Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). That sheet is not formally part of the decision and identifies the patient by name.

This decision is given under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007:

Although the decision of the First-tier Tribunal under reference MM/2015/20028, dated 23 November 2015, involved the making of an error on a point of law, it is NOT SET ASIDE.

Reasons for Decision

A.        The patient and his representation

1.         The patient in this case is held in conditions of exclusion and restraint that are exceptional and perhaps unique. He occupies a ‘super seclusion suite’ consisting of a room with a partition that can divide it into two. No one is allowed to enter without the partition in place, except nursing staff wearing personal protective equipment in order to administer his depot injections. He is only allowed out of the suite in physical restraints that restrict his circulation and under escort by a number of members of staff. I decided that it would not justify the staff time and his discomfort for him to attend an oral hearing either in person or by video link, especially as the issues would be ones of law rather than fact.

2.         I directed an assessment of the patient’s capacity to continue to instruct his legal representatives. I accepted the responsible clinician’s assessment that he lacked the capacity and appointed Kate Luscombe of Abbotstone Law solicitors. She instructed Kerry Bretherton QC to appear for the patient at the oral hearing on 14 July 2016. Stuart Marchant of Bevan Brittan solicitors appeared for the Trust. The Secretary of State took no part, either in writing or at the hearing. I am grateful to the representatives for their written and oral arguments.

B.        The patient’s history

3.         The patient was born in 1961. He first came to the attention of the mental health authorities in 2002, when he walked to Downing Street to bless God in relation to tax. The last of a series of admissions was in December 2006; he was transferred to medium secure conditions in December 2008. He has been charged with three offences. Two occurred in July 2009. On the first occasion, he lost his temper after his credit ran out during a telephone call and punched his victim. On the next occasion, he attacked members of the care team when they were administering a depot injection. The third offence occurred in January 2011 when he attacked his victim while under escort from the shower room. He was found unfit to plead and made the court applied sections 5 and 5A of the Criminal Procedure (Insanity) Act 1964 to make orders under sections 37 and 41 of the Mental Health Act 1983. He denies being mentally ill and violently resists depot medication. This has led to injuries to staff, despite their protective equipment, and to the patient himself.

C.        The First-tier Tribunal

4.         The Secretary of State referred the patient’s case to the First-tier Tribunal on 28 July 2015. The hearing took place on 19 and 20 November 2015; the tribunal’s reasons are dated 23 November 2015.

5.         Disorder - The tribunal accepted the responsible clinician’s diagnosis of paranoid schizophrenia with delusions, disordered thought, paranoid beliefs, irritability, aggressive behaviour and total lack of insight. Ms Bretherton did not challenge this finding before me.

6.         Treatment - The tribunal found that the patient had available to him medication, psychological intervention, nursing, rehabilitation and occupational therapy. He received, but resisted, his medication. He refused occupational therapy and did not always engage with the psychologist. The purpose of the treatment was to reduce his symptoms, to alleviate or prevent a worsening or the disorder, its symptoms and its manifestations. His delusional beliefs had not reduced significantly, but they were less intense. However, he was warmer and calmer, he was less distressed than he had been, his mental state had improved subtly and it was possible to open his door and have a conversation.

7.         Protection – The evidence showed that he had no history of violence before being admitted to hospital. All of his aggression was now directed against hospital staff, but he had been violent towards others before he was secluded. He would not comply with his medication if discharged. The tribunal found he would be a risk to himself, as he would put himself in a position where retaliation was possible, and he had once been at risk of jumping onto railway lines. The tribunal further found that he would be a risk to others, as his violence is driven by his beliefs not by the administration of his medication. The tribunal rejected the argument that his violence was a reaction to the conditions of his detention.  

8.         What the tribunal did not do was to deal expressly with the human rights argument put by Ms Bretherton on the patient’s behalf.

9.         On 7 January 2016, the tribunal gave permission to appeal to the Upper Tribunal identifying as the issue:

to what extent should the circumstances of the patient’s detention, and any possible breach of the European Convention as a result thereof, have any bearing on the First-tier Tribunal’s exercise of considering sections 72 and 73? Following from that, if the Tribunal is satisfied that the circumstances of a patient’s detention are a breach of the European Convention on Human Rights, how should that be reflected in the decisions that the First-tier Tribunal can lawfully make?

D.       The Mental Health Act 1983

10.      Sections 72 and 73 contain the criteria for detention:

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; …

73 Power to discharge restricted patients

(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—

(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and

(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2) Where in the case of any such patient as is mentioned in subsection (1) above—

(a) paragraph (a) of that subsection applies; but

(b) paragraph (b) of that subsection does not apply,

the tribunal shall direct the conditional discharge of the patient.

11.      Section 145 defines ‘treatment’:

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.

E.        The arguments

12.      Ms Bretherton presented a detailed argument on Articles 5 and 8 of the European Convention on Human Rights. She argued that the tribunal had failed to deal with this argument, which she had raised both orally and in writing. Article 5 was engaged and the tribunal was required to apply the ‘least restrictive option’ approach. It should have taken account of the length and severity of the patient’s detention. Any improvement was so minimal that it should be disregarded. Having regard to the interpretative obligation in section 3 of the Human Rights Act 1998, the tribunal should have found that the treatment no longer had the necessary purpose under section 145(4). It should have found that his detention was not proportionate in a way that complied with Article 5.

13.      The argument focused on Article 5, although the same issues arose under Article 8, which concerned the limited contact with his mother that the patient was allowed at the time.

14.      Ms Bretherton also argued that the tribunal had made errors of law on the test for protection – whether it was necessary for the patient’s health or for the protection of others. The responsible clinician had disclaimed any argument that detention was justified by the patient’s risk to himself. The tribunal was not justified in finding otherwise:

·                insofar as the patient’s delusions were focused on Prince Charles, he was well protected;

·                insofar as the patient’s religious views might provoke retaliation, it would be arbitrary to detain him on account of the criminal behaviour of others;

·                the rail tracks incident was historic.

Although Ms Bretherton accepted that the patient would not comply with medication in the community, there was insufficient evidence to show that his condition would deteriorate. Nor was there evidence to show he was distressed by his delusional beliefs. His violence was triggered by his detention and compulsory treatment.

15.      In reply, Mr Marchant argued:

·                the tribunal had taken account of the patient’s Article 5 rights by systematically applying the statutory criteria;

·                the treatment of the patient was working, as the written and oral evidence showed;

·                there was evidence that the patient was distressed by his beliefs and the tribunal expressly rejected the argument that his violence was a response to his treatment and detention.

F.        The human rights materials

The Articles

16.      Article 5 reads:

Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(e) the lawful detention of persons … of unsound mind …; …

17.      Article 8 reads:

Right to respect of private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Human Rights Act 1998

18.      Section 6(1) of this Act requires the First-tier Tribunal and Upper Tribunal to ‘act in a way which is incompatible with a Convention right.’ Article 5 and 8 contain Convention rights. Section 3(1) imposes a duty on tribunals:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

The caselaw

19.      In St George’s Healthcare NHS Trust v S [1999] Fam 26, the Court of Appeal was concerned with an appeal against a decision that a mental patient give birth by Caesarean section without her consent. The Court said at 51 that the Mental Health Act 1983 required that the patient have a mental disorder:

‘The Act cannot be deployed to achieve the detention of an individual against her will merely because her thinking process is unusual, even apparently bizarre and irrational, and contrary to the views of the overwhelming majority of the community at large.’

20.      In Herczegfalvy v Austria (1992) 15 EHRR 437, the European Court of Human Rights was concern with Article 5(1)(e). The Court said at [63] that detention must be lawful and must not be arbitrary:

In order to comply with paragraph (1)(e), the detention in issue must first of all be ‘lawful’, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. It requires in addition, however, that any deprivation of liberty should be consistent with the purposes of Article 5, namely to protect individuals from arbitrariness.

21.      The Court made the same point in Witold Witwa v Poland (2000) 33 EHRR 53 at [72]-[73]. At [78], it explained arbitrariness in terms of proportionality and necessity judged in the circumstances of the individual case:

The Court reiterates that a necessary element of the ‘lawfulness’ of the detention within the meaning of Article 5(1)(e) is the absence of arbitrariness. The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is executed in conformity with national law but that it must also be necessary in the circumstances.

22.      The Court again considered Article 5(1)(e) in Stojanovski v The Former Yugos lav Republic of Macedonia [2009] ECHR 1615 at [27]-[37]. In particular, the Court said:

31. The Court has outlined three minimum conditions for the lawful detention of an individual on the basis of unsoundness of mind under Article 5 § 1 (e) of the Convention: he must reliably be shown to be of unsound mind, that is, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement must depend upon the persistence of such a disorder …

The Court expressed its conclusion in terms of proportionality:

36. In the circumstances, the Court is not persuaded that the domestic courts established that the applicant’s mental disorder was of a kind or degree warranting compulsory confinement, or that the validity of the confinement could be derived from the persistence of such a disorder. The applicant’s continued confinement was therefore manifestly disproportionate to his state of mind at that time.

23.      In R (N) v Mental Health Review Tribunal (Northern Region) [2006] QB 468, the Court of Appeal considered the standard of proof required to justify continued detention. It made the well-known point that the civil standard is flexible in that ‘the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities’: at [62]. And at [105]-[106], the Court emphasised that the conditions for detention under sections 72 and 73 are cumulative, so that the patient must be discharged if any of them is not satisfied.

24.      Finally, in R (B) v S [2016] 1 WLR 810, the Court of Appeal was again concerned with consent to treatment by a mental patient. At [36], the Court recorded that Charles J at first instance had given anxious scrutiny to the cogency of the evidence on the patient’s capacity. The Court explained the central importance of treatment:

43. The MHA is primarily concerned with compulsory detention of patients suffering from mental disorders in order that they may receive treatment for those disorders. The compulsory detention is justified because it is necessary in order to ensure that the patient receives the treatment. Ensuring that the patient receives the treatment is justified because this is necessary for the health or safety of the patient or for the protection of others.

Later, it explained that treatment had to be considered as part of the statutory package as a whole:

47. Thus the MHA provides an integral package of detention and treatment and imposes restrictions designed to ensure that individual treatment is justified. It is not logical to consider the latter question in isolation from the overall objective of the package. …

48. … The overall objective of detention of a dangerous patient ought to be that the patient should be rehabilitated and able to return to society. This of itself militates against an approach that ignores the overall objective of the MHA package. …

Finally, the Court emphasised that the test was not that of the patient’s best interests:

62. The express criteria in section 58(3)(b) [of the 1983 Act], namely ‘the likelihood of its alleviating or preventing a deterioration of his condition’ should not be equated with the test of whether treatment is in the best interests of the patient. …

PJ v A Local Health Board, the Welsh Ministers and the Department of Health [2015] UKUT 480 (AAC)

25.      This is a decision of Charles J. The Court of Appeal heard the appeal against that decision last month, but it has not yet handed down its judgment. The case concerns the relationship between Article 5 and the provisions of the Mental Health Act 1983 that govern community treatment orders. I have held in a number of decisions that Convention right issues do not arise within the limited mental health jurisdiction of the First-tier Tribunal. Charles J (at [103]) described my reasoning as ‘succinct and persuasive’, but set out in detail why he considered it was misconceived. Ms Bretherton told me that it was important for there to be decision on whether Charles J’s approach also applied to decisions made under sections 72 and 73. She asked me to produce my decision within seven days to allow her apply for permission to appeal to the Court of Appeal so that it could consider this issue. I agreed to provide my decision within a week.

G.       Analysis

The failure to give reasons

26.      Ms Bretherton is right that the First-tier Tribunal did not deal with her human rights argument. She put it to the tribunal and the tribunal should have dealt with it. It was not a series of incoherent or irrational ramblings. It was a reasoned argument by counsel that was entitled to respect and a statement of what the tribunal made of it. That did not have to take the form of a sustained analysis. But the tribunal should have made clear whether or not it accepted the argument – presumably it did not – and why – it could have done this briefly.

27.      That leaves the question of the significance of the tribunal’s failure. I have decided that this was an error that does not require a remedy. This is catered for by section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, which provides that, if the Upper Tribunal finds that the First-tier Tribunal’s decision involved the making of an error of law, it ‘may (but need not) set aside the decision’. I rely on the words in brackets, for the reasons I now explain.

PJ

28.      It would profit no one for me to analyse Charles J’s reasons for not agreeing with my reasons. I will content myself with these remarks.

29.      One point is that I seldom encounter an argument on Article 5 that could not equally have been put on the relevant provisions of the Mental Health Act 1983 using normal domestic principles of interpretation. Those provisions are structured around a proportionality analysis that favours the patient’s liberty unless all of the conditions that justify detention are met. I put it to Ms Bretherton that her argument could have been put just as well without any reference to Article 5 or to the human rights caselaw. She accepted that it could.

30.      A second point is that when I do encounter an argument that could not be put equally under the Mental Health Act 1983, there is a remedy elsewhere in the judicial system. In other words, this is a question of jurisdiction. The classic example is the argument that the patient was not detained lawfully at the outset. That issue can be dealt with; it is just that it cannot be dealt with by the First-tier Tribunal.

31.      The third point is, as the grant of permission in this case identified, that the tribunal does not always have the remedies available to implement appropriate decisions on an Article 5 argument. It has no power to award damages and it is constrained by the statutory duty to discharge unless the statutory criteria are met. I put to Ms Bretherton the classic example I have set out in the previous paragraph. Her response was that the tribunal had to consider the position at the time of the hearing. But why could that not be overcome by the interpretive obligation under section 3 of the Human Rights Act 1998?

32.      I rely on my first point in deciding that the outcome of this case would be the same whether I dealt with it under Ms Bretherton’s human rights analysis or under the normal interpretation and application of the Mental Health Act 1983. This is why.

The tribunal’s reasoning

33.      Disorder - There is no dispute that the patient has a mental disorder, its diagnosis or, for the most part, its features. The only area of dispute is whether his behaviour is (i) a manifestation of his disorder; (ii) a manifestation of his disorder that only arises because of the circumstances of his detention and treatment; (iii) not connected with his disorder, but just a reaction to his detention and treatment. The First-tier Tribunal decided that it was (i). It said so expressly. That raises the question whether it was entitled so to decide. The difficulty was to show how he would have behaved if he were not being detained or treated. He had no history of violence before being admitted to hospital, which is a factor to be taken into account in his favour. On the other hand, his attacks were not confined to times when treatment was being administered and nor had they been confined to attacks on staff when he had more liberty within the hospital. Taking that evidence as a whole, the tribunal was entitled to find that the patient’s behaviour was a feature of his condition, not of his detention and treatment. This result follows from the normal domestic approach to fact-finding, which accords respect to the tribunal’s findings so long as they are supported by the evidence and are not perverse. That approach is consistent with the Article 5 caselaw.

34.      Treatment – The tribunal found that appropriate treatment was available. The occupational therapy was only available in the sense that it was being offered but rejected. The psychological intervention depended on the patient’s cooperation that he was not always willing to give. The medication had not removed his delusions, but it had had the effects noted by the medical and nursing staff. The nurse who gave evidence had noted a subtle improvement when the dosage was increased. The responsible clinician gave evidence that in the past the patient’s mental state had deteriorated and he had become more agitated when his medication was reduced or changed from depot to oral. Taking that evidence as a whole, the tribunal was entitled to find that the treatment was having an effect. I do not accept that that effect can properly be characterised as de minimis. It is not unusual for patients with a diagnosis of sociopathy to progress slowly, if at all, even for long periods. The evidence of the patient’s behaviour that Ms Bretherton drew to my attention, including the reported attempt to bite a nurse during an adjournment, shows the limited nature of the improvement, but it cannot override the evidence of some improvement. Again, this result follows from normal domestic approach and is not affected by the Article 5 caselaw.

35.      I do not accept that, with evidence of response to changes in the form and dosage of his medication, the tribunal could properly have found that it was not being delivered for a purpose that complied with section 145(4). Despite Ms Bretherton’s argument, this does not require the application of the interpretive approach under section 3 of the Human Rights Act 1998. The issue is one of fact in the application of section 145(4). The evidence given by the clinical team is that the treatment is being given for the purpose of alleviating the disorder. The tribunal must either accept that evidence or reject it. The less benefit the treatment is having, the less likely it will be that the tribunal will accept the evidence. The solution that Ms Bretherton sought is thereby achieved at the stage of assessing the evidence with no need to impose an unnatural construction on section 145(4).

36.      Ms Bretherton was right to emphasise the importance of acting proportionally and not arbitrarily. It is important that tribunals guard against this risk, especially in cases where the benefit of treatment may be minimal or only visible on a long-term view. There is an approach that I have recommended before to avoid those risks. It is to identify precisely what form of treatment is available and what benefit it is having. Doing so ensures that the tribunal focuses on the issues and does not reason by reference to broad general statements. That is exactly what the responsible clinician and the nurse did in their evidence. The tribunal relied on that evidence and was entitled to do so.

37.      Protection – The tribunal found that detention was necessary for the protection of the patient and the public. Section 72(b)(ii) is framed in the alternative: either protection of the patient or protection of the public will suffice. I accept in general terms Ms Bretherton’s criticisms of the way the tribunal dealt with the patient’s own protection, although I suspect that it is based on an assumption that retaliation would only arise in response to the patient attempting to explain his religious beliefs. It is more likely that the response would arise from a physical attack and could well be defensive rather than criminal. But putting that aside, the tribunal was entitled to find that others would be at significant risk from violence. As I have said, there was evidence that the patient would not comply with medication if he were discharged, there was evidence of deterioration if medication stopped, and the tribunal found that his aggression was triggered by his delusions and not by the circumstances of his detention and treatment. There was evidence to support those findings and, once made, it followed that there would be a risk to others if the patient were discharged.

Conclusion

38.      In short, on the application of the statutory criteria, I accept Mr Marchant’s argument and reject Ms Bretherton’s. My analysis would have been the same had I applied the human rights approach presented by Ms Bretherton. Essentially, her argument failed because it was founded on an approach to the tribunal’s findings of fact that was not supported by the evidence.