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 Welsh tribunal dated 18 November 2014 did not involve the making of an error on a point of law.

Reasons for Decision

A.        The issue

1.         The issue that arises in this case is this: when will a patient who is living and receiving treatment outside hospital, remain liable to be detained in a hospital for treatment?

B.        The patient

2.         The patient has diagnoses of mild learning disability and hyperkinetic disorder, associated with seriously irresponsible conduct. He was born in 1975. He has been involved with mental health services for the last 20 years, half his life. At the time of the hearing before the Welsh tribunal, he was liable to be detained under section 3 of the Mental Health Act 1983, but was living away from hospital pursuant to leave under section 17. His history showed a cyclical pattern: he would improve and be given greater freedom, only to become resistant to the support he was receiving and want more independence. Picking up his history in January 2010, he was detained under section 3. He improved to the point where he was allowed leave under section 17. By August 2011, he was allowed to live outside the hospital and in April 2012 became subject to a community treatment order. Following deterioration, he was again detained under section 3 in January 2014, but was in due course allowed to live outside the hospital under section 17.

3.         By the time of his application to the tribunal, his clinical team considered that he was improving, despite daily abusive outbursts. He received 1:1 support in his accommodation, which is not a hospital. He was allowed both escorted and unescorted leave away from the premises. The latter had caused no problems, although he avoided potential conflicts with authority that can lead to confrontations. He received rehabilitation and care on the premises where he lived. He was required to attend hospital for fortnightly psychology sessions and the monthly ward round. This is but a bare outline of what was involved.

C.        The Welsh’s tribunal’s decision

4.         The patient applied to the tribunal on 19 September 2014 seeking for a discharge or, failing that, a recommendation for a community treatment order. He was prepared in any event to remain in his present accommodation until a suitable long-term placement could be found.

5.         The tribunal accepted that the patient had a mental disorder; this was not in issue. It is manifested by impulsive and aggressive outbursts, which it characterises as seriously irresponsible conduct.

6.         As to the nature of the disorder, the tribunal found that the professionals who care for him were able to prevent incidents escalating, but that they would become more serious without the structural boundaries and support provided by section 3. Without those clear and robust boundaries, he would be likely to disengage from the care process. If he were free in the community, he would relapse in the near future. Accordingly, his disorder was of a nature that it was appropriate for him to remain subject to section 3.

7.         The tribunal found that his impulsivity and aggressive response to being told what to do put him at serious risk of retaliation without support, as he did not understand the repercussions of his actions. He was highly vulnerable and at risk of exploitation, as he readily divulges personal information. He behaved inappropriately around females. Accordingly, he required to be liable to be detained for treatment for his own safety.

8.         The tribunal found that the current arrangements for accommodation, care and treatment involved a continuing responsive programme during which the need for treatment at hospital and on leave was constantly being reassessed. The element of treatment in hospital remains a significant part of the whole. It was not the time he spent at the hospital that mattered, so much as the extent to which his time there contributed to the decision-making of the clinical team.

9.         Finally, a recommendation for a community treatment order was not required, as this was the aim of the clinical team.

D.       The appeal to the Upper Tribunal

10.      The grounds of appeal, presented by the patient’s solicitor, are that the tribunal was wrong to find there was a significant element of treatment in hospital and it was wrong in the way it described the patient’s case, the submissions made on his behalf and the evidence on the issue of treatment in hospital. In simple terms, the argument was that almost all of the treatment that the patient received was being delivered in the community, so he no longer justified being subject to section 3. The president of the Welsh tribunal gave permission to appeal to the Upper Tribunal, saying that it would be valuable to have the views of this tribunal on the issue raised.

11.      Upper Tribunal Judge Mitchell gave detailed directions to the parties, who made their submissions, after which Judge Mitchell transferred the case to me. 

E.        The legislation

12.      These are the relevant provisions of the Mental Health Act 1983:

1 Application of Act: “mental disorder”

(1) The provisions of this Act shall have effect with respect to the reception, care and treatment of mentally disordered patients, the management of their property and other related matters.

(2) In this Act—

“mental disorder” means any disorder or disability of the mind; and

“mentally disordered” shall be construed accordingly;

and other expressions shall have the meanings assigned to them in section 145 below.

(2A)  But a person with learning disability shall not be considered by reason of that disability to be–

(a) suffering from mental disorder for the purposes of the provisions mentioned in subsection (2B) below; or

(b) requiring treatment in hospital for mental disorder for the purposes of sections 17E and 50 to 53 below,

unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.

(2B)  The provisions are–

(a) sections 3, 7, 17A, 20 and 20A below;

(b) sections 35 to 38, 45A, 47, 48 and 51 below; and

(c) section 72(1)(b) and (c) and (4) below.

…

(4) In subsection (2A) above, “learning disability” means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.

17 Leave of absence from hospitalE+W

(1) The responsible clinician may grant to any patient who is for the time being liable to be detained in a hospital under this Part of this Act leave to be absent from the hospital subject to such conditions (if any) as that clinician considers necessary in the interests of the patient or for the protection of other persons.

(2) Leave of absence may be granted to a patient under this section either indefinitely or on specified occasions or for any specified period; and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient.

72 Powers of tribunals

(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, the tribunal may in any case direct that the patient be discharged, and—

…

(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; …

145  Interpretation

(1) In this Act, unless the context otherwise requires-

…

‘medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below);

…

(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.

F.        Analysis

The issue

13.      The issue for the tribunal was whether it was appropriate for the patient to remain liable to be detained in hospital for medical treatment. It is not whether it was appropriate for the patient to remain detained in hospital for treatment. That is the way the legislation is drafted and it reflects the fact that the patient may not be living in hospital.

The caselaw

14.      There are three cases on the way that the legislation has to be applied in cases like this.

15.      R (Epsom & St Helier NHS Trust v Mental Health Review Tribunal [2001] MHLR 8 concerned a patient who had formed the belief that she could not swallow, leading to weight loss and dehydration. She was liable to be detained under section 3, but living on section 17 leave in a nursing home, where she received adequate nutrition and hydration through a feeding type. Her physical state was kept under monthly review as an out-patient. Her mental state was kept under review by a visiting psychiatrist. She refused any other treatment options. The tribunal directed her discharge and the detaining authority brought judicial review proceedings. Sullivan J dismissed the proceedings. His reasoning was this.

16.      First, a patient who was not receiving any in-patient treatment was not entitled to be discharged on that ground alone.

17.      Second, the whole course of treatment had to be considered, past, present and future.

18.      Third, the approach must recognise that treatment may be progressive in nature.

19.      Fourth, the case was analogous to an earlier one in which the patient was receiving medication in a hostel in order to avoid admission.

20.      Fifth, another earlier case could be distinguished on the grounds that, in that case, there was a significant, albeit reducing, element of in-patient treatment, an element of rehabilitation, and a gradual extension of leave. There was no suggestion of progress in the case before the court.

21.      Sixth, tribunals should look at the reality of the situation and not apply artificial cut-off points.

22.      R (DR) v Mersey Care NHS Trust [2002] MHLR 386 concerned a patient whose liability to be detained was renewed under section 20 on the basis that (i) she attended occupational therapy at hospital every Friday, (ii) she attended a ward round every Monday for monitoring and review, and (iii) she would receive her medication at home. She brought judicial review proceedings, which Wilson J dismissed. His reasoning was this.

23.      First, the language of the legislation should be applied. It was wrong to substitute a test of whether the claimant was receiving in-patient treatment. That language was merely justified by the evidence and circumstances of the cases in which it was used.

24.      Second, the question was ‘whether a significant component of the plan for the claimant was for treatment in hospital’ (at [30]).

25.      Third, medical treatment includes rehabilitation under medical supervision, so the proposed leave of absence was part of her treatment plan.

26.      Fourth, the hospital visits were a significant component of the plan. The attendance on Monday mornings was especially significant, as it was ‘the occasion for the attempted dialogue; for monitoring; for assessment and for review’ (at [30]).

27.      R (CS) v Mental Health Review Tribunal [2004] MHLR 355 concerned a patient with paranoid schizophrenia and a history of relapse and readmission to hospital. At the relevant time, she was attending hospital for a ward round every four weeks. She also received her medication by injection there rather than at home, by her choice. She brought judicial review proceedings, which Pitchford J dismissed. His reasoning was this.

28.      First, detention in hospital does not necessarily involve residence in hospital. What it means depends on the regime in force in the particular case.

29.      Second, the issue was whether the patient had a mental disorder the nature or degree of which made it appropriate for her to receive treatment ‘a significant and justified component of which was treatment in a hospital’ (at [39]).

30.      Third, treatment need not involve daily overnight stays in hospital.

31.      Fourth, the purpose of the ward round was to discuss progress, adjust medication, provide supportive and motivational interviewing, encourage engagement, and support compliance.

32.      Fifth, viewed as a whole there was a continuing responsive programme during which the need for treatment in hospital and on leave was being constantly reassessed.

The Code of Practice

33.      Leaving the caselaw, I note that the Code of Practice for Wales in force at the time said:

28.2 … Leave of absence is therefore an important part of a patient’s treatment plan.

The cases correctly state the law

34.      The three decisions I have set out are not, strictly speaking, binding on me, but I accept them as correctly stating the law. They are consistent with the language of the legislation and the guidance in the Code of Practice. The language of the legislation needs to be applied to the individual circumstances of a particular case and the judges have set out an approach that seeks to achieve that. It involves looking at each case and the patient’s treatment realistically, as a whole and as part of an ongoing process. Inevitably it involves an element of judgment by the tribunal and the Upper Tribunal should recognise and make appropriate allowance for the expertise of the members of the panel in deciding whether the tribunal made an error of law.

Dangers to avoid

35.      There are two dangers that tribunals must bear in mind in applying the approach set out in the cases. First, the tribunal must not reason by analogy from the facts of those cases. It must apply the principles established by the cases, but their application can only be undertaken by reference to the facts and circumstances of the case before the tribunal. Even small differences may justify, or even require, a different analysis. Second, it is not sufficient merely to repeat the language of the principles. The tribunal must, of course, make sufficient findings of fact to support, and provide an explanation that justifies, its conclusion.

Why the tribunal did not go wrong in law

36.      I am satisfied that the tribunal applied the correct test. It acknowledged that it was referred to the relevant cases. The patient’s solicitor says that is reasons show that it misunderstand the purpose for which they were cited. There is, indeed, a sentence that supports what he says. The tribunal said that the cases were cited on the issue whether the patient’s accommodation was a hospital. That was not correct. The cases have nothing to say about that.

37.      Despite this, the rest of the paragraph does not support the solicitor’s argument. Its language shows that the tribunal had in mind the elements of the judges’ reasoning that I have set out. It described the review meetings as forming a supportive process that aimed to effect the transition from hospital-based treatment to a community-based one. It described the element of treatment as a significant part of the whole. It recognised that the important factor was the contribution of the meetings to the decision-making that the clinical team would make on future treatment. The tribunal’s reasoning and language accurately reflect the way that the judges analysed the issues that arose for decision.

38.      Given that the tribunal asked itself the right questions, the issue then arises whether it applied the law properly. As I have said, the law as developed in the caselaw involves an element of judgment. To put it another way, it can be both possible and permissible for different panels to form different judgments on the same evidence. The Upper Tribunal must take that into account. In other words, there will only be an error of law if the tribunal was not entitled to form the judgment it did. The patient’s solicitor has argued that the tribunal was wrong in law to decide as it did. I do not accept that.

39.      The tribunal regarded the contribution of the ward round to the decision-making of the clinical team as particularly important. That tied in with the supportive and review nature of the oversight it provided in the case of a patient who was improving and moving closer to a community treatment order. Although the actual rehabilitation and care was delivered outside the hospital, the form that it took was under the ultimate control and supervision of the clinical team.  

40.      The tribunal might also have taken account of the definition of ‘medical treatment’. As Wilson J pointed out in DR, this includes rehabilitation under medical supervision. That means that the patient’s section 17 leave and the rehabilitation provided to him in his accommodation, both of which operated under medical supervision, were themselves part of his treatment plan. The Code of Practice makes the same point.

41.      I accept that the tribunal could have made more detailed findings and could have provided a fuller explanation of its reasoning, but that does not mean that its reasons were not adequate. The test the Upper Tribunal applies is adequacy, not perfection. I consider that the tribunal’s reasons are adequate to show that it applied the correct approach and came to a decision that was permissible on the evidence. That is why I have dismissed the appeal.

 

Signed on original on 16 July 2015

Edward Jacobs Upper Tribunal Judge