Secretary Of State For Home Department, R (on the application of) v Mental Health Review Tribunal & Anor [2004] EWHC 650 (Admin)

Case No CO/5851/2003[2004] EWHC 650 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 10th March 2004
Strand
London WC2
B E F O R E:
MR JUSTICE OWEN
Between
THE QUEEN ON THE APPLICATION OF THE SECRETARY OF STATE FOR THE HOME DEPARTMENTClaimant-v-
Between
THE MENTAL HEALTH REVIEW TRIBUNALDefendantANGELA OGDENInterested Party
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)
MS K STERN (instructed by THE TREASURY SOLICITOR) appeared for CLAIMANT for THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTEDMS D TRIPLEY (instructed by HUNT & COOMBS SOLICITORS) appeared onbehalf of the INTERESTED PARTY
J U D G M E N TWednesday, 10th March 2004
[1]MR JUSTICE OWEN: On 19th December 2003 Newman J gave permission to the Secretary of State for the Home Department to challenge a decision of the Mental Health Review Tribunal, made on 15th September 2003, absolutely to discharge the interested party under section 73 of the Mental Health Act 1983.[2]The facts that give rise to this application can be simply stated. On 2nd March 2001 the interested party was convicted of an offence of arson, being reckless as to whether life was endangered, at the Peterborough Crown Court. On 27th March 2001 the court made an order under section 37 of the Act authorising her detention in hospital, together with an order under section 41 of the Act restricting discharge without limit of time.[3]On 8th March 2002 the Tribunal granted the interested party a deferred conditional discharge. The conditional discharge took place with effect from 28th May 2002. Following the interested party's application under section 75 of the Act the Tribunal granted her an absolute discharge on 15th September 2003. In directing that the restriction order to which the interested party was subject should cease to have effect the Tribunal stated that:
"The oral and written evidence showed most commendable progress. Angela has good insight into her mental problem. She has... fully complied with the conditions previously imposed... the risk here is as minimal as could be and we discharge her absolutely."
[4]But the Secretary of State was not informed that the application was to take place and, accordingly, neither gave a statement to the Tribunal nor appeared at the hearing. This application is based upon the failure of the Tribunal to give notice of the hearing to the Secretary of State, so that in consequence the Secretary of State was unable to serve a statement setting out his views as to the appropriate outcome of the application, was not shown the evidence upon which the Tribunal arrived at its decision, was denied the opportunity to put evidence before the Tribunal, and was denied the opportunity to participate in the hearing.[5]The Tribunal does not appear and is not represented before me, and at an earlier stage of the proceedings consented to an order quashing the decision. Two witness statements were submitted on its behalf, from a case worker employed by the Tribunal, and from her supervisor, the business manager who is responsible for the day-to-day running of the Tribunal office. They acknowledge that the Secretary of State was not notified of the application by the interested party, explain how that error occurred, apologise for it, and state that steps have been taken to prevent a recurrence.[6]It follows from the concessions made in those witness statements that the decision was made in breach of the 1983 Rules, first and foremost of the provision in Rule 4, that on receipt of an application the Tribunal shall send notice of it to the Secretary of State, but also of Rule 12, relating to the disclosure of documents, Rule 20, as to notice of the hearing, and Rule 24 as to communication of the decision. The failure to notify the Secretary of State of the application also had the effect that he was unable to provide a statement to the Tribunal as he is obliged to do under Rule 6(3) of the Rules.[7]Miss Stern, who appears for the Secretary of State, therefore submits that there has been a fundamental breach of the rules of natural justice, that the statutory scheme has been undermined by the Tribunal's error, and that the only proper remedy is for the decision to be quashed. In the course of her submissions she drew my attention to the decision of the House of Lords in R v Oxford Regional MentalHealth Review Tribunal, Ex p Secretary of State for the HomeDepartment [1988] AC 120, which addressed a near identical factual situation and in which Lord Bridge said in the course of his speech:
"It has always been common ground that this decision was made in breach of the rules. What is more important is that there was here a breach of the most fundamental rule of natural justice, in that the Secretary of State, as a vitally interested party, was denied a hearing. That is not in dispute."
[8]At a later stage in his judgment he said that he found it:
"... difficult to see how the tribunal's decision made in February 1985 can properly stand. Such a fundamental flaw as vitiated the proceedings leading to that decision must surely call for a complete rehearing de novo."
[9]This application is opposed by the interested party who was represented by Ms Tripley. In her skeleton argument Ms Tripley took the point that on the evidence of Marina Perks, a mental health administrator employed by the Cambridgeshire and Peterborough Mental Health Partnership NHS Trust, there had been a substantial compliance with the Rules. It is her evidence that she sent copies of the bundles prepared for the hearing before the Tribunal to all parties including the Home Office.[10]But that evidence was met by a witness statement from Sarah Denvir of the Mental Health Unit at the Home Office, the case officer with responsibility for the interested party's case, to the effect that no such bundle was received at the Home Office. It is clear to me that had it been, then the Secretary of State would have submitted a statement to the Tribunal as he is obliged to do under the rules. Furthermore, Ms Tripley readily acknowledged that her argument was undermined by the concession of fault on the part of the Tribunal, and by the witness statements served on its behalf to which I have already made reference. That argument is without substance.[11]But Ms Tripley goes on to argue that I have a discretion as to whether to grant the relief sought, secondly that in the exercise of that discretion I should take account of the effect of granting the relief sought on the parties, and that in the circumstances of this case I should not quash the decision made by the Tribunal.[12]As to the first and second limbs of her argument, she relied upon the judgment of the Court of Appeal in Main v Swansea City Council and Others [1985] 45 P & CR 26, a planning case in which the requisite notices had not been given to all owners of the land in question. Parker LJ, who gave the judgment of the court, said at page 37, in the context of a review of the decision of the House of Lords in London & Clydeside Estates Limited v Aberdeen DistrictCouncil [1980] 1 W.L.R. 182:
"We do not find it necessary to cite the passage in full. It is a warning against trying to fit either failures to comply with requirements, or the consequences of such failures, into rigid classes and a clear expression of the view that the task of the court, which is inherently discretionary, is to determine the legal consequences of a failure in the light of a concrete state of facts and a continuing chain of events."
[13]He continued in the following paragraph:
"In our judgment, the most significant observation in Lord Hailsham's speech, indeed in the whole of the Clydesdale [(sic)] case, is that the court must consider the consequences in the light of a concrete state of facts and a continuing chain of events. This recognises that the court looks not only at the nature of the failure but also at such matters as the identity of the applicant for relief, the lapse of time, the effect on other parties and on the public and so on."
I accept that the relief sought is in the discretion of the court and that it is necessary to consider the effect of granting such relief when considering the exercise of that discretion.[14]As to the effect of grant of the relief sought, she submits that it would be oppressive for the interested party to have to go through the process again. There seems to me to be little doubt that to quash the decision would be likely to cause disappointment, perhaps distress, and certainly anxiety to the interested party. I have considerable sympathy for the position in which she now finds herself as the victim of an error on the part of the Tribunal.[15]As to the position of the Secretary of State, Ms Tripley submits that to have been afforded the opportunity to make a statement to the Tribunal, or to have participated in the hearing would not have affected the outcome. She submits that there would have had to have been an evidential basis for a submission that the interested party should continue to be the subject of recall, that the reports before the Tribunal did not provide such an evidential basis as they all supported an absolute discharge, and, secondly, that the Secretary of State has not put forward any further evidence that could have provided the basis for such a submission.[16]In response, Miss Stern submits that it is not for this court to evaluate the evidence before the Tribunal and to attempt to resolve the question of whether participation by the Secretary of State would have made a difference. In this context she referred me to the statutory framework.[17]As I have already indicated, when the interested party appeared before the Peterborough Crown Court the Crown Court judge ordered her detention in hospital under section 37 of the 1983 Act, together with an order under section 41 restricting her discharge without limit of time. A patient subject to an order under section 41 shall continue to be liable to be detained by virtue of the relevant hospital order until she is duly discharged under Part II of the Act or absolutely discharged under sections 42, 73, 74 or 75 (see section 41(3)(a)). Section 42 provides:
"(1) If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly. "(2) At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions..."
[18]I need not set out the rest of that sub-paragraph. At sub-paragraph 3:
"(3) The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant."
[19]The power of the Mental Health Review Tribunal to discharge restricted patients is contained in section 73 of the Act. It provides as follows:
"(1) Where an application to a Mental Health Review Tribunal is made by a restricted patient who is subject to a restriction 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) 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."
[20]The Mental Health Tribunal Rules 1983 make provision for an application, both by parties subject to a hospital order and those subject also to a restriction order under section 41 of the Act. Rule 4 provides for notice to be given to the patient on receipt of an application to the responsible authority, where the patient is not the applicant, and, if the patient is a restricted patient, the Secretary of State.[21]Rule 6 provides that the responsible authority shall send a statement to the Tribunal and, in the case of a restricted patient, the Secretary of State, as soon as practicable and in any case within 3 weeks of its receipt of the notice of application. Such statement shall contain, inter alia, the information specified in Parts A and B of schedule 1 to the Rules.[22]Part B of schedule 1 provides that the responsible authority, or in the case of the restricted patient, the Secretary of State, shall, inter alia, set out their views on the suitability of the patient for discharge.[23]Different considerations apply to a conditionally discharged patient. By Rule 6(3), where the patient is a conditionally discharged patient, paragraphs (1) and (2) shall not apply and the Secretary of State shall send to the Tribunal as soon as practicable, and in any case within 6 weeks of receipt by him of the notice of application, a statement which shall contain, inter alia, the reports specified in Part D of the schedule. Paragraph 4 of Part D is in the following terms:
"The views of the Secretary of State on the suitability of the patient for absolute discharge."
[24]Thus where, as in this case, the patient has been conditionally discharged, not only is there a duty on the Secretary of State to give the Tribunal his views on the suitability of the patient for absolute discharge, but it is only the Secretary of State who is subject to that duty. He is the only party capable of representing any interest that the public may have in opposing an application for an absolute discharge. His role is therefore of central importance. That is why Miss Stern contends that the effect of the failure to notify the Secretary of State is to undermine the statutory scheme and to remove the essential mechanism for safeguarding the public interest.[25]In my judgment Miss Stern's submissions are well-founded. I am satisfied that the Tribunal's decision is fundamentally flawed, given that as a result of the failure to notify the Secretary of State of the hearing it did not have his views as to the interested party's suitability for absolute discharge. Secondly, it is not for this court to attempt to judge what the Secretary of State's would have been, or whether they would have affected the outcome.[26]In those circumstances, and whilst I have considerable sympathy for the interested party, I am satisfied that the only proper course is to quash the decision and to remit the matter to a differently constituted Mental Health Review Tribunal.[27]MS TRIPLEY: My Lord, there is only one matter, the interested party has been legally assisted. I wonder if you would give an order for detailed assessment of publicly funded costs?

MR JUSTICE OWEN: Yes, of course.

[29]MS TRIPLEY: I am grateful.

MR JUSTICE OWEN: Ms Tripley, could you undertake to lodge the certificate within 7 days?

[31]MS TRIPLEY: Very well.

MR JUSTICE OWEN: I am grateful to you both for your assistance, thank you.