Li, R (on the application of) v Mental Health Review Tribunal [2004] EWHC 51 (Admin)

Case No CO/3539/2003[2004] EWHC 51 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 22 nd January 2004
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE NEWMAN
Between
The Queen on the application of LIClaimantTHE Mental Health Review TribunalDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Roger Pezzani (instructed by Christian Khan) for ClaimantMartin Chamberlain (instructed by Treasury Solicitor) for Defendant
JudgmentMr Justice Newman :
[1]The claimant challenges the decision of the Mental Health Review Tribunal (“the Tribunal”) not to conditionally discharge him from hospital, where he is detained pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”) . He suffers from paranoid schizophrenia.[2]The challenge raises two issues:-(1) whether the Tribunal relied upon an irrelevant matter, being a matter unrelated to any mental illness;(2) whether the reasons of the Tribunal adequately address the criteria for discharge in sections 72 and 73 of the 1983 Act.[3]As the argument developed, some four strands appeared to comprise the structure of the challenge:-(1) the adequacy of the reasons;(2) the admissibility of evidence from the Chairman of the Tribunal;(3) the first detention criterion (“the nature or degree question”);(4) the second detention criterion (“the health and safety question”). As is often the case there was a measure of overlap between the points.[4]Sections 72 and 73 of the 1983 Act provide so far as is relevant, as follows:- 72(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… (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied - (i) that he is then 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 necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; …. 73 (1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction order… the tribunal shall direct the absolute discharge of the patient if - (a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and (b) the tribunal are 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 effect of the above is that a tribunal must order the conditional discharge of a restricted patient if: (i) they are not satisfied that he is then suffering from mental disorder or from mental disorder of a nature or a degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment (the first detention criterion);or (ii) they are not satisfied that his detention is necessary in the interests of his own health or safety or with a view to the protection of others (the second criterion). (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are not satisfied - (i) that he is then 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 necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; …. (a) the tribunal are not satisfied as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and (b) the tribunal are satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.[5]The Mental Health Review Tribunal Rules 1983 (“the Rules”) provide, by rule 23 (2):- “The decision by which the Tribunal determines an 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) … or section 73(1) or (2) of the Act, shall state its reasons for being satisfied as to those matters.[6]The reasons for the Tribunal’s decision were as follows:- [1] “The Tribunal heard from Dr Lomax that the Applicant’s mental illness is such as to justify his liability to be hospitalised but that his response to medication has been such as to allow him immediately to move into the community into a 24 hour staffed hostel. On the other hand the RMO and Mr Miles (social worker) thought that an immediate move to community living would present a small but unacceptable risk of further offending, having regard to the enormity of index offences. The RMO contended that the appropriate way forward for the Applicant was a move to the Three Bridges RSU, from which he might benefit from (and be tested by) unescorted leave and where some further work might take place (as recommended by the S.O.G.), to enhance the Applicant’s sense of victim empathy and relapse prevention strategies. [2] The Tribunal preferred the evidence of the RMO as to the route by which the Applicant should move back to community living. The Tribunal thought Dr Lomax to have given insufficient weight to the risk (albeit small) of re-offending, especially in the context of the Applicant being (upon any conditional discharge) suddenly exposed to the pressures of life in the community, including the availability of illicit drugs (which historically the Applicant has taken). The Tribunal accepted that Mr [LI] has responded well to medication and gained considerable insight into his offending but the Tribunal reflected upon the fact that the index offences were attributable both to the Applicant’s mental condition at the time and also his attitude (divorced from any illness) to women generally. [3] The Tribunal hoped that the representatives from Three Bridges would waste no time in assessing the Applicant and that his move to the RSU will not be unduly delayed. The Tribunal also hoped that Mr [LI] would be accepted by Three Bridges without his having to return to taking his medication by depot, a procedure which led him to suffer significant side-effects. Moreover it seemed to the Tribunal that the Applicant’s remaining time at Ashworth (pending transfer) should be taken advantage of by his being offered one to one psychological counselling, in order to help satisfy the outstanding requirements of the Sex Offender’s Group report”. For convenience I have added the paragraph numbers.[7]Although some complaint was made about the use of a shorthand expression to cover the criterion that the claimant was suffering from a mental illness of a “nature or degree” which makes it appropriate for him to be liable to be detained, I am satisfied, having regard to the issues to which the evidence gave rise, that the reasons adequately expressed the first criterion by referring to “… the applicant’s mental illness is such as to justify his liability to be hospitalised …” (paragraph 1).[8]Dr Lomax (the claimant’s independent consultant witness) gave evidence to this effect:- “From his history I conclude that the diagnosis of paranoid schizophrenia is appropriate and that his symptoms are presently controlled by appropriate medication. As such he could be construed as suffering from a mental illness which is presently of a nature although not a degree to warrant his continued detention in hospital….”. Dr Croy, the claimant’s RMO, did not controvert this opinion. The Tribunal was, in my judgment, entitled to proceed upon the basis that the first criterion was established.[9]In my judgment, the issue for the Tribunal to consider and determine fell squarely within the passage in the judgment of Lord Phillips MR in R (H) v. MHRT North & East London Region [2001] 3 WLR 512: “The circumstances of the present case … are not uncommon. A patient is detained who is unquestionably suffering from schizophrenia. While in the controlled environment of the hospital he is taking medication, and as a result of the medication is in remission. So long as he continues to take the medication he will pose no danger to himself or others. The nature of the illness is such, however, that if he ceases to take the medication he will relapse and pose a danger to himself or others. The professionals may be uncertain whether, if he is discharged into the community, he will continue to take the medication. We do not believe that Article 5 requires that the patient must always be discharged in such circumstances. The appropriate response should depend upon the result of weighing the interests of the patient against those of the public having regard to the particular facts. Continued detention can be justified if, but only if, it is a proportionate response having regard to the risks that would be involved in discharge”.[10]Dr Croy, whose evidence the Tribunal preferred, did not refer to “nature or degree”, but because the point was not in issue, nothing material turns on that. What is material is the manner, approach and reasons given by the Tribunal for rejecting Dr Lomax’s opinion that “his response to medication has been such as to allow him to immediately to move into the community into a 24 hour staffed hostel” (the second criterion).[11]The claimant submits that upon a true interpretation of the reasons given, the Tribunal concluded:(1) that (as Dr Lomax stated) he had responded well to medication and had gained considerable insight into his offending, but(2) that Dr Lomax had given insufficient weight to the small risk of re-offending; and(3) because the index offences were attributable both to his mental condition at the time and also his attitude (divorced from any illness) to women generally conditional discharge should be refused. As a result it is submitted his discharge was refused for a reason not limited to the mental disorder from which he was suffering, where mental disorder was the only legal foundation for his continued detention.[12]It is clear that the continued detention of a patient must be linked to his or her mental disorder but I read the reference to the claimant’s “attitude (divorced from any illness) to women generally” not to go to the nature or degree of his illness but to whether or not the Tribunal “was satisfied that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment”, namely the second criterion. The Tribunal was, in my judgment, in this part of its reasons deliberating upon the risk factor, namely whether his detention was justified in the interests of his own health and safety or with a view to the protection of others.[13]I return, therefore, to Dr Lomax’s opinion which represented the claimant’s case, namely that because of his response to medication and insight into his offending, he could be conditionally discharged, and to the Tribunal’s reasons for rejecting this opinion.[14]An analysis of the reasons given by the Tribunal shows as follows:-(1) following the RMO and the social worker’s evidence there was a small but unacceptable risk of re-offending having regard to the enormity of the index offences, to which risk Dr Lomax had given insufficient weight;(2) in particular, the factors relevant to risk to which weight had to be given were:- (a) the claimant’s sudden exposure to the pressures of life in the community, including the availability of illicit drugs; and (b) his attitude (divorced from any illness) to women generally. The first criterion not being in issue, the second criterion was met since there was an unacceptable risk of re-offending and it was necessary and proportionate for the claimant to receive his treatment in hospital. It has not been and could not be argued that the risk of re-offending, if unacceptable, was not capable of justifying the refusal to conditionally discharge. The issues arise in connection with the part which “his attitude (divorced from any illness) to work generally” played in the whole decision making process.[15]In a report dated 20th July 2001, Dr Croy stated:
“During a relapse in 1998 he committed a series of serious sexual offences. It would appear that one of the main factors was his disturbed mental state, although there are also other issues including some cognitive distortions regarding women”
. In the latest report dated 14th October 2002 which the Tribunal obviously had very much in mind, she stated:
“During a relapse in 1998 he committed a series of serious sexual offences. It would appear that one of the main factors was his disturbed mental state, although there are also other issues, including his beliefs and attitudes towards women. He has responded well to group work, to explore this and we await the full report from that. It would appear to me that he would benefit from rehabilitation towards the community prior to considering discharge and therefore he continues to be appropriately detained in hospital in the interests of his own health and for the protection of others”
. The conclusion that his continued detention was appropriate because of the risk he presented was the very issue for determination by the Tribunal. Whilst there is no objection to the opinion being expressed, caution is required when considering the reasoning because that may be legally flawed.[16]The evidence of the Senior Social Worker (Mr Miles), which the Tribunal accepted, was clear in connection with the risk of re-offending and the impact of his mental illness:
“Risks Sexual violence to women -if disinhibited by mental illness. The Sex Offenders Treatment Group found some negative attitudes towards women which however Mr [LI] was willing to work on…. Relapse of mental illness…. He appears now to accept that he has been mentally ill and will remain in need of treatment – and he also appreciates the importance of this in relation to the risk of reoffending. … Appropriateness of Detention Mr [LI’s] mental illness is largely controlled on medication and there is no evidence of his presenting a risk to women except when mentally ill…. [He] had worked well and made progress but did present high risks and that further work was necessary. Perhaps that work could be done in the community, but I feel that a gradual resettlement … via the Three Bridges … would be more helpful in the longer run to Mr [LI] and safer for the public.”

Appropriateness of Detention

[17]I interpret Dr Croy and Mr Miles as stating that rehabilitation prior to discharge was necessary to enable further sex offenders’ treatment to be undergone to deal with his attitude to women but that if his mental disorder was controlled by medication he was not a risk to women but there were “high risks” which made further work necessary. But since there was undisputed evidence that he had responded well to medication and was settled in his condition and taking his medication and whilst taking it not a risk to women, the relevant risk was from re-offending if he was discharged which would occur during a relapse when he failed to take his medication. What is not sufficiently clear from the material before the court or from the Tribunal’s decision is whether risks other than that of re-offending were taken into account and whether:(1) his attitude to women increased the risk he would fail to take his medication and re-offend; or(2) there was an unacceptable risk he would re-offend because of sudden exposure to the community and illicit drugs and having regard to his attitude to women the degree of risk he would then present was enhanced; and/or(3) there was a small risk he would re-offend which had to be regarded as unacceptable because the re-offending, if it occurred, would by reason of his attitude to women be so serious that it was proportionate to detain him; or(4) although whilst on medication he was not a risk to women, he was being detained to enable him to undergo sex offenders treatment.[18]The misgivings I have stem from the Tribunal merely stating, without more explanation, that it had “reflected upon the fact that the index offences were attributable both to the Applicant’s mental condition at the time and also his attitude (divorced from any illness) to women generally”.[19]It is clear the Tribunal’s consideration of risk started (in my judgment correctly) with the risk of re-offending should the claimant fail to take his medication when in the community. There was evidence to support the existence of a risk from his “sudden” exposure to pressures of life in the community and the availability of illicit drugs. Although not expressly stated, I take it as sufficiently plain from the context of the reasoning that illicit drugs were seen as giving rise to a risk he would cease to take his medication and therefore re-offend.[20]Had the Tribunal said no more I cannot see that there could be any reason for complaint. But it did say more and, as I have already indicated, it is not clear how his attitude to women generally was taken into account by the Tribunal or why it considered it to be relevant, although I have no difficulty in seeing its potential significance to the case.[21]Mr Chamberlain, counsel for the Tribunal, suggested that the claimant’s attitude to women, given he re-offended, was capable of enhancing the risk he presented to women (see paragraph 17(2) above). By way of example, compare the risk presented by two patients, one a strong man, the other incapacitated. One poses a greater risk, if they both re-offend, than the other. I agree this would have been a legitimate and proper consideration but it does not emerge from the reasons and the reference to a process involving reflection. In his witness statement to which objection was taken, the President, His Honour

Judge Peter Smith, states:

“A person (such as Mr [LI]) who had disordered ideas about women was more likely, when in such a disinhibited state, to offend”
. A little later he adds:
“It was a factor which, on the expert evidence before us, would make him more dangerous to female members of the public if the symptoms of his mental illness returned”
. Had this being the way in which the reasons had stated the position there could have been no cause for complaint. “It was a factor which, on the expert evidence before us, would make him more dangerous to female members of the public if the symptoms of his mental illness returned”.[22]But it has to be said that the clarity with which the reasoning appears in the witness statement is not consistent with the account set out in the exhibit to the same witness statement. The exhibit comprises a typed up version of the President’s handwritten notes, made shortly after the decision, in which the Tribunal’s approach is explained. “The reference by the Tribunal to the unchallenged evidence that Mr [LI], at the date of the offence, was not only mentally ill but also had an unacceptable attitude to women in general, was germane to the need for Mr [LI] to continue to engage in the sort of work which the SOG identified as being outstanding, some of which (that relating to victim empathy) would be available at the RSU he might be transferred to. But, as I have said, the central issue was whether Mr [LI] should continue to receive treatment for his mental illness in hospital until such time as uneventful periods of leave from the hospital would indicate his ability to cope with the stresses and temptations of outside life”. The advantage of further work being done on his attitude to women, before his release, is obvious, but unless there was a risk of re-offending through a failure to take his medication whilst in the community, his continued detention for that purpose was not lawful.[23]In this passage it is not clear whether the opportunity to continue with SOG treatment was being treated as a justification for his continued detention or whether the opportunity was being regarded as an incidental advantage to the need for continued detention which was justified because of the risk he would cease his medication and re-offend. Further the notes do not show that his attitude to women was treated as relevant to the existence of a greater risk of re-offending or as relevant to the enhanced seriousness of any re-offending which might take place.[24]The Claimant submitted that the evidence from the President went further than elucidating or correcting the reasons. Further, that whilst exceptionally reasons may be added to by evidence, this evidence differed from the reasons which were given and the two accounts were in themselves mutually inconsistent.[25]In my judgment the original reasons were inadequate because they did not disclose what was meant by “reflected”. Further, I entertain some limited misgivings about the extent to which the subject matter of the Tribunal’s reflections may have infected its approach to the justification for refusing a conditional discharge. It is not as clear as it should have been that his attitude to women generally was being considered as relevant to what might occur should he not take his medication and re-offend. Further, as the subsequent evidence discloses, even in connection with that contingency, it is not clear what part it played in the deliberations.[26]For all these reasons, I have concluded that judicial review should be granted but, as agreed with Counsel, I leave over for further submissions all issues in connection with relief. Thursday, 22nd January 2004 MR JUSTICE NEWMAN: For the reasons given in the judgment which I hand down I have concluded that judicial review should be granted, but as I agreed with counsel, I have left over for further submissions all issues in connection with relief. Yes, Mr Pezzani? MR PEZZANI: My Lord, I appear for the claimant again, my learned friend Mr Chamberlain appears for the defendant. MR JUSTICE NEWMAN: Yes, of course. MR PEZZANI: My Lord, I would simply ask for an order quashing the decision of the Tribunal of 6th May of last year and an order that the defendant, the Tribunal, shall rehear the claimant's application to the Tribunal dated 16th November 2002. I would ask for -- MR JUSTICE NEWMAN: Just remind me of the dates, it is quashing of the order, what was the date -- MR PEZZANI: The date of the decision is 6th May 2003. MR JUSTICE NEWMAN: Yes. MR PEZZANI: The date of LI's application to the Tribunal was 16th November 2002. MR JUSTICE NEWMAN: So you are asking for an order quashing 6th May decision? MR PEZZANI: Yes. MR JUSTICE NEWMAN: And ordering a fresh hearing? MR PEZZANI: Of the application to the Tribunal. MR JUSTICE NEWMAN: Ordering a fresh hearing of 16th November 2002 application? MR PEZZANI: My Lord, yes. MR JUSTICE NEWMAN: Yes, all right. MR PEZZANI: For your Lordship's information I am instructed that there is, currently, no application before the Tribunal pending a hearing from LI. MR JUSTICE NEWMAN: But when is his statutory review due? Does he not have a regular review? MR PEZZANI: Well, my Lord, he has a right every 12 months to apply to the Tribunal. MR JUSTICE NEWMAN: Yes, and he has not done anything about that, at the moment? MR PEZZANI: I think since this hearing there has been no further applications to the Tribunal, he may have a right -- MR JUSTICE NEWMAN: He has a right within a 12 month period. MR PEZZANI: So he may well currently have a right to apply but he has not used that right as far as I am aware. In any event, the fact that he has the right, if my learned friend were to take a point on this, would not, in my submission, be relevant to whether he should in any event have this application be the subject of a fresh hearing, because, essentially, as a result of your Lordship's judgment, this hearing has been brought into question and he should have a right to a fair hearing with a proper decision of this application. MR JUSTICE NEWMAN: Well, let us see what Mr Chamberlain says. He foreshadowed that he had some reason to make submissions to me. MR CHAMBERLAIN: My Lord, I hope I did not foreshadow that, the only reason I mentioned dealing with the matter quickly in my letter is that it was not possible to take instructions, obviously because of the embargo. Unfortunately it has not been possible to take instructions this morning from the client in this matter. So far as the order is concerned, and again this is without instructions, the proper order is, in my submission, the order that my learned friend suggests. He is quite right to say that the application of 2002 which was before the Tribunal was heard by them in May and their determination of it has now been held to have been in error of law. The proper consequence of that, in my submission, is that the decision should be quashed and the matter remitted to be reheard at the Tribunal. MR JUSTICE NEWMAN: Well then, that is very much more straightforward than I thought. So be it, then that will be the order. The order of 6th May 2003 will be quashed; the application of 16th November 2002 should be remitted to a fresh hearing and a differently constituted tribunal -- is that what you are asking for? MR PEZZANI: I think that would probably be sensible for practical purposes. MR JUSTICE NEWMAN: Do you want to say anything about that Mr Chamberlain? MR CHAMBERLAIN: That is generally standard in these sorts of cases. MR JUSTICE NEWMAN: I would have thought it would be better in the circumstances, although it may be on the margins. It would seem better that it should be of a differently constituted tribunal. MR CHAMBERLAIN: My Lord, yes. MR JUSTICE NEWMAN: Right, thank you, any other applications? MR PEZZANI: My Lord, I make an application for my costs. MR JUSTICE NEWMAN: Any resistance? MR CHAMBERLAIN: My Lord, no. There is no proper basis for me to resist costs with or without instructions. There is one further matter which is permission to appeal. As I have said, I do not have instructions and I have no idea whether I will be instructed to apply for permission to appeal or not, but your Lordship will appreciate that the client in this matter is "a judge" and obviously may well take his own view of the case. So, I do have to make a protective application for permission to appeal, but I am not going to press your Lordship on the merits of it. MR JUSTICE NEWMAN: Is not the straightforward way to proceed, you make your application, I will refuse it, and if you receive instructions to the contrary then you can make an application to the Court of Appeal? I think that is a satisfactory way forward. MR CHAMBERLAIN: My Lord, without having made a submission myself that is very much what I had in mind. MR JUSTICE NEWMAN: Then, permission to appeal refused. MR PEZZANI: My Lord, I think I should probably ask for a detailed Community Legal Service Funding Assessment, my client was publicly funded in this claim. MR JUSTICE NEWMAN: Yes, certainly, thank you. Thank you very much for drawing to my attention an error which Jones had led me into. MR PEZZANI: It is a problem. I think the 8th edition was -- I do not want to impugn Sweet & Maxwell or Jones -- I think the 8th edition was somewhat rushed out and it is clearly just a typographical error of which I have made the publishers aware. MR JUSTICE NEWMAN: Have you? MR PEZZANI: Some time ago when it first came out. They said they were going to issue an erratum, but it is difficult. MR JUSTICE NEWMAN: It was a very convenient summary, on the face of it, and therefore led me into error in adopting it. MR PEZZANI: It is not an error, funnily enough, that appears in the earlier editions of Jones. It is just this edition, but it is potentially important. MR JUSTICE NEWMAN: I am grateful to you. Thank you very much indeed. MR CHAMBERLAIN: My Lord, I wonder if I might ask your Lordship to hand down the copy of Jones. MR JUSTICE NEWMAN: The erring volume, yes, you can have it back.