Jonathan Wilson, 'Mental health: update' (Legal Action, March 2020)

Case law update This article considers mental health case law from the past year relating to reinstatement, absolute or conditional discharge, procedural fairness, unlawful detention, and other matters.

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 was: Jonathan Wilson, 'Mental health: update' (Legal Action, February 2019). The next mental health article is: Jonathan Wilson, 'Mental health: update' (Legal Action, March 2021). 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 mental health case law from the past year relating to reinstatement, absolute or conditional discharge, procedural fairness, unlawful detention, and other matters.

Reinstatement

Under Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 SI No 2699 (HESCC Rules) r17, a patient can seek the tribunal’s consent to withdraw a tribunal application, and may, within 28 days, apply to the tribunal for the case to be reinstated. A patient is only entitled to make one application, disregarding withdrawn applications, in each period of eligibility (which varies according to detention type: see Mental Health Act (MHA) 1983 ss66, 69 and 70).

On 20 August 2018, the First-tier Tribunal (FtT) consented to the patient’s notice of withdrawal. He entered a new period of eligibility on 22 August 2018. Rather than using his right to make a fresh application so early in the new period, he asked on 12 September 2018 for the withdrawn case to be reinstated. The FtT refused to reinstate the case, and also refused a challenge to that decision.

The Upper Tribunal (UT) rejected the patient’s argument that the FtT had no power to do anything other than to reinstate a withdrawn application on request, and stated the following:

16. As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the tribunal to deal with cases fairly and justly’ (rule 2(1)) …

17. Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (e) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole.

The only reason given by the patient for seeking reinstatement was that he had changed his mind. On the facts, the UT held that there was no basis on which the tribunal could have exercised its discretion to reinstate.

The trust had complained about being named as a respondent in the appeal, but the UT explained:

[T]he trust was properly named as a respondent on the appeal to the Upper Tribunal ... The trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally ...The trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties (paras 27–29).

Comment: Applications for reinstatement should be accompanied by reasons addressing the factors set out in the above judgment.

Absolute or conditional discharge

The patient challenged the Mental Health Review Tribunal for Wales’s decision to grant him a conditional discharge (albeit with no conditions) rather than an absolute discharge.

The relevant provisions of the MHA 1983 are well known, but are set out below for ease of reference:

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 or 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 …

The patient’s appeal was based on two grounds: first, that the tribunal had failed properly to apply the two-stage process required by s73(1) and (2); and, second, that it had provided inadequate reasons.

Ground 1 (two-stage process)

The tribunal had decided (under s73(1)(a)) that the s72(1)(b)(i) (appropriateness) test was not met, and had moved straight to the question of whether to grant absolute or conditional discharge without considering s72(1)(b)(ii) (necessity) or (iia) (appropriate treatment). The patient argued that the tribunal was obliged to make findings in relation to each test.

The UT decided that the statute permitted the tribunal to stop once it had decided that it was not satisfied of the first s72 test; however, s73(2) required the tribunal to make findings on substantially similar matters, albeit on a forward-looking basis, and to make a decision on the type of discharge on the basis of those findings. The UT gave the following guidance:

33. What the tribunal had to decide is … to assess the likelihood of the secretary of state requiring to exercise his power of recall in respect of the appellant in the future, or the effect which knowledge of the secretary of state having the power of recall would have on the appellant. Without such an assessment it would be in no position to assess the appropriateness of the appellant’s liberty being fettered by remaining subject to it.

34. Given that the power of recall in respect of a conditionally discharged patient can only be exercised for the purpose of the patient receiving further treatment, and given that the patient may be recalled to hospital only (and nowhere else) it is difficult to see how the question of the appropriateness of a patient continuing to be subject to the power of recall could properly be determined without the tribunal making findings about:

a. whether the patient now suffers from a mental disorder which may be expected to endure or has, now or in the past, suffered from a mental disorder which may be expected to recur;
b. if the answer to the question posed in paragraph a. is ‘yes’, how likely it is that the patient might experience symptoms of such mental disorder in the future;
c. what kind of treatment might be available in hospital to treat such mental disorder;
d. what can reasonably be expected to change in consequence of the patient receiving such treatment in hospital (in other words, what purpose is to be served by the recall?); and
e. (given the ‘least restrictive’ [principle] that informs the MHA regime) whether any alternative strategies are available which might manage the risks associated with future deteriorations in the patient’s mental health effectively but which place less restriction on the patient’s liberty than the patient continuing to be subject to the power of recall.

35. Such findings would, no doubt, be based on evidence of the patient’s past experience (of the chronicity of his mental disorder, its symptoms, its response to treatment, the prognosis and the attendant risks), but the findings themselves must be forward-looking in nature.

The treatment available for the conditions mentioned in the reports (dissocial personality disorder and possibly a psychotic condition) was relevant to the appropriateness of the recall power.

The tribunal concluded that the patient suffered from dissocial personality disorder, but that medical treatment that would make detention appropriate was not likely to be available for that disorder. However, the UT noted that the tribunal had ‘largely ducked’ (para 52) the question of whether the patient suffered from any psychotic condition, and had made no express findings as to the availability in hospital, or the appropriateness of, medical treatment for any psychotic condition that the patient may have.

The UT concluded that in the absence of such express findings (and also without an explanation of how the relevant factors, including those set out under ‘ground 2’ below, were weighed), it was not possible to be sure how the tribunal reached its decision under s73(2) on the appropriateness of conditional discharge.

While considering the treatment available, the UT made some comments (at para 47) in relation to the appropriateness of treatment with no realistic prospect of therapeutic benefit:

The Mental Health Act 2007 replaced the ‘treatability test’ with the ‘appropriate treatment test’, and the MHA definition of ‘medical treatment’ hinges on the purpose for which it is administered rather than its effect. In written submissions to the tribunal the secretary of state opposed discharge on the basis that while the clinical opinion was that the appellant’s mental disorder was untreatable the proper test did not require an assessment of the efficacy of the treatment available or of the appellant’s willingness to participate in it. However, it is difficult to see how a form of medical treatment which is not believed to have any realistic prospect of achieving any therapeutic benefit to a patient whatsoever could properly be considered ‘appropriate’ for him even if it fell within the MHA definition of ‘medical treatment’.

Ground 2 (reasons)

The patient had presented credible expert evidence that risk could be managed by future civil detention under MHA 1983 Part 2 rather than the recall power. The UT decided that it was therefore incumbent on the tribunal to explain why it was not persuaded by that evidence; instead, the tribunal had quoted another doctor’s evidence (which stated that recall would be available but did not grapple with the Part 2 issue) and merely said that this evidence was ‘the most apt’ (see paras 75 and 87). Additionally, the UT found that the tribunal had failed to explain its rejection of the patient’s argument that the setting of a psychiatric hospital was positively harmful.

In relation to the relevance of the tribunal’s heavy workload, the UT stated (at para 101):

I cannot accept that what is required of a judge’s reasons varies according to the particular circumstances of the judge, a particular part of the justice system, or indeed of the justice system as a whole. The reasons must be looked at objectively to assess whether a reader would be able to understand how and why the material points were decided as they were. If the reasons would have been inadequate if produced by a well-resourced judge with sufficient time to write the judgment they must also be inadequate if produced by a judge with a frenetically busy list and failing IT. The circumstances of the judge might explain why inadequate reasons were produced and they might make us more sympathetic to the writer of them, but they can’t render inadequate reasons adequate.

Taken as a whole, the UT held that it was not adequately clear why the tribunal was not satisfied that it was inappropriate for the patient to continue to be liable to recall to hospital for further treatment. The decision was set aside and remitted to a differently constituted panel.

Comment: The High Court case of R (SC) v Mental Health Review Tribunal [2005] EWHC 17 (Admin)M also gives guidance on matters that the tribunal will consider in such cases, but is not mentioned in the UT judgment.

Non-legal research by judge

At the commencement of the FtT hearing, the judge stated that, in order to ascertain the sequence of events prior to detention, he had obtained for himself and read a Court of Appeal judgment from a murder prosecution in which the Crown had unsuccessfully appealed against the trial judge’s ruling that there was no case to answer. The patient and his representative were concerned about this non-legal research but, rather than challenge it or ask the judge to recuse himself, they decided to proceed with the hearing that day. This decision was based on an assessment that the chances of success were favourable, particularly because the tribunal could have come to a majority view. However, the tribunal did not discharge and the patient appealed.

The initial application for permission to appeal was based only on apparent bias, and the UT decision discusses the law on bias, presumed bias and apparent bias in some detail, but ultimately these arguments were unsuccessful. In the UT proceedings, the patient also advanced arguments based on procedural fairness. The UT agreed that the judge independently accessing the Court of Appeal judgment was ‘a procedural irregularity and has the potential to give rise to unfairness’ (para 45), but concluded that:

47. In this case it was improper for the judge to independently seek information by undertaking his own research into a non-legal issue. The proper course is to raise the matter with the parties. An answer to his query about chronology is very likely to have been easily provided or he may have been persuaded that it was irrelevant to the tribunal’s task.

48. The accessing of the material was made known to the appellant and his representative just before the start of the hearing. This did not give the appellant much time to make representations but if there were concerns these could and should have been raised at that point even if that would have resulted in an adjournment. The material accessed was not put before the tribunal, but the information accessed was, as I set out above, already to a very large extent in the papers. This is not a case where it is suggested the judge placed any weight let alone improper weight on the information he had accessed. The fact that the information contained in the judgment was largely already in the papers (and in the absence of anything specific being cited from the judgment) diminishes the concern that the judge may have been influenced when reaching a decision by information not before the parties and other members of the tribunal. I have dismissed the arguments on bias. There is no criticism of the conduct of the judge during the hearing. Taking all these factors into account, although the judge acted very unwisely and what he did was clearly procedurally irregular, I consider that the irregularity was remedied (albeit only just) by informing the appellant and his representative at the outset of the hearing. For all the above reasons I do not consider it rendered the hearing unfair.

The appeal was therefore dismissed.

Proceeding in absence of solicitor and patient

The FtT refused to adjourn the case of a community treatment order patient who had not attended the hearing or the pre-hearing medical examination. The solicitor left the hearing straight away, because she felt unable to represent the patient in those circumstances. The tribunal proceeded with the hearing, did not discharge, and subsequently the patient appealed.

The relevant rule here is HESCC Rules r39 (as amended in 2014):

(1) Subject to paragraph (2), if a party fails to attend a hearing the tribunal may proceed with the hearing if the tribunal –

(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.

(2) The tribunal may not proceed with a hearing that the patient has failed to attend unless the tribunal is satisfied that –

(a) the patient –
(i) has decided not to attend the hearing; or
(ii) is unable to attend the hearing for reasons of ill health; and
(b) an examination under rule 34 (medical examination of the patient) –
(i) has been carried out; or
(ii) is impractical or unnecessary.

The tribunal’s initial decision to proceed in the patient’s absence stated that r39(1) and (2)(a) had been considered, but its reasons did not mention the requirements of r39(2)(b). However, the UT decided that, given the presumption that a specialist tribunal will have correctly understood and applied the law within its area of expertise, in the circumstances, it was more likely than not that the tribunal had in fact decided under r39(2)(b) that it was impractical to carry out a medical examination.

The tribunal had not considered appointing a representative under HESCC Rules r11(7), but the UT noted that this was unnecessary as there was no indication that the patient had withdrawn her instructions or lacked capacity (which would have allowed for appointment under r11(7)(a) or (b) respectively).

The UT decided that, when the solicitor departed, it was incumbent upon the tribunal to make a fresh assessment under r39(1) as to whether it was in the interests of justice to proceed with the hearing. Its reasons did not even mention her departure and it was unlikely that the tribunal had carried out such an assessment; even if it had done so, the lack of any explanation would have rendered the reasons inadequate. The decision was therefore set aside and the matter remitted to the FtT for a rehearing by a differently-constituted panel.

Damages for unlawful psychiatric detention

The first claimant was detained at the Priory Hospital in North London during an outpatient appointment on 30 September 2016. The detention was initially under MHA 1983 s5(2). The power under s5(2) only applies to the detention of in-patients. The heading of s5 refers to patients ‘already in hospital’ and s5(2) itself is expressly limited to ‘a patient who is an in-patient’. Nevertheless, the first claimant, who had made a morning appointment at the defendant’s hospital simply to discuss a lower dose of her medication, was told within 15 minutes of the commencement of the appointment that she was being detained under s5(2) and could not leave.

When the first claimant ran out of the room, she was prevented from leaving the facility by hospital staff, and was taken upstairs and given a bed. Her husband, the second claimant, who had attended with her, was required to make an immediate down payment of £10,626 on his credit card, in respect of the hospital’s daily rate of £834. She was then detained at the hospital for the next 17 days, first for 72 hours under s5(2), then under no power at all for just under seven hours, and then under MHA 1983 s2 (but without any explanation being provided on the form A2 for not consulting a doctor who knew the patient) until discharged by her responsible clinician on 17 October 2016.

When the hospital later pursued recovery of around £3,000 in outstanding fees, the claimants consulted solicitors. After a complaint was rejected by the hospital, the claimants brought proceedings. The first claimant claimed damages for the whole period of her stay for unlawful detention at common law and contrary to European Convention on Human Rights (ECHR) article 5. The human rights claim was predicated on the basis that the defendant was a public authority for the purposes of Human Rights Act 1998 s6 when compulsorily detaining patients under the MHA 1983. The second claimant claimed restitution of the fees he had paid on the basis that it would be contrary to public policy to allow a tortfeasor to profit from its wrong.

After High Court proceedings seeking permission under MHA 1983 s139 to bring the claim were compromised, and the claim allowed to proceed, an extension to the period for issuing county court proceedings was agreed. The defendant made a Civil Procedure Rules 1998 Part 36 offer of £11,500 plus legal costs on 27 April 2018, which the claimants accepted on 11 May 2018.

Originally the claimants’ solicitors had valued the claim in the letter of claim to the defendant ‘at the same rate as you charged our client for remaining forcibly in your hospital, which is £834 per day’. However, the claimant was advised to accept an award calculated on the basis of a higher level of compensation for a shorter period – the 72 hours of the detention under s5(2) only, plus 6 hours 45 minutes. The reasoning was that, as against the hospital, there was a litigation risk that the application under s2 that followed might have been held to have appeared to be ‘duly made’ and thus lawful for the purposes of MHA 1983 s6(3).

Following compromise of the claim, the settlement was notified by the Medical Protection Society to the Compensation Recovery Unit, but it was subsequently accepted by that unit that this settlement did not fall within the scheme. The hospital did not continue its pursuit of the £3,000 arrears.

Oral tribunal decision

This case related to Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI No 2604 (IAC Rules) r29(1), which is the same as HESCC Rules r41(1). Both state: ‘The tribunal may give a decision orally at a hearing.’ The two rules then set out, in different ways for each jurisdiction, the circumstances in which a written notice stating the decision, written reasons, and notification of appeal rights are to be sent.

At the end of PAA’s immigration tribunal hearing, the judge said that, although he had some reservations, the appeal would be allowed. However, his subsequent written reasons purported to dismiss the appeal. PAA appealed against the written decision.

Following previous Court of Appeal authority, the UT stated (at para 7) that:

… a decision given to the parties in open court under a procedural rule in these terms cannot, after it has been uttered, be revised or reversed, and the requirement of written notice does not mean that such notice is required in order to perfect it. If, however, the judge also gives a written notice in terms contrary to the oral decision, the written decision stands unless and until set aside by a court of competent jurisdiction.

The situation, then, was that the immigration tribunal had both allowed the appeal and dismissed it. Neither decision could be enforced by either party until the discrepancy was resolved on appeal by one decision being set aside.The UT set aside the written decision and remade it, deciding that there was no jurisdiction to give a second decision inconsistent with the first, and that the first decision would stand.

Comment: The rules in both jurisdictions allow the FtT to set aside a decision where ‘there has been some other procedural irregularity in the proceedings’ (HESCC Rules r45(2)(d), IAC Rules r32(2)(d)). This would be an easier route in any future cases.

Deprivation of liberty and conditional discharge

In this case the court authorised deprivation of liberty during conditional discharge for two patients as being in their best interests, despite the purpose in one case arguably being the protection of the public. A summary appeared in the 'Court of Protection: update' at February 2020 Legal Action 20.

Mental health tribunal/Parole Board delay

  • LV v United Kingdom
  • App No 50718/16,[2]
  • 6 June 2019

The patient in thisf case had argued that the delay in securing her release violated ECHR article 5(4), in particular because of the two-stage process involving both the mental health tribunal and the Parole Board, which applies to indeterminate-sentence prisoners who are transferred to hospital under MHA 1983 ss47/49. The facts of the case were reported at March 2015 Legal Action 38 ([2014] EWHC 1495 (Admin)M).[3] She accepted the government’s offer of £2,500 in settlement of her claim, so the case will not proceed.

Comment: It may be that the problem will be addressed via a different route. The Wessely Review (Modernising the Mental Health Act: increasing choice, reducing compulsion – final report of the Independent Review of the Mental Health Act 1983, Department of Health and Social Care, December 2018) stated (at page 205):

[M]any stakeholders have argued that the processes and hearings should be combined so that one panel considers both discharge from hospital and release from criminal custody. We understand that this is not possible at the moment because the Parole Board is an arm’s length body and not a court or a tribunal (which would enable cross-ticketing of judges into different jurisdictions). We think the government should consider combining the powers and role of the Parole Board with the tribunal. We believe there will be no loss of expertise, so long as there is a judicial chair, and there might be a saving of time and resources which would justify the additional administrative burden.

The review’s recommendation (recommendation 138, page 205) was:

The government should consider giving the Parole Board tribunal status and combining hearings where appropriate. At the very least the government should streamline processes so that hearings could be convened back to back.

References

  1. The summary of this case, which settled out of court, was provided by Matthew Seligman of Campbell-Taylor Solicitors (solicitors for the claimants).
  2. See also [2019] MHLO 32 (ECHR).
  3. The Court of Appeal judgment ([2015] EWCA Crim 45M, [2015] EWCA Civ 56M) was reported at April 2015 Legal Action 18 and September 2015 Legal Action 36.

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Type: Journal article🔍

Title: Mental health: update

Author: Wilson, Jonathan🔍

Organisation: Legal Action🔍

Date: March 2020🔍

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