SR, R (on the application of) v Mental Health Review Tribunal [2005] EWHC 2923 (Admin)

[2005] EWHC 2923 (Admin)

Case No CO/1738/2005

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14 December 2005

Before

MR JUSTICE STANLEY BURNTON

The Queen on the application of

Between

SRClaimant

MENTAL HEALTH REVIEW TRIBUNALDefendant

Fenella Morris (instructed by Hodge Jones & Allen) for Claimant

Charles Bourne (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing date: 17 October 2005

Judgment

Mr Justice Stanley Burnton :

Introduction

[1]In 1995, by the Mental Health (Patients in the Community) Act of that year, the Mental Health Act 1983 was amended by the insertion of provisions authorising and regulating the supervised discharge of patients into the community. (Curiously, “supervised discharge” is the term used in the guidance published by the Secretary of State under section 118 to describe what in the Act is termed “after-care under supervision”. The need for the two expressions for the same concept is not obvious.) As will be seen the 1995 Act is not entirely clear as to the relationship between the new power of supervised discharge and detention under section 3. The question raised in this case concerns the jurisdiction of a Mental Health Review Tribunal in the case of a patient who, while detained for treatment under section 3, has made an application to the Tribunal for the review of his detention, but who becomes subject to supervised discharge before the hearing of his application. The Claimant contends that his application remains effective notwithstanding his supervised discharge, and the Tribunal are therefore bound to hear it. The Tribunal contends that his application has ceased to be effective, and that a fresh application by him is required. In essence, the question for the court is whether the Tribunal has jurisdiction in a case such as the Claimant’s to review his supervised discharge and if it thinks it appropriate to bring it to an end notwithstanding that his application to the Tribunal was made when he was subject to detention under section 3.

The facts

[2]The issue I have to decide turns primarily on the construction of the Mental Health Act 1983 as amended, to which I shall refer as “the Act”, and the facts may therefore be summarised shortly. References below to sections are to sections of the Act as amended. References in this judgment to rules are to the Mental Health Review Tribunal Rules 1983.

[3]In December 2004 the Claimant was detained under section 3. He made an application to the Tribunal to challenge his detention. His application was listed to be heard on 23 February 2005.

[4]The Claimant’s Responsible Medical Officer made a supervision application pursuant to sections 25A, 25B and 25C of the Act to the Health Authority that would have the section 117 duty to provide after-care services for him. That application was accepted on 22 February, the day before the listed hearing date. The Claimant was then on section 17 leave of absence. His solicitors were informed and they commendably immediately informed the Tribunal: We have been informed at 4.50 pm today that (the Claimant) has been discharged from detention under s. 3 of the Act and that he is now subject to s. 25A. In fact it was at 5.30 pm that day that his RMO made an order under section 23 discharging him from detention.

[5]The Claimant’s solicitors asked the Tribunal to proceed with the hearing of his application. However, it cancelled the hearing, on the basis that his existing application to it under section 66(1)(b) had ceased to be effective because the Tribunal would have no power to deal with it, and that he would therefore have to make a fresh application under section 66(1)(ga). The Claimant’s solicitors protested against the cancellation of his hearing. They contended that the Tribunal retained power to deal with his new status, and relied on the unreported decision in R (M) v South Thames Mental Health Review Tribunal [1998] C.O.D. 38, referred to in Richard Jones’ Mental Health Act Manual, 9th edition, at paragraph 1-771. In that case, Andrew Collins J held that an application to a Tribunal made by a patient detained for assessment under section 2 remained effective on his becoming detained for treatment under section 3 and had to be heard by the Tribunal.

[6]The Regional Chairman, Professor Jeremy Cooper, rejected the Claimant’s solicitors’ contention. In his letter dated 24 February 2005, he stated:

“In your letters you expressed the view that the principle set out in the case of R (M) v South Thames Mental Health Review Tribunal applies mutatis mutandis to your client’s situation, and therefore the hearing scheduled for 23rd February should have gone ahead as planned, as a review of the s. 25A decision. With respect, I beg to differ. Whereas it could be argued that the s. 72 grounds for discharging patients detained under ss 2 and 3 of the MHA 1983 are sufficiently similar (though not identical) to justify retaining the hearing date, that is not the case when a tribunal is considering an appeal against a s. 25 (sic) order. The medical and social circumstances reports prepared for a review of a s. 3 detention are all directed towards the grounds for detaining a patient in hospital. In contrast the reports prepared for a review of a s 25A order are considering a range of different issues, which relate to the reasons why a s. 3 detention is no longer considered appropriate and why the alternative path of a community order has been imposed, with an examination of the detail of that order. It would in my view be absurd in these circumstances to have retained your client’s hearing date of 23rd February which would inevitably have led to an adjournment, a course of action that could not be in your client’s best interest.”

[7]According to Professor Cooper, the reports that had been prepared for the hearing on 23 February 2005 were a medical report and a social circumstances report. They were directed at the question whether the Claimant should be discharged from section 3 detention, not whether he should cease to be subject to supervised discharge. However, it appears that the possibility of a supervised discharge had been under consideration for some time. A social circumstances report dated 11 February 2005 had recommended that the Claimant should remain on section 3 until arrangements could be made for supervised discharge to be in place.

[8]Nonetheless, Professor Cooper recognised that the Claimant was entitled to a speedy hearing of his application to challenge the section 25A discharge, and offered a date in 3 weeks’ time. In the event, a hearing date of 1 June 2005 was agreed, but on 27 May 2005 the Claimant obtained an adjournment of that hearing so that consideration could be given to medical records that had unexpectedly come to light.

The statutory provisions creating after-care under supervision

[9]So far as is material, section 25A is as follows: After-care under supervision 25A.—(1) Where a patient—(a) is liable to be detained in a hospital in pursuance of an application for admission for treatment; and

(b) has attained the age of 16 years, an application may be made for him to be supervised after he leaves hospital, for the period allowed by the following provisions of this Act, with a view to securing that he receives the after-care services provided for him under section 117 below. (2) In this Act an application for a patient to be so supervised is referred to as a “supervision application”; and where a supervision application has been duly made and accepted under this Part of this Act in respect of a patient and he has left hospital, he is for the purposes of this Act “subject to after-care under supervision” (until he ceases to be so subject in accordance with the provisions of this Act). (3) A supervision application shall be made in accordance with this section and sections 25B and 25C below. (4) A supervision application may be made in respect of a patient only on the grounds that— (a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment; (b) there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the after-care services to be provided for him under section 117 below after he leaves hospital; and

(c) his being subject to after-care under supervision is likely to help to secure that he receives the after-care services to be so provided. (5) A supervision application may be made only by the responsible medical officer. (6) A supervision application in respect of a patient shall be addressed to the Health Authority which will have the duty under section 117 below to provide after-care services for the patient after he leaves hospital. (7) Before accepting a supervision application in respect of a patient a Health Authority shall consult the local social services authority which will also have that duty. (8) Where a Health Authority accept a supervision application in respect of a patient the Health Authority shall— (a) inform the patient both orally and in writing— (i) that the supervision application has been accepted; and (ii) of the effect in his case of the provisions of this Act relating to a patient subject to after-care under supervision (including, in particular, what rights of applying to a Mental Health Review Tribunal are available); (b) … (c) … (9) Where a patient in respect of whom a supervision application is made is granted leave of absence from a hospital under section 17 above (whether before or after the supervision application is made), references in— (a) this section and the following provisions of this Part of this Act; and (b) Part V of this Act, to his leaving hospital shall be construed as references to his period of leave expiring (otherwise than on his return to the hospital or transfer to another hospital). After-care under supervision (a) is liable to be detained in a hospital in pursuance of an application for admission for treatment; and (b) has attained the age of 16 years, (a) he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment; (b) there would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the after-care services to be provided for him under section 117 below after he leaves hospital; and (c) his being subject to after-care under supervision is likely to help to secure that he receives the after-care services to be so provided.

After-care under supervision

(b) Part V of this Act,

[10]Section 25B requires the RMO, before making an application, to consult, among others, those who have been professionally concerned with the patient and the patient himself, and to take account of their views. It also imposes a number of formal requirements for the making of an application, and requires the RMO to inform the patient and the consultees that the application is being made, of any requirement imposed on the patient under section 25D, and the names of the persons who will be his community RMO and his supervisor after he leaves hospital. For present purposes, it is unnecessary to refer to section 25C. Section 25D confers power on the responsible after-care bodies to impose requirements to be complied with by the patient while on supervised discharge: 25D.—(1) Where a patient is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the responsible after-care bodies have power to impose any of the requirements specified in subsection (3) below for the purpose of securing that the patient receives the after-care services provided for him under section 117 below. (2) In this Act “the responsible after-care bodies”, in relation to a patient, means the bodies which have (or will have) the duty under section 117 below to provide after-care services for the patient. (3) The requirements referred to in subsection (1) above are—(a) that the patient reside at a specified place;

(b) that the patient attend at specified places and times for the purpose of medical treatment, occupation, education or training; and

(c) that access to the patient be given, at any place where the patient is residing, to the supervisor, any registered medical practitioner or any approved social worker or to any other person authorised by the supervisor. (4) A patient subject to after-care under supervision may be taken and conveyed by, or by any person authorised by, the supervisor to any place where the patient is required to reside or to attend for the purpose of medical treatment, occupation, education or training. (5) … (a) that the patient reside at a specified place; (b) that the patient attend at specified places and times for the purpose of medical treatment, occupation, education or training; and (c) that access to the patient be given, at any place where the patient is residing, to the supervisor, any registered medical practitioner or any approved social worker or to any other person authorised by the supervisor.

[11]Section 25G provides for the duration and renewal of supervised discharge: 25G.—(1) Subject to sections 25H and 25I below, a patient subject to after-care under supervision shall be so subject for the period—(a) beginning when he leaves hospital; and

(b) ending with the period of six months beginning with the day on which the supervision application was accepted, but shall not be so subject for any longer period except in accordance with the following provisions of this section. (2) A patient already subject to after-care under supervision may be made so subject— (a) from the end of the period referred to in subsection (1) above, for a further period of six months; and (b) from the end of any period of renewal under paragraph (a) above, for a further period of one year, and so on for periods of one year at a time. The remaining subsections of section 25G require the community RMO to examine his patient within the period of 2 months before what would otherwise be the end of the period of supervised discharge and to make a report to the responsible after-care bodies as to whether the conditions for supervised discharge (specified in section 24A(4) and repeated in section 25G(4)) continue to be met; if he reports that they are, the period of supervised discharge is extended for the periods specified in section 25G(2).

(a) above, for a further period of one year,

[12]The ending of after-care under supervision is the subject of section 25H: 25H.—(1) The community responsible medical officer may at any time direct that a patient subject to after-care under supervision shall cease to be so subject. (2) The community responsible medical officer shall not give a direction under subsection (1) above unless subsection (3) below is complied with. (3) This subsection is complied with if—(a) the following persons have been consulted about the giving of the direction— (i) the patient; ... (4) … (5) A patient subject to after-care under supervision shall cease to be so subject if he— (a) is admitted to a hospital in pursuance of an application for admission for treatment; or

(b) is received into guardianship. (6) … (a) the following persons have been consulted about the giving of the direction— (i) the patient; ... (a) is admitted to a hospital in pursuance of an application for admission for treatment; or (b) is received into guardianship.

The statutory provisions concerning applications to the Tribunal

[13]Applications to the Tribunal are the subject of section 66: Applications to Tribunals 66.(1) Where – (a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or (b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; or (c) a patient is received into guardianship in pursuance of a guardianship application; or (d) a report is furnished under section 16 above in respect of a patient; or (e) a patient is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above; or (f) a report is furnished under section 20 above in respect of a patient and the patient is not discharge; or (fa) a report is furnished under subsection (2) of section 21B above in respect of a patient and subsection (5) of that section applies (or subsections (5) and (6)(b) of that section apply) in the case of the report; or (fb) a report is furnished under subsection (2) of section 21B above in respect of a patient and subsection (8) of that section applies in the case of the report; or (g) a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment; or (ga) a supervision application is accepted in respect of a patient; or (gb) a report is furnished under section 25F above in respect of a patient; or (gc) a report is furnished under 25G above in respect of a patient; or (h) an order is made under section 29 above in respect of a patient who is or subsequently becomes liable to be detained or subject to guardianship under Part II of this Act, an application may be made to a Mental Health Review Tribunal within the relevant period – (i) by the patient … or, in the cases mentioned in paragraphs (d), (ga), (gb) and (gc), by his nearest relative if he has been (or was entitled to be) informed under this Act of the report and its acceptance by his nearest relative, and (ii) in the cases mentioned in paragraphs (g) and (h), by his nearest relative.

(2) In subsection (1) above, “the relevant period” means – (a) in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned; (b) in the case mentioned in paragraph (b) of that subsection, six months beginning with the day on which the patient is admitted as so mentioned; (c) in the cases mentioned in paragraphs (c) and (ga) of that subsection, six months beginning with the day on which the application is accepted; (d) in the cases mentioned in paragraphs (d) , (fb), (g) and (gb) of that subsection, 28 days beginning with the day on which the applicant is informed that the report has been furnished; (e) in the case mentioned in paragraph (e) of that subsection, six months beginning with the day on which the patient is transferred; (f) in the case mentioned in paragraph (f) or (fa) of that subsection, the period or periods] for which authority for the patient’s detention or guardianship is renewed by virtue of the report; (fa) in the case mentioned in paragraph (gc) of that subsection, the further period for which the patient is made subject to after-care under supervision by virtue of the report;] (g) in the case mentioned in paragraph (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force. Applications to Tribunals (a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or (b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; or (c) a patient is received into guardianship in pursuance of a guardianship application; or (d) a report is furnished under section 16 above in respect of a patient; or (e) a patient is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above; or (f) a report is furnished under section 20 above in respect of a patient and the patient is not discharge; or (fb) a report is furnished under subsection (2) of section 21B above in respect of a patient and subsection (8) of that section applies in the case of the report; or (g) a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment; or (ga) a supervision application is accepted in respect of a patient; or (gb) a report is furnished under section 25F above in respect of a patient; or (gc) a report is furnished under 25G above in respect of a patient; or (h) an order is made under section 29 above in respect of a patient who is or subsequently becomes liable to be detained or subject to guardianship under Part II of this Act, (i) by the patient … or, in the cases mentioned in paragraphs (d), (ga), (gb) and (gc), by his nearest relative if he has been (or was entitled to be) informed under this Act of the report and its acceptance by his nearest relative, and (ii) in the cases mentioned in paragraphs (g) and (h), by his nearest relative. (a) in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned; (b) in the case mentioned in paragraph (b) of that subsection, six months beginning with the day on which the patient is admitted as so mentioned; (c) in the cases mentioned in paragraphs (c) and (ga) of that subsection, six months beginning with the day on which the application is accepted; (d) in the cases mentioned in paragraphs (d) , (fb), (g) and (gb) of that subsection, 28 days beginning with the day on which the applicant is informed that the report has been furnished; (e) in the case mentioned in paragraph (e) of that subsection, six months beginning with the day on which the patient is transferred; (f) in the case mentioned in paragraph (f) or (fa) of that subsection, the period or periods] for which authority for the patient’s detention or guardianship is renewed by virtue of the report; (fa) in the case mentioned in paragraph (gc) of that subsection, the further period for which the patient is made subject to after-care under supervision by virtue of the report;] (g) in the case mentioned in paragraph (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force.

Applications to Tribunals

[14]The powers of the Tribunal are the subject of section 72: Discharge of patients 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, 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; (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; or (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.]

(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard– (a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition; and (b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.

(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; 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 transferred to another hospital or into guardianship; and (b) further consider his case in the event of any such recommendation not being complied with. (3A) Where, in the case of an application to a tribunal by or in respect of a patient who is liable to be detained in pursuance of an application for admission for treatment or by virtue of an order or direction for his admission or removal to hospital under Part III of this Act, the tribunal do not direct the discharge of the patient under subsection (1) above, the tribunal may– (a) recommend that the responsible medical officer consider whether to make a supervision application in respect of the patient; and (b) further consider his case in the event of no such application being made.

(4) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharge, and shall so direct if they are satisfied– (a) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; or (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship. (4A) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the tribunal may in any case direct that the patient shall cease to be so subject (or not become so subject), and shall so direct if they are satisfied– (a) in a case where a patient has not yet left hospital, that the condition set out in section 25A(4) above are not complied with; or (b) in any other case, that the conditions set out in section 25G(4) above are not complied with.

(5) Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and tribunal do not direct that the patient be discharge or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject)], the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that the application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate.

(6) Subsections (1) to (5) above apply in relation to references to a Mental Health Review Tribunal as they apply in relation to applications made to such a tribunal by or in respect of a patient.

(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below. Discharge of patients (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; (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; or (iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.] (2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard– (a) to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition; and (b) in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation. (3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; 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 transferred to another hospital or into guardianship; and (b) further consider his case in the event of any such recommendation not being complied with. (3A) Where, in the case of an application to a tribunal by or in respect of a patient who is liable to be detained in pursuance of an application for admission for treatment or by virtue of an order or direction for his admission or removal to hospital under Part III of this Act, the tribunal do not direct the discharge of the patient under subsection (1) above, the tribunal may– (a) recommend that the responsible medical officer consider whether to make a supervision application in respect of the patient; and (b) further consider his case in the event of no such application being made. (4) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharge, and shall so direct if they are satisfied– (a) that he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; or (b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship. (4A) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is subject to after-care under supervision (or, if he has not yet left hospital, is to be so subject after he leaves hospital), the tribunal may in any case direct that the patient shall cease to be so subject (or not become so subject), and shall so direct if they are satisfied– (a) in a case where a patient has not yet left hospital, that the condition set out in section 25A(4) above are not complied with; or (b) in any other case, that the conditions set out in section 25G(4) above are not complied with. (5) Where application is made to a Mental Health Review Tribunal under any provision of this Act by or in respect of a patient and tribunal do not direct that the patient be discharge or, if he is (or is to be) subject to after-care under supervision, that he cease to be so subject (or not become so subject)], the tribunal may, if satisfied that the patient is suffering from a form of mental disorder other than the form specified in the application, order or direction relating to him, direct that the application, order or direction be amended by substituting for the form of mental disorder specified in it such other form of mental disorder as appears to the tribunal to be appropriate. (6) Subsections (1) to (5) above apply in relation to references to a Mental Health Review Tribunal as they apply in relation to applications made to such a tribunal by or in respect of a patient. (7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.

The parties’ contentions

[15]The principal submissions of Miss Morris, on behalf of the Claimant, were:(i) Supervised after-care involves restrictions, imposed under section 25D, on the liberty of the patient. It follows that provision in the Act affecting his liberty should be construed narrowly, in favour of his right to apply to end or to curtail those restrictions. In principle that right should not be lost by reason of a change in his status under the Act.

(ii) The words “Where application is made” in section 72 should be read as meaning “Where application has been made”. They do not require the patient to have the same status when he makes his application and when it is heard.

(iii) That interpretation is supported by the decision in M.

(iv) The words in parentheses in section 72(4A) would have no, or virtually no, practical effect on the Tribunal’s interpretation. Very few, if any, section 3 patients would continue to be in hospital after an application for supervised discharge has been accepted, since that application could not have been made if the RMO considered that the conditions for detention under section 3 continued to be met.

(v) Section 72(4A) demonstrates that Parliament intended a patient who was not yet on supervised discharge to be able to challenge the restrictions on his liberty it imposed even if his discharge had not begun to take effect.

(vi) Given the decision in M, it would be anomalous for a different position to obtain in relation to a section 3 patient who had become subject to supervised discharge compared with that of a section 2 patient who becomes detained under section 3.

(vii) There is no irrationality or impracticality in requiring a Tribunal to hear an application by a section 3 patient who after making his application becomes subject to supervised discharge.

[16]For the Tribunal, Mr Bourne submitted:(i) Section 66 authorises the making of an application to the Tribunal. It confers no powers on the Tribunal.

(ii) The only applicable power of the Tribunal is contained in section 72(4A). Its natural reading is that it applies to an application made by a patient subject to supervised discharge when he is such.

(iii) The words in parentheses in section 72(4A) were inserted to match the provisions of section 66(1)(ga), in order to enable patients in respect of whom a an application for supervised discharge has been made but who, for whatever reason, have not left hospital, to challenge their section 25A order.

(iv) The statutory scheme is that a patient may make one application to the Tribunal in each 6-month period; if the Claimant is correct, he could have made two applications, one as a section 3 patient, and immediately afterwards the second as patient subject to supervised discharge. That would be contrary to the statutory scheme and cannot be what Parliament intended.

(v) M was wrongly decided. It was decided on the basis of the provisions of section 66 rather than section 72, which should have been the focus of the Court’s analysis. In any event, it does not apply to the present case.

(vi) The practical points made by Professor Cooper are well-founded.

Discussion

[17]By way of background, I point out that the requirements specified in section 25A(4) for supervised discharge are to be contrasted with the more stringent requirements for detention under section 3 contained in section 3(2). Clearly, also, the consequences for the liberty of the patient are very different. The effect of detention under section 3 is that the patient loses his liberty, in that he is compulsorily detained for treatment. Subject to the limitations imposed by sections 57 and 58, he may be treated by or under the direction of his RMO for the mental order for which he is suffering without his consent. The requirements that may be imposed under section 25D(3) and (4) are of a different and much lesser order. Detention under section 3 engages Article 5; requirements imposed under section 25D(3) do not, and the requirement that may be imposed under section 25D(4) is very temporary in effect.

[18]Given these substantial differences, one would not expect supervised discharge and section 3 detention to be concurrent: one would expect section 3 detention to come to an end on a patient becoming subject to supervised discharge, and supervised discharge to come to an end if it became necessary for the patient to be detained under section 3. Curiously, however, the Act does not specify whether or when section 3 detention comes to an end if an application is made by the RMO for supervised discharge and it is duly accepted. Once the patient leaves hospital, he is “subject to after-care under supervision”: section 25A(2). Indeed, once the RMO has made the supervision application and it has been accepted, there is, presumably, no reason to continue to detain him in hospital, since the requirements for section 3 detention would have ceased to be satisfied. One would have thought that at that point, or at least when the patient leaves hospital, section 3 automatically ceases to have effect. The provisions of section 72 seem to assume that a patient cannot be both liable to be detained and subject to after-care under supervision, as does section 25A(9). Yet although the Act expressly provides that supervised discharge comes to an end if and when the patient is again detained under section 3 (see section 25H(5)), it does not expressly provide for the converse situation of a patient liable to be detained in respect of whom an application under section 25A is duly accepted. I note, however, that the statutory guidance issued by the Secretary of State at paragraph 36 states that supervised discharge cannot take effect until the patient is discharged from hospital, presumably under either section 23 or section 72.

[19]As has been seen, in the present case, the Claimant was discharged under section 23 at 5.30 pm on 22 February 2005. At that moment, he ceased to be liable to be detained in a hospital under Part II of the Act, and his section 17 leave therefore ended (see the requirement in section 17(1)). At that moment, he was treated as having left hospital for the purposes of section 25A: see section 25A(9), in which “expired” must, I think, include ended by discharge from detention. Both Ms Morris and Mr Bourne agreed with this analysis.

[20]I turn to consider the provisions of the Act relating to the Tribunal. The meaning of “application” in the phrase “an application may be made to a Mental Health Review Tribunal” in section 66 is clear. It refers to the process for beginning the proceedings before the Tribunal. The phrase requires that meaning. In addition, section 66(2) only makes sense if that is what is referred to. Its meaning is confirmed by sections 77 and 78. Section 77 imposes restrictions on the making of applications to the Tribunal. Subsection (3) confirms the meaning of “application to a Mental Health Review Tribunal”: (3) Subject to subsection (4) below an application to a Mental Health Review Tribunal authorised to be made by or in respect of a patient under this Act shall be made by notice in writing addressed to the tribunal for the area in which the hospital in which the patient is detained is situated or in which the patient is residing under guardianship as the case may be.

[21]Consistently with this, section 78, the rule-making authority, distinguishes between the making of an application to, and the proceedings of, Tribunals.

[22]Section 66(1) itself does not suggest that there are different kinds of application to the Tribunal. However, it is difficult to see how subsection (2) can work unless applications by patients with different statuses are to be treated differently. In addition, section 72 qualifies the powers of the Tribunal by reference to the status of the patient. Given the meaning of “application to the Tribunal” in section 66 and other provisions of Part II to the Act, the more natural interpretation of the words “Where application is made to a … Tribunal by or in respect of a patient who is subject to after-care under supervision” in section 72(4A) is that he is so subject when the application is made. The words “by or in respect of” a patient are used because an application may be made either by the patient or by his nearest relative (subject to section 25B(3)). It is true that the subsection does not use the past tense (“Where application has been made”), but that tense is not used anywhere in the section, even though it would appear that it could have been used without any significant change in meaning, for example in subsection (1).

[23]I do not think that the words in parentheses in section 72(4A) assist the Claimant. If that provision qualifies an application by reference to the status of the patient when it is made, i.e. presented to the tribunal, one would expect him to be able to challenge his position as soon as he is informed of it, i.e. as soon as the RMO’s application under section 25A has been accepted by the section 117 authority. Section 66(1)(ga) and 66(2)(c), together with the words in parentheses in section 72(4A), ensure that a patient who is on section 17 leave may immediately challenge his supervised discharge, without waiting for the expiration of his leave. It will be borne in mind that section 17 leave may be granted indefinitely, or for a specified period that is not limited by the Act. Equally, a patient who is in hospital, awaiting finalisation of, say, his accommodation arrangements in the community, or who, for example, objects to living where he is required to live under the supervised discharge, and refuses to leave, may object to it by making an immediate application to the Tribunal. Or a patient may be liable to be detained when the RMO makes his application, and remain in hospital subsequently as an informal patient: see paragraph 16 of the Secretary of State’s section 118 guidance on supervised discharge.

[24]Section 72(3A) also sits uneasily with the Claimant’s contentions. It is difficult to see that Parliament would have made provision in this form if it had envisaged that a Tribunal hearing an application made by a patient liable to be detained would, at the date of the hearing, be subject to an accepted application for supervised discharge.

[25]Section 66(2) must be read with section 77. Section 77(1) and (2) are as follows: 77. —(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 purpose there shall be disregarded any application which is withdrawn in accordance with rules made under section 78 below.

[26]Section 77 fortifies section 66(2). It confirms that the statutory restriction is not on more than one application to a Tribunal in any specified period: more than one application can be made in any period, if it is of a different kind from that made in that period. For example, if in January a patient made an application for discharge from liability for detention under section 3, and in February his RMO made an application for supervised discharge that was accepted in the same month, the patient would be entitled to make an immediate application under section 66(1)(ga), for two reasons. The first is that he is permitted to make that application by section 66(2)(fa); the second is that section 77 does not restrict his right to apply, because he has not made a previous application of that kind within the period specified by section 66(2)(fa). The words “such application”, indicating that there are different kinds of application, seem to me to give some support for the Defendant’s interpretation. That, I think, is also supported by section 77(3): Subject to subsection (4) below an application to a Mental Health Review Tribunal authorised to be made by or in respect of a patient under this Act shall be made by notice in writing addressed to the tribunal for the area in which the hospital in which the patient is detained is situated or in which the patient is residing under guardianship or when subject to after-care under supervision (or in a case in which he is to reside on becoming so subject after leaving the hospital) as the case may be.

[27]Subsection (4) is immaterial for present purposes. It can be seen that there is different provision as to the Tribunal to which an application is to be made by a patient who is detained from that to which an application is to be made by a patient subject to after-care under supervision. As is obvious, they may differ. This suggests that where they are different the Tribunal for the area in which the detaining hospital was situated should not have power to deal with an application by the patient who has become subject to after-care under supervision, since the latter application should have been made to a different Tribunal.

[28]In my judgment, there are further considerations that confirm that an application under paragraph (b) of section 66(1) cannot be equated with an application under paragraph (ga) . The first is that one would expect different provisions as to the persons to be served with an application made by a detained patient from those applicable to a patient subject to supervised discharge. In the former case, one would expect the application to be served on the managers of the hospital in which he is detained; in the case of the latter, on the section 117 authority, who will have assumed responsibility for the patient’s care in place of the hospital. That is precisely what rules 3, 4 and the definition of responsible authority in rule 2(1) provide. Consistently with this, the parties to an application by a detained patient are different from those to an application by a patient who is subject to supervised discharge. Rule 7 provides for notice to be given to other persons interested, but again paragraph (bb) makes specific provision by reference, in my judgment, to the status of the patient when he makes his application. Of course, in many cases where there is a prospect of a detained patient being discharged into the community, the section 117 authority or authorities may be represented before the Tribunal; but in such a case they are not parties to the application, and there is no obligation for them to be served with notice of the application. Rule 20 confines the obligation of the Tribunal to give notice of the hearing of an application to the parties (unless the patient is a restricted patient, in which case the Secretary of State must be given notice too).

[29]Consistently with this, rule 6(3A) provides for a different body to submit different information and documents to the Tribunal in the case of an application by a person subject to after-care under supervision from those applicable in a section 3 application. See too Parts E and F of Schedule 1 to the Rules.

[30]I add that rule 18 is consistent with my interpretation. It envisages that there may be more than one application made by the same person in respect of a patient. It is not easy to see why it was required in such a case if the powers of a Tribunal hearing an application are not constrained by the status of the patient when he made the application. Different considerations apply where applications in respect of the same patient are made by different persons, as to which see rule 18(2), but rule 18(1) is not limited to such cases.

[31]Caution is required before taking account of delegated legislation in when interpreting the parent legislation. I think it appropriate to do so in this case. First, as I stated above, the rules as to the parties to an application and the other persons to be notified are what one would expect to see if the legislation has the effect I consider it has. The same applies to the provision as to the Tribunal to which an application is to be made. Secondly, the provisions of the Rules pre-date the 1995 Act, save in so far as they were amended in consequence of the Act. Rule 18, for example, pre-dates the 1995 Act, and Parliament must be taken to have been aware of its provisions when the Act was passed. I bear in mind that the Tribunal may proceed to hear an application notwithstanding a failure to comply with the Rules; but this power does not, in my judgment, affect the principle.

[32]The second consideration arises from the restrictions on the making of applications to the Tribunal. If the Claimant’s contentions were correct, a patient who makes an application to the Tribunal while subject to section 3 and before an application for supervised discharge is accepted who, before his application is heard, is the subject of an accepted application under section 25A, has the right to challenge his supervised discharge before the Tribunal on the hearing of that application, and if he fails is entitled immediately to make a further application under section 66((1)(ga) without any change in circumstances having occurred. In my judgment, that is a result that Parliament is unlikely to have intended, given its decision to restrict the applications that may be made by a patient within specified periods of time: see section 66(2)(c) and section 77, and especially section 77(2). If, as was held in M, a patient detained under section 2 who makes an application to a Tribunal that is not heard until after he has become detained under section 3 may make a further application under section 3 within 6 months of his first application, that it is because different provisions apply to applications by parties liable to be detained under those sections as against applications by parties subject to supervised discharge.

[33]Thirdly, it seems to me that section 72(3A) and (4A) envisage that there is no overlap between an application made by a patient who at the date of the hearing is liable to be detained and one in respect of whom an application for supervised discharge has been accepted.

[34]However, some of the practical considerations that bear upon the issue I have to decide do not point decisively either way. Clearly, the Tribunal should not be convened to hear an application to discharge from section 3 detention that has become an application to terminate supervised discharge if the evidence for the latter application is unavailable. However, in such a case, assuming that the power to adjourn may be exercised before a hearing has begun (compare rules 9 and 16 of the Mental Health Review Tribunal Rules 1983 (“the Rules”), and note the reference to the resumption of the hearing in paragraphs (3) and (4) of the latter), the Tribunal may adjourn the hearing until the evidence is available, and there may be little difference in practice between an adjournment of an existing application and the fixing of a hearing of a new application. Furthermore, Miss Morris is right to make the point that if an application for supervised detention has been made and accepted, the RMO and the relevant after-care authorities must have considered the patient’s case and be in a position to report on it. Whether any independent psychiatrist instructed on behalf of the patient will be in a position to report to the Tribunal on the necessity of supervised discharge may, of course, be a different question. Equally importantly, a Tribunal will have to have been appointed if it is to exercise the power to adjourn: rule 5, conferring power on the chairman to exercise certain powers of the Tribunal, does not apply to rule 16. The Tribunal will have to consider the available evidence and give the parties an opportunity to make representations in order to decide whether to adjourn. The evidence of Professor Cooper, who has considerable experience as a chairman, indicates that practical difficulties may arise.

[35]I turn to consider the decision in M. The Code of Practice published under section 118 states:

“Changing a patient’s detention status from section 2 to section 3 will not deprive him of a Mental Health Review Tribunal hearing if the change takes place after a valid application has been made to the Tribunal but before it has been heard. The rights to apply for a Tribunal under section 66(1)(b) in the first period of detention after his change of status are unaffected.” 36. In the end, as it seems to me, (Miss Lieven, counsel for the Tribunal’s) submission rests upon the use of the word “is” – the present tense – in section 66(1). That submission is faced with very considerable difficulties. First of all, if one goes back to sections 2 and 3 one sees that what is permitted by each is the admission to the hospital and the detention there. Section 66(1) does not refer to the detention, merely to the admission, as the foundation for the right of application to the tribunal. Effectively what I think Miss Lieven has to submit is that if section 66(1) had read “where a patient has been admitted to a hospital”, then the submissions of Miss Richards would carry weight, but it does not. It says: “is admitted”

. The patient is no longer admitted, submits Miss Lieven. The difficulty with that is that, as it seems to me, “admission” is something which happens at a moment in time. A person is admitted to a hospital and may then be detained in that hospital. But what founds the right of appeal, and this is the way Parliament has phrased it, is the admission not the detention. That that is the right view seems to me to be underlined by considering section 66(1)(f). Section 66(1)(f) founds the right of appeal upon the furnishing of a report. The language is not “has been furnished” but is “is furnished … and the patient is not discharged”, which of course means that Parliament there has recognised that there must be something more than the provision of the report. 37. The matter is as it seems to me put beyond doubt by consideration of subsection (2) because that, in dealing with the relevant period, talks about 14 days beginning with the day on which the patient is admitted, as so mentioned (that is to say as mentioned in paragraph (a)). That underlines the point that admission is something which occurs at a moment in time; it is not a continuing state of affairs. Again in section 66(2)(a) the expression “is admitted” is used.

[36]I accept that to focus on section 66 without regard to section 72 would be unfortunate. Furthermore, although an admission is not itself a continuing state of affairs, if a patient liable to detention under section 2 or 3 is discharged by the hospital managers under section 23 before his tribunal hearing, there is nothing effective for the Tribunal to hear. Its powers and duties are contained in subsections (1) and (3A) (leaving aside subsections (2) and (3), which qualify the power and duty under subsection (1)) and there is no effective order it can make in such circumstances. There is therefore no point in the Tribunal hearing his application. It seems to me to follow that it is implicit in the statutory provision that a patient who has made an application to which section 72(1) applies remains liable to be detained at the date of his Tribunal hearing.

[37]However, in M the judge did consider section 72. He said; If one goes to section 72 one sees that there is nothing in that which suggests that the change of circumstances (that is to say the change in the nature of the detention from section 2 to section 3) affects the validity of the application, nor is there any reason why it should. The powers of the tribunal under section 72 are, it is common ground, to be exercised on consideration of the state of affairs before the tribunal. … Accordingly when the matter comes before the tribunal, if there has been the change from section 2 to section 3, then the tribunal must exercise its powers in relation to a patient who is liable to be detained otherwise than under section 2 above and therefore must consider what are loosely described as the section 3 criteria in determining the case before them. Since the Act makes clear that the basis for an application lies in the admission, whether under (section) 2 or 3, then the determination of the tribunal on the section 2 application cannot prevent the applicant from making a subsequent section 3 application if the section 2 application is unsuccessful. Accordingly, in my view, the guidance note was absolutely correct in the guidance that it gave in this regard.

[38]Section 72 treats an application made by a patient detained under section 2 and an application made by a patient detained under section 3 as being one kind of application. The words in subsection (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, …” do not distinguish between liability to be detained for assessment and for treatment. It follows that the powers under paragraphs (a) and (b) are available to the Tribunal on such an application; which it may exercise depends on the status of the patient at the date of the hearing. I entirely agree with Andrew Collins J on this point. However, separate provision is made in section 72(4A) in respect of an application to the Tribunal by a patient subject to an accepted application for supervised discharge. Such an application is not identified with, and differs from, an application under subsection (1).

[39]Lastly, nothing in the statutory guidance is inconsistent with my conclusion: see paragraph 61.

Conclusion

[40]For the reasons set out above, I conclude that the Tribunal was right to refuse to proceed with the hearing of the Claimant’s application made when he was liable to be detained under section 3. A new application was required in respect of his new status as a patient subject to supervised discharge. Accordingly, his claim for judicial review of the Tribunal’s refusal will be dismissed.