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.

As the decision of the First-tier Tribunal (made on 3 August 2012 under reference MP/2012/12062) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

Reasons for Decision

1.          This is one of two appeals that raise the same issue. The other appeal is HM/2423/2012. I held a joint oral hearing of these appeals on 14 February 2013. Roger Pezzani of counsel appeared for the patient in this case; Stephen Simblet of counsel appeared for counsel in the other case. I am grateful to them both for their arguments on the appeals. Neither Trust appeared.

2.          The patient in this case is Ms S. She has been detained under section 3 of the Mental Health Act 1983. On 15 July 2012, she applied to the First-tier Tribunal and her application was heard on 3 August 2012. The tribunal decided that she should not be discharged. As part of its reasons, the presiding judge wrote:

3.          Ms S applied for permission to appeal on two grounds: (i) the tribunal had applied the test appropriate to detention under section 2 rather than, as it should have, detention under section 3; and (ii) the tribunal had failed to explain, as it had said it would, why it did not make a recommendation. The First-tier Tribunal gave Ms S permission to appeal to the Upper Tribunal. The judge, who had not presided at the hearing, identified the point of law as ‘whether there is a qualitative difference between the criteria in section 72(a) and (b).’ That is a reference to section 72(1)(a) and (b).

4.          I deal first with the issue as posed in the grant of permission to appeal.

5.          Section 2 applies if a patient is admitted to hospital for assessment.

6.          Section 3 applies if a patient is admitted to hospital for treatment. The patient may, or (as in this case) may not have been first detained under section 2:

7.          The differences between sections 2 and 3 are reflected in the language of section 72(1)(a) and (b). The former applies to cases of detention under section 2; the latter to cases of detention under section 3:

(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied—

(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;

(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—

(i) that he is then suffering from mental disorder or from 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 of 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; or

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

8.          I accept the arguments of both counsel that there is a difference between the criteria in section 2 and section 3 and that this difference is reflected in the criteria under section 72(1)(a) and (b).

9.          The most significant factor leading to this conclusion is the purpose of sections 2 and 3. Detention, for whatever purpose, involves a deprivation of liberty. As such, it must be strictly justified. Once it is known that a patient requires treatment for the effects of a mental disorder, the criteria can be, and are, appropriately exacting. But detention for assessment must, of necessity, be less exacting, since the need for treatment is not then known. Assessment under section 2 may, as an essential preliminary to establishing the need for treatment, be necessary in order to render section 3 effective for some patients. To that extent, it plays an important role in protecting the health and safety of those patients and the protection of others. This does, of course, reduce the protection for the patient, but that is balanced by the fact that, unlike section 3, detention under section 2 is limited by the need for an assessment and for a period of 28 days.

10.       The difference in the language of the sections reflects the difference in purpose. For the purposes of this case, the key difference is that under section 2 the mental disorder must warrant detention and the patient ought to be detained for health, safety or protection, whereas under section 3 the mental disorder must make detention appropriate and necessary for health, safety or protection. The terms relevant to section 2 are less exactly on their own and in their context. The context is related to their purpose.

11.       The caselaw supports a difference. Mr Pezzani cited R v South Thames Mental Health Review Tribunal, ex parte M [1998] COD 38. Collins J there decided that if a patient had been detained under section 2 at the time of the application to the tribunal but was detained under section 3 at the time of the hearing, the tribunal had to apply the criteria relevant to the latter rather than the former. As Mr Pezzani argued, that would not be necessary if the criteria were the same.

12.       The history of the mental health legislation also supports this analysis. As Mr Pezzani pointed out, the difference in language between section 72(1)(a) and (b) was new to the 1983 Act. The equivalent provisions of the Mental Health Act 1959 – sections 25(2) and 26(2) – did not draw the distinction. It may be that the change of language was brought about by the decision of the European Court of Human Rights in Winterwerp v The Netherlands (1979) 2 EHRR 387.

13.       This is not to say that the conditions for detention under section 2 are not demanding. Just that they are less demanding than for section 3. It would not be appropriate for me to try to define the differences between those sections. The language used is everyday language that merely has to be applied. But it has to be applied in a context that requires detention to be strictly justified.

14.       I do not accept that the tribunal misdirected itself by applying section 72(1)(a) instead of 72(1)(b). The First-tier Tribunal in its mental health jurisdiction deals with a limited number of legal issues. That does not diminish their importance, but it does mean that the members of the tribunal quickly become familiar with the legal tests appropriate to different cases. And that makes it more likely that the judge made a slip in writing the reasons than that the panel as a whole made a slip in making a decision. Surely one of them would have noticed that they were applying the wrong criteria, especially as Ms M had not been detained under section 2. Moreover, the reasons also refer to the test of necessity (paragraphs 11 and 15 of its reasons), which is only relevant to section 72(1)(b). So if the tribunal did misdirect itself, it did so not by applying section 72(1)(a) instead of 72(1)(b), but by muddling and combining the criteria from the two paragraphs. That is even less likely that applying the wrong paragraph. Nevertheless, the only evidence I have of the detail of the tribunal’s reasoning is what the presiding judge recorded and those reasons are inadequate, as I now explain.

15.       The tribunal’s written reasons should show that its decision was justified in law. They should:

16.       The Legal Grounds for the Tribunal’s Decision uses the language of section 72(1)(b), not section 72(1)(a). That was correct, but I attach little significance to it, as I understand that those grounds are produced from a template. Paragraph 6 records the responsible clinician’s evidence in terms of warrant. That was correct; the judge cannot be faulted for using the precise language of the doctor’s report. Paragraph 15, on the other hand, purports to state the tribunal’s final decision in legal terms and, in doing so, the judge has combined the language of section 72(1)(a) and (b). In doing so, it harks back to the language of the doctor’s report. And it is that report that is the ultimate cause of the problem. Mr Pezzani read me the opening paragraphs of the report. I will not set them out. It is sufficient to say that they are in the form of a series of questions and answers. One of the questions attempts to deal with numerous possibilities, which the doctor has assented to as a package. I doubt whether it is possible to hold all the views expressed by the doctor’s single assent to the question as a whole. The result is that doctor’s report was a difficult document to assess. It was affected by the use of the wrong language and by its confused focus, at least at the beginning. Faced with that evidence, it was important for the tribunal to analyse the evidence to ensure that the doctor’s opinions could properly be related to the relevant criteria. And its reasons had to show that that had been done. But the judge has not set out any such analysis. He has stated findings of fact. The need for detention is not self-evident from those findings. The reasons give no indication that there was cause for care in assessing the doctor’s opinion based on those facts. That is why the reasons are inadequate and why I have set aside the tribunal’s decision.

17.       There are two lessons to draw from this case and from HM/2423/2012,

18.       First, a tribunal does not make an error of law simply because of an infelicitous use of the wrong language. The tribunal’s reasons have to be read as a whole and in the context of the evidence and submissions to it.

19.       Second, presiding judges should take care not to drift into the wrong language in expressing their tribunals’ reasons. That is especially so when the evidence has done just that. Being led astray casts doubt on the tribunal’s reasoning as a whole and presents the opportunity for arguing that the tribunal’s decision involved an error of law.

20.       Ms S asked the tribunal to make a recommendation. It did not do so, but according to Mr Pezzani it undertook to say why in its reasons. It did not do so. The tribunal’s undertaking is irrelevant. Ms S asked the tribunal to make a recommendation and it should have explained why it did not do so, whether the tribunal gave an undertaking or not. That failure is an error of law. but it is the sort of error that does not justify setting aside a tribunal’s decision. The proper course would be for the First-tier Tribunal to review the decision and then to amend its reasons under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007 by adding the necessary explanation.