Jonathan Wilson, 'Mental health case law: update' (Legal Action, May 2023)

Case law update This article considers mental health case law from the past year relating to open justice and provision of reasons to victims, change of status during tribunal proceedings, hearings in the absence of the patient, adjournment and recommendations, criminal appeals, 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 case law: update' (Legal Action, May 2022). 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.

Open justice and provision of reasons to victims

The claimant in these judicial review proceedings was the mother of the man killed by the patient. The patient had been given a restricted hospital order under Mental Health Act (MHA) 1983 s37/41 in August 2017 and was conditionally discharged by the First-tier Tribunal (FtT) 3½ years later in February 2021.

In October 2020, after the claimant was informed of the forthcoming tribunal hearing, she sent a pre-action protocol letter asking to be provided with reasons should the patient be discharged. The FtT refused, stating that it would not provide reasons to victims. In February 2021, when the claimant was informed of the decision to discharge, she again asked for reasons; the FtT refused again, referring back to the October 2020 decision. The claimant issued judicial review proceedings, arguing that the FtT operated a blanket policy or practice of refusing to provide reasons or a summary or gist of its reasons for its discharge decisions to victims, amounting to an unlawful fetter on its discretion.

Following the issuing and service of judicial review proceedings, and after permission had been granted, deputy chamber president (DCP) Sarah Johnston, responsible for the mental health jurisdiction of the Health, Education and Social Care Chamber, made a lengthy interlocutory decision in February 2022. That decision was the first time in which the FtT did not operate its previous policy; it instead conceded that the tribunal had ‘a discretion to direct [that] information be made public’ and must take into account ‘the open justice principle and article 6 of the [European Convention on Human Rights (ECHR)] which includes the giving of reasons for a decision in public’ (see para 38). However, the decision reached the same conclusion as before, refusing to give any reasons to the victim.

In the judicial review decisions, the Administrative Court termed the initial refusal in October 2020 as the ‘First Decision’ and the subsequent refusal in February 2022 as the ‘Further Decision’. The FtT argued that the Further Decision rendered the judicial review of the First Decision academic, but the court declared that in the First Decision the FtT had unlawfully fettered its discretion by applying a blanket policy or practice.

The court went on to consider the Further Decision. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 SI No 2699 (TPR) are widely drafted, with r5(2) allowing the FtT to give a direction ‘amending, suspending or setting aside’ an earlier decision at any time, so it was lawful for the FtT to make its Further Decision. The question was whether the DCP had applied the correct test. The court decided that she had not, for the following reasons:

  1. Instead of directing herself that departing from the open justice principle can only be justified in exceptional circumstances, when strictly necessary to secure the proper administration of justice, the DCP jumped straight to the presumption of privacy contained in the tribunal’s rules; as a consequence she did not engage with the purpose of the open justice principle, which is both to assist in justice being done through transparency and also to enable the public to have confidence in the system.
  2. Her focus on the mother’s motives, which should not have been given weight in the overall balance, clouded her consideration of other, more relevant issues.
  3. She did not direct herself that the extent of the derogation from the principle of open justice should be no more than is strictly necessary to achieve the desired purpose, and did not consider providing the mother with a gist or summary of the reasons.
  4. She did not explain why a redacted version of the conditional discharge decision could not meet the patient’s privacy rights or why redacted reasons were ‘not possible’.
  5. She did not adequately explain her reasons.
  6. She did not engage sufficiently with the reasons that the mother had put forward.

The court also accepted the claimant’s ECHR arguments about provision of reasons: the refusal to provide the gist of the reasons for the conditional discharge decision, when the Parole Board would have provided a gist of its reasons in similar circumstances, was unlawful discrimination under article 14 in relation to the mother’s article 8 rights.

In summary, the First Decision (the refusal to give the claimant reasons, or a gist of the reasons, for conditional discharge) was unlawful and it was not cured by the Further Decision, which was also unlawful.

There were two other aspects to the claimant’s case. The Parole Board would have allowed her to submit a victim personal statement and to request the justice secretary to apply for reconsideration of a decision to release. The claimant argued that the FtT must do the same. These arguments were unsuccessful, as the court ruled that the different functions of the Parole Board and the FtT meant that there was no unlawful discrimination.

Comment: There is an ongoing discussion about open justice in the mental health jurisdiction. The FtT’s habit of dealing with errors of law by the formal ‘review’ procedure (TPR Part 5), or the less formal route of remaking a decision under the general case management powers (r5), means that few cases reach the Upper Tribunal (UT) and few judgments are published. This shields much of the FtT’s decision-making from scrutiny. The court in this case noted:

It is worth returning to the reasons for the importance of the open justice principle which include ensuring public confidence in judicial decisions through transparency and it is a developing area of the law. The direction of travel in the last 30 years or so has been towards openness and a more rigorous scrutiny of exceptions to the open justice principle and creative thinking about how conflicting rights can be reconciled (para 123).

Future decisions of the FtT will need to be tested against this standard.

Change of status – s37/41 to conditional discharge

The patient applied to the FtT while subject to a MHA 1983 s37/41 restricted hospital order but, before the hearing, was conditionally discharged. The FtT decided that it ceased to have jurisdiction because of the conditional discharge. The patient appealed to the UT but, before that hearing, was absolutely discharged; however, the UT decided that it retained jurisdiction and should decide the case despite it being academic. It concluded that the FtT retains jurisdiction when a s37/41 patient is conditionally discharged, so the proceedings should have been allowed to continue.

Comment: There have been several cases considering change of status that relate equally to the FtT and the Mental Health Review Tribunal (MHRT) for Wales. They are not entirely consistent in their reasoning, but have decided that:

  1. the tribunal retains jurisdiction following any changes between s2, s3 and community treatment order (CTO); following transfer from s3 to s7 (guardianship); following a change on appeal from s47/49 (restricted transfer direction from prison) to s37/41 (restricted hospital order); and following the conditional discharge of a s37/41 patient; and
  2. the tribunal loses jurisdiction following a change from s47/49 to s47 (notional s37 hospital order), and following a change from s3 to s37 (hospital order imposed by court).

Hearings in the absence of the patient

The FtT panel refused an adjournment request and proceeded in the patient’s absence, refusing to discharge him from a CTO. The patient appealed.

TPR r39 states:

(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 UT noted that the panel had found, under r39(1)(a) and (b) respectively, that reasonable steps had been taken to notify the patient of the hearing and that it was in the interests of justice to proceed. However, it had made no findings, under rule 39(2)(a)(i) and (ii) respectively, in relation to whether the patient had decided not to attend the hearing or was unable to attend for reasons of ill health, and it was not self-evident that either requirement was satisfied. Proceeding in the patient’s absence was therefore an error of law. The FtT decision was set aside and the case remitted to the tribunal for rehearing by a differently constituted panel.

The UT noted that the FtT judge refusing permission to appeal had used an out-of-date version of the rules (though this did not affect her reasoning) and had misunderstood the rules, confusing r39(1)(a) and r39(2)(a). The UT’s conclusion was:

A tribunal must always operate within its rules of procedure and that is particularly important when liberty is at stake. This is why I have dealt not only with the tribunal’s reasoning but also with the reasoning in the refusal of permission (para 14).

Adjournment, recommendations, and permission to appeal

  • AC v Cornwall Partnership NHS Foundation Trust
  • [2023] MHLO 1 (UT),
  • 22 March 2023

The FtT panel refused the MHA 1983 s3 patient’s adjournment request, which was on the basis of a lack of aftercare planning, though it indicated that the matter would be revisited if aftercare information proved necessary to decide on discharge. It also refused to make a statutory recommendation, but made an extra-statutory recommendation about transferring hospital and about appropriate accommodation. Permission to appeal having been refused by the FtT and the UT, the patient now renewed her application for permission. The patient argued that the adjournment refusal was procedurally unfair, and put her in an ‘impossible position’ (para 16), but the UT decided that, in high-level terms, case management rulings should only be interfered with when ‘plainly wrong’ (para 18) and, more specifically, the panel’s approach was consistent with case law in the mental health jurisdiction (see AM v West London MH NHS Trust and Secretary of State for Justice [2012] UKUT 382 (AAC)M; February 2013 Legal Action 13).

The patient also argued that the type of recommendation made undermined the purpose of the statute, given that a statutory recommendation was possible, but the UT decided that the panel had concisely explained a rational basis for its decision and was entitled to take the view that it should not get involved in the onward supervision of the patient’s care.

The UT noted the approach that courts have taken to the decisions of expert tribunals, which, to paraphrase, is that:

  1. it is probable that such a tribunal got the law right, its decision should be respected unless it is quite clear the tribunal misdirected itself on the law, and courts should not rush to find misdirections just because of the tribunal’s conclusions on the facts (the UT judge described this as ‘the Lady Hale principle’); and
  2. judicial restraint should be exercised when reasons are being examined, and the court should not assume a misdirection too readily just because every step in the tribunal’s reasoning is not fully set out (described as ‘the Lord Hope principle’).

Comment: The UT set out the test to be applied for permission to appeal in this way:

In order to give the applicant permission to appeal to the Upper Tribunal, I must find that the proposed grounds of appeal are arguable, in the sense that there is a realistic prospect of success in showing that the First-tier Tribunal went wrong in law in some way. However, for the reasons that follow, and despite the best efforts of [counsel for the applicant] to persuade me otherwise, I am not satisfied that there is any such arguable error of law in the First-tier Tribunal's decision (para 7; emphasis in original).

Lord Woolf MR provided different guidance in Smith v Cosworth Casting Processes Ltd [1997] EWCA Civ 1099M; [1997] 1 WLR 1538B:

1. The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word 'realistic' makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.

2. The court can grant the application even if it is not so satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying (emphasis in original).

In previous cases, the UT has stated that this guidance applies to its cases (see, in particular, Christie v Information Commissioner (Tribunal procedure and practice) [2022] UKUT 315 (AAC)B at para 21). It is likely that the UT judge simply forgot to state and consider the second paragraph. We can guess that the conclusion would have been the same without this error of law, as the judge was clear that the adjournment refusal was soundly based on existing case law, and saw no need to provide guidance in relation to statutory and extra-statutory recommendations.

Court of Protection proceedings during MHA 1983 detention

Proceedings were brought under Mental Capacity Act 2005 s16 in respect of a patient detained under MHA 1983 s3 by his mother as litigation friend, seeking orders authorising his future deprivation of liberty in the community and other related declarations. The Court of Protection decided that there was no jurisdictional bar to the court making such orders, but dismissed the application because the patient’s discharge from the MHA 1983 was not imminent and court oversight of the process would be costly and inefficient for the parties and the court.

Article 2 inquest

The Court of Appeal held that the coroner had been right to conclude that the informal patient’s circumstances did not give rise to an operational duty under ECHR article 2 on the trust to protect her from the risk of accidental death from the use of recreational drugs. The coroner therefore was right to conclude that the parasitic procedural duty to hold a Middleton inquest did not arise. There was no error in the Divisional Court upholding that decision and the appeal was dismissed.

Ex turpi causa

  • Traylor and Traylor v Kent and Medway NHS Social Care Partnership Trust
  • [2022] EWHC 260 (QB)M,
  • 10 February 2022

A father stabbed his daughter several times during a psychotic episode, after he had ceased his medication and lied about it for several months. He sought damages from the trust for negligence, and she brought a claim for breaches of ECHR articles 2 and 3. The court held that he had not established a breach of duty, so the claim fell at the first hurdle. However, the court commented obiter on other matters:

  1. Defences based on causation or voluntary acceptance of risk would not have succeeded, as the relevant duty of care is a duty to prevent harm that would arise from the claimant’s own deliberate act.
  2. The illegality defence would not have been available, as the patient had been found not guilty by reason of insanity.
  3. It would be just and equitable to have reduced the damages recoverable by three-quarters for contributory fault.

In respect of the daughter, the Osman duty (to provide protection against a known risk to life) arose but the trust had taken reasonable steps to avert the risk.

The claimant in this case had killed three men while suffering from mental illness, then sought damages for negligence from G4S, the police, the NHS trust and the county council. Some of the defendants argued that the claim should be struck out on the grounds of illegality. The High Court allowed the claim to proceed: although a person should not be allowed to profit from his own wrongdoing, the claimant had been found not guilty by reason of insanity, which meant that ‘[t]he law would not be condoning wrongdoing because the jury's verdict means there was none’ (para 136).

Non-treatment of eating disorder

The patient in this case was detained under MHA 1983 s3, so, in theory, compulsory treatment could have been given. However, the Court of Protection, on an application by the trust that was supported by the patient, her parents and the Official Solicitor, declared that it was lawful and in the patient’s best interests for no further treatment (including artificial nutrition and hydration, and medication) to be provided to her against her wishes and for her to be discharged home from hospital subject to a palliative care plan. She subsequently died.

Hospital orders instead of indeterminate prison sentences

The Court of Appeal quashed a life sentence and substituted a restricted hospital order, believing that this would better protect the public (while noting that it is misconceived to submit tribunal decisions as fresh ‘evidence’ in criminal appeals).

The Court of Appeal quashed a sentence of life imprisonment and substituted a restricted hospital order, ‘taking into account the nature of his mental illness, its causal connection with the offence, its treatability and the clear evidence that his condition will be better managed on release under the Mental Health Act regime and the public better protected’ (para 39).

A sentence of detention for public protection had been imposed on the appellant but subsequent evidence stated that he had a learning disability and had been in the prodromal phase of schizophrenia. The Court of Appeal quashed the sentence and substituted it with a restricted hospital order.

Comment: A hospital order will suit many patients better, as it removes the possibility of being sent to prison either during detention or after discharge, but some of the criminal appeals show that the Criminal Division of the Court of Appeal does not fully understand mental health law.

For example, in R v Miller, the court stated (in the fourth-to-last paragraph):

By virtue of section 117 of 1983 Act, where a person who has been detained in hospital pursuant to a hospital order ceases to be so detained and leaves hospital, the local clinical commissioning group or local health board, and the local social services authority, are under a duty to co-operate with other relevant agencies and to provide aftercare services. There is no corresponding statutory duty where a prisoner is released on licence and there is therefore less certainty as to whether specialist medical supervision and care will be provided.

Section 117(1) explicitly states that it applies to persons detained under s3, s37, s45A, s47 and s48 who ‘then cease to be detained and (whether or not immediately after so ceasing) leave hospital’. This must apply equally to release from hospital by the Parole Board as to discharge by the FtT or MHRT for Wales. It would also apply to a prisoner released from prison who had at some point been in hospital under s47 or s45A.

In R v Crerand, the court stated:

We note that the applicant is highly unlikely ever to be returned to prison for the reasons Dr El-Metaal [a consultant psychiatrist] gave. In those circumstances it is highly unlikely that he will be considered for release by the Parole Board (para 38).

The second sentence above does not follow from the first. After the mental health tribunal has made the MHA 1983 s74(1)(a) notification and s74(1)(b) recommendation, the transferred prisoner has the same eligibility for a Parole Board hearing as if still in prison. The Parole Board can hear the case while the patient remains in hospital and can release the patient on licence straight from hospital.

In R v Surrey, the court stated:

[The psychiatric experts] explained that it was ‘vitally important’ that compliance with medication could be imposed as a condition upon release, if that was through the mental health regime, by a mental health tribunal. The same conditions on taking medication are simply not possible if release of a person is sanctioned by the Parole Board. It is also far less likely that a probation officer, who would be responsible for supervising him upon release, would be able to spot early signs of any deterioration in his mental health compared to a multi-disciplinary clinical team who would be responsible for him if he were released by a mental health tribunal (para 38).

It is true that the tribunal can impose a condition requiring compliance with medication, but, as a matter of law, the patient’s compliance with such a condition is treated as being voluntary (R (SH) v Mental Health Review Tribunal [2007] EWHC 884 (Admin)M). Also, at least for patients released by the Parole Board straight from hospital, the hospital clinical team would be involved in discharge planning alongside the offender manager and a multi-disciplinary mental health team in the community would continue to be involved.

Other criminal appeals

The appellant had been convicted of the murder of her newborn baby. Based on fresh psychiatric evidence, she wanted the conviction quashed and directions for retrial so that she could argue the partial defence of diminished responsibility, but was unsuccessful.

The appellant argued that the defence of insanity should be available to defendants who knew what they were doing was wrong (within the meaning of the M’Naghten rules) but whose delusions were such that they were compelled to perform it or powerless to prevent it. The Court of Appeal explained that in order to establish the defence of insanity within the M’Naghten rules on the ground of not knowing the act was ‘wrong’, defendants must establish both that (a) they did not know that their act was unlawful (ie, contrary to law) and (b) they did not know that their act was ‘morally’ wrong (also expressed as wrong ‘by the standards of ordinary people’). The court decided that the M’Naghten rules themselves do not include an element of ‘lack of choice’, and that the courts should not interpret the current law on insanity as involving an element of ‘choice’ (this being a matter for parliament to consider).

In an appeal against the restriction order component of a restricted hospital order, the appellant’s responsible clinician gave evidence that a restriction order ‘is unlikely to provide any additional safeguards as compared to those provided by a CTO’ (see para 26). The Court of Appeal agreed that the procedure for recall would follow a similar route whether or not a restriction order was made, but noted that a restriction order ‘would place an additional restriction on discharge from hospital’ and therefore ‘focuses on precautionary measures before discharge rather than the procedure to be adopted after the appellant has been discharged’ (para 35). The appeal was dismissed.

The appellant sought a restricted hospital order instead of a s45A hybrid order and 16-year-tariff life sentence for diminished responsibility manslaughter. He was unsuccessful, partly because his level of retained responsibility, albeit reduced by mental disorder, fell towards the ‘higher end of the medium range’ (see para 34).