South Staffordshire and Shropshire Healthcare NHS Foundation Trust & Anor v The Hospital Managers of St George's Hospital & Anor [2016] EWHC 1196 (Admin)

Case No CO/1973/2016

[2016] EWHC 1196 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 20/05/2016

Before

THE HON. MR JUSTICE CRANSTON

Between

SOUTH STAFFORDSHIRE AND SHROPSHIRE HEALTHCARE NHS FOUNDATION TRUSTClaimant

DR WHITWORTHClaimant

THE HOSPITAL MANAGERS OF ST GEORGE’S HOSPITALDefendant

AUInterested Party

Nicola Greaney (instructed by Capsticks Solicitors) for Claimant

Susanna Rickard (instructed by Mills & Reeve LLP) for Defendant

Helen Curtis (instructed by QualitySolicitors CMHT) for Interested Party

Hearing Hearing date: 17/05/2016

Judgment

Introduction

[1]This is an application for judicial review of a decision by an independent panel (“the Panel”) on 12 April 2016 to discharge the Interested Party, AU, from detention under the Mental Health Act 1983 (“the 1983 Act”). It is brought by South Staffordshire and Shropshire Healthcare NHS Foundation Trust (“the Trust”) and Dr Whitworth (previously AU’s responsible clinician). The Trust is the National Health Service body responsible for providing medical care and treatment across South Staffordshire and Shropshire, including at the Redwoods Centre, a low secure unit in Shrewsbury, where AU remains. To put the case in general terms the claimants are concerned about the Panel’s decision to discharge AU in the light of the views of the clinical team and also a decision of the First Tier Tribunal (Health, Education and Social Care Chamber) Mental Health (“the Tribunal”) which decided on 10 March 2016 not to discharge him from detention. At earlier interim hearings, Cheema-Grubb and Warby JJ stayed AU’s discharge pending this expedited, “rolled up” hearing.

[2]The judicial review raises an important point of principle as to the capacity of a body to seek judicial review of a decision which it could have made itself. In broad terms the Trust appointed the Panel and under the 1983 Act it exercised delegated powers. Because AU raised this point in his grounds, Warby J joined Dr Whitworth as a second claimant to the action on 4 May 2016 on the basis that, if the Trust could not seek judicial review, she could. If the Trust and Dr Whitworth can seek judicial review, the grounds they advance against the Panel’s decision are, first, that it failed to treat the Tribunal’s decision as a relevant consideration and, secondly, that the Panel’s decision is irrational in light of the evidence available and the reasons it has given.

Background

[3]AU is just over 60 and has a long history of involvement with mental health services. He has a diagnosis of bipolar affective disorder and personality disorder, the latter long-standing but only recently diagnosed. He has spent most of his life living with his parents. Both are now in their eighties, the mother having suffered a series of mini strokes.

[4]AU was first admitted to hospital under the 1983 Act between February and May 2012 but was subsequently placed on a community treatment order which was discharged in October that year. On 19 September 2013, he was arrested following an assault on his father with a knife. When the case came on at the Crown Court he was found unfit to plead. From 17 December 2013 he was detained at the Trust’s Hatherton Centre, St George’s Hospital, Stafford, a medium secure unit, initially under section 5 of the Criminal Procedure (Insanity) Act 1964, equivalent to sections 37 and 41 of the 1983 Act. AU was an informal patient for a time in September 2015 but then from 21 September 2015 he was detained pursuant to section 3 of the 1983 Act.

[5]On 30 September 2015 the charge of assault against AU came before the Crown Court again. His responsible clinician considered that he was now fit to plead. The Crown Prosecution Service offered no evidence and the charges were consequently dismissed. AU’s detention was continued under section 3 of the 1983 Act. Just over a week later, AU’s mother, as his nearest relative, requested his discharge under section 23 of the 1983 Act. His responsible clinician, Dr Whitworth, made a barring order under section 25.

[6]AU and his mother made an application for his discharge from detention to the Tribunal. On 10 March 2016 it decided that AU should not be discharged. It also decided that it would be premature to recommend a community treatment order. The grounds of the Tribunal’s decision to refuse to discharge AU were that he was suffering from a mental disorder of a nature which made it appropriate for him to be detained in hospital for medical treatment; it was necessary for his health and safety or for the protection of other persons that he should receive such treatment; appropriate medical treatment was available for him in hospital; if released he would be likely to act in a manner dangerous to himself or others; and it was not appropriate to discharge him under the Tribunal’s discretionary powers.

[7]The Tribunal heard the case on 10 February and 10 March 2016. It heard evidence from the clinical team (his responsible clinician, by that time Dr Matthew Tovey; Lesley Ratcliffe, a senior forensic social worker; and a staff nurse, Darren Bailey), AU himself, AU’s father and two independent experts instructed on behalf of AU, Dr Davies, a consultant psychiatrist and Mrs Hope-Borland, a forensic and clinical psychologist. The case for detention was advanced on the basis of the nature of AU’s mental disorder alone, not its degree.

[8]In their reasons the Tribunal noted that there had been a reluctance by AU and his mother to give access to the home, in particular to the community health team; observed that the risks of a relapse were enhanced by AU’s failure to comply with his medication; and recalled that Mrs Hope-Borland had stressed that if discharged AU would need a strong, robust care package. The Tribunal noted that there was a conflict between the evidence of the professionals and also between that of AU and his father. AU did not acknowledge significant aggression against his parents except for the stabbing. Whilst his father described his son as boisterous before the Tribunal, in his evidence to the police after the stabbing, and to the clinical team, he had described what the Tribunal regarded as a course over time by AU of bullying and significant aggression. AU’s father had said: “We are frightened, looking over our shoulder, you don’t want to be looking over your shoulder”.

[9]The Tribunal concluded that AU would not remain compliant with his medication if discharged (his assertions to the contrary were motivated by the desire to obtain release); thought that if discharged his personality disorder inhibited his ability to engage with the community team and psychological therapy (at the February hearing he said he would not meet the community team at home and when he changed his mind in March he conceded that it was with a view to winning discharge); that the consequences of non-compliance and non-engagement would be a relapse, the re-emergence of the symptoms of bipolar affective disorder, and renewed aggression to his parents in the form of assaults and bullying; and that he would be likely to act in a manner dangerous to his parents so that the balance of that risk significantly exceeded the risk of distress and psychological trauma which might be occasioned by continued detention.

The Panel’s decision

[10]On 12 April 2016 the Panel met to consider whether AU should continue to be detained or whether he should be discharged. The Panel comprised Dr Wilson, a retired GP and non-executive director of the Trust, and two laypersons, Mr Andrew Clapham and Mr Raymond Hambridge. All are experienced Panel members, in combination having 35 years of sitting on such panels. The Panel had reports from Dr Tovey, Ms Ratcliffe and Staff Nurse Bailey, who both recommended continued detention but in conditions of lower security. It heard oral evidence from the clinical team (Dr Konappa, AU’s responsible clinician at the time, Ms Ratcliffe, and a ward nurse, Steve Orme), an independent advocate, AU himself and AU’s father. The hearing was informal and AU’s mother intervened from time to time.

[11]The report of Dr Tovey, dated 26 March 2016 set out a history of incidents involving AU’s aggression to his parents, which had been before the Tribunal. It recounted AU’s medical history and engagement with psychiatric services, including his discharge from psychiatric services prior to 2013 following his non-attendance at out patient reviews and his failure to take medication. At the Hatherton Centre there had been incidents of aggression to the clinical team, anger on his part, his refusal to be risk assessed for group work and to ascertain whether a comorbid diagnosis of an autistic spectrum condition would be appropriate, and his rejection on one occasion to consider even one to one therapy. Dr Tovey’s report summarised the Tribunal’s decision. In the Opinion section of the report, Dr Tovey stated:

“[AU’s] insight into the enduring nature of his illness and the need for long term treatment is poor. Indeed on a number of occasions (most recently in September 2015), [AU] has asked to reduce or discontinue mood stabilising medication. [His] appreciation of the risk he poses to others is almost entirely absent…The care team has received information from a number of sources to the effect that [AU has] been verbally and physically abusive towards both parents… Evidence suggests that they have tolerated significant levels of aggression and violence. Prior to alleged offence, [AU’s] parents had resisted involving criminal justice agencies. [They] are considered vulnerable adults to whom safeguarding procedures should apply. It is difficult to ascertain whether all of [AU’s] violent behaviours have occurred at times of mental ill health. In the context of his mental disorders, [AU] represents a high risk of causing serious, potentially fatal harm to his parents, and mother in particular. Whilst AU and his mother do not appear to accept the ongoing risk of violence, this is not a view shared by [AU’s father]. Indeed when seen individually, [he] offered compelling information (supporting that provided by [AU’s sister and husband]) as to AU’s violent conduct. [AU’s father] has also indicated that he is aware it would be unwise for [AU] to return to the family home. Notwithstanding the above, when in the presence of his wife and son, [AU’s father] is understandably torn and acquiesces to demands to accept AU back into the family home… It is clear that the nature of his personality disorder both increase his likelihood of violence, but additionally act to preclude his engagement in such therapies as would mitigate his risk of violence.”

[12]In her report Ms Ratcliffe stated that AU continued to engage superficially in low level activities but refused any psychological or therapeutic work. She observed that the limitation of medication was that it could not address AU’s underlying personality traits and the enmeshed and dysfunctional dynamic that existed between himself and his parents. It was the opinion of the clinical team that it would take extensive psychological work with him to unpick this dynamic and help him to come to a fuller understanding of how the index offence occurred and also to appreciate that he has an identity and autonomy outside of the family home.

[13]Dr Konappa addressed the Panel, asking it to take into account the decision and reasons of the Tribunal, as well as the opinion and recommendations in the psychiatric report. He underlined the risks that AU would pose to his vulnerable elderly parents. He updated the Panel about whether a bed was available in a low secure hospital as well as the exact date of transfer.

[14]The Panel set out reasons for their decision on the standard form, by reference to section 3 of the 1983 Act. They were first, that AU was not suffering from a mental disorder making it appropriate for him to be liable to detained in hospital for medical treatment. The Panel added in manuscript:

“AU suffers with Bipolar Affective Disorder which is under control by medication which he promises to continue at home. He also has a mixed personality disorder for which he needs support and psychological help but this is also available in the community.”

Next, the Panel said that it was not necessary for the health or safety of AU or for the protection of other persons that he continue to receive such treatment as a detained patient. The Panel wrote:

“There is a risk in the community but there is also adverse risk to his mental health and the health of his family if he continues in detention. On balance we consider there to be a lesser overall risk if he is allowed to live at home in the community.”

The Panel concluded that appropriate treatment was available to AU other than as a detained patient. It added:

“Appropriate treatment is available in the community and the patient has agreed to take the medication when back in the community. He has declined to engage in psychological treatments in the hospital.”

[15]In the “additional comments” section of the form, the Panel wrote that it was unhappy with the lack of a community plan for AU and looked forward to the provision of community support now he was to be released.

[16]The members of the Panel have prepared witness statements about their deliberations. Dr Wilson, the chair, states that he briefly reviewed the Tribunal decision and noted the outcome, and that when he was told of it by Dr Konappa he explained that the up to date medical evidence was of more relevance to the Panel’s function. Mr Clapham and Mr Hambridge state that they were aware of the Tribunal’s finding but did not read the decision. All three state that they read Dr Tovey’s report. Dr Wilson states that the members knew that AU was a man in his sixties who had lived with a personality disorder for the majority of his adult life. The group psychology work the clinical team proposed was not appropriate to AU’s individual needs: he was a particularly private person who was more likely to engage in community-based one to one psychological treatment.

[17]As to the risk to AU’s parents, Dr Wilson recounts that the evidence the Panel heard was that it was linked with a relapse in his bipolar disorder. That was what happened with the index offence, but AU had been stable on medication for over 12 months. It was not put to the Panel that AU’s personality disorder was related to the risk. As to his medication, AU advised the Panel that he would take his medication “110%” and would be willing to consider therapies on a one to one basis following referral. Dr Wilson states that AU did not want a community team visiting him at home, but asserted that he would attend appointments, which was supported by the fact that he visited his GP as required. Dr Wilson further states that the Panel was mindful that some of the historic allegations as to AU’s aggressive behaviour were unsubstantiated.

Legal framework

[18]Part II of the 1983 Act addresses compulsory admission to hospital and guardianship. Section 2 deals with admission for assessment, section 3 with admission for treatment. Under section 3(2) an application for admission for treatment may be made in respect of a patient on the grounds that: “(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) … (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and (d) appropriate medical treatment is available for him. Appropriate medical treatment is defined as medical treatment which is appropriate in a person’s case, taking into account the nature and degree of the mental disorder and all other circumstances of his case: section 3(4).

[19]Section 23 deals with the discharge of patients. “23 Discharge of patients(1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him absolutely from detention or guardianship is made in accordance with this section. … (1B) An order under subsection (1)… above shall be referred to in this Act as “an order for discharge”.

(2) An order for discharge may be made in respect of a patient (a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the responsible clinician, by the managers or by the nearest relative of the patient; Section 23(6) empowers an NHS foundation trust to delegate those powers to order discharge:

“(6) The powers conferred by this section on any NHS foundation trust may be exercised by any three or more persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust.”

Section 145(1) defines “managers” as “(bc) in relation to a hospital vested in an NHS foundation trust, the trust”. In other words, in the case of an NHS foundation trust it is the trust which has the power to make an order discharging a patient under section 23(2)(a), but under section 23(6) the board of the foundation trust may delegate that power on the persons identified there. Those persons are called “a Panel” in this judgment, which reflects the language of the Mental Health Act Code of Practice, paragraph 37.6. To call them “managers” without more can be confusing. (1B) An order under subsection (1)… above shall be referred to in this Act as “an order for discharge”. (a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or for treatment by the responsible clinician, by the managers or by the nearest relative of the patient;

[20]There are no criteria set out in section 23 as to what should or should not be taken into account when considering decisions whether to discharge, but in R v. Riverside Mental Health Trust ex p Huzzey (1998) 43 BMLR 167 Latham J said that the question of what are the relevant considerations has to be answered by looking at the general scheme of the 1983 Act. “…the criteria set out in section 3 are of fundamental importance… Section 23 implicitly recognises that managers have a discretion to discharge even if those criteria have been met.”

[21]The power of the Tribunal to discharge a patient is contained in Part IV of the 1983 Act. Section 72 provides:

“(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient, 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 it is not satisfied – … (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied – (i) that he is then suffering from mental disorder or from mental 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 of safety of the patient or for the protection of other persons that he should receive such treatment; or (iia) that appropriate medical treatment is available for him; 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.”

In broad forms, an application to the Tribunal may be made by a patient and a patient’s nearest relative: section 66. (a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied – (b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied – (i) that he is then suffering from mental disorder or from mental 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 of safety of the patient or for the protection of other persons that he should receive such treatment; or (iia) that appropriate medical treatment is available for him; 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.” (iia) that appropriate medical treatment is available for him; or

[22]The Mental Health Act Code of Practice is made under section 118 of the 1983 Act. Amongst other things it sets out guidance in respect of the exercise of the power of discharge under section 23. Paragraph 38.8 states that the board must ensure that panel members understand their role and the working of the 1983 Act, and receive suitable training to understand the law, work with patients and professionals, to be able to reach sound judgements and properly record their decisions. Hospital managers may undertake a review of whether or not a patient should be discharged at any time at their discretion: paragraph 38.12. However, they must undertake a review if the patient’s responsible clinician submits a report to them under section 20 of the 1983 Act renewing detention. To ensure that consideration whether the grounds for continued detention are satisfied in a systematic and consistent way, paragraph 38.15 states that panels should consider the questions set out below, in the order stated. For patients like AU’s, these are:

“38.17 … • Is the patient still suffering from mental disorder? • If so, is the disorder of a nature or degree that makes treatment in a hospital appropriate? • Is continued detention for medical treatment necessary for the patient’s health or safety or for the protection of other people? • Is appropriate medical treatment available for the patient? • Consideration should also be given to whether the Mental Capacity Act 2005 can be used to treat the patient safely and effectively.”

If the answer to any of these questions is “no”, the patient should be discharged. Where the answer to all the relevant questions is “yes”, but the responsible clinician has made a report under section 25 barring a nearest relative’s attempt to discharge the patient, the Panel should also consider the following question:

“Would the patient, if discharged, be likely to act in a manner that is dangerous to other persons or to themselves?”: paragraph 38.20. Under paragraph 38.22, if three or more members of the Panel (being a majority) disagree with the responsible clinician and decide that the answer to this question is “no”, the panel should usually discharge the patient. Paragraph 38.23 adds: “In all cases, hospital managers have discretion to discharge patients even if the criteria for continued detention or a CTO [community treatment order] are met… regard should be had to the principle of least restrictive option and maximising independence.”

As to reasons for their decision, paragraph 38.47 states as follows:

“Hospital managers have a common law duty to give reasons for their decisions. The decisions of managers’ panels, and the reasons for them, should be fully recorded at the end of each review. The decision should be communicated as soon as practicable, both orally and in writing, to the patient and their representative, to the nearest relative and, if different, carer (where relevant), and to the professionals concerned.” • Is the patient still suffering from mental disorder? • If so, is the disorder of a nature or degree that makes treatment in a hospital appropriate? • Is continued detention for medical treatment necessary for the patient’s health or safety or for the protection of other people? • Is appropriate medical treatment available for the patient? • Consideration should also be given to whether the Mental Capacity Act 2005 can be used to treat the patient safely and effectively.”

Capacity, standing and alternative remedy

[23]The key preliminary issue in this judicial review is whether, as Ms Curtis for AU submits, the court has no jurisdiction to hear the claim because the Trust and the Panel are in effect the same legal person, so that the Trust has no standing to bring it. Further, Ms Curtis contends that Dr Whitworth has no standing to bring the claim, even granted the statutory recognition that a responsible clinician has under the 1983 Act. In any event, she adds, Dr Whitworth is no longer AU’s responsible clinician. Thus, Ms Curtis submits that neither claimant has standing to bring this claim or any legal power to challenge the Panel’s decision.

[24]For the Panel, Ms Rickard contends that if a judicial review claim such as this is to proceed, the identity of the defendant should be the Trust. It was undesirable for Panel members to be sued as individuals since it was likely to act as a deterrent to them if they were to face the stress and potential publicity of legal proceedings. It was also unfair to expose them, acting in a voluntary public service role, to the threat of legal proceedings and the associated cost. In law, Ms Rickard submitted, the decision was taken by the Trust and if the decision were to be quashed it would be the Trust, not the three individuals, who had the power to take the decision again.

[25]In my view, the issue Ms Curtis raises is one of capacity, not standing. Capacity concerns the legal ability of the Trust to bring a claim; standing is whether the person has a sufficient interest to do so. It seems to me that the Trust has a patent interest in bringing the claim. However, its capacity is not straightforward. As Auburn, Moffett and Sharland correctly state: “A public body cannot bring a claim for judicial review of its own acts and decisions: a body cannot be both the claimant in and the defendant to a claim”: Judicial Review: Principles and Procedure, 2013, (24.14). They point out, however, that where a public body wishes to challenge one of its own decisions, a member may bring the claim with the authority of the public body. A case cited to me, R v. Bassetlaw District Council ex p Oxby (1998) PL CR 283, is one example of that: the leader of the Council was directed by a council resolution to bring judicial review of its unlawful planning decisions and the Court of Appeal held that he could do so.

[26]The situation here is the reverse, the Trust is seeking judicial review of a decision which it had the power to take but which was taken by a body to which it had delegated that power. If it had taken the decision itself, judicial review would have been impossible because of the principle about a body not being able to bring a claim for judicial review of its own rules and decisions. In my view the legal position changes given the nature of the delegation in this case, to a body which Parliament intends to be an independent decision-making entity. Section 23(6) of the 1983 Act ensures the independence of a panel from an NHS foundation trust by the requirement that members cannot be executive directors of its board or employees. Consequently, the Panel is, in my view, sufficiently separate from and independent of the Trust to enable the Trust to bring a judicial review challenge to its decision. The situation is analogous to a regulatory body bringing a judicial review challenge to one of its own disciplinary committees, as in R v. Statutory Committee of the Pharmaceutical Society of Great Britain

[1981] 1 WLR 886

[27]As to Ms Rickard’s concerns about lay people not being prepared to take on the responsibility of panel membership in the event their decisions are reviewable, there are the countervailing public interests in the Trust exercising powers of hospital management with the duties it has to patients and members of the public. It ought to be able to bring a judicial review challenge to protect the public in circumstances where it considers a panel has made an unlawful decision. As will be obvious from the remainder of this judgment, however, it will require quite exceptional circumstances in my view for a Panel’s decision to be reviewable by the court.

[28]Since, in my judgment, the Trust may bring judicial review, the addition of Dr Whitworth as the claimant’s clinician was unnecessary. However, she is no longer AU’s responsible clinician and, in my judgment, does not have a sufficient interest in the matter to which the application relates to have the requisite standing.

[29]A second preliminary issue is whether the Trust has an alternative remedy available in that it is open to it to re-section AU under section 3 and therefore judicial review should not be granted. Both Ms Curtis and Ms Rickard contend that if a responsible clinician disagrees with a decision of a Panel to discharge a patient it can invoke the holding power under section 5, while an assessment is carried out and a section 3 order imposed.

[30]To my mind this is not a suitable alternative remedy. A responsible clinician may well take the view that to re-section a patient after a Panel has ordered discharge would be to undermine the panel system. Moreover, in R (Von Brandenburg) v. East London and the City Mental Health NHS Trust

[2003] UKHL 58

[2004] 2 AC 280

, the House of Lords held that what is now an approved mental health professional, who was aware of a Tribunal’s decision to discharge a patient, could not lawfully apply for admission under section 2 or 3 of the 1983 Act unless reasonably and in good faith she considered that there was information, unknown to the tribunal, which place a significantly different complexion on the case. Ms Rickard sought to distinguish R (Von Brandenburg) on the basis that there the decision was of a Tribunal, and as a court the law of contempt applied. I reject that submission given my view, expressed elsewhere in the judgment, that the Parliamentary intention is that a panel appointed under section 23 of the Act has equal standing when ordering discharge to that of a Tribunal operating under section 72. In my view, even if the same result might be achievable through other means, judicial review is an appropriate remedy in this type of case.

Failure to take account of relevant considerations

[31]In this case, Ms Greaney for the claimants submitted, the failure to have adequate regard to the Tribunal’s decision and the reasons underpinning it was a failure to take into account a relevant consideration. The Trust accepts that the Panel was aware that the Tribunal had not directed discharge. In his report, Dr Tovey referred to the fact of the Tribunal’s decision and Dr Konappa brought the salient points of the Tribunal’s decision to the Panel’s attention at the hearing. But Ms Greaney points out that two of the Panel did not read the Tribunal’s decision at all and Dr Wilson, the chair, had not, at the time, read the decision in full or reviewed it in any detail. She contends that the Tribunal’s decision was highly material to the issues before the Panel. It was reached after a very full factual enquiry, held over two days and with evidence from five professional witnesses, including the two independent experts instructed on behalf of AU.

[32]In particular, submitted Ms Greaney, the Tribunal set out its reasons for concluding that other evidence of sustained aggression by AU against his parents was to be preferred to AU’s own evidence. As well, there was detailed factual and opinion evidence set out in the Tribunal’s decision on the key issues of risk to his parents, compliance with medication, and engagement with the community team. The Tribunal gave careful and detailed reasons for its view as to why the criteria for detention continued to be met. The Tribunal was addressing the same questions as the Panel and had made its decision only one month previously. There was no evidence of any change in presentation of AU or other change in circumstances, other than there being a suggestion that AU might be willing to engage in some psychological work. In his witness statement, Dr Wilson said that the Panel was not provided with an up-to-date risk assessment document yet, submitted Ms Greaney, the Tribunal had carried out a very detailed assessment of risk.

[33]The fact is, submitted Ms Greaney, the Panel did not engage with the key findings made by the Tribunal and reached diametrically opposite views on the key issues. It made no reference to the Tribunal’s findings or reasoning and did not properly appreciate the reasons underlying its decision. In particular, its reasons do not show any understanding of the relevance of AU’s personality disorder to risk, stated by Dr Tovey. Indeed, in his statement Dr Wilson maintains that it was not put to the Panel that the personality disorder was linked to risk. This was one piece of highly relevant evidence available which the Panel simply failed to take into account.

[34]Not every consideration which a decision-maker may take into account is, as a matter of law, a relevant consideration so that the failure to do so renders the decision unlawful. Relevant considerations to which a decision-maker must have regard might be clear on the face of the legislation conferring the decision-making power. If not explicit, a consideration might be so obviously material as a matter of statutory construction that it is a relevant consideration to which the decision-maker must have regard: Inre Findlay

[1985] AC 318

, 334B; R (Hurst) v. London Northern District Coroner

[2007] 2 AC 189

, [57]. Otherwise a decision is not unlawful simply because it takes no account of a consideration which many would think is relevant, even the court itself, unless not to do so is Wednesbury unreasonable. Those considerations can be characterised as permissive considerations, in that it is up to the decision-maker to take them into account if she so chooses.

[35]In my view, the Tribunal’s decision was not a relevant consideration such that the Panel had to take it into account. There is nothing on the face of the 1983 Act, or the Code of Practice, elevating a Tribunal’s decision to the status of a relevant consideration for the purposes of a panel’s decision-making. The 1983 Act does not specify the criteria to be used by an NHS foundation trust or its panel in considering discharge, although the essential considerations are whether the grounds for continued detention under section 3 are satisfied. Nor can I see anything in the 1983 Act or Code of Practice making a Tribunal’s decision something so obviously material that not to take it into account would mean that the decision of an NHS foundation trust or its panel is flawed.

[36]To the contrary, the Parliamentary design is to confer wholly separate discharge powers under Part II, section 23, on an NHS foundation trust or any panel it appoints, and under Part IV, section 72, on the Tribunal. A Tribunal decision not to discharge a patient under section 72 in no way prevents an NHS foundation trust from exercising its own, separate powers of discharge under section 23. Similarly, the decision of an NHS foundation trust or its panel not to discharge does not affect any decision of the Tribunal to discharge. The Parliamentary intention providing various avenues to patients to regain their liberty means that it is up to these separate decision-makers to decide whether or not to take into account a decision of another and, if so, how much weight to give to it.

[37]In fact, in this case the Panel was aware of the Tribunal’s decision on discharge. Just as the Tribunal had three members of the clinical team to give evidence, so did it. As with the Tribunal, the Panel also heard from AU and his father. It had the added advantage that, in the informal setting the Panel offered, its members also had the benefit of interventions from AU’s mother. As experienced lay Panel members they were perfectly capable of making a decision on discharge without reference to what the Tribunal had decided, despite what might seem to be the Tribunal’s status when seen through judicial (but not Parliamentary) eyes. In my view, the Panel had no obligation whatsoever to engage with the Tribunal’s reasoning.

Rationality and reasons

[38]There are two strands to Ms Greaney’s irrationality challenge, first, that the Panel’s decision to discharge was an irrational one on the basis of the evidence available, and secondly, that there is no evidence of a rational decision-making process because the Panel’s reasons do not demonstrate that the substantial concerns raised by the clinical team, as well as by the Tribunal, were taken into account. The second strand was incorporated into the challenge in the course of the interim proceedings.

[39]In this case the three Panel members have prepared statements relevant to their reasons for ordering AU’s discharge. That they have done so was contemplated at an interim hearing before Warby J, given the additional reasons challenge. Notwithstanding that it was their additional ground which was, in part, responsible for the statements, the claimants contend that the Panel needs to make out an exceptional case for this further evidence of the reasons for its decision. That is because they contend a decision that, pursuant to section 23 of the 1983 Act, falls into category (i) described by Stanley Burnton J in R (Nash) v. Chelsea College of Art and Design

[2001] EWHC 538 (Admin)

“34 In my judgment, the following propositions appear from the above authorities: (i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons. (ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.”

Ms Greaney cited in support of this submission that with a decision under section 23 the adequacy of the reasons is itself a condition of the legality of the decision, and an obiter remark of Collins J in R (on the application of Oldcorn) v. West London Mental Health NHS Trust

[2005] EWHC 604

, at [17]-[18]. (i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons. (ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a) Whether the new reasons are consistent with the original reasons. (b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b). (d) The delay before the later reasons were put forward. (e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.”

[40]As is made clear in paragraph 38.47 of the Code of Practice, an NHS foundation trust and its panel are under a common law, not a statutory, duty to give reasons for a decision on discharge under section 23 of the 1983 Act. Thus there is no need to make an exceptional case for the evidence to be admitted in accordance with R (Nash) v. Chelsea College of Art and Design. The considerations are the less stringent ones set out by Stanley Burton J in category (ii). In other words, the evidence can be admitted, although it must be treated with caution because of a risk that it may be coloured by further information that the Panel has now received or it may be a rationalisation or justification of the conclusion the members have reached. In particular, I accept Ms Greaney’s submission that I should not accept reasons given now which are inconsistent with the original reasons. Thus in his statements Dr Wilson asserts that on the evidence the risk to AU’s parents was not substantiated, yet the Panel’s reasons accepted that there was a risk but balanced it against other factors.

[41]In advancing the rationality and reasons challenge, Ms Greaney majored on matters she raised under the relevant considerations head: the threat to the parents, compliance with medication, and engagement with therapy. In my view, none of those matters go anywhere. The Panel gave the brief reasons expected of them on the standard form. (I note in passing that if the Trust wanted more detailed reasoning they should have made that clear in the design of the form they produced for its panels.)

[42]Discounting their statements in the way I have indicated, all members of this Panel in my judgment exhibited both experience and care in considering AU’s case. They were well aware of the contents of the reports from Dr Tovey and Ms Ratcliffe, and they heard evidence from the clinical team. The fact is that they did not regard that evidence as insuperable to discharge as regards the four points which Ms Greaney underlined. Indeed, I am inclined to agree with Ms Curtis’s submission that the detail to which the Trust’s case descended before me was an attempt to persuade me that somehow the Panel’s decision was wrong on the merits. In my view, the decision of the Panel on discharge was clearly open to it on the evidence before it and it has given clear reasons for reaching it. It is patent on the form that in particular it considered the risk AU posed to his parents but balanced that against other factors.

[43]Moreover, there is no way that it can be said that the Panel’s decision to discharge AU was beyond the range of reasonable decisions open to it. AU’s bipolar state had stabilised, over 30 years it had warranted hospital admission on only two occasions, he had a clear motivation in light of his hospital experience to continue taking his medication in the community, and although his personality disorder was not yet treated he had lived with it for the majority of his adult life without great incident. The Panel decided, on an obviously rational basis, that the treatment offered to AU for it in hospital, under compulsory powers, was not treatment addressing his overall needs. That a differently constituted Panel might have reached a different decision is beside the point. I accept Ms Rickard’s submission that this is a paradigm case where a panel has disagreed with the clinical team and discharged a patient where it considered the state’s compulsory power of detention could no longer be justified precisely, I would add, as Parliament contemplates can happen.

Conclusion

[44]For the reasons I have given I dismiss the judicial review.