was a pattern of discharge, followed by non-compliance with her medication, followed by relapse and readmission. Her last admission was in August 2008. She remained detained until January 2009, when she was discharged on a community treatment order. On 8 January 2012, she applied to the First-tier Tribunal for a discharge from the order. The tribunal heard her case on 15 March 2012. It ordered her discharge from 15 June 2012. The tribunal gave the Trust permission to appeal to the Upper Tribunal. I directed a hearing of the appeal, which was held on 13 June 2012. The Trust was represented by Mr Patel of counsel. Mrs H was represented by Mr Hill. I am grateful to them for their submissions at the hearing. I am also grateful to all of those who co-operated to ensure that the hearing was effective at such short notice.

2.          At the end of the hearing, I announced that I would dismiss the appeal. These are my reasons.

3.          Mrs H’s responsible clinician opposed her application. He was concerned that she would stop taking her medication and would relapse without seeking assistance. He thought she might be ready for discharge by early 2013.

4.          The tribunal found that Mrs H had been symptom free for at least the last three years. Her medication had been twice reduced recently without ill effect. She experienced side effects from her medication as well as other symptoms that could not be attributed to it. She lacked insight, believing that she had been cured following an exorcism by a Catholic priest. She did, though, say that she would take her medication again if her husband told her to. The tribunal decided that there was not much more that could be expected by way of improvement.

5.          The tribunal found that Mrs H had a mental disorder. She had never harmed herself, although she had once threatened to cut herself with a plastic knife. She had never done anyone serious harm. She had merely slapped and pushed her husband and slapped her mother. There was no risk that her health would deteriorate in the ‘near future’, even if she stopped her medication. The tribunal noted that her husband was supportive and would take appropriate action if she did begin to deteriorate.

6.          The tribunal agreed with Mrs H’s representative that a deferred discharge would be better than an immediate discharge, expressing the hope that in the meanwhile the responsible clinician would consider reducing the level of her medication. The tribunal considered the possible effect that this might have, saying: ‘if that happens and she reacts adversely to it, then no doubt the appropriate action can be taken.’

7.          The Trust wrote to the tribunal asking it to clarify what ‘appropriate action’ meant. The judge replied:

8.          This provides:

(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or

(iv) that appropriate medical treatment is available for him; or

(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.

(1A)  In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).

(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—

(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and

(b) further consider his case in the event of any such recommendation not being complied with.

E.         The decision to discharge

9.          There are two aspects to the First-tier Tribunal’s decision: (a) the decision to discharge; and (b) the decision to defer the discharge. I will take them separately, starting with (a).

10.       Mr Patel argued that it was irrational for the tribunal to discharge Mrs H. She had a history of improving, failing to take her medication, and then deteriorating. He described her as the classic revolving door patient. I reject this argument. 

11.       It is important to understand the respect roles of the First-tier Tribunal and the Upper Tribunal. It determines how the latter approaches appeals from the former.

12.       The Upper Tribunal respects the facts found by the First-tier Tribunal, because it is constitutionally proper so to do. The First-tier Tribunal’s essential function is to find the facts and then to apply the law to those facts. In doing so, it may have to interpret the law, but usually the law is straightforward and not in dispute. This is in contrast to the Upper Tribunal. It only has jurisdiction if there is a ‘point of law arising from a decision’: section 11(1) of the Tribunals, Courts and Enforcement Act 2007. It has power to make findings of fact, but only if it has set that decision aside and is re-making it: section 12(4)(b). In deciding whether the First-tier Tribunal made an error of law, the Upper Tribunal has no power to undertake its own assessment of the evidence or to make its own findings of fact in substitution for those of the First-tier Tribunal. It must respect the fact-finding role, provided that the First-tier Tribunal carried out that task rationally and explained why it made its findings. To do otherwise would subvert the statutory limit of its jurisdiction. 

13.       The Upper Tribunal also respects the facts found by the First-tier Tribunal, because they are worthy of respect. For mental health cases, the tribunal consists of a judge, a Consultant Psychiatrist and someone with substantial experience of health or social care matters: paragraph 3 of the Senior President’s Practice Statement Composition Of Tribunals In Relation To Matters That Fall To Be Decided By The Health, Education And Social Care Chamber On Or After 3 November 2008. That composition makes the tribunal uniquely experienced to decide the issues that arise in mental health cases.

14.       The mental health legislation provides control of last resort for those with a mental disorder. Mrs H is subject to a community treatment order. That means that she is living in the community but liable to be recalled to hospital. In the scheme of the mental health legislation, that is the lightest of control. But it is still control and she is entitled to be free of it if the statutory conditions for it are not met. She may be a classic revolving door patient, but she is entitled to be free from control when the door is open outwards.

15.       Mrs H has never been a danger to anyone. The most she has done is to slap and push adult members of her immediate family. She is in no danger of doing any serious harm to herself. The most she has done is to threaten to cut herself with a plastic knife. The only risk is that her condition will deteriorate if she stops taking her medication. The tribunal was aware of Mrs H’s history. It was set out in the evidence and it was not in dispute. The tribunal was, therefore, aware as part of that history that she had previously stopped taking her medication. She even admitted that she would do so again. However, she also said that she would take her medication if her husband took her to the doctor. The key issue for the tribunal was: would that be effective to prevent any significant deterioration? If it would, there was no basis on which the community treatment order could continue. The answer would be yes provided that: (i) the tribunal believed that Mr H would monitor his wife and ask her to take medication if she deteriorated; and (ii) the tribunal believed that she would comply with his wishes. As to (i), Mr H had seen his wife improve and deteriorate a number of times over the last 12 years, so he could recognise the symptoms. The tribunal found that he was supportive of his wife, so he would act to protect her. As to (ii), the tribunal believed what Mrs H. It had the chance to assess her evidence in the context of the history of her condition and behaviour. It accepted what she said. With those matters settled in favour of Mrs H, the only proper course for the tribunal was to discharge her. Those findings were the key to the case. They are a classic example of a First-tier Tribunal exercising its fact-finding function. There is no basis on which they could be challenged as a matter of law. Mr Patel’s argument, in effect though not in form, sought to re-argue the tribunal’s assessment of the evidence.

16.       Mr Patel argued that the tribunal had not given adequate reasons for deferring the discharge. He argued that none of the reasons justified a deferral. I reject this argument.

17.       It is well-established that a tribunal has to decide whether the statutory conditions remain satisfied at the time of the hearing. In other words, it has to be satisfied that the patient is entitled to be discharged at that time. This applies whether the discharge is immediate or deferred. Deferral is a means of managing the deferral. A tribunal is not entitled to use the deferral to test whether a patient is ready for discharge. This is so well known that I would not accept that the tribunal had misdirected itself without clear indication that it had done so: Re P (Witness Summons) [1997] 2 FLR 447 at 455 and R(SB) 5/81 at [7]. There is none.

18.       The tribunal dealt with deferral in paragraph 10 of its reasons:

19.       Mr Hill suggested to the First-tier Tribunal that it defer Mrs H’s discharge, as he believed that it would be better for Mrs H’s medication to be reduced gradually than suddenly. He admitted to me that that was a mistake; he had not appreciated that she was on depot medication. I am sure that an experienced tribunal would not have made that mistake about the nature of Mrs H’s medication.

20.       If the tribunal were at fault in respect of deferral, it would only be that its reasons were not set out adequately. If the tribunal had made that error, I would have exercised my discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set its decision aside. The tribunal’s decision to discharge was soundly made and Mr Hill told me that the responsible clinician had not changed Mrs H’s medication. In other words, the circumstances were just as they were at the time of the hearing. If anyone had cause to complain about the deferral, it would be Mrs H, not the Trust.

21.       The Trust was unsure how to proceed if Mrs H’s condition deteriorated before her discharge date. I do not know whether detaining authorities generally are unsure of their powers in those circumstances, so I will set them out.

22.       The judge’s reply, which I have quoted in paragraph 7, is accurate. An authority’s powers have to be considered at two stages: (i) before the discharge takes effect; and (ii) thereafter. As to (i), the community treatment order remains in force until the discharge takes effect. Until then, a patient remains liable to have her medication changed and to be recalled to hospital. As to (ii), it is possible to detain a patient immediately following discharge. Theoretically, that could be under section 2. In practice, it would almost certainly be under section 3. That possibility is allowed by, but subject to, the decision of the House of Lords in R (Von Brandenburg) v East London and The City Mental Health NHS Trust [2004] 2 AC 280. It is permissible to re-admit a patient on the basis of ‘information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal.’ At [10].