Secretary of State for Justice, R (on the application of) v Mental Health Review Tribunal & Anor [2008] EWHC 598 (Admin)

Case No CO/927/2008[2008] EWHC 598 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 5th March 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OWEN
Between
THE QUEEN ON THE APPLICATION OF SECRETARY OF STATE FOR JUSTICEClaimantv
Between
MENTAL HEALTH REVIEW TRIBUNALDefendantZAHRA RAFIQInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss M Lester (instructed by the Treasury Solicitor) appeared for Claimant for The Defendant did not attend and was not representedThe Interested Party was represented by Mr M Rafiq, litigation friend
J U D G M E N T
[1]MR JUSTICE OWEN: The claimant, the Secretary of State for Justice, seeks to challenge a decision of the Mental Health Review Tribunal made on 29th October 2007 to grant Zahra Rafiq, the first interested party, a deferred conditional discharge. Permission to apply for judicial review was granted by Holman J on 6th February.[2]It is necessary to deal with the factual background. Before I do so, I should say that today Mrs Rafiq has been represented by her husband, Mr Mohammed Rafiq, who has been of considerable assistance to me.[3]On 26th August 2004, Mrs Rafiq was convicted of an offence of arson, being reckless as to whether life was endangered. In consequence, on 9th March 2005 she was made the subject of a hospital order under section 37 of the Mental Health Act 1983, with a restriction order under section 41 of the Act. Her detention was reviewed by the defendant Tribunal at a hearing on 26th October 2007. The Tribunal reached the conclusion that, whilst Mrs Rafiq continued to suffer from a mental illness (paranoid schizophrenia), it was no longer of a degree which necessitated her continued detention. The Tribunal was satisfied that, by reason of the nature of her condition, she should remain liable to recall, but directed that she be conditionally discharged pursuant to section 173 of the Act, such discharge to be deferred until three conditions were met, namely:(1) that independent accommodation be found for Mrs Rafiq,(2) that her leave be increased to include overnight leave, and(3) that she must engage at all times with the clinical care team and accept their therapeutic instructions.[4]The defendant Tribunal was due to reconsider the patient's case on 8th February, having made it clear in its decision of 26th October 2007 that:
"If all the conditions of the discharge have been fulfilled and the patient has remained well as at present, the patient will be conditionally discharged."
But in the meantime, by letter dated 12th November 2007, a copy of the decision was sent to the claimant. On 5th December 2007 a case worker at the Ministry of Justice Mental Health Unit telephoned Dr Jawad (who is the second interested party and was the responsible medical officer at all material times) to discuss the decision. As a consequence of that discussion, the case worker informed Dr Jawad by letter of 10th December that she had instructed solicitors to consider whether the decision should be challenged by judicial review.[5]On 4th January the claimant's solicitors advised that the claimant should indeed bring judicial review proceedings to challenge the decision, and the necessary letter before claim was sent to the defendant Tribunal and to the interested parties on 8th January 2008. The defendant responded by letter dated 22nd January 2008. Its second paragraph is in the following terms:
"Further to your letter before claim I have taken instructions and my client is prepared to concede that its decision was arguably flawed to the extent that adequate reasons for the conclusions reached by the Tribunal were not elucidated in the reasons for the Tribunal's decision. The reasons do not state that the statutory criteria for conditional discharge were met. More precisely, they do not state that the nature of the mental illness suffered by the patient did not warrant detention, nor that it was not necessary for the health and safety of the patient that she should continue to receive such treatment."
The application for judicial review was issued on 29th January 2008 and on the following day, 30th January, Burton J ordered inter alia that the hearing due to take place on 8th February be adjourned until further order.[6]Notwithstanding the concession made by the Tribunal, Mrs Rafiq resists the order sought by the claimant. She argues in essence that having been present (as was her husband) at the hearing before the Tribunal, it was perfectly clear that the Tribunal considered her position and the medical evidence relating to the possibility of her conditional discharge in great detail. In particular, she, in her written submissions to the court, and her husband in his submissions to me today, point to the reasons given by the Tribunal for its decision and particularly to its summary of the evidence given by the three witnesses: the responsible medical officer, the social worker and the psychiatric nurse, evidence, which it is clear from the summary, went substantially further than the written reports that they had given. That is an argument with which I have very considerable sympathy. It is clear to me that Mrs Rafiq is a highly intelligent woman and has set out her arguments in a clear and compelling manner.[7]By the grounds of resistance to the application, Mrs Rafiq advanced two substantive arguments. First, it is submitted that the claims advanced by the claimant and the concession made by the Tribunal are based on an incorrect analysis of the status of the decision of 29th October. Secondly, it is submitted that the Tribunal was wrong to concede that its decision was flawed in the public law sense, and that therefore this is an issue that ought to be addressed by this court notwithstanding that concession. It is submitted in particular:
"The first interested party contends that the oral and written evidence before the defendant was evidence upon which the defendant was entirely entitled to come to the decision that it did. When approached in the round and against the backdrop of the evidence before the defendant, the first interested party's submission is that the reasons provided were adequate and were not unlawful, and that the decision was not one to which no reasonable Tribunal could have come."
[8]The relevant law is to be found in sections 72 and 73 of the act. Section 72(1)(b) provides that the Tribunal shall direct the discharge of a restricted patient:
" . . . 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 and safety of the patient or for the protection of other persons that he should continue to receive such treatment . . . "
Section 73(1) of the Act provides that the Tribunal shall direct the absolute discharge of a restricted patient if it is not satisfied as to the matters mentioned in section 72(1)(b)(i) or (ii) and considers that it is not appropriate for the patient to be liable to be recalled to the hospital for further treatment. Section 73(2) of the Act provides that the Tribunal shall direct the conditional discharge of the patient if it is not satisfied as to the matters mentioned in section 72(1)(b)(i) or (ii) and considers that it is appropriate for the patient to remain liable to be recalled to the hospital for further treatment.[9]In the course of her submissions, Miss Lester, who appeared for the claimant, directed my attention to the Mental Health Review Tribunal Rules of 1983, and in particular to rule 23(2) which is in the following terms:
"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 good reasons for the decision, and in particular, where the Tribunal relies upon any of the matters set out in section 72(1), (4) or (4A) or section 73(1) or (2) of the Act shall state its reasons for being satisfied as to those matters."
[10]In the reasons given for its decision, the Tribunal summarised the background facts and then went on to summarise the evidence before it; evidence to which I have already made reference. But the conclusion which the Tribunal arrived was in the following terms:
"On all the evidence we are satisfied that the patient continues to suffer from mental illness, namely paranoid schizophrenia, within the meaning of the Mental Health Act 1983, but that it is no longer of a degree which necessitates her continued detention in hospital. We accept the opinion of the RMO that detention would only be warranted on the ground of health and safety and not for the protection of others. On a careful consideration of all the evidence, we are completely satisfied that by reason of the nature of the patient's condition, she should remain liable to recall. In all the circumstances we consider that the patient should be conditionally discharged, but that discharge should be deferred until the following conditions are fully and clearly in place."
I have already referred to the conditions upon which the conditional discharge was to be made.[11]I regret to say that, in my judgment, the concession made by the defendant was fully justified. It is plain to me that the Tribunal, in setting out its conclusions, failed to observe rule 23(2). The effect of that failure is that the decision was, on its face, defective in the sense that it did not set out fully the reasons for the decision and, most importantly, did not set out its reasons for being satisfied as to the matters in sections 72 and 73. I have therefore no alternative but to uphold the challenge to the decision. I express it in those terms because I have very considerable sympathy with the position of Mrs Rafiq and I am concerned, in particular, that the inevitable consequence of the ruling I must now make will be further to delay resolution of these matters so far as she is concerned. It is my hope that the Tribunal will be able to reconvene at the earliest possible opportunity.[12]Mr Rafiq has brought it to my attention that the responsible medical officer, who has been responsible for the treatment of Mrs Rafiq for some time, has within the last week moved from the hospital. Mr Rafiq fears that that will be a factor which will further delay resolution of this matter so far as his wife is concerned, on the basis that it will take time for his replacement to familiarise himself with her condition. I can well understand his concern, and in the course of oral argument I expressed my hope that it will be possible for evidence to be given to the Tribunal when it reconvenes by Dr Jawad, notwithstanding that he has now moved. There does not seem to me to be any reason why that should not happen, and one would have thought that his replacement would also think that to be an appropriate course, given that he has only just come into post.[13]For the reasons given, I have no alternative but to quash the decision made by the Mental Health Review Tribunal and to remit the matter to them for further consideration. Miss Lester, are there any other matters that I need deal with?[14]MISS LESTER: No, my Lord.

MR JUSTICE OWEN: Mr Rafiq, I hope this situation is satisfactorily resolved for your wife.

[16]MR RAFIQ: Thank you very much.

MR JUSTICE OWEN: Thank you for your assistance.