Jonathan Wilson, 'Mental health: update' (Legal Action, February 2017)

Case law update Jonathan Wilson considers cases concerning the legal status of hospital managers’ hearing decisions, anonymity for mental health patients, the provision of reasons for recall to hospital, and the relevance of the European Convention on Human Rights to mental health tribunal decisions.

About the article

This article was first published in Legal Action magazine and is reproduced by kind permission. This article and subscription details are available on their website. The previous mental health article is: Jonathan Wilson, 'Mental health: update' (Legal Action, April 2016). The next mental health article is: Jonathan Wilson, 'Mental health: update' (Legal Action, February 2018). Some cases may have been appealed since the article was written. You should check the relevant Mental Health Law Online pages, as these normally contain details of any appeals.

Jonathan Wilson considers cases concerning the legal status of hospital managers’ hearing decisions, anonymity for mental health patients, the provision of reasons for recall to hospital, and the relevance of the European Convention on Human Rights to mental health tribunal decisions.

Judicial review of hospital managers

R (South Staffordshire and Shropshire Healthcare NHSFT and Dr Whitworth) v Hospital Managers of St George’s Hospital and AU (interested party)

In this case, the Administrative Court (Cranston J) considered a judicial review challenge made by an NHS foundation trust to a decision made at a hospital managers’ hearing to discharge the patient, AU.

Background

The patient was originally detained under Mental Health Act (MHA) 1983 s37/41 (via Criminal Procedure (Insanity) Act 1964 s5) having been found unfit to plead in relation to an assault on his father with a knife. When he was later found fit to plead, the Crown Prosecution Service offered no evidence and his continued detention was authorised under MHA 1983 s3.

Just over a week later his mother, as nearest relative, requested discharge under MHA 1983 s23, and his responsible clinician, Dr Whitworth, made a barring order under s25. The First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health) (FTT (Mental Health)) heard the nearest relative’s application over the course of two days and decided, on 10 March 2016, not to discharge.

On 12 April 2016, a decision was made at a hospital managers’ hearing to discharge the patient. This was the decision subject to judicial review. Cranston J used the term ‘the Panel’ rather than ‘managers’, to reflect the language in the Mental Health Act 1983: Code of Practice (2015 edition) and to avoid confusion.

Capacity and standing

The patient argued that the trust and the panel were in effect the same legal person so the trust had no standing to bring the claim. Cranston J stated that the trust had a patent interest in bringing the claim, so had ‘standing’. However, the question of ‘capacity’, the legal ability of the trust to bring a claim, was not so straightforward.

MHA 1983 s23(6) states, in relation to the power of discharge:

The powers conferred by this section on any NHS foundation trust may be exercised by any three or more persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust.

A public body cannot be both the claimant in and the defendant to claim. However, s23(6) ensures the independence of the panel from the NHS foundation trust and therefore the panel is sufficiently separate from and independent of the trust to enable the trust to bring a judicial review challenge to its decision.

The panel had argued that the identity of the defendant should be the trust, as it was undesirable for panel members to be sued as individuals. Cranston J rejected this argument, deciding that the countervailing public interests in the trust exercising powers of hospital management (with the duties it has to patients and members of the public) meant that it ought to be able to bring a judicial review. It would, however, require quite exceptional circumstances for a panel’s decision to be reviewable by the court.

Dr Whitworth had been added as a party as a potential alternative claimant (if the trust could not be), but as she was no longer the responsible clinician she did not have sufficient interest and therefore lacked the requisite standing.

Alternative remedy

A second preliminary issue was whether judicial review should be refused on the basis that the trust had an alternative remedy available, namely to re-section the patient.

The House of Lords had decided in R (von Brandenburg) v East London and the City Mental Health NHS Trust [2003] UKHL 58! that:

… an [approved mental health professional (AMHP)] may not lawfully apply for the admission of a patient whose discharge has been ordered by the decision of a [mental health tribunal] of which the [AMHP] is aware unless the [AMHP] has formed the reasonable and bona fide opinion that he has information not known to the tribunal which puts a significantly different complexion on the case as compared with that which was before the tribunal (para 10).

Cranston J decided that parliamentary intention was that the panel appointed under MHA 1983 s23 had equal standing when ordering discharge to that of the tribunal operating under s72. Therefore, this von Brandenburg principle applies equally to a hospital managers’ hearing decision as it does to a tribunal decision.

Failure to take into account relevant considerations

The trust argued that the failure to have adequate regard to the tribunal’s decision and the reasons underpinning it was a failure to take into account relevant considerations.

Some considerations are, as a matter of law, ‘relevant considerations’, so that the failure to take them into account would render the decision unlawful. These may be clear on the face of the legislation or, if not explicit, so obviously material as a matter of statutory construction as to be a relevant consideration. Other considerations can be characterised as ‘permissive considerations’, in that it is up to the decision-maker to decide whether or not to take them into account, unless not to do so is Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

Cranston J decided that the decision of the tribunal was a permissive consideration. There was nothing in the MHA 1983 or its code of practice to mean that it should be elevated to the status of a relevant consideration. On the contrary, parliament had intended to confer wholly separate discharge powers under ss23 and 72, and it was therefore up to the separate decision-makers to decide whether or not to take account of a decision of another and, if so, how much weight to give to it. The panel therefore had no obligation whatsoever to engage with the tribunal’s reasoning.

Rationality and reasons

The trust argued, first, that the panel’s decision was irrational on the basis of the evidence available and, second, that there was no evidence of a rational decision-making process because the reasons did not demonstrate that the substantial concerns raised by the clinical team and the tribunal had been taken into account.

The three panel members had prepared statements relevant to the reasons. Where there is a statutory duty to give reasons, a court will only accept supplementary statements in exceptional circumstances, but in any event the court must be cautious (R (Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538!). The panel’s duty was under common law rather than statute. Cranston J accepted the statements but exercised caution by, in particular, disregarding any part that was inconsistent with the original reasons.

Having considered the evidence, Cranston J decided that the panel’s decision on discharge was clearly within the range of reasonable decisions open to it and that clear (albeit brief) reasons had been given. He concluded that:

… this is a paradigm case where a panel has disagreed with the clinical team and discharged a patient where it considered the state’s compulsory power of detention could no longer be justified precisely, I would add, as parliament contemplates can happen (para 43).

Anonymity in mental health cases

R (C) v Secretary of State for Justice

This case concerned whether there should be a presumption of anonymity in proceedings that are about the compulsory powers of detention, care and treatment under the MHA 1983.

Background

The patient in this case had been convicted of a double murder, the jury having rejected his defence of diminished responsibility. Later, he was transferred to hospital under MHA 1983 s47/49.

The subsequent FTT (Mental Health) decided that, were he a restricted hospital order patient, he would be entitled to conditional discharge, and that he should remain in hospital pending release. The justice secretary referred his case to the Parole Board, for release on life licence to be considered, but refused permission for the responsible clinician to grant unescorted community leave.

These proceedings began as a judicial review of the justice secretary’s decision in relation to leave. The Administrative Court (Cranston J) dismissed the application for judicial review and refused to order anonymity (except in relation to the hospital’s identity and that of the staff). The Court of Appeal only considered the anonymity argument and dismissed the appeal, although the original anonymity order remained in force pending the Supreme Court decision.

Supreme Court decision

At the Supreme Court, the patient argued that there should be a presumption of anonymity in cases such as this, and that in any event there should be anonymity in his case. The justice secretary took a neutral stance, and the Media Lawyers Association intervened on the point of principle to argue against a presumption of anonymity. Lady Hale gave the only judgment in the case.

The general rule under Civil Procedure Rules (CPR) r39.2 is that hearings are to be held in public, although some hearings may be in private. Under CPR r39.2(4):

The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

Having considered the rationale for a general rule that hearings should be held in public, Lady Hale noted that the important safeguards secured by a public hearing can be secured without publication of the names of those involved. Restrictions on publicity involve striking a balance between European Convention on Human Rights (ECHR) articles: article 8 (private life) and article 10 (freedom of expression), and occasionally even articles 2 (right to life) and 3 (prohibition of torture etc).

It is necessary to draw a distinction between ordinary civil proceedings (in which a mental health patient may be involved) and ‘proceedings which are about the compulsory powers of detention, care and treatment under the 1983 Act’ (para 21). Proceedings of the FTT (Mental Health) and the Court of Protection fall into this latter category. In the FTT (Mental Health) (and appeals from it to the Upper Tribunal), there is a presumption of both privacy and anonymity. In the Court of Protection, there is a presumption of privacy (except where the transparency pilot applies)[1] and a presumption of anonymity. This reflects the long-standing practice of the High Court in the old ‘lunacy proceedings’, which the House of Lords in Scott v Scott [1913] AC 417! had stated to be different from ordinary civil and criminal proceedings, and to be ‘truly private affairs’.

Lady Hale disagreed with the Court of Appeal judgment of Maurice Kay LJ in the current case in some respects. The Court of Appeal, in discounting the applicability of Scott v Scott by stating that ‘[t]he sort of statutory powers with which we are concerned did not exist at the time and public law litigation of this kind was virtually unknown’ ([2014] EWCA Civ 1009Not on Bailii! at para 7), had failed to take into account the fact that the parens patriae jurisdiction had extended to both the person and the property of the ‘lunatic’, and the fact that the judicial safeguards for prisoners transferred to hospital under previous Acts were conducted in private.

However, she noted that there is a difference between cases where a court is acting in a patient’s own best interests and cases that are concerned with ‘the proper management of a patient who has in the past been dangerous’ (para 30), and therefore that the closer analogy in this case is with the First-tier and Upper Tribunals. The Court of Appeal had dismissed this analogy on the basis that the tribunals will often be deciding essentially medical issues, whereas the issues in judicial review cases of this type involve the assessment of risk. Lady Hale stated that this was incorrect: the statutory criteria under the MHA 1983 demonstrate that the tribunals are very much concerned with risk as well as with diagnosis.

The High Court had, in a previous case, accepted that the tribunals’ privacy rules were an appropriate and proportionate departure from the principle of open justice, given the nature of the information and parties involved (R (Mersey Care NHS Trust) v Mental Health Review Tribunal [2004] EWHC 1749 (Admin)!). Lady Hale noted that judicial review of the justice secretary’s decisions in relation to leave of absence (or transfer), like tribunal decisions, also involve a mixture of clinical and risk factors, and involve examination of confidential medical information about a patient. This was amply demonstrated by the judgment of Cranston J in this case.

A further factor is the ‘chilling effect’ over a risk of future disclosure as, first, if patients fear that their confidence may have to be breached in the course of legal proceedings, they may be less inclined to be open in their dealings with those treating them, which would negatively affect treatment and assessment of risk, and, second, it may inhibit them from bringing proceedings with a view to relaxing the very significant deprivation of liberty involved in compulsory admission.

Conclusion in principle

Lady Hale decided that the question in all these cases was merely whether anonymity is necessary in the interests of the patient (from CPR r39.2(4)) and that the balance to be struck means that it would be wrong to have a presumption that an order should be made in every case. On the one hand, the public has the right to know what is going on in the courts and who the principal actors are, and to be reassured that sensible decisions are being made.

On the other hand, the purpose of detention in hospital – to make patients better so that they are no longer a risk – may be put in jeopardy if they are identified, or if patients do not have a reasonable expectation that their identities will not be disclosed without their consent, or if disclosure puts patients or those treating them or other patients at risk.

Application in this case

Lady Hale noted that the victims’ families had been caused incalculable distress (but that the rights under the Domestic Violence, Crime and Victims Act 2004 should enable them to be reassured that the patient’s discharge will not put them at risk) and that the public have an interest in knowing how cases of this sort are decided (but that can be achieved even if the identity of the patient concerned is not known).

In favour of anonymity in this case were the general considerations noted above about harm to the patient’s health and well-being, and the ‘chilling effect’ of a risk of disclosure, combined with specific risk elements including a risk to the patient from members of the public. Without anonymity there was a very real risk that the patient’s progress would be put in jeopardy and his reintegration in the community, which was an important purpose of his transfer to hospital, would not succeed. His appeal was therefore allowed and the original anonymity order maintained in place.

Comment: The judgments of the Administrative Court and the Court of Appeal will be published as soon as suitable redactions have been agreed.

Provision of reasons for recall

R (Lee-Hirons) v Secretary of State for Justice

The patient in this case had been conditionally discharged by the FTT (Mental Health) from his detention under MHA 1983 s37/41, and was recalled to hospital five weeks later. The Supreme Court considered the adequacy of the reasons provided to him on and following recall, and the legal consequences.

Facts

At the point of recall, the patient’s social supervisor told him he was being recalled because his mental state had deteriorated. No further reasons for recall were provided until 15 days later, when the responsible clinician discussed with the patient the email from the social supervisor to the Ministry of Justice that had led to the recall decision. Nothing was provided to the patient in writing until months later, during the course of these proceedings.

Law and policy

Government policy in relation to the provision of reasons to a patient for recall is set out in circulars entitled Recall of mentally disordered patients subject to Home Office restrictions on discharge (LAC(93)9 and HSG(93)20, 14 April 1993). These set out a three-stage procedure, summarised by the Supreme Court (at para 16) as follows:

(1) at the time of the patient’s return to hospital, the person returning him should inform him in simple terms that he is being recalled by the minister and that, to the extent possible, a further explanation will be given later;

(2) as soon as possible after readmission to hospital and in any event within 72 hours of it the patient’s responsible clinician or another specified person at the hospital should explain to him the reasons for his recall and ensure so far as possible that he understands them; and

(3) within 72 hours of his re-admission the patient should be provided with a written explanation of the reasons for his recall.

The court also noted that: (a) since 2012, the justice secretary includes within the warrant to be served upon the patient at the time of recall a brief reason for it; and (b) the 2015 edition of the Mental Health Act 1983: Code of Practice goes further than stage 1 above, in stating at para 4.19:

Where a conditionally discharged patient is to be recalled to hospital, a brief verbal explanation of the secretary of state’s reasons for recall must be provided to the patient at the time of recall unless there are exceptional reasons why this is not possible, eg the patient is violent or too distressed.

The Supreme Court considered the position of the patient under common law and under the ECHR. Under common law, the patient had a right to require the justice secretary to apply the published policy unless there were good reasons not to do so. Under article 5(2):

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

Stage 1

The patient argued that the explanation provided at stage 1 was not legally sufficient, which made his detention unlawful, and that he was entitled to a declaration and damages.

The Supreme Court decided that the explanation provided was sufficient for the purposes of stage 1, so there was no common law breach. In relation to article 5(2), the Supreme Court considered two European cases. In X v UK App No 7215/75, 5 November 1981; (1982) 4 EHRR 188, the Commission had stated:

Nevertheless this obligation [to provide detailed reasons for recall] has to be discharged promptly, ie at the latest on arrival at the hospital.

In Fox, Campbell and Hartley v UK App Nos 12244/86, 12245/86 and 12383/86, 30 August 1990; (1991) 13 EHRR 157, the European Court of Human Rights (ECtHR) had stated (at para 40):

Whether the content and promptness of the information conveyed [in this terrorism arrest case] were sufficient is to be assessed in each case according to its special features.

The Supreme Court described the statement in X as a ‘throw-away remark’ that showed no understanding of the ‘special features’ of a recall to hospital, and the flexibility of the Fox case was therefore to be preferred (para 31). There was therefore no article 5(2) breach.

Stages 2 and 3

It was conceded by the justice secretary that stages 2 and 3 of the policy (requiring oral and written reasons within 72 hours) had been breached, and that therefore there had been breaches of common law and article 5(2).

The position under common law is that the breach of a public law duty must have a direct bearing on the decision to detain if it is to render the detention unlawful (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12! and R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23!). The Supreme Court decided that there was no link, let alone a direct link, between the failure for 12 days to provide an adequate explanation for recall and the lawfulness of detention.

There was no entitlement under common law to damages for the policy breach itself. Although it amounted to a breach of article 5(2), the Supreme Court declined to award compensation for that either, or make a formal declaration, because the patient had failed to establish that the effects on him were sufficiently grave.

The patient’s appeal was therefore dismissed.

Appeal status

It is understood that the patient is considering an application to the ECtHR.[2]

Relevance of ECHR to tribunal decisions

PJ v A Local Health Board

MM v WL Clinic

These two judgments of Charles J (which concerned the correct approach of a tribunal panel to breaches of the ECHR, and the ability lawfully to authorise conditions in the community that lead to deprivation of liberty, respectively) were reported in the April 2016 edition of Legal Action (pages 31 and 32 respectively).

Appeal status

A joined appeal in relation to both cases was heard by the Court of Appeal (Munby P, Gloster and Ryder LJJ) on 8–9 June 2016. The judgment had not yet been handed down at the time of writing.

JD v West London Mental Health NHS Trust

In this case, the FTT (Mental Health) declined to discharge the patient from detention under s37/41. It relied solely on the statutory criteria, without expressly dealing with the detailed human rights arguments (based on articles 5 and 8) made by counsel for the patient. The patient challenged this, arguing that the decision in PJ v A Local Health Board, which had concerned a community treatment order patient, applied equally to detention cases under ss72 and 73.

UTJ Jacobs maintained his view that ‘convention right issues do not arise within the limited mental health jurisdiction of the First-tier Tribunal’ (para 25), and that Charles J had therefore been wrong in PJ to disagree with this.

However, he decided JD’s case instead on the basis that the decision contained adequate reasons in relation to the statutory criteria, and the same conclusion would have been reached whether or not the tribunal had addressed the human rights arguments. For this reason, although the tribunal had erred in law by failing to deal with those arguments, it was an error that did not require a remedy and the decision would therefore not be set aside.

Appeal status

Permission to appeal was granted by the Court of Appeal, and the case will be heard in March 2017.

Footnotes

About the author(s)

Jonathan Wilson is a consultant solicitor at Campbell Law Solicitors and runs Mental Health Law Online (www.mentalhealthlaw.co.uk).

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Type: Journal article🔍

Title: Mental health: update

Author(s): Wilson, Jonathan🔍

Publication: Legal Action🔍

Date: 2017/02/01

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