AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73

The tribunal twice refused to adjourn in circumstances where there was relatively little in the social circumstances report about aftercare on discharge, the author of the report did not attend the hearing, and the social worker who did attend could not provide any further relevant information. The Upper Tribunal decided that this 'did not affect the tribunal’s ability to give Mr M a fair hearing and to deal with his case fairly and justly' and that the patient 'had not yet progressed to the point where the issue of aftercare that was actually available would arise'. The Court of Appeal refused permission to appeal.

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AM v West London MH NHS Trust [2013] EWCA Civ 1010, [2013] MHLO 73

Transcript

Case No: C3/2013/0356

Neutral Citation Number: [2013] EWCA Civ 1010Not on Bailii

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday, 10 July 2013

B e f o r e:

LORD JUSTICE RICHARDS

Between:

[M]

Applicant

v

WEST LONDON MENTAL HEALTH NHS TRUST

Respondent

(DAR Transcript of

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Mr Roger Pezzani (instructed by Creighton & Partners) appeared on behalf of the Applicant

The Respondent did not appear and was not represented

J U D G M E N T

(As approved by the Court)

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Lord Justice Richards:

1. In January 1998, following his conviction of indecent assault on a young girl, M was made the subject of a hospital order with a restriction order under the Mental Health Act 1983. In April 2011 the Secretary of State referred his case to the First‑tier Tribunal which, in a decision dated 24 July 2011, refused M's application to be discharged. That decision was upheld on appeal by the Upper Tribunal. Permission for a further appeal to this court was refused on the papers by Sir Stanley Burnton. The application is now renewed before me.

2. Before the First‑tier Tribunal it was argued by Ms Shah, the solicitor then appearing for M, that the Tribunal should direct a conditional discharge. As part of that case it was said to be necessary to investigate the alternatives to detention. There was relatively little in the social circumstances report about aftercare on discharge. The author of the report did not attend the hearing. The social worker who did attend could not provide any further relevant information. Ms Shah applied twice for an adjournment so that this information could be provided, but the Tribunal refused the applications. The issue is whether the Tribunal thereby fell into legal error.

3. The substantive findings of the First‑tier Tribunal are summarised at paragraphs 4‑5 of the Upper Tribunal's determination:

“4. The tribunal decided that Mr M should not be discharged and refused to adjourn for the information sought by Ms Shah. In summary, the tribunal found these facts. Mr M's history of mental illness dates back to 1989. He has a diagnosis of paranoid schizophrenia, but he does not accept that he is mentally ill or that he needs medication. Consequently, he does not understand why he is detained and does not engage in therapeutic work; he attends courses, but sits passively without participating. His attitude to medication prevents his responsible clinician administering the preferred medication. He claims that Allah authorised his contact with young girls and provided them for him, but that he no longer has libido. He believes that everyone is attracted to young girls. He has claimed that the girl he assaulted was attracted to him. He believes that his father and the nursing staff practice black magic on him and contaminate his food. His thoughts are delusional, not cultural.

5. On these facts, the tribunal came to these conclusions on the criteria for continuing detention under the Mental Health Act. Disorder – he has paranoid schizophrenia. Protection – if he were discharged, he would cease his medication and present a risk to others and, through self-harm, to himself. Treatment – there is treatment available, but this cannot be effective until he has gained some insight into his condition and, with it, some co-operation.”

1. Paragraph 6 records that the First‑tier Tribunal refused an adjournment "as it was unnecessary in the light of our decision that the patient should remain detained".

4. Mr Pezzani, who appears for M before this court as he did before the Upper Tribunal, points out that the power to impose conditions on discharge can affect the question of whether continued detention is justified, and that conditions are closely linked with aftercare. He submits that evidence about aftercare is therefore essential if the Tribunal is to make a properly informed decision. Such information can only be given by the authorities who would be responsible for providing aftercare: the patient and his advisers are dependent on the information that is provided by such authorities. There are in consequence mandatory requirements for aftercare information to be provided to the Tribunal. Mr Pezzani refers to provisions of the Tribunal Procedure Rules and Practice Direction, and also to the Secretary of State's Code of Practice under the 1983 Act. In the present case, such information was not available. It is submitted that its availability was necessary in order for the Tribunal properly and lawfully to decide whether M should remain detained. Accordingly, the Tribunal was wrong to refuse the adjournment request. Such refusal also had an adverse effect on the fairness of the proceedings ‑ it was in breach of the overriding objective and in breach of Article 6 ECHR.

5. In the Upper Tribunal, Upper Tribunal Judge Jacobs accepted, in my view rightly, much of the generality of Mr Pezzani's arguments, but he differed in relation to the particular facts and practicalities of M's case. He pointed out that the First‑tier Tribunal was the expert Tribunal and he did not accept that it had to have specific information about aftercare in every case; he said that it was an individual judgment to be made in the circumstances of the particular case. He raised the question whether an arrangement for aftercare could possibly work so as to manage someone like M, who had no insight into his condition and represented a danger to himself and others. He said that given the First‑tier Tribunal's findings as to M's condition and attitude, no Tribunal could properly have answered that question in M's favour without some specific evidence. The best way of providing such evidence would be through the experience of unescorted leave, but the Tribunal found that unescorted leave would not be possible until M showed some insight. In forming that conclusion the Tribunal relied on the expertise of its members. Judge Jacobs said that the Tribunal could be flexible in its approach by not insisting on compliance with the rules and Practice Direction, and that it avoided delay by refusing an adjournment, but without compromising a proper consideration of the issues that were determinative of the case. It thereby dealt with the case fairly and justly. He rejected an argument that the Tribunal's reason for refusing the adjournment assumed what it had to decide. He summarised his conclusions as follows:

“29. The social work evidence before the tribunal may have been incomplete, even inadequate, but that did not affect the tribunal's ability to give Mr M a fair hearing and to deal with his case fairly and justly. On the tribunal's findings, Mr M had not yet progressed to the point where the issue of aftercare that was actually available would arise. Without some acceptance or insight, Mr M could not progress to the point where his management in the community could even be tested by unescorted leave, let alone where he could be conditionally discharged.”

6. Sir Stanley Burnton adopted similar reasoning in refusing permission to appeal on the papers. He said:

"The decisions of the First‑tier Tribunal and the Upper Tribunal were inevitable given the medical evidence as to the applicant's illness and the applicant's lack of understanding and non‑engagement with treatment. On the facts of this case, evidence as to after-care in the community could not have affected the decisions of the Tribunals. An appeal would not have a real prospect of success.

Furthermore, this case turned on its particular facts. An appeal would not raise any important point of principle or practice, and there was no other compelling reason for an appeal to be heard."

7. In his written submissions, Mr Pezzani has submitted that the decision of the Upper Tribunal Judge and of Sir Stanley Burnton both beg the relevant question by assuming that evidence about aftercare would or could have made no difference to the merits of M's case for liberty without knowing what that evidence would have been and how it might have been deployed. He says that the mandatory requirements of the rules and Practice Direction are there for a reason. They give a detained person the chance to argue that other less restrictive means would suffice to provide him with treatment and manage the risk. If information about such aftercare is not given to the patient or the Tribunal, then that important means of arguing for his liberty is denied to him. As Mr Pezzani has put it this morning, the case is about doing things in the right order so as to give a patient who is deprived of his liberty a fair hearing. It is submitted that the refusal to adjourn was unfair because it meant that the applicant did not have material with which to argue that his detention was disproportionate. He further submits by reference to R(H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 that the decision not to adjourn to enable aftercare information to be provided meant that the Tribunal was unable to make a lawful decision as to discharge.

8. For my part, I acknowledge that aftercare information should be provided in accordance with the provisions to which Mr Pezzani has referred, and that he has put forward very good reasons why it should be provided so as to enable the patient to make full submissions and to enable the Tribunal to make a properly informed decision on discharge.

9. I also recognise the need for great caution before reaching a conclusion that information about aftercare could make no difference and is therefore unnecessary, given the importance attached to its provision, the fact that a patient depends on the authorities for its provision and also the need to ensure procedural fairness. But it seems to me, as it did to the Upper Tribunal Judge and evidently to Sir Stanley Burnton, that it must, as a matter of principle, be open to a Tribunal to conclude in the circumstances of a particular case that information or better information of aftercare is incapable of affecting the decision, and that an adjournment to secure its provision could achieve nothing beyond additional expense and delay and would therefore be inappropriate. The question to my mind is whether this is such a case. Both the Upper Tribunal Judge and Sir Stanley Burnton concluded that it was. I reject the contention that in so concluding they made an assumption that information about aftercare would have made no difference. Their conclusion was based not on any assumption, but on the particular findings made by the First‑tier Tribunal about M's condition and his insight, or lack of insight, into his condition, and the resulting conclusion of the First‑tier Tribunal that an adjournment was unnecessary. On their findings as to M's condition and mental state, it was, in my judgment, properly open to the First‑tier Tribunal to conclude that there was no possibility of discharge at that stage, whatever information about aftercare might be provided. That, as it seems to me, is the basis on which the Tribunal dealt with the question of adjournment, concluding for those reasons that an adjournment was not necessary.

10. I do not think that that involved any error of law on the Tribunal's part. I do not accept that a refusal to adjourn in those circumstances gave rise to unfairness or deprived the applicant of the opportunity to advance an argument that was remotely capable of producing a different substantive outcome. Nor do I accept that the decision in the Ashworth Hospital case compels a different answer or makes it simply unlawful in any case to reach a decision without detailed after care information.

11. Thus, despite what I acknowledge to have been forceful submissions by Mr Pezzani, I share Sir Stanley Burnton's view that an appeal would have no real prospect of success.

12. I should add this. There is in a sense an issue of principle inherent in Mr Pezzani's submissions, and I see how he deploys that in support of the contention that the second appeal criteria could be satisfied in this case. But in considering the application of second appeal criteria, I think it also important to take into account that, as I am told, M had a further hearing last July. It is not known whether aftercare information was provided on that occasion, but there is no suggestion that it was not provided. The fact that there has been a fresh hearing in relation to which the criticisms advanced concerning the 2011 hearing are not advanced, and that things have moved on to that extent, seems to me to militate in any event against a second appeal.

13. Accordingly, even if I had thought that there was more to the matter raised by Mr Pezzani than I do, I would have been very hesitant about granting permission to appeal in the circumstances of this case.

14. For the reasons I have given, however, the application before me is refused.

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