Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: HM/2043/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal disallows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Wells Road Centre on 3 February 2014 under references MP/2013/24749 did not involve any error on a material point of law and is not set aside.

 

 

REASONS FOR DECISION

 

 

Introduction

 

 

1.                   The issue which this appeal is concerned with, at least ostensibly, is the lawfulness of a “social circumstances report” being prepared by a member of the nursing staff at the hospital where the appellant was detained (a nurse who had also compiled the in-patient nursing report) as opposed to it being prepared by a social worker. The more particular and direct issue, in terms of the Upper Tribunal’s statutory appellate jurisdiction,  is whether the First-tier Tribunal erred in law in  failing to adjourn on 3 February 2014 because the social circumstances report had been written by the patient’s named nurse on his ward and not by a professional from a community mental health team.

 

2.                  It is important to emphasise that it is only this aspect of the tribunal’s decision – the failure to adjourn – that is under challenge. This is clear from the appellant’s grounds seeking permission to appeal from the First-tier Tribunal where “the decision, or part of the decision, which is sought to be Set Aside” is identified as “THE PRELIMINARY HEARING DECISION”. No challenge is thus made as to the tribunal’s outcome decision made on 3 February 2014 that “the [appellant] shall not be discharged from liability to be detained”.  Nor is it said, at least in terms of argument, that the alleged failings in the social circumstances report led the First-tier Tribunal to err materially in law in the outcome decision it made, although it follows that if the tribunal had erred in law in not adjourning then it would not have made an outcome decision on 3 February 2014.

 

3.                  To this extent it would seem that what in truth is being sought on behalf of the appellant, save for the setting aside of the refusal to adjourn decision, is a declaratory decision in respect of: (i) who within the responsible authority is legally responsible for writing the social circumstances report (ward based staff nurse or community psychiatric nurse/social worker); and (ii) whether the practice of Nottinghamshire NHS Trust in allowing for the ward based nurse to prepare the social circumstances report is, or was, just and fair and not in breach of natural justice.  The wording of (i) and (ii) effectively mirrors what was sought by the solicitors acting for the appellant in their application for permission to appeal to the First-tier Tribunal.  By the time of the grounds of appeal to the Upper Tribunal the complaint had become that the:

 

“social circumstances report and the inpatient nursing report had been prepared by the same person a staff nurse on the ward contrary to the letter or spirit of the Senior President’s Practice Direction or otherwise contrary to principles of natural justice and fairness.”

 

4.                  I fear that my decision will come as a disappointment to the appellant and his solicitors as my focus is, and has to be, on whether the First-tier Tribunal erred materially in law in the decision it came to on 3 February 2014 (“the tribunal”) not, at that time, to discharge the appellant from being detained under the Mental Health Act 1983. The question of the provenance and authorship of the social circumstances report can only be considered as part of that enquiry and not as a more general issue.

 

Relevant background

 

Requests to First-tier Tribunal  

5.                  The appellant applied to the First-tier Tribunal regarding his liability to be detained under section 3 of the Mental Health Act 1983 (the “MHA”) in early October 2013 pursuant to section 66 of the MHA. For reasons which do not now matter, that application was then withdrawn but reinstated on 23 December 2013.  A hearing was scheduled before the tribunal on 3 February 2014.

 

6.                  On 8 January 2014 the solicitors for the appellant made a written request to the First-tier Tribunal for, inter alia, the responsible authority and/or detaining  authority to appoint a social worker or community psychiatric nurse (“CPN”) to assess the appellant and prepare an independent social circumstances report for the 3 February 2014 hearing.  It was noted in the request that the last reports in respect of inpatient nursing and social circumstances had been prepared by nursing staff. In response to this request a registrar of the First-tier Tribunal on 8 January 2014 directed that if there had been any significant change in the appellant’s circumstances since the original reports the responsible authority was to supply “concise addendum medical and social circumstances reports in accordance with paragraph 32.14 of the Code of Practice”.

 

7.                  The appellant’s solicitors on 28 January 2014 then made a further request in which they set out that they had not received any updated social circumstances report prepared by a social worker or CPN, and they asked for the appellant to be assessed and a further social circumstances report prepared by a social worker or CPN in time for the hearing on 3 February 2014. In default of this being provided they asked the First-tier Tribunal to summons the respondent’s “Trust Wide CPA Manager” to attend the tribunal to give evidence about the lack of any such social circumstances report. The request was refused by Judge Callcott on 29 January 2014 on the basis that there was insufficient time for preparation of any further reports and that the judge had no power to order the appointment of a community mental health professional. Judge Callcott said that she had read the social circumstances report and she agreed it did not provide the information needed.  She said that she had asked for and was awaiting information about whether anyone from the community mental health team would be attending the hearing on 3 February 2014 and said that if no one suitable attended then it may be that the hearing should be postponed.

 

8.                 Perhaps spurred on by this last comment, on 30 January 2014 the appellant’s solicitors made a request to the First-tier Tribunal for the hearing on 3 February 2014 to be postponed because they had been unable to confirm whether any member of the community mental health team would be attending the hearing.  They also asked that the social circumstances report they had previously requested be provided by 7 March 2o14. The postponement request was refused by Judge Foster on 31 January 2014 on the basis that a similar application had already been refused by Judge Callcott and because the tribunal panel on 3 February 2014 would be in a position to determine whether evidence was required from the community team.

 

Tribunal’s decision of 3 February 2014

9.                  The appellant’s application was heard and determined by the tribunal on 3 February 2014. The appellant attended the hearing with his representative from his solicitors.  The responsible authority was not represented. Also in attendance were: the appellant’s brother, the appellant’s responsible clinician, Dr Walker (Associate Specialist in Forensic Psychiatry) and Nurse Hunt.

 

 

10.              As already noted, the tribunal’s substantive (or outcome) decision on the application was the appellant was not discharged from liability to be detained.  Its legal grounds for so concluding were, per section 72 of the MHA: (i) that it was satisfied that the appellant was suffering from a mental disorder of a nature or degree that made it appropriate for him to be liable to be detained in hospital for medical treatment; (ii) that it was necessary for his health or safety or for the protection of others that he should have such treatment; (iii) that appropriate medical treatment was available; and (iv) it was not appropriate to discharge the appellant under the tribunal’s discretionary powers. Briefly, because as I have already emphasised no challenge has been made to the substantive decision of the tribunal, its findings and reasons in support of these grounds were as follows.

 

(i)                The appellant was suffering from a mental disorder which was chronic and relapsing in nature. The working diagnosis was Paranoid Schizophrenia. He had been more settled over the last two months but continued to present with unpredictable fluctuations. A regular occurrence was his becoming agitated if he believed something had been taken.  

(ii)             He was a risk to others given the history of assaults and aggression. The appellant presented as hostile and confrontational when unwell.  There were also risks to his safety given his vulnerability to retaliation from others.

(iii)           Appropriate treatment was available. This was given under Form T3 as the appellant was assessed as lacking the capacity to consent to medication.  Lithium was to be introduced during the week of the hearing to manage fluctuations in the appellant’s mood.  He had nursing care, psychiatric input and occupational therapy input. 

(iv)            The plan was for the appellant to progress to conditions of lesser security, which would require longer periods of sustained stability and gradual “testing out in the community” with periods of unescorted leave.  Unescorted leave, which the appellant had not had, was a pre-requisite of a move to locked rehabilitation within the Trust.  Given the chronic and complex nature of the appellant’s disorder and the history of assaults in the context of that disorder, the appellant’s care was being managed in the least restrictive setting, and the tribunal did not exercise its power to discharge him from the section.

11.               The tribunal further found that recommending a community treatment order (“CTO”), which was what was being sought, was premature as a:

 

“sustained period of stability with the introduction of unescorted leave will be required before [the appellant] could realistically be considered for a move to conditions of lesser security. We accept the view of the treating team that [the appellant] is not ready for discharge at this stage and take into account that over the last few years, attempts to move [the appellant] into less restrictive settings such as….., an unlocked rehabilitation unit, have failed.  When [the appellant] is nearer the point of discharge into the community, a CTO may be a useful framework within which to manage discharge from hospital.”

 

 

The tribunal also commented that no problems had arisen during community leave when the appellant was escorted by staff or on leave to his family and it therefore could see no reason why leave to the appellant’s family should not take place more often.

 

12.              Although not the subject of any challenge on this appeal, I have set out the tribunal’s reasons for its substantive decision because it provides the context for its decision, which is the subject of challenge on this appeal, refusing to adjourn the hearing on 3 February 2014.  This decision is dealt with by the tribunal under a box headed Preliminary or Procedural Matters. In that box the tribunal first recite that the application to adjourn was made both at the start of the hearing and after the evidence had been heard. The history of the prior requests (detailed above) is also set out.

 

 

13.              The grounds put forward by those acting, and who still act, for the appellant for the adjournment may be summarised as follows.

 

(i)                           It was not fair and just to proceed with the hearing because the social circumstances reports had been written by the appellant’s named nurse on his ward and not by a professional from the community mental health team.

(ii)                         The nurse who wrote the report was not present at the hearing.

(iii)                      At a CPA meeting on 6 January 2014 and at a manager’s meeting on 27 January 2014, the appellant was considered ready for discharge into the community in two months.

 

At the end of the hearing the focus of the application for an adjournment changed somewhat.  The appellant was not seeking discharge from his section. However it was argued that the tribunal needed more information about the care options before considering the sought for recommendation for a CTO.

 

14.              The tribunal gave detailed reasons for its refusal(s) to adjourn. I summarise them as follows.

 

(i)                The Code of Practice stated that where possible (this is the tribunal’s emphasis), reports should be written by professionals with the best overall knowledge of the patient’s situation. The practice of the respondent in respect of inpatients was for the social circumstances report to be prepared by the patient’s named nurse. This was not inconsistent with the MHA, the Procedure Rules, the Code of Practice or the Practice Direction.

 

(ii)             Authors of such reports were expected to attend tribunal hearings. This was not the case here as a different nurse to the one who had prepared the report attended the hearing, however the nurse in attendance had worked with the appellant since his admission to hospital in 2012 and he agreed with the contents of the social circumstances (and nursing) report(s).

 

(iii)           The decision in AM –v- West London MH NHS Trust & Secretary of State for Justice [2012] UKUT 382 (AAC) was pertinent as it considered when a tribunal had to adjourn to obtain information on possible aftercare and had stated, in that context, that even where the relevant evidence may be incomplete or inadequate that may not affect the tribunal’s ability to give the patient a fair hearing and deal with his case fairly and justly.

 

(iv)            In these circumstances the tribunal on the first application had decided to proceed and hear the evidence, on the understanding that it could still adjourn after having heard the evidence.  Having heard that evidence, however, the renewed application to adjourn was also refused because in this case unescorted leave and the appellant being settled on lithium were the next steps in the care plan before a move to a rehabilitation unit was feasible.  As in AM, the appellant “had not yet progressed to the point where the issue of aftercare that was actually available in the community [arose]”. 

 

Permission to appeal 

15.               The appellant’s solicitors sought permission to appeal against the “Preliminary Hearing Decision” of the tribunal on 1 March 2014.  They  asked for that decision (i.e. the refusal to adjourn) to be set aside and, as noted in paragraph 3 above, for rulings on who is responsible for writing the social circumstances report and whether the respondent’s practice of having such reports and the nursing report written by a staff nurse was fair and just.

 

 

16.              Permission to appeal was given by the First-tier Tribunal on 17 March 2014 by STJ Briggs. She read the grounds of appeal, perhaps generously, as averring: (a) error of law in the interpretation of relevant statutory material and guidance, (b) irrational exercise of discretion (in not adjourning) in relation to the fairness of the hearing which was so fundamental as to amount to an error of law, and (c) a failure to give adequate reasons explaining why the tribunal had declined to adjourn  the hearing.

 

17.               In Judge Brigg’s view, as expressed in her reasons for giving permission to appeal, the appeal turned on the interpretation of the Practice Direction, First-tier Tribunal (HESC): Statements and Reports in Mental Health Cases and related materials on a point which was free from authoritative guidance, and on which the lawfulness and adequacy of the tribunal’s reasons for adjourning turned. Judge Briggs referred in this regard to the respondent having “stated that it [had] a blanket policy of inviting only the named nurse to provide both nursing and social circumstances reports for the Low Secure service” and she expressed the view that this issue was likely to recur in other cases. She also considered there was an apparent tension between the tribunal’s  reliance on the paragraph 32.20 of the Code of Practice and its praying in aid AM, where the evidence in this case tended to support the view that the social circumstances report was inadequate and was seemingly so because of its authorship. That in Judge Briggs’s view bore upon whether under the respondent’s policy it would ever be “possible” (per the Code of Practice) to obtain social circumstances evidence from an independent or specialist witness, as was arguably implied by the Practice Direction read together with the Code of Practice.  She further drew attention to the need for the report writers to attend First-tier Tribunal hearings to provide further up-to-date information in respect of, inter alia, “home circumstances and the aftercare available”: per paragraph 32:30 of the Code of Practice.

 

18.              Judge Briggs also raised for determination on the appeal whether the fact that the respondent’s case was put forward as a matter of policy by two report writers rather than “three witnesses with distinct professional perspectives on the patient’s case” had an adverse effect on the fairness of the hearing.  Guidance from the Upper Tribunal on all of these issues would, in her view, be of considerable assistance.

 

The Legal Architecture

19.              Section 118(1) of the MHA requires the Secretary of State to prepare, publish and from time to time revise a Code of Practice inter alia “for the guidance of managers and staff of hospitals …and approved mental health professionals in relation to the admission of patients to hospitals…under this Act…”. By section 118(2D) the persons set out in subsection (1) “shall have regard to the code” in performing functions under the MHA.  The Code of Practice, however, contains guidance and not instruction, although the guidance is to be accorded great weight: R(Munjaz) –v- Mersey Care NHS Trust [2005] UKHL 58.

20.             At the relevant time the Code of Practice dealt with “THE TRIBUNAL” in Chapter 32.  I set out below relevant extracts from this Chapter, some of which have already been referred to above.

 

“32.10 Responsible authorities (that is the managers of the relevant hospital or the LSSA responsible for a guardianship patient) should be familiar with the Tribunal’s rules and procedures. The rules place a statutory duty on the responsible authority to provide the Tribunal with a statement of relevant facts together with certain reports.

 

32.13 If a Tribunal panel feels that it needs more information on any report, it may request it, either in the form of a supplementary report or by questioning a witness at the hearing itself.

 

32.15……If the author of the report is unable to attend, it is important that anyone attending in their place should, wherever possible, also have a good knowledge of the patient’s case.

 

32.20 Where possible, reports should be written by the professionals with the best overall knowledge of the patient’s situation.

 

32.30  It is important that other people who prepare reports submitted by the responsible authority attend the hearing to provide further up-to-date information about the patient, including (where relevant) their home circumstances and the after-care available in the event of a decision to discharge the patient.

 

32.32  Increasingly, Tribunal hearings find it helpful to speak to a nurse, particularly a nurse who knows the patient. It is often helpful for a nurse who knows the patient to accompany them to the hearing.”

 

 

21.              It is also important to have regard to Chapter 27 of the Code of Practice on AFTER-CARE, which relevantly provides as follows:

 

“27.2 Section 117 of the Act requires primary care trusts (PCTs) and local social services authorities (LSSAs), in co-operation with voluntary agencies, to provide after­ care to patients detained in hospital for treatment under section 3, 37, 45A, 47 or 48 of the Act who then cease to be detained. This includes patients granted leave of absence under section 17 and patients going onto supervised community treatment (SCT).

 

After-care planning

27.7 When considering relevant patients’ cases, the Tribunal and hospital managers will expect to be provided with information from the professionals concerned on what after-care arrangements might be made for them under section 117 if they were to be discharged. Some discussion of after-care needs, involving LSSAs and other relevant agencies, should take place in advance of the hearing.

 

27.8 Although the duty to provide after-care begins when the patient leaves hospital, the planning of after-care needs to start as soon as the patient is admitted to hospital. PCTs and LSSAs should take reasonable steps to identify appropriate after-care services for patients before their actual discharge from hospital.

 

27.9 Where a Tribunal or hospital managers’ hearing has been arranged for a patient who might be entitled to after-care under section 117 of the Act, the hospital managers should ensure that the relevant PCT and LSSA have been informed. The PCT and LSSA should consider putting practical preparations in hand for after-care in every case, but should in particular consider doing so where there is a strong possibility that the patient will be discharged if appropriate after-care can be arranged. Where the

Tribunal has provisionally decided to give a restricted patient a conditional discharge, the PCT and LSSA must do their best to put after-care in place which would allow that discharge to take place.

 

27.10 Before deciding to discharge, or grant more than very short-term leave of absence to, a patient, or to place a patient onto SCT, the responsible clinician should ensure that the patient’s needs for after-care have been fully assessed, discussed with the patient and addressed in their care plan. If the patient is being given leave for only a short period, a less comprehensive review may be sufficient, but the arrangements for the patient’s care should still be properly recorded.”

 

22.             The Practice Direction, First-tier Tribunal (HESC): Statements and Reports in Mental Health Cases of the Senior President of Tribunals dated and effective from 28 October 2013 provides, at paragraph 14, for the “Social Circumstances Report” for in-patients. I set paragraph 14 out in full. 

 

“The report must be up-to-date, specifically prepared for the tribunal and have numbered paragraphs and pages. It should be signed and dated. The sources of information for the events and incidents described must be made clear. This report should not be an addendum to (or reproduce extensive details from) previous reports, but must briefly describe the patient’s recent relevant history and current presentation, and must include:

a) whether there are any factors that might affect the patient’s understanding or ability to cope with a hearing, and whether there are any adjustments that the tribunal may consider in order to deal with the case fairly and justly;

b) details of any index offence(s) and other relevant forensic history;

c) a chronology listing the patient’s previous involvement with mental health services including any admissions to, discharge from and recall to hospital;

d) the patient’s home and family circumstances;

e) the housing or accommodation available to the patient if discharged;

f) the patient’s financial position (including benefit entitlements);

g) any available opportunities for employment;

h) the patient’s previous response to community support or Section 117 aftercare;

i) so far as is known, details of the care pathway and Section 117 after-care to be made available to the patient, together with details of the proposed care plan;

j) the likely adequacy and effectiveness of the proposed care plan;

k) whether there are any issues as to funding the proposed care plan and, if so, the date by which those issues will be resolved;

l) the strengths or positive factors relating to the patient;

m) a summary of the patient’s current progress, behaviour, compliance and insight;

n) details of any incidents where the patient has harmed themselves or others, or threatened harm, or damaged property, or threatened damage;

o) the patient’s views, wishes, beliefs, opinions, hopes and concerns;

p) except in restricted cases, the views of the patient’s Nearest Relative unless (having consulted the patient) it would inappropriate or impractical to consult the Nearest Relative, in which case give reasons for this view and describe any attempts to rectify matters;

q) the views of any other person who takes a lead role in the care and support of the patient but who is not professionally involved;

r) whether the patient is known to any [Multi Agency Public Protection Arrangements] meeting or agency and, if so, in which area, for what reason, and at what level - together with the name of the Chair of any MAPPA meeting concerned with the patient, and the name of the representative of the lead agency;

s) in the event that a MAPPA meeting or agency wishes to put forward evidence of its views in relation to the level and management of risk, a summary of those views (or an Executive Summary may be attached to the report);and where relevant, a copy of the Police National Computer record of previous convictions should be attached;

t) in the case of an eligible compliant patient who lacks capacity to agree or object to their detention or treatment, whether or not deprivation of liberty under the Mental Capacity Act 2005 (as amended) would be appropriate and less restrictive;

u) whether (in Section 2 cases) detention in hospital, or (in all other cases) the provision of medical treatment in hospital, is justified or necessary in the interests of the patient’s health or safety, or for the protection of others;

v) whether the patient, if discharged from hospital, would be likely to act in a manner dangerous to themselves or others;

w) whether, and if so how, any risks could be managed effectively in the community, including the use of any lawful conditions or recall powers;

x) any recommendations to the tribunal, with reasons.”

 

23.             The Practice Direction also set outs at paragraph 10 that:

 

“The authors of reports should have personally met and be familiar with the patient. If an existing report becomes out-of-date, or if the status or the circumstances of the patient change after the reports have been written but before the tribunal hearing takes place (e.g. if a patient is discharged, or is recalled), the author of the report should then send to the tribunal an addendum addressing the up-to-date situation and, where necessary, the new applicable statutory criteria.”

 

The reports before the tribunal 

24.             In addition to the responsible authority’s “Statement of Information about the Patient”, the tribunal had six reports before it.  It had two reports from the appellant’s responsible clinician. The first was dated 21 October 2013, the second (essentially an up-dating report after the registrar’s direction of 8 January 2014) was dated 20 January 2014.  The tribunal also had two nursing reports before it. The first was dated 14 October 2013, the second (again essentially an updating report, though here before the registrar’s direction) was dated 7 January 2014.  These two reports had been written by the same nurse. In addition, the tribunal also had two social circumstances reports. The first was dated 14 October 2013, the second 2 January 2014. Both were written by the same staff nurse who had written the two nursing reports.

 

 

25.              I make two comments on these reports at this stage.

 

(i)                First, the responsible clinician reports and nursing reports provided a rational evidential basis for the tribunal’s substantive decision that the appellant was not to be discharged from liability to be detained, and as I have already said no argument is directed against this decision.

 

(ii)             Second, absent the appellant’s argument about the identity of the authorship of the social circumstances reports, it is difficult to identify the basis on which it is argued that the social circumstances report was materially inadequate, especially in the context of the tribunal’s unchallenged substantive decision.

 

The arguments

 

Respondent  

26.             The respondent provided details of the procedures it had in place at the time of the appellant’s application to the First-tier Tribunal and the tribunal’s decision. This procedure Management of through-care patients by the Nottinghamshire Low Secure and Community Forensic Service applied to all patients who normally resided within the Nottinghamshire Low Secure and Community Directorate boundary but who were detained in secure hospital settings. These hospital settings could be outside the “Directorate’s” boundary.  Where the appellant was detained was, however, within that boundary. In the past the Nottingham Community Forensic Team (the “Forensic Team”) had provided social circumstances reports for patients where the respondent was not the responsible authority and had travelled to tribunals outside Nottinghamshire. This placed pressure on the resources of the Forensic Team and so both practices ceased.

 

 

27.              The respondent argued that the duty to provide reports to the First-tier Tribunal vested with the managers of an NHS hospital, or the registered owner of an independent hospital, within which a patient was detained. It relied on rules 1(3) and 32(6) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the “TPR”), section 145 of the MHA and paragraph 30.2 of the Code of Practice in this regard. It was thus the hospital in which the appellant was detained’s responsibility to provide the social circumstances report and not the Forensic Team.  Apparently this distinction and change in practice had proved problematic in the past and had led to the First-tier Tribunal directing the Forensic Team to provide social circumstances reports.

 

28.             The respondent said that if a patient was to return to the Nottinghamshire area, the Forensic Team was fully aware of its aftercare duties under section 117 of the MHA. To that end, and here referring to paragraph 27.9 of the Code of Practice (set out in paragraph 21 above), the respondent said that to assist the First-tier Tribunal the Forensic Team were able to provide a “facilities report” outlining the information about (a) the opportunities for employment and housing facilities available to the patient, and (b) what (if any) community support is or would be made available to the patient and its effectiveness, if the patient was discharged from hospital[1], where the patient was 4-6 months pre-discharge stage.  

 

29.             On the specific arguments made by the appellant, the respondent argued, first, that nothing in either paragraphs 10 or 14 of the Practice Direction or paragraph 32.20 of the Code of Practice required as matter of law that the social circumstances report must not be prepared by an in-patient nurse or the same nurse who had written the nursing report.  A nurse could adequately provide the information needed in the social circumstances report[2].  If the tribunal had felt that further information was needed in this case it could have done so either by questioning the nurse who was present or adjourning for further information to be provided.

 

30.             In relation to the nurse who had written that report not being present at the hearing, the respondent’s relied on paragraph 32.15 of the Code of Practice as showing that there was flexibility and no absolute requirement for the report’s author to attend the hearing.  Here the tribunal had recorded that the nurse who did attend the hearing had worked with the appellant since May 2012 and in that context there was no error of law in the tribunal allowing that nurse to attend and speak to the social circumstances report.

 

31.              As to any alleged inadequacy in the social circumstances report, the respondent’s surmised, I think correctly, that the gist of the complaint was the social circumstances report did not contain information about the section 117 after-care package (i.e. here the “facilities report”).  It argued, referring to paragraph 27.9 of the Code of Practice, that this was not necessary as in the view of the writers of all the reports the appellant was not at the 4-6 months stage of being pre-discharge. Furthermore, the lack of the after-care package information did not prevent the appellant from having a fair hearing or affect the tribunal’s ability to deal with his case fairly and justly (per AM) given its view that on the facts his case had not yet progressed to a stage where the issue of after-care arose.  Had the tribunal been minded to discharge the appellant it could have adjourned to seek information on aftercare arrangements or deferred the discharge until such arrangements had been put in place: per R(H) –v- Ashworth Hospital Authority [2002] EWCA Civ 923; [2003] 1 WLR 127 at para. [68] and R(B) –v- MHRT [2003] EWHC 815 (Admin).

 

32.             The lack of s.117 after-care information in the social circumstances report was not therefore unlawful as there was not strong possibility of the appellant being discharged. Further, the reasons given by the tribunal for not adjourning were, in this context, adequate.

 

33.             The respondent’s written submissions ended by explaining that the appellant’s hospital had recently appointed social workers and all social circumstances reports would now be prepared by one of them or a social worker from Nottingham City Council. That of course cannot affect what occurred before the tribunal.  This information was clarified by the respondent on 23 January 2015. All patients in the appellant’s hospital who are within 6 months of planned discharge will have social circumstances reports prepared by the Forensic Team. This team includes social workers and community nurses. All other patients will receive such reports from either an in-patient social worker or nurse, with the former dealing with more complex cases. Then imminent further changes were seemingly to result in all patients having such reports prepared by social workers and not nurses.

 

Appellant

34.             The solicitors for the appellant in their submissions in reply of 2 December 2014 have not really engaged directly with the respondent’s arguments.  They assert that having a blanket policy for ward nurses to prepare the social circumstances report will lead to inadequate reports being prepared as the ward nurse will not have access to all relevant information, and STJ Callcott had said that the report did not provide the information needed for the hearing.  The appellant’s solicitors argued (as the respondent’s had surmised) that the deficit in the social circumstances report was its lack of information on “What (if any) community support is or will be made available to the patient and its effectiveness, if the patient is discharged from hospital”[3]. They emphasised, accurately, that the Management of through-care patients by the Nottinghamshire Low Secure and Community Forensic Service document did not identify ward nurses as being concerned with maintaining contact with patients under that document.

 

35.              They further argued that the 4-6 months pre-discharge timetable for providing the facilities report (which would contain section 117 after-care information) was determined by the responsible authority and not the First-tier Tribunal and without any consideration to the powers of the First-tier Tribunal to order immediate discharge.  Moreover, it was a “known common practice that reports for Tribunals are prepared by three different people”, with social circumstances reports being prepared by social workers or CPNs. This, it was asserted, was the current practice across the United Kingdom.

 

36.             For these reasons, the above arrangements for providing the social circumstances reports did have a significant adverse effect on the appellant’s hearing before the tribunal.  Paragraph 32.20 of the Code of Practice could not be interpreted literally. For example, an occupational therapist who knew the patient well could not prepare the in-patient nursing report.  Social workers or CPNs therefore should be preparing the social circumstances report.

 

37.              Neither party sought an oral hearing of this appeal. One is not needed.

 

Discussion and Conclusions

 

38.             In my judgment the legal arguments of the respondent are correct.  There is nothing in the law that requires the social circumstances report to have been written by a social worker or CPN and not a nurse, or requiring that the nursing report and social circumstances reports must have different authors, and the tribunal therefore did not err in law in having those two reports before it. Nor was there any legal requirement on the report’s author to attend the hearing and so the tribunal did not err in law in allowing another nurse to attend and speak to that report. Further, the question of whether any deficits in the report (assuming there were such) led the tribunal to err in law must be judged on the facts of the individual case.  In a case where the tribunal decided that the appellant had not got to the point of being able to be discharged and needed to remain under section, the relevance of any after-care package in place simply falls away.  And the tribunal adequately explained why it was not adjourning.

 

39.             A difficulty with the arguments presented on this appeal, especially by the appellant, is the failure to tie them to the tribunal’s substantive decision on the appeal. A decision not to adjourn a hearing may technically constitute a decision which itself is capable of appeal to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 (the “TCEA”), it not being an excluded decision under section 11(5) of the TCEA.  However, entertaining such interlocutory appeals in isolation is not to be encouraged because, as is the case here, it is usually better to wait until the substantive appeal has been decided to determine whether the interlocutory decision had any material bearing on the lawfulness of the substantive decision arrived at by the First-tier Tribunal on the appeal: see Dorset Healthcare NHS Foundation Trust –v- MH [2009] UKUT 4 (AAC) at [19] and LS –v- LB Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27 at [94].

 

40.             The Upper Tribunal in exercising this appellate function is not like to the High Court conducting a judicial review. Most relevantly, the Upper Tribunal has no power to quash unlawful guidance or procedures operated by public authorities (here the NHS Trust) or give a declaration as to what the law requires or whether a procedure is lawful. At times, however, the appellant’s solicitor’s submissions read as if what was being sought was such declaratory relief. For example their submission in reply concluded by submitting that “the Through Care-policy by Nottinghamshire and the Practise of the same is unlawful; unfair; it is against the common practice; it is against the spirit and letter of the law and it prejudice our client’s case before the First-tier Tribunal” and by asking whether it is “proper and lawful practice….for a named nurse based on the ward [to prepare] both Inpatient Nursing report and Social Circumstances report”.  

 

41.              The statutory appellate function conferred by sections 11 and 12 of TCEA is limited to determining whether the First-tier Tribunal erred in law in the decision it came to and then, in terms of remedies, whether to set aside the decision and remake it or remit it to be redecided by the First-tier Tribunal.  In the context of this case and the materiality of any errors of law, the focus must be on the substantive decision the tribunal came to on 3 February 2014, it making no sense to set aside and re-decide the issue of adjournment if the substantive decision is to remain effective.  The adjournment decision cannot be viewed or considered in isolation to the substantive decision as the lawfulness of the adjournment decision can only properly be considered in the context of the decision then arrived at because the tribunal refused to adjourn.

42.             What that error of law exercise then comes down to is this: did any deficits in the social circumstances report have any material bearing on the tribunal’s substantive decision (which itself is not challenged)? In my clear view, the answer is no. This is because, even assuming that the nurse was not the correct person to prepare the report and further assuming that the lack of s.117 after-care information in the report was because of it having been written by the wrong professional, it is plain from the tribunal’s reasoning on the substantive issue (reasoning which, as I have said, was rationally based on the other reports before it), that after-care was never realistically in issue.  The alleged deficits in the social circumstances reports therefore had no material bearing on the tribunal’s substantive decision, and so did not lead the tribunal to err materially in law. To this extent my decision has at root the same approach as Judge Jacobs took in AM, which I discuss further below.

 

43.             Given this conclusion on the issue that my appellate jurisdiction does enable me to rule on, I am cautious about the utility of my seeking to say anything on the lawfulness of the social circumstances reports more generally, especially where the respondent’s procedure has changed since the date of the tribunal’s decision and to one which more closely mirrors the UK wide practice which the appellant relies on as being lawful. I am also mindful that neither party directed themselves to the correct Practice Direction. 

44.             However given the points have been subject to some argument, I will make the following observations on the points as argued.

45.              Firstly, as far as I can see there is nothing in the MHA, Code of Practice, Practice Direction or the TPR which as a matter of law requires that the social circumstances be prepared by a social worker or CPN and not a nurse, or that that report writer must be a different person to the person who prepares the nursing report.  The important issue is not the professional title of the report writer but the relevance and quality of the information provided in the report and thus the report writer’s position of knowledge in respect of that information.

 

46.             I can well see that a ward nurse concerned mainly with the day-to-day care of patients and management of the hospital ward may not in fact have the time, or the knowledge base, to compile a social circumstances report, especially the parts of it dealing with s.117 after-care. It may be said that the social circumstances reports in this case are a good example of this[4].  However, that may not always be so: a nurse in hospital may be able to write a competent social circumstances report given the correct information if he or she has “the best overall knowledge of the patient’s situation”: per paragraph 32.20 of the Code of Practice.

 

47.              The above in a sense is the same point as made by the appellant’s solicitors about an occupational therapist not preparing the nursing report. Part of the answer to that argument, however, lies in the titles of the respective reports required by the Practice Direction. It is the “Responsible Clinician’s Report” and not that of not anyone else. Likewise, it may be argued that the “In-Patient Nursing Report” by its title requires the reports to come from a nurse. On the other hand, the title “Social Circumstances Report” arguably does not identify the report by its author but rather its contents (i.e. the “Circumstances”). 

 

48.             There is therefore, as far as I can see, no proper basis for the claim that a social circumstances report will be unlawful simply because it has been authored by a nurse. There is equally no basis for the argument that by law the same person cannot prepare that report and the in-patient nursing report. Save for the titles given to the reports, the only rule or guidance governing their authorship is that in paragraph 32.20 of the Code of Practice, which does not require the report authors to be different people.  I also in this context fail to follow why fairness and justice compel an otherwise competent social circumstances report to be treated as unlawful simply because it has been written by the same person who has written the nursing report.  What fairness and justice requires is that the First-tier Tribunal has before it all relevant evidence, including where appropriate evidence as to section 117 after-care. The source of that evidence may call into question its quality and relevance, but that has to be determined on a case by case basis.  I can identify nothing in what I have termed the legal architecture that explicitly or implicitly requires the three main reports to each have been written by a different author.

 

49.             Second, I can find nothing in the MHA, Code of Practice, Practice Direction or TPR dictating that the report writer, and that person alone, must attend the First-tier Tribunal hearing to speak to their report, and thus conclude it was not unlawful for a different person to attend before this tribunal. The validity of this ground of appeal must stand apart from the first ground. That is, to test it it must be assumed that a nurse can write the social circumstances report.  However, the argument fails because it comes flat up against the express recognition in the Code of Practice at paragraph 32.15 that a report writer may not be able to attend the hearing.  That was the case here (for whatever reason Nurse Fitzgerald being unable to attend), Nurse Hunt attended as a replacement, and on the face of it the tribunal was satisfied that Nurse Hunt (per para. 32.15 of the Code of Practice) had a good knowledge of the appellant’s case (and it has nowhere been suggested he did not). 

 

50.             Third, it is not clear to me that the MHA, Code of Practice, Practice Direction or TPR as a matter of law require the social circumstances report to include details about section 117 after-care in every case.  I say this because it is arguable that the terms of paragraph 14i) in the Practice Direction only require that the report includes details of the care pathway and section 117 after-care to be made available, so far as is known, and that may therefore absolve the report from including such information if it is not known, for example where no section 117 after-care “is to be made available” because the views of all those treating the patient is that he is not close to being able to be discharged. This reading of the scheme is perhaps given support by the wording in paragraph 27.9 of the Code of Practice emphasising the particular need to consider putting practical preparations in hand for after care “where there is a strong possibility that the patient will be discharged if appropriate after-care can be arranged”.

51.               Some of the above points, or at least variants of them, were considered by Judge Jacobs in AM in the context of arguments which are somewhat similar to the appellant’s solicitor’s argument here about the 4-6 month pre-discharge timeframe for the provision of the (s.117 after-care compliant) “facilities report” being determined by the responsible authority and not the First-tier Tribunal.  Ignoring AM for the moment, this arguably is an argument of little force. It is true that the provision of all the reports considered in this decision vests with the responsible  authority: see rule 32(6) of the TPR which requires the responsible authority to send to the First-tier Tribunal “…documents required by the relevant practice direction”.  (I will leave to one side whether, per paragraph 50 above, the social circumstances report required must include section 117 after-care information.)  However, that is the structure of the scheme.

 

52.              What the appellant’s argument leaves out of account is that rule 7 of the TPR enables the First-tier Tribunal to control the information provided to it by the responsible authority and rectify defects within it.  Thus under rule 7(2)(b) of the TPR  if a responsible authority fails to comply with a requirement in a practice direction, and if the First-tier Tribunal considers this failure is constituted in the social circumstances report not containing any relevant section 117 after-care information, and further if the First-tier Tribunal considers that it needs that information to deal with the application before it fairly and justly (per the overriding objective in rule 2 of the TPR), then it can require the responsible authority to remedy the failure[5]. That power was open to the First-tier Tribunal on the appellant’s application, which it could have exercised had it considered the section 117 after-care information was likely to be material to its substantive decision, but it did consider that to be the case.

 

 

53.              Reverting then to AM, the first question raised there was whether the question of the patient being managed in the community ought to have been explored further, and an adjournment granted, by the First-tier Tribunal in a context where the section 117 after-care information in the social circumstances report was deficient but where it was clear to the First-tier Tribunal that the patient could not be managed in the community. It was argued for the patient in AM that the answer to this question was “Yes” because detention was a course of last resort and must not be assumed to be lawful, and the patient was entitled to sufficient information about after-care to show whether or not detention was necessary.  Judge Jacobs broadly accepted the arguments for AM but said (paragraph [16]):

 

“Where I differ is in taking account of the practicalities of Mr M’s case. The witnesses for the detaining authority are familiar in general terms with the sort of aftercare that may be available and how effective it may be, and they know the patient. The panel hearing a mental health case is an expert one. It is entitled to use its own knowledge and expertise. Indeed, it is required to do so. It will form its own opinion of the patient and what is feasible for that patient. The tribunal’s decision, including its approach to adjournments for further information, should be informed by its knowledge, expertise and assessment of the possibilities. In that context, I do not accept that it is essential for the tribunal to have specific information about aftercare in every case. It is an individual judgment to be made in the circumstances of the particular case.”

 

54.              The second question raised in AM was whether the extent to which aftercare had to be planned could depend on how realistic it was that the patient might be released. It was argued for the patient, as here for the appellant, that it was dangerous to allow one party to decide what information should be put before the tribunal as this could impact on the hearing being fair. Judge Jacobs recognised the risk in relying on a party who takes an opposing view to filter the information available to  the tribunal. However, the crucial question was what does a fair hearing require? Judge Jacobs said, much I think like I have said, that such a question was fact sensitive and depended on the facts of the individual case. On the facts of that case, and using the First-tier Tribunal’s expertise, there was no need for it to insist on strict compliance with the Practice Direction (on section 117 after-care), and such would only have led to unnecessary delay (contrary to the overriding objective), because “Mr M had not yet progressed to the point where the issue of aftercare that was actually available would arise”.

55.              Subject to the caveat about whether the current Practice Direction requires section 117 after-care information to be provided in the social circumstances report in every case, I agree with all of what Judge Jacobs said in AM.  It accords with my own analysis. 

 

56.              I turn back then, briefly, to consider the appellant’s arguments, insofar as they have not already been addressed.  It is said the respondent’s then blanket policy of having only ward nurses write the social circumstances reports will lead to inadequate results.  That may or may not be so, though the argument here leaves out of account the “facilities report” that can be made available to the First-tier Tribunal. However, in terms of the First-tier Tribunal dealing with applications, the adequacy of any individual report must stand to be determined on the facts of the individual case in which it arises, and in this case, for the reasons I have already given, any inadequacy in the report did not lead the tribunal to materially err in law. It is further said that the argument here is supported by Judge Callcott’s view that the report did not provide the information needed. Subject to what I have said in paragraph 50 above, that may be true in a vacuum or in theory. But what is needed by way of evidence on an individual application must depend on the facts of the individual case and cannot be answered properly without consideration of those facts. 

 

57.              This last point also addresses the argument made by the appellant’s solicitors, and to an extent echoed by STJ Briggs when she gave permission to appeal, about the UK wide practice of the three relevant reports each being written by a different person. It may well be sensible for this to occur and not so doing may mean that social circumstances reports written by the same nurse who has written the in-patient nursing report will be inadequate, however I can find nothing in the legal architecture which even impliedly requires that as a matter of law  the three reports must be written by three different people. 

 

58.             I also do not see any tension, as Judge Briggs thought there may have been, between the tribunal relying on paragraph 32.20 of the Code of Practice and AM.  It seems to me that the paragraph 32.20 reference has to be read in the context of the argument made to the tribunal that it was unlawful simpliciter for the report to have been written by a nurse.  The AM reference then deals with the content of the social circumstances report, as opposed to its authorship, and shows the tribunal was mindful of the need to have s.117 after-care evidence before it if it was relevant.

 

Wider considerations

59.              I recognise that if a policy or procedure of a responsible authority or NHS Trust has the effect that it is consistently unable to meet its obligations to provide relevant and complete social circumstances reports to the First-tier Tribunal such that the latter cannot discharge its statutory functions fairly and justly, then this may have consequences in terms of patients’ rights under Articles 5(4) and 6(1) of the European Convention on Human Rights as incorporated in the United Kingdom under the Human Rights Act 1998 (“the HRA”). The First-tier Tribunal is a “public authority” for the purposes of section 6(1) of the HRA and would have the powers in rule 7 of the TPR available to it to seek to effect redress in such a situation on individual cases. Beyond this, however, it seems to me that any challenge to the lawfulness of such a policy or procedure would have to be brought in the High Court by way of judicial review, the jurisdiction of the Upper Tribunal in its appellate jurisdiction being limited to deciding whether the First-tier Tribal committed a material error of law in coming to its decision on an individual case.

 

 

Conclusion

60.             The issue I have to decide is whether the tribunal erred materially in law in not adjourning to seek a social circumstances report which was written by a social worker or CPN and which contained relevant section 117 after-care information. In my judgment, on the facts of this case, the tribunal did not materially err in law in not adjourning.  Detailed after-care information was not needed where the tribunal had fairly and rationally concluded that the appellant had not reached the point where he could be discharged.

 

 

 Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

Dated 27^th April 2015