KW, R (on the application of) v Avon and Wiltshire Mental Health Partnership NHS Trust & Anor [2003] EWHC 919 (Admin)

Case No CO/1089/2003[2003] EWHC 919 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 3 March 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SILBER
Between
THE QUEEN ON THE APPLICATION OF KWClaimant-v-
Between
AVON AND WILTSHIRE MENTAL HEALTH PARTNERSHIP NHS TRUSTDefendantBRISTOL CITY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M WESTGATE (instructed by AMD Solicitors, Shirehampton, Bristol, BS11 9TT) appeared for CLAIMANTMISS J RICHARDS (instructed by Bevan Ashford, Bristol, BS1 4TT) appeared for FIRST DEFENDANTMR S KOVATS (instructed by the Legal Department, Bristol City Council) appeared for SECOND DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©JUDGMENT IN THE CASE OF KW and AVON AND WILTSHIRE MENTAL HEALTH PARTNERSHIP NHS TRUSTSilber J:Introduction
[1]KW, who is now aged 18, was admitted to Frenchay Hospital on 1 January 2003 after having been found in a collapsed condition on a park bench. On 9 January 2003, KW was admitted to a mental hospital for assessment pursuant to section 2 of the Mental Health Act 1983 (“the 1983 Act”), which permits a person to be detained in a mental hospital for a period of up to 28 days for assessment on the grounds first, that the patient is suffering from a mental disorder which warrants a detention of the patient in a hospital for assessment or assessment followed by mental treatment and second, that that patient ought to be detained in the interests of his own health or safety or the view to or of the protection of other people. KW applied for his discharge to the Mental Health Review Tribunal.[2]In a report prepared for that Tribunal hearing and dated 23 January 2003, Dr. Susan O’Connor, a consultant psychiatrist, who is KW’s RMO, sets out the limited history which it had been possible for her to gain from KW. She discovered that he had been living on the streets for several months but that he drew no benefits, for reasons that he would not divulge. He was reluctant to eat and drink. The report from Dr. O’Connor also summarised information received from KW’s ex-partner, who explained that KW had become isolated and withdrawn and that he would spend a great deal of time looking into space. According to his former partner, KW appeared to respond at times to sounds and sights within the room of which she was not aware. She also said that KW became quite ritualistic in his behaviour and that he stopped swallowing his saliva but instead spat saliva continuously.[3]Dr. O’Connor explained in her report for that Tribunal hearing that:- “We are in the early stages of assessing this young man who has presented with an unusual history. He appears to have been a gregarious young man with relationships, a job and a family up until two years ago. Since that time he has become increasingly isolated and showing increasingly odd behaviour. His mental state has been inaccessible to those closest to him. He has put himself at risk by not drawing any money and being entirely dependant on others for food and drink. When this system of support has broken down he has taken no action to help himself, putting himself at extreme physical risk. His behaviour has been ritualistic with an increasing insistence on doing things in a particular way at a particular time. At times he appears not to have understood the risk posed to others by his actions. The history and KW’s current behaviour is suggestive of a paranoid psychotic illness”.[4]Dr. O’Connor concluded her report stating that KW was an extremely vulnerable young man who was suffering from a serious psychiatric illness so that she considered that he needed further assessment and treatment. She explained that KW continued to be a risk both actually to himself and potentially to others, and also that he did not have insight into his problems and wished to leave hospital. Dr. O’Connor considered that he needed to be detained under the 1983 Act to receive the assessment and treatment he required.[5]The Tribunal had before it apart from Dr. O’Connor’s report, a social circumstances report and a nursing report but it did not have any psychiatric evidence other than that of Dr. O’Connor when it considered KW’s case on 27 January 2003. It appears that KW’s solicitors had obtained a report from a Dr. Ahmed, who suggested that KW was suffering from a prodrome, a symptom indicating the onset of a schizophrenic illness, although Dr. Ahmed appeared to support KW’s discharge. This report was not, however, before the Tribunal and Dr. O’Connor was unaware of its existence.[6]At the hearing before the Tribunal, Dr. O’Connor confirmed that it was her opinion that KW was suffering from a mental disorder, that he was psychotic and that he met the criteria for detention under the 1983 Act.[7]On 27 January 2003, the Tribunal decided to direct KW’s discharge from liability to be detained with effect from 11.00 a.m. on 28 January 2003. The basis for its decision was apparently, in its view, that KW did not have a mental disorder. In the written record of the decision, the Tribunal explained that:- “Having read and listened to the evidence we are not satisfied that the Authority have shown that KW has a mental disorder”. The Tribunal then added that:- “Having said that and discharged the section we strongly recommend that KW stays informally for a few more days, if only to get the results of some tests regarding his physical health and that he accepts the help that is being offered to him”.[8]The Tribunal gave no reasons for its conclusion that KW does not have a mental disorder.[9]On 28 January 2003 instead of being released KW was detained under section 5 of the Mental Health Act 1983 by the Avon and Wiltshire Mental Health Partnership NHS Trust (“the Trust”). The Trust also decided to detain KW under section 3 of the 1983 Act on 28 January 2003 and I will refer to both these two decisions as the “28 January 2003 decisions”.[10]KW has sought to judicially review the 28 January 2003 decisions. Permission to make that application was given by Lightman J on 20 February 2003 who also ordered that it should be heard together with a subsequent application made by the Trust to judicially review the decision of the Mental Health Review Tribunal dated 27 January 2003 (“the Tribunal’s decision”) to discharge KW. Bristol City Council is a defendant to KW’s application and is an Interested Party to the Trust’s application. It has been represented by counsel.[11]The Tribunal has not been represented at today’s hearing. The Treasury Solicitor acting for the Tribunal stated in correspondence that the Trust’s claim had been overtaken by events and that it had become academic because KW was now detained under section 3 and so he is now entitled to apply for a new Tribunal in relation to that decision. The letters also explained that KW’s detention under section 2 only lasted for 28 days and therefore the detention order made on 9 January 2003 had now expired. I start by considering the first decision which is being challenged, which is the Tribunal’s decision directing the discharge of KW from detention with effect from 28 January 2003. Mr. Martin Westgate for KW now accepts correctly in my view that the Tribunal’s decision cannot be defended and that it should be quashed. He also accepts that the claim made by KW for judicial review against the Trust challenging the 28 January 2003 decisions to resection KW is now unsustainable and has to be withdrawn.[12]In the ordinary course of events, it would not be necessary to give a reasoned judgment for quashing the Tribunal’s decision but I am anxious that the members of the Tribunal know why their decision has to be quashed. My judgment might assist them in future cases and it also will explain to anybody interested why KW still has to be detained. Summary of the grounds of challenge to the Tribunal’s decision[13]The Trust raises three grounds of challenge to the Tribunal’s decision, at least two of which Mr. Westgate for KW accepts as being correct. They are that:-(i) the Tribunal failed to give adequate and intelligible reasons for its decision (Ground One);(ii) the Tribunal’s decision was perverse, having regard to the evidence before it (Ground Two);(iii) there was a lack of fairness in the Tribunal’s decision-making process (Ground Three). Ground 1 - Failure to give adequate and intelligible reasons[14]Rule 23(2) of the Mental Health Review Tribunal Rules 1983 requires the Tribunal to provide the reasons for its decision and it states as far is material to the present case that:- “The decision by which the Tribunal determines the application shall be recorded in writing; the record shall be signed by the president and shall give the reasons for the decision and in particular, where the Tribunal relies upon any of the matters set out in section 72(1) … of the Act, shall state its reasons for being satisfied as to those matters”.[15]KW was a patient detained under section 2 of the 1983 Act. Accordingly, a decision as to his discharge was governed by section 72(1)(a) of the 1983 Act, which provides that:- “(1) Where application is made 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 – (a) the Tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied – (i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or (ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons”.[16]The Tribunal’s decision was that it was not satisfied that KW was suffering from mental disorder. Pursuant to Rule 23(2) of the 1983 Rules, it was required to state its reasons for that decision.[17]This is an important and valuable statutory requirement because as Sedley J (as he then was) explained in R v Solihull MBC Housing Benefits Review Board ex p Simpson (1993) 26 HLR 370, the statutory duty to give reasons “is not simply a bureaucratic chore or an opportunity for lawyers to find fault” but is, rather, a “fundamental aspect of good public administration”. Indeed, caselaw establishes that the reasons must be “adequate and intelligible … and must grapple with the important issues raised” (R v MHRT ex p Pickering [1986] 1 All ER 99).[18]The obligation of a Mental Health Review Tribunal to give reasons has recently been considered by the Court of Appeal in R (H) v Ashworth Hospital Authority [2003] 1 WLR 127. Dyson LJ, with whom Simon Brown and Mummery LJJ agreed on this issue, cited with approval a passage from the judgment of Lord Phillips MR in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, in which he explained that: “if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy argument. It does require the judge to identify and record those matters which were critical to his decision … The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the judge’s decision”.[19]Dyson LJ emphasised that the Mental Health Review Tribunal must, if it is rejecting expert evidence, explain why that is the case as, in his words:- “It must at least indicate the reasoning process by which it has decided to accept some and reject other evidence”. [80][20]He added that it is essential that an approved social worker who was (as here) contemplating making an application for admission of a patient subsequent to a tribunal’s decision to discharge him can “know the facts and circumstances which a tribunal took into account when deciding whether to discharge a patient and the reasons for its decision”.[21]In the present case, it is impossible to know from its reasons why the Tribunal decided that KW was not suffering from a mental disorder. The first two paragraphs in the written record of reasons to which I have referred do not explain the reasons for the decision. The Tribunal gave no reasons for rejecting the evidence of Dr. O’Connor, which was the only psychiatric evidence before it on this issue. Their reasons provided no explanation as to what it considered to be the cause or nature of KW’s symptoms. The Tribunal simply did not explain why it considered that KW did not have a mental disorder.[22]The provision of adequate reasons was of particular importance in the present case, not only because of KW’s Article 5(4) rights but also because KW is and was an extremely vulnerable young man for whom the consequence of discharge would almost certainly be severe self-neglect and possibly death. So the Tribunal decision has to be quashed on this ground. Ground 2 - Perversity/lack of evidence[23]In light of the fact that the only psychiatric evidence before it was Dr. O’Connor’s report and her oral evidence that KW suffered from a mental disorder, the Tribunal’s contrary decision was unsupported by any evidence. So it is said by Miss. Richards for the Trust that it was perverse in the absence of any explanation and was consequently flawed (see, e.g., Edwards v Bairstow [1956] AC 14 at 36, Fordham’s Judicial Review Handbook, 3rd ed., at 49.2.5). I did not hear full argument on this point and so I cannot come to a definite conclusion but my provisional view is that Miss. Richards is correct. Ground 3 - Lack of fairness[24]The Tribunal failed to inform the parties at the hearing of the findings of Dr. Mian, the medical member, as a result of his interview with KW. In R (H) v Ashworth Hospital Authority supra the Court of Appeal in paragraph 84 approved the following passage from the judgment of Stanley Burnton J at first instance: “at no stage in the hearing before the tribunal announced their decision were the parties before the tribunal informed of the findings of Dr. Cashman [the medical member of the tribunal] as a result of his interview with H. The parties should be given the opportunity to address and to comment on any significant findings of the medical member, both because fairness so requires and because they may have comments or evidence to put before the tribunal that may lead it to depart from the provisional opinion formed by the medical member. That this should be the practice is supported by the guidance from regional chairmen of Mental Health Review Tribunals referred to at page 159 of the Leggatt Report on tribunals and in paragraph 57 of the judgment of Crane J in R (H) v Mental Health Review Tribunal (unreported) 15 September 2000”.[25]If, as may reasonably be assumed to be the case in the light of the Tribunal’s conclusion that KW did not have a mental disorder, Dr. Mian must have made findings relevant to the existence of a mental disorder, or had formed a provisional opinion as to the existence or otherwise of a mental disorder. That view should have been shared with Dr. O’Connor in the course of the hearing. In fact neither Dr. Mian nor any other member of the Tribunal gave any impression that they doubted the existence of a mental disorder (supplemental statement of Dr. O’Connor, para. 7). Conclusion[26]It follows that the Tribunal’s decision was unlawful and that it should be quashed.[27]The consequence of a finding that the Tribunal decision was unlawful and has to be quashed was discussed by Dyson LJ in R (H) v Ashworth Hospital Authority where he explained that: “It is common ground that, if the judge was right to quash the decision of the tribunal, then H was lawfully detained at the hospital under the procedures put in place prior to that decision and that H’s challenge to the decisions of Doctors Croy and Silva, Ms. Berry and the managers of Ashworth fall away. That challenge is based on the premise that the tribunal’s decision was lawful. If the tribunal’s decision was lawful, the question whether he was lawfully detained remains, and that depends on the lawfulness of the decisions which led to his readmission on 29 March “. [5] Later, he said:- “If the order is ultimately quashed it will be treated as never having had any legal effect at all: see R (Wirral Health Authority) v Finnegan [2001] EWCA Civ 1091. If that occurs it will be treated as if had never been made, and the patient will once again become subject to the Mental Health Act regime to which he was subject before the order was made”. [46]

Later, he said:-

[28]Consequently, Mr. Westgate accepts that as the Tribunal’s decision was unlawful and is quashed, KW was lawfully detained and his challenge to his re-sectioning falls away. He accepts that KW’s challenge to the 28 January 2003 decision must be withdrawn. I now turn to consider the order that must be made.[29]It is common ground between the parties that KW's application for discharge has to be remitted back to be considered by a freshly constituted Mental Health Review Tribunal.[30]There is, however, a dispute between the parties as to the costs incurred on the application made by KW to quash the 28 January decisions. Mr Westgate, who appears for the claimant today, seeks an order that the Trust and Bristol City Council should pay KW's costs in respect of that application, notwithstanding the fact that this application was withdrawn by him. In support of his application, he relies on the principles which were set out by Scott Baker J, as he then was, in Boxall v Mayor & Burgesses of the London Borough of Waltham Forest, an unreported judgment of Scott Baker J of 21 December 2001, in which he states that:
"(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs. "(ii) it will ordinarily be irrelevant that the Claimant is legally aided; "(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost; "(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. "(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs. "(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."
Mr Westgate says that this case falls within the fourth category because it is obvious that KW's claim, if fought to a conclusion, would have led to him being successful.[31]He contends, for the purposes of his submission, that the fact that the Trust has succeeded in quashing the decision of the Tribunal is irrelevant. In support of his submission, he points out that, where a patient has been discharged by a Tribunal, he can not lawfully be resectioned, except where the decision is based on material circumstances that were not known to the Tribunal at the time it made its decision. Indeed, in practical terms, he says that this factor will usually require there to be a change of circumstances, and this applies both to the doctors who make the decision approving a compulsory admission and to the social worker making a decision to apply for admission under section 3.[32]He contends that, where the professionals consider that the decision of the Tribunal is flawed, they should apply for a judicial review of the Tribunal's decision, together with a stay, as this was the course laid down by Dyson LJ in the Ashworth case at paragraphs 56 and 57. Mr Westgate says that this follows because Dyson LJ said at paragraph 56:
"The tribunal is the court whose function it is to perform the role identified in article 5(4). In the absence of material circumstances of which the tribunal is not aware when it orders discharge, in my judgment it is not open to the professionals, at any rate until and unless the tribunal's decision has been quashed by a court, to resection a patient."
[33]Mr Westgate proceeds to say that the central question in a case of this sort was set out by Dyson LJ at paragraph 59, where he says:
"It seems to me that, when considering whether to resection a patient who has only very recently been discharged by a tribunal, the question that the professionals must ask themselves is whether the sole or principal ground on which they rely is one which in substance has been rejected by the tribunal. If it is, then in my view they should not resection. In deciding whether the grounds on which they rely are ones which have been very recently rejected by the tribunal, they should not be too zealous in seeking to find new circumstances."
Mr Westgate submits there is no rational basis for asserting that there was material available to the Trust which was not before the Tribunal. He also points out that the Trust failed to respond to a letter from KW's solicitors asking for details of the change in the circumstances which led to KW being resectioned. He says that the inference can be drawn from that that, if there had been, then it would in fact have been relied upon.[34]In answer to this, Miss Richards points out, first, that Dyson LJ did in fact suggest that there was a much wider right given to resection a patient. She relies on his comments at paragraph 60 of his judgment, where he says:
"Nothing that I have said affects the ability of the professionals to resection a patient if he does or threatens to do something which imperils or might imperil his health or safety, or that of members of public."
So she says that it seems clear that in that passage the use of the words "nothing that I have said affects" by Dyson LJ indicate that this ability to resection is an overriding right which has to be borne in mind.[35]Miss Richards also draws my attention to statements that have been made by the Court of Appeal in the case of R(Von Brandenburg) v East London and National Health Service Trust [2002] QB 235. Miss Richards says that, at paragraph 33 of his judgment, Lord Phillips of Worth Matravers MR says, in a passage with which Buxton LJ agreed that:
"In conclusion I agree with Burton J that Mr Gordon has failed to establish the premise upon which he has based his case, namely that as a matter of statutory interpretation of the Act an application and admission of a patient under sections 2 or 3 of the Act cannot lawfully be made after the patient has been discharged by a tribunal unless either the relevant professionals have satisfied themselves that there has been a relevant change of circumstances or it is not reasonably practicable for them to do so."
The importance of that passage is that the Master of the Rolls and Buxton LJ were saying that there are alternative tests of either a change of circumstances or that it was not reasonably practicable for them to do it. In his judgment, Sedley LJ says at paragraph 41:
" ... neither the Act nor the Convention inhibits the detention by a proper decision-making process of those who, although recently discharged, have deteriorated or whose mental wellbeing otherwise requires admission."
Miss Richards says that shows that it certainly is not obvious what the legal test would be in this case.[36]I note that there is a substantial amount of evidence in this case which shows that there would be an extreme risk to KW's health, if he was indeed to be released; matters of that sort are set out in Dr O'Connor's witness statement. It certainly seems to me that it is not obvious that the claimant would have won, particularly in the light of that evidence and what has been stated in the passages that I have quoted in particular, Dyson LJ talks of the overriding ability of professionals to resection a patient if he does or threatens to do something which imperils or might imperil his health or safety. Again, what has been said by Sedley LJ leads to a similar conclusion on that point.[37]Thus, returning to what Scott Baker J said, I do not think it is obvious that the claimant would have won in this case and, therefore, in the absence of good reason, I resort to what he describes as "a fall back position" of making no order as to costs.[38]If I had been in any doubt about this, there is additional reasons which would have led to that conclusion.[39]The claimant indicated last Friday 28 February that he would not seek to challenge the submissions of the Trust that the decision of the Tribunal should be quashed, and, in those circumstances, they would ask for their application to be dismissed. No good reason has been put forward to me as to why this was not done at a much earlier stage. Of course, if it had been done at an earlier stage, I would consider that a substantial amount of costs incurred by the Trust and the Council would indeed thereby have been saved.[40]Thus, I quash the tribunal’s decision and remit KW’s Application for discharge to a fresh constitution of the mental health review Tribunal. I make no order as to costs in this case.

Cited in 1 later judgment