R (RD) v MHRT  EWHC 781 (Admin)
This was a renewed application for permission to apply for judicial review, permission having been refused on the papers. RD, a s37/41 patient, had unsuccessfully sought a deferred conditional discharge, and challenged that decision on the basis (1) that the medical member had gone beyond her remit under the MHRT Rules in expressing a "very preliminary view" that RD needed to be detained, and (2) that the reasons were inadequate.
1. The medical member's role
Rule 11 states that:
- "At any time before the hearing of the application, the medical member ... shall examine the patient and take such other steps as he considers necessary to form an opinion of the patient’s mental condition; and for this purpose the patient may be seen in private and all his medical records may be examined by the medical member, who may take such notes and copies of them as he may require, for use in connection with the application ..."
In R (S) v MHRT  EWHC 2522 (Admin) Stanley Burnton J held that, having considered DN v Switzerland 27154/95  ECHR 235, rule 11 was compatible with Article 5(4): this decision was not challenged. In relation to the concept of "due impartiality", referred to in DN, Stanley Burnton J in S said it "requires a member of a tribunal not to have a preconceived concluded opinion on the merits of the applicant's case. The European Court did not suggest that a provisional view formed before the commencement of the hearing is objectionable". The medical member is entitled to express his view but must keep an open mind.
The Claimant relied on paragraph 4.06 of the Members' Handbook of the Mental Health Review Tribunals in England and Wales: "Medical Members must ... be very careful not to disclose in the preview their own opinion as to discharge of the patient and must retain an open and judicial mind on the question of discharge until all the evidence has been heard."
He also relied on a paragraph from McGrady, Re Application for Judicial Review  NIQB 15, part of which follows: "[The medical member's] role is confined to a determination on a provisional basis of the patient's mental condition. He does not consider whether the mental disorder (if he finds it) is sufficiently serious to warrant detention in hospital and he discloses the conclusion that he has reached in the course of the hearing."
The Claimant argued that there is a crucial distinction between an opinion of the patient's mental state (the communication of which is legitimate) and an opinion as to whether he should be discharged (the communication of which is not legitimate); the special position of the medical member within the panel makes it all the more important that he does not travel outside the strict limits of rule 11.
Decision on this point
"The communication by the medical member of her 'very preliminary' view was manifestly lawful, notwithstanding that it went to the ultimate issue [i.e. detainability] and not merely to the question of RD's mental condition. There is nothing in rule 11 to disable the medical member from doing what she (like the other members of the Tribunal) would otherwise plainly be entitled to do, namely to discuss all aspects of the case with the other members of the Tribunal before the hearing and to express to them her preliminary views either on the case as a whole or on any particular aspect of the case, just as there is nothing in rule 11 to disable the medical member (like the other members of the Tribunal) from expressing to the parties at the outset of the hearing her preliminary views either on the case as a whole or on any particular aspect of the case. The contrary, in my judgment, is simply unarguable."
2. Inadequacy of reasons
The Claimant's application for a deferred conditional discharge was supported by an independent psychiatrist and (vaguely) by his RMO, and also by a forensic psychiatric hostel. His Broadmoor social worker, the Home Office, and an psychiatrist instructed by the Home Office, opposed discharge but supported a move to conditions of medium security on completion of the Violent Offender Group.
His principal contention before the Tribunal was that the use of conditions would mean that the test for detention would no longer be met (this proposition being based on numerous reported mental health cases) and would make continued detention disproportionate to the legitimate aim of maintaining his mental stability.
The Claimant argued that the Tribunal's reasons did not grapple with this above-mentioned contention; were silent as to whether he would take medication in the community; were little more than a recitation of the statutory criteria; did not explain why it disagreed with the RMO; did not mention Dr Lock's evidence; and constituted a set of broad conclusions rather than reasons meeting the criteria.
Decision on this point
In relation to the criterion in s72(1)(b)(i) - whether the nature or degree of disorder made liability to detention appropriate - the Tribunal gave four clear reasons for its decision that the criterion was met.
In relation to the criterion in s72(1)(b)(ii) - whether such treatment is necessary for the patient's health or safety or for the protection of others - the Tribunal had specifically stated: "We think it would be wrong to assume the transfer of [RD] from Broadmoor into the community can safely be achieved without a phased and monitored rehabilitation. ... we believe that the risks can only safely be managed by a period in a RSU." This was the very converse of the proposition that the use of conditions would make detention unnecessary.
The Tribunal "quite plainly gave adequate and intelligible reasons which sufficiently identified and explained both its central findings of fact and its overall conclusions in relation to section 72(1)(b)(i) and section 72(1)(b)(ii). The contrary is not arguable."