R v Nottingham MHRT, ex p Secretary of State for the Home Department (Thomas)  MHLO 1
The Tribunal has no power to adjourn to give an opportunity for the patient's condition to improve or to see if an improvement already made is sustained.
Regina v Nottingham Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department; Regina v Trent Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department
(1988) Times, 12 October
Before: Balcombe, Woolf and Russell LJJ
Mr Nigel Pleming (instructed by the Treasury Solicitor) for both Tribunals
Mr David Pannick (instructed by the Treasury Solicitor) for the Secretary of State
The patients did not appear and were not represented.
Transcript (Crown Copyright)
COURT OF APPEAL (CIVIL DIVISION)
BALCOMBE, WOOLF, RUSSELL LJJ
15 September 1988
N Pleming for the Nottingham and Trent Mental Health Tribunals, Appellants; D Pannick for the Secretary of State for the Home Department, Respondent
Treasury Solicitor; Treasury Solicitor
We have before us two appeals from orders of Farquharson J dated 13th March 1987 which raise a single issue. That issue is whether a mental health review tribunal, considering whether to discharge a restricted patient under section 73 of the Mental Health Act 1983, has power, when it accepts that the statutory criteria for such a discharge are not pres-ently satisfied, to adjourn the application to give an opportunity for the condition of the patient to improve.
I take the facts from the judgment at first instance. In the first case, Mr Bernard Alan Thomas was convicted on 28th November 1977 at Cardiff Crown Court of offences of unlawful wounding and assault occasioning actual bodily harm contrary to section 20 and section 47 of the Offences Against the Person Act 1861, one of which involved an attack on a fellow patient at a local hospital. A Hospital Order was made under section 60 of the Mental Health Act 1959, cou-pled with a Restriction Order under section 65 of that Act. Those Orders now take effect under sections 37 and 41 of the Mental Health Act 1983. Mr Thomas made two applications for discharge to the Nottingham Mental Health Re-view Tribunal, as it was constituted under the 1959 Act, and made a further application (which was the subject of the proceedings before the learned judge) on 27th June 1985. The Nottingham tribunal (as I propose to call it), acting under the powers conferred upon it by the 1983 Act, heard the application on 4th August 1986. The tribunal had before it the reports which are commonly submitted and it was accepted by all parties that Mr Thomas continued to suffer from mental illness. The tribunal considered that the only possible alternative to Mr Thomas's continued detention at Rampton Hospital, where he was then a patient, was to see whether it would be appropriate to recommend to the Home Secretary that he should be transferred from Rampton to a Regional Secure Unit. Mr Thomas had been in-volved in an attack upon another patient some two months before the hearing and the responsible medical officer felt unable to advise such a transfer at that time. The tribunal therefore adjourned the hearing for six months, and gave the following reasons:
"1. On the medical evidence the patient's illness is such that an episode of violence might recur and indeed has occurred as recently as the 7th June 1986. The tribunal accepted the responsible medical officer's evidence and that contained in the nursing notes of the events of that day.
"2. Likewise on the medical evidence and in the opinion of the Medical Tribunal member, it is premature to recom-mend the patient's transfer to another hospital. The patient requires in his own and the public interests further treatment at Rampton Hospital before he could be transferred to a less secure hospital which is the next objective in his rehabili-tation."
It was that decision which was under attack in the first motion before the judge and is under appeal before us.
The second case concerns Mr Terence Crozier, who was convicted at the Newcastle Crown Court of unlawful wounding contrary to section 20 of the 1861 Act on 13th January 1975, and similar orders under sections 60 and 65 of the 1959 Act were made against him. He had been conditionally discharged from hospital on two earlier occasions in 1984 and 1985. Since 27th February 1986 he had been a patient at St Luke's Hospital, Middlesbrough, and an application was made by him to the Trent Mental Health Tribunal (wrongly described in some of the proceedings as The "Northern" Mental Health Tribunal but I propose to call it "the Trent tribunal") on 20th August 1986. That tribunal was also fur-nished with the necessary reports; and at the hearing the responsible medical officer, Dr Kothari, gave evidence of Mr Crozier's recent and considerable improvement in mental health since he had been treated with lithium. Dr Kothari wished to have an opportunity of monitoring the patient's further progress as a result of this treatment and all parties requested an adjournment. It is quite plain that on the evidence before it the tribunal could not properly have released Mr Crozier either absolutely or conditionally. The tribunal granted an adjournment for a period not exceeding six months to enable Mr Crozier's further progress to be monitored.
Those facts, as I have said, are taken from the judgment below. Since something turns upon the precise reasons why, in Mr Crozier's case, the Trent tribunal granted an adjournment I refer specifically to a letter of August 1986 which the Clerk to the Tribunal wrote immediately after the hearing. It is addressed to the Hospital Administrator at St Luke's Hospital, Middlesbrough, with copies to various other concerned persons:
"Dear Sir, As you know the Tribunal met on Wednesday, 20th August/86 to consider Mr Crozier's case and have de-cided to adjourn for a period not exceeding 6 months to enable Mr Crozier's further progress to be monitored."
In the course of the proceedings Judge Brian Woods, who is the Chairman of the Trent tribunal, swore an affidavit and a careful perusal of that affidavit makes it quite clear that it was indeed for the reasons given in the letter that the ad-journment was granted. He says (in paragraph 6) that Mr Crozier's illness is complex and of long standing. His state had become one of turmoil; and some details are given about that. Having referred to the fact that Mr Crozier had no insight into his need for medication and had indeed blamed medication for his relapse, Judge Woods goes on to say:
". . . However, on 20 August Dr Kothari gave evidence of the patient's recent and considerable improvement since Lithium had been added to his treatment; not only that, the patient himself could see the improvement and could re-late the improvement to the medication, to which his attitude had now become quite different. The Tribunal would have been unguarded, and indeed open to criticism, if it had there and then determined this reference by reliance upon a new and yet unsustained development which Dr Kothari understandably wished for an opportunity to monitor. It was not capricious nor unjust of the Tribunal to assent to an adjournment which both sides wanted for a reasonable period of time. On the contrary, it would have been capricious and unjust not to have assented to an adjournment. . . ."
Then, after a dissertation on what is the nature of a review tribunal, the deponent continued:
"In the judgment of the Tribunal it was, and is, unquestionably in the patient's interests appropriate to adjourn to re-ceive and evaluate on the resumed hearing a more cogent account and assessment of the new treatment."
As I have already said, I understand that as an indication that the Trent tribunal took the view that it could not then, namely on 20th August 1986, have properly directed Mr Crozier's discharge, but it wanted to see whether Dr Kothari's new treatment proved successful after an interval or some six months, and Mr Crozier's improvement was still main-tained.
In each case the Secretary of State for the Home Department applied for judicial review, asserting that the decisions which the respective review tribunals came to, to adjourn the proceedings for the reasons I have mentioned, were not valid because they had no power to reach those decisions. To those applications the review tribunals themselves were made respondents, as also were the patients. The patients appeared and were represented in the court below but they have not appeared before us. The learned judge made declarations that in each case the order of the tribunal was null and void as being in excess of its powers. From those orders the tribunals have appealed to this court.
I should now refer to the statutory powers with which this case is concerned. Section 37 of the Mental Health Act 1983 empowers the Crown Court to order an admission to and detention in hospital when it is satisfied of the matters which are set out in sub-section (2) of that section. Those matters are that:
"(a) the court is satisfied, [on appropriate evidence], that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either --
(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; or
(ii) in the case of an offender who has attained the age of 16 years, the mental disorder is of a nature or degree which warrants his reception into guardianship under this Act; and
(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the char-acter and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."
Section 41 of the 1983 Act empowers the court to make an order restricting the discharge of a patient in the case of whom a hospital order has been made under section 37. Sub-section (1) is in these terms:
"Where a hospital order is made in respect of an offender by the Crown Court, and it appears to the court, having re-gard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm so to do, the court may, subject to the provisions of this section, further order that the offender shall be subject to the special restrictions set out in this section, either without limit of time or during such period as may be specified in the order; and an order under this section shall be known as 'a restriction order.'"
I should add that later on, in section 79, a person subject to a restriction order is defined as a "restricted patient".
Section 42 confers powers on the Secretary of State in respect of restricted patients; he can authorise their discharge.
Section 65 is the section which provides that there shall continue to be tribunals known as Mental Health Review tri-bunals.
Section 70 provides:
"A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to a Mental Health Review Tribunal -- (a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order or transfer direction; and
(b) in any subsequent period of 12 months."
So a restricted patient has an absolute right under that section to apply in the first 12 month period, after the expiration of six months, and thereafter in every subsequent 12 month interval. That is very important in the context of this case.
Section 71 gives the Secretary of State power to refer cases concerning restricted patients to a Mental Health Tribunal if he does not wish to feel able to exercise his own direct power under section 42.
Section 72 provides:
"(1) Where an application to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, 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 they are satisfied --
(i) that he is not then [my emphasis] suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of 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 not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; . . ."
(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direc-tion; and where a tribunal do not direct the discharge of a patient under that subsection the tribunal may --
(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or trans-ferred to another hospital or into guardianship; and
(b) further consider his case in the event of any such recommendation not being complied with . . .
(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 be-low."
It is because of the incorporation by section 73 of certain specific powers of section 72 that I have found it necessary to read section 72. But it is section 73 to which I now turn, which is the section which is directly concerned with the power of a Mental Health Review Tribunal to discharge restricted patients.
"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a re-striction order, or where the case of such a patient is referred to such a tribunal, the tribunal shall direct the absolute discharge of the patient if --
(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) 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 the tribunal are satisfied as to the matters referred to in paragraph (a) of that subsection but not as to the matter referred to in paragraph (b) of that sub-section the tribunal shall direct the conditional discharge of the patient. . . .
(7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to their satisfaction; and where by virtue of any such defer-ment no direction has been given on an application or reference before the time when the patient's case comes before the tribunal on a subsequent application or reference shall be treated as one on which no direction under this section can be given.
(8) This section is without prejudice to section 42 above."
Section 77(1) provides:
"(1) No application shall be made to a Mental Health Review Tribunal by or in respect of a patient except in such cases and at such times as are expressly provided by this Act.
(2) Where under this Act any person is authorised to make an application to a Mental Health Review Tribunal within a specified period, not more than one such application shall be made by that person within that period but for that pur-pose there shall be disregarded any application which is withdrawn in accordance with rules made under section 78 below."
Section 78 is the section which empowers rules to be made:
"(1) The Lord Chancellor may make rules with respect to the making of applications to Mental Health Review Tribu-nals and with respect to the proceedings of such tribunals and matters incidental to or consequential on such proceed-ings.
(2) Rules made under this section may in particular make provision -- . . .
(j) for conferring on the tribunals such ancillary powers as the Lord Chancellor thinks necessary for the purpose of the exercise of their functions under this Act; . . ."
Rules have in fact been made pursuant to that power. They are the Mental Health Review Tribunal Rules 1983, Statu-tory Instrument 1983/942; and I need refer only to some of those rules. Rule 9 gives a tribunal powers to postpone consideration of applications:
"(1) Where an application or reference by or in respect of a patient has been considered and determined by a tribunal for the same or any other area, the tribunal may, subject to the provisions of this rule, postpone the consideration of a further application by or in respect of that patient until such date as it may direct, not being later than --
(a) the expiration of the period of six months from the date on which the previous application was determined; or
(b) the expiration of the current period of detention whichever shall be the earlier. . . ."
Rule 11 enables a patient to be examined by the medical member of the tribunal before the hearing of an application.
Rule 13 provides:
"Subject to the provisions of these Rules, the tribunal may give such directions as it thinks fit to ensure the speedy and just determination of the application".
Rule 15 provides for the Tribunal to call for further information, should it need it.
Rule 16, which is the significant rule in this case provides:
"(1) The tribunal may at any time adjourn a hearing for the purpose of obtaining further information or for such other purposes as it may think appropriate.
(2) Before adjourning any hearing, the tribunal may give such directions as it thinks fit for ensuring the prompt consid-eration of the application at an adjourned hearing.
(3) Where the applicant or the patient (where he is not the applicant) or the responsible authority requests that a hearing adjourned in accordance with this rule be resumed, the hearing shall be resumed provided that the tribunal is satisfied that resumption would be in the interests of the patient.
(4) Before the tribunal resumes any hearing which has been adjourned without a further hearing date being fixed it shall give to all parties and, in the case of a restricted patient, the Secretary of State, not less than 14 days' notice (or such shorter notice as all parties may consent to) of the date, time and place of the resumed hearing."
Before I turn to the specific arguments in this case, it is right to refer to one decision of this court, namely R v Oxford Regional Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department  3 All ER 239,  1 WLR 1180Not on Bailii!. That case has since been affirmed by the House of Lords  AC 120Not on Bailii!, but it is to some pas-sages from the judgment of Lawton LJ in the Court of Appeal that I wish to refer. In the course of his judgment Law-ton LJ set out in some detail the policy of the Acts of 1959 and 1983 in relation to Mental Health Review Tribunals and their history, in particular by reference to what happened in the European Court of Human Rights, commencing at page 1184H:
"I start by reminding myself what the fundamental policy of both the Acts of 1959 and 1983 was. As a result of a se-ries of distressing cases which came before the courts in the 1950's it became obvious, both to Parliament and to the public, that patients were being kept in hospital long after they required treatment, largely because of the difficulty of discharging them into the community. The second problem was that, in the 1950's and for many years before that, those who were convicted of criminal offences but were not insane within the meaning of the M'Naghten Rules, had to be sent to Prison. There was no power in the criminal courts before 1959 to send a convicted person who was suffering from a mental disorder to a hospital. Parliament got over both those difficulties by the provisions of the Act of 1959.
It is relevant for the court to remind itself why it was that the courts exercising criminal jurisdiction were given power to recommend restrictions on release from a hospital either limited or unlimited in time. The provisions of section 65 are now substantially reproduced in section 41(1) of the Act of 1983:
[The learned Lord Justice then set out the provisions of section 41(1) of the 1983 Act.]
Under the Act of 1959 the Secretary of State was entrusted with the decision as to whether to release a patient in hos-pital pursuant to an order under section 60. That essentially was an executive act. The European Court of Human Rights later decided that that was contrary to the European Convention on Human Rights because a patient was being detained not as a result of a decision of a duly constituted judicial body but as a result of an executive act on the part of a Secretary of State. The consequence was that, when Parliament came to pass a new Mental Health Act in 1983, provision had to be made to deal with the decision of the European Court of Human Rights, and the scheme was that no longer could the Secretary of State be entrusted with the duty of deciding upon release from hospital, but that duty should rest upon a mental health review tribunal.
The Act of 1983 came into operation on 30 September 1983. Before that date mental health review tribunals which had been established under the Act of 1959, only had power to recommend release and their recommendations could be, and indeed often were, overruled by the Secretary of State. The Act of 1983, however, envisaged that the Secretary of State still had an interest in cases involving patients subject to restriction. Clearly he has. He is the guardian of the public welfare in this respect. As a consequence, the Act itself gives him certain powers and, in addition, the rules made under the Act envisage that he shall be entitled to make representations to a mental health review tribunal."
There is a further short passage to which I also wish to refer. At page 1187H Lawton J said this:
"The legal problem with which this court has to deal is: what did Parliament intend by the words it used in section 73(2)? It seems to me clear on the wording of the Act that the mental health review tribunals were only intended to take into account those matters which were specifically referred to in section 72(1)(b)(i) and (ii), nothing else at all, and, once they have become satisfied that the criteria in those sub-paragraphs are established either, as in the case of section 73(1), under both sub-paragraphs or, as in the case of section (2), only the first sub-paragraph, then they have to make an order. They cannot do anything else . . ."
There then come these important words:
"As Mr Laws pointed out, the mental health review tribunals have three options: one is to grant an absolute discharge, one to grant a conditional discharge and one to refuse any discharge. . . ."
That, if I may say so with respect, seems to me to be an admirable summary of the powers of a Mental Health Review Tribunal under section 73.
In the present case Mr Pleming for the appellants, the review tribunals, made two basic submissions. In the case of Mr Crozier he submitted that what happened in that case (and I have already dealt in some detail with what in fact hap-pened) was a request for further information within that part of Rule 16, to which I have already referred, namely:
"The tribunal may at any time adjourn a hearing for the purpose of obtaining further information . . .".
Mr Pannick, as I understood it, on behalf of the Secretary of State accepted that if a tribunal requires further infor-mation as to the present state of health, particularly the mental health, of a patient, clearly that is a purpose for which it can properly exercise its power of adjournment. But, as will have been apparent from the extracts both from the let-ter giving the reasons for the tribunal's decision and the affidavit of Judge Woods, to which I have already referred, that was not the purpose for which the Trent tribunal adjourned Mr Crozier's case. They adjourned it not to monitor it themselves, as apparently was at one time suggested, but to enable Dr Kothari to monitor Mr Crozier's mental state, and in particular to see whether the improvement in that state (which had come about by the introduction of lithium into his medication) was maintained. That, it seems to me, cannot properly be described as an adjournment for the purpose of obtaining further information within the first part of Rule 16.
In both Mr Thomas's case and Mr Crozier's case, Mr Pleming then relied on the second limb of Rule 16, namely the power of a tribunal to adjourn a hearing:
"for such other purposes as it may think appropriate." Those words are, of course, very wide and, taken by themselves, I accept could well have justified an adjournment for the purpose of monitoring the continued state of a patient's health. But, of course, the Rules must be construed in the light of the Act and, in particular, of the powers contained in the Act to make Rules. I have already referred to the rule making power under section 78 and, in particular, to section 78(2)(j). Rules may be made:
"conferring on the tribunals such ancillary powers as the Lord Chancellor thinks necessary for the purposes of the exer-cise of their functions under this Act; . . ."
So it becomes necessary to consider what are their functions under the Act.
At this point, I think it would be appropriate to say that for my part I would not think it right to criticise in any way the tribunals for exercising their powers in the way they did in the particular cases; nor, as I understand it, did the learned judge below. No attack was made on their bona fides nor, indeed, on the quality of their decisions, if they had power to make them. The question is simply: did they have power under the Act and under the Rules to adjourn these applica-tions for the purposes for which they did adjourn them?
I have already referred to the passage from Lawton LJ's judgment in Regina v Oxford Regional Mental Health Review Tribunal, Ex parte Secretary of State for the Home Department stating that a tribunal really only has three options un-der section 73: to grant an absolute discharge, to grant a conditional discharge, or to refuse a discharge. The tribunal in such a case is, of course, exercising a judicial, as opposed to an administrative, function. A judicial function does not of itself preclude the possibility of an adjournment to see whether or not conditions which are not then satisfied will be satisfied at some future date, if that is within the scope of the powers which the Act in question gives the tribunal. In my judgment the Act does not give a mental health review tribunal any such powers. It has, as I have said, no general su-pervisory function over the progress of a restricted patient. That is the function of the Secretary of State. It has certain specific judicial powers to be exercised in relation to the application before it, and I remind myself of the wording con-tained in section 72(b)(i) which I have already read and which is incorporated by reference in section 73:
"the tribunal shall direct the discharge of a patient . . . if they are satisfied . . . that he is not then suffering from mental illness . . ."
Where the tribunal is satisfied that the criteria of section 73(1) and (2) are not then fulfilled and it is, therefore, inappro-priate to direct the absolute or conditional discharge of a patient, in my judgment the tribunal has no power to adjourn the proceedings in order to give the condition of the patient an opportunity to improve or, as in the Crozier case, an opportunity to see if an improvement already made is sustained. Its powers to adjourn the hearing are under Rule 16 and are primarily for the specific purpose of obtaining further information, and I have already indicated what I believe that may relate to. There may well be other matters which would entitle a tribunal within those powers to grant an ad-journment but not, as I have already said, for the purpose of seeing whether a patient's condition improves or an im-provement is sustained.
It seems to me, as it did to the learned judge, that the tribunals in this case acted in excess of the powers conferred on them by the Act and the Rules. He was right in making the declarations that he did, that their decisions were null and void; and for my part I would dismiss these appeals.
Before concluding this judgment, I would like to express my tribute to both counsel for the admirable way in which they have conducted this appeal and for the clarity and brevity of their arguments.
I agree, and there is nothing I can usefully add.
I also agree.Appeal dismissed; leave to Appeal to House of Lords refused.
No Bailii link (neutral citation is unknown or not applicable)