KF v Birmingham & Solihull Mental Health NHS Foundation Trust (MEN) [2010] UKUT 185 (AAC)
UKUT-AAC
KF v Birmingham & Solihull Mental Health NHS Foundation Trust (MEN)
[2010] UKUT 185 (AAC) · 2010-06-02
[29]Mr Pezzani understandably urged upon us the strength of the arguments in favour of enabling a separate hearing of the section 2 application to take place. He reminded us that there is Court of Appeal authority for the proposition that “ If tribunals do not have the time and back-up resources that they need to discharge their statutory obligation to provide adequate reasons, then the time and resources must be found” ( R (on the application of) v Ashworth Hospital Authority & Ors [2002] EWCA Civ 923 ; [2003] 1 WLR 127 at paragraph 76). Mr Pezzani argued that resource considerations should be approached with caution where the liberty of the individual was at stake: see further R (on the applications of KB and others) v Mental Health Review Tribunal [2002] EWHC 639 (Admin) at paragraph 112. To hold otherwise would, Mr Pezzani submitted, in effect be to prioritise administrative convenience over the right to liberty. 30. So how should the first-tier Tribunal manage such cases in practice? We agree with the Observations issued by Judge Rowland at an earlier stage in these proceedings (see paragraph 8 above). In general, unless there is good reason why not, if the First-tier Tribunal is asked to review a tribunal decision on a section 2 application, and concludes that it involves an error of law, then the appropriate way forward is for the First-tier Tribunal to set aside the substantive decision and to re-list the case for hearing together with any existing section 3 application. As we shall explain, the patient has the right to apply to withdraw that application (see paragraphs 36-38 below). This approach has a number of practical ramifications. Some of the issues that may arise in this regard are as follows:(i) time limits;(ii) case management and consolidation;(iii) withdrawal and(iv) provision of reports.
(i) Time limits
[31]Mr Hooper submitted that the very tight time limits for the hearing and disposal of a section 2 application under rules 37(1) (hearing within 7 days of application) and 41(3)(a) (decision with reasons to be sent within 3 days of hearing) do not apply to such a remittal. There is, he argued, no hard-edged rule requiring the remitted hearing to take place within a certain timeframe. Without deciding the point we note that under Article 5(4) it remains incumbent upon the State to ensure that proper arrangements are in place for speedy hearings of detained patients’ applications. In addition, the overriding objective under the HESC Rules of dealing with cases fairly and justly specifically includes “avoiding delay, so far as compatible with proper consideration of the issues” (rule 2(2)(e)). 32. In that context we have some concern that several stages in the present appeals were not handled with sufficient urgency. To take just one example: MO made her section 2 application on 17 November 2008 but it was not heard until a month later on 17 December 2008; the tribunal’s decision was not received for another month (14 January 2009) and despite her solicitor’s prompt application for a review or permission to appeal (16 January 2009) this was not determined until 11 February 2009. 33. We understand that both the First-tier Tribunal and the Upper Tribunal now have in place appropriate administrative procedures so that these cases are dealt with promptly, bearing in mind the overriding objective. As an example of good practice, we note that in RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC) the patient, who was detained under section 3 of the 1983 Act, had a hearing of his application listed for 4 May 2010. The First-tier Tribunal prohibited disclosure of two addendum reports, one by the patient’s responsible clinician and the other by a nurse. An urgent application for permission to appeal was lodged by email with the Upper Tribunal and came before Judge Jacobs on 14 April 2010. This was followed by an oral hearing with counsel on 22 April 2010 and the Judge’s reasoned decision, lifting the prohibition on disclosure, was issued the following day. 34. We were initially concerned that such expedition might prove difficult where, as is usually the case, patients are reliant on public funding. However, Mr Pezzani told us on instructions that all the stages before the First-tier Tribunal up to, and including, applying for review or permission to appeal would be covered by an approved solicitor’s contract with the Legal Services Commission (LSC). An application direct to the Upper Tribunal for permission to appeal or funding for a substantive appeal before the Upper Tribunal would require a further certificate. We were told that the LSC has established a specialist national unit based in Liverpool to handle such requests, and that urgent applications can be dealt with within 48 hours. In circumstances of exceptional urgency, approved solicitors can self-certify under devolved powers. (ii) Case management and consolidation 35. If the First-tier Tribunal may need to entertain both a re-hearing of appeal against a tribunal decision on a section 2 application and a subsequent section 3 application, need this result in a multiplicity of proceedings? The First-tier Tribunal has extensive case management powers under the HESC Rules. As indicated above, these are wider than those available under the previous Mental Health Review Tribunal Rules 1983. In particular the new rules include the power to “ consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case” ( HESC Rules, rule 5(3)(b)). The use of these powers would, in appropriate cases, enable proceedings to be consolidated, heard and determined together. The First-tier Tribunal and the parties must also have regard to the overriding objective which provides, in particular, for cases to be dealt with in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and by avoiding delay, so far as compatible with proper consideration of the issues (HESC Rules, rule 2). (iii) Withdrawal 36. A patient may apply to withdraw an application (rule 17(1)), although a reference may not be withdrawn (rule 17(3)). A patient’s withdrawal cannot take effect without the tribunal’s consent (rule 17(2)). Collins J. considered the 1983 forerunner of the present rule in R (on the application of O) v Mental Health Review Tribunal [2006] MHLR 326, holding that a tribunal should not consent “if it takes the view that [the application for withdrawal] is merely a tactical ploy and not in the interests of the patient.” The author Richard Jones gives the practical example of an application being made after a tribunal had heard all the evidence but before it had reached a decision ( Mental Health Act Manual (Jones) (13 th edition, 2009, at paragraph 3-072). 37. In our view a First-tier Tribunal would certainly be justified in refusing consent to a withdrawal where it is no more than such a tactical ploy. However, that should not be taken as meaning that a tribunal should only refuse its agreement in such a scenario. There is plainly no automatic right to withdraw, and we agree with both counsel that the case for accepting a withdrawal will depend very much on the particular circumstances of the case (or cases). The 1983 rules did not contain either the overriding objective or the extensive case management powers to which we have already made reference and the First-tier Tribunal should always have regard to those provisions when considering whether or not it is appropriate to consent to a withdrawal. 38. Mr Pezzani submitted that a patient’s desire to make an application whenever legitimately possible within the terms of the Act can hardly amount to a “tactical ploy”. In most cases we doubt whether it is helpful to use the terminology of “tactical ploy”. The question is whether a patient who has both an outstanding section 2 application and a subsequent section 3 application in hand near the start of a six month period may be justified in seeking to withdraw the latter application in order to preserve the possibility of making such an application later in that period of treatment. There may be a number of relevant factors, for example the initial section 3 application may have been taken without the benefit of legal advice, and an individual’s mental health may well change considerably over time. The danger of an unduly broad approach to the notion of a “tactical ploy” is that a patient might be denied what would otherwise be a legitimate opportunity to question their continued detention. (iv) Provision of reports 39. We recognise that the content of reports prepared for different types of hearing may vary, according to the statutory criteria which the First- tier Tribunal has to consider. Where the same clinicians and other mental health professionals continue to be involved, as will usually be the case on a change of status from section 2 to section 3, this should not present a problem. The timely use of case management powers and the issue of appropriate directions with regard to the provision and content of reports should enable proceedings to be determined appropriately and effectively. The issue is likely to be more acute when there is a change in the patient’s status from section 3 to a Community Treatment Order about which we say more later (see paragraph 60 below). The position where the patient has been discharged but there is a pending appeal 40. Mr Hooper’s submission was that if a patient has already been discharged, no appeal can result in any remedy being granted, given that the only relevant power enjoyed by the First-tier Tribunal on an application remitted following an appeal is the power to order discharge. In his submission, therefore, the First-tier Tribunal and the Upper Tribunal should exercise any discretion under the 2007 Act or the procedural rules in such cases against the patient. Thus tribunals should refuse both to review and to give permission to appeal and, if permission has been granted, the Upper Tribunal should refuse to set aside the tribunal’s decision if an error of law is identified. Mr Hooper further submitted that these discretions should be exercised against the patient “in all such cases”, as there could be no remedy of any legal or practical significance. 41. We recognise the force of Mr Hooper’s arguments. In many cases where the patient has since been released, there will be no individual or wider public interest in continuing proceedings, even where the decision of the First-tier Tribunal under challenge may well be suspect. To that extent we would agree that there may well be a presumption in practice against granting either a review or permission to appeal or against setting aside on appeal in such cases. However, we do not accept that it will never be appropriate to exercise such a procedural discretion in the patient’s favour where he or she has already been released. We recognise that these are cases involving fundamental issues about the liberty of the subject. There may well be circumstances in which it remains appropriate for there to be further scrutiny of the initial tribunal decision, notwithstanding the individual’s subsequent discharge. There may be a danger that a future decision-maker may give inappropriate weight to a flawed decision. Moreover, there may be an urgent need for the legal principles at stake to be clarified. Disposal of KF and MO’s appeals to the Upper Tribunal 42. We agree with the Regional Tribunal Judge who considered the application for permission to appeal in KF’s case that the original decision of the First-tier Tribunal on 16 March 2009 was “pervaded by ambiguity”. Using the standard form decision template, the tribunal’s decision was stated to be both that “The patient SHALL BE DISCHARGED from liability to be detailed with effect from 23 March 09 at 11.00 a.m.” and also that “The patient shall not be discharged”. We can also understand why KF’s husband was, as he put it, “baffled to understand its logic”. The decision of the First-tier Tribunal on 16 March 2009 plainly involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007. 43. We also take the view that the decision of the First-tier Tribunal on 17 December 2008 in MO’s case involved an error of law. Although this began as a section 2 application, by the time of the hearing MO was detained under section 3 of the 1983 Act. However, the tribunal mistakenly applied the section 2 criteria in section 72(1)(a) rather than the section 3 criteria in section 72(1)(b), as required by ex parte M . The decision of the First-tier Tribunal on 17 December 2009 therefore also involved an error of law within section 12(1) of the Tribunals, Courts and Enforcement Act 2007. 44. Both patients have since been released (KF on 24 April 2009 and MO on 11 September 2009). As indicated above, a re-hearing before the First-tier Tribunal would be an empty gesture at this stage and the Upper Tribunal is not in a position to re-make the decisions. The Upper Tribunal accordingly exercises its discretion so as not to set aside the decisions of the First-tier Tribunal in question. FF 45. We can deal with the appeal by FF rather more shortly. This is because the issues are more straightforward than in KF and MO and there is an even greater degree of common ground between the parties. FF’s case concerns the effect of the making of a community treatment order on an extant reference to the First-tier Tribunal. Community treatment orders 46. Community treatment orders (CTOs) were introduced by the Mental Health Act 2007, amending the 1983 Act. Where a patient is detained under section 3 of the 1983 Act, his or her responsible clinician may make a CTO under section 17A, which has the effect of discharging the patient from hospital, subject to the possibility of being recalled (in accordance with section 17E). A patient under a CTO is a “community patient” (section 17A(7)). The application for admission for treatment “shall not cease to be effective” during the currency of the CTO (section 17D(1)); in other words, the underlying authority for detention is suspended rather than extinguished (section 17D(4)). Furthermore, once the CTO is revoked, the underlying regime for detention revives (section 17G). The factual background 47. The detailed chronology of FF’s case is set out at Annex 3. In summary, FF was originally admitted to hospital in May 2008 under section 3 of the Mental Health Act 1983. He did not apply to the First-tier Tribunal but his case was referred to the tribunal by hospital managers under section 68(2) of the 1983 Act. Before the reference could be heard, he was discharged from hospital under a CTO. On 21 May 2009 the First-tier Tribunal decided (the “dismissal decision”) that the effect of the CTO was that the section 68(2) reference ceased to have effect. FF applied for permission to appeal or a review of that decision. On 2 June 2009 the First-tier Tribunal decided (the “review decision”) to take no action as regards the review decision and refused permission to appeal. 48. Subsequently the CTO was revoked and the hospital managers made a further reference to the tribunal as required by section 68(7) of the 1983 Act. On 3 August 2009 FF applied to the Upper Tribunal for permission to appeal the review decision. The Chamber President granted permission to appeal, directing that the appeal be heard together with those of KF and MO. In the meantime, on 16 November 2009, the First-tier Tribunal had considered the section 68(7) reference and declined to order FF’s discharge. FF did not attend that hearing and his solicitor informed the panel that FF did not intend to contest the section remaining in place. 49. In subsequent submissions to the Upper Tribunal, FF’s representative indicated that permission to appeal the dismissal decision was also being sought, and in the alternative judicial review, but that there was no challenge to FF’s ongoing detention. Indeed, in the meantime there had been a further section 68(2) reference, and on 15 March 2010 a First-tier Tribunal decided not to discharge FF as the conditions for continuing detention under section 3 of the 1983 Act were amply made out. FF’s appeal to the Upper Tribunal involves both a preliminary issue (which First-tier Tribunal decision in his case can be appealed?) and a point of principle (does a reference to the First-tier Tribunal lapse once a CTO is made?). The preliminary issue: which First-tier Tribunal decision can be appealed? 50. FF’s original application to the Upper Tribunal for permission to appeal was made in respect of the First-tier Tribunal’s review decision on 2 June 2009. It is now common ground that that review decision was in fact an “excluded decision” within the meaning of section 11(5)(d) of the Tribunals, Courts and Enforcement Act 2007, and so did not carry a right of appeal under section 11(1). However, the dismissal decision made on 21 May 2009 was not an “excluded decision” and so did carry appeal rights under section 11(1). The Upper Tribunal accepts that the substance of FF’s application for permission to appeal was a challenge to the dismissal decision itself and so there is no jurisdictional problem. The point of principle: does a reference to the First-tier Tribunal lapse once a CTO is made? 51. The point of principle in FF’s appeal against the dismissal decision is a relatively narrow one. The question is whether a reference to the First-tier Tribunal lapses once a CTO is made and in particular whether what happened in FF’s case was consistent with the decision of the Upper Tribunal in AA v Cheshire and Wirral Partnership NHS Trust [2009] UKUT 195 (AAC) . In AA Judge Rowland held that an application to the First-tier Tribunal made while a patient is detained under section 3 of the 1983 Act does not lapse if, before that application is heard, the patient is discharged under section 17A, subject to a CTO. 52. In their respective submissions Mr Pezzani and Mr Hooper respectfully agreed with both the reasoning of Judge Rowland and the outcome in AA . They also both submitted that it followed from AA that, as with an application, a reference made whilst a patient is detained under section 3 will likewise not lapse if, before the reference is heard, a CTO is made. On that basis the First-tier Tribunal erred in law in its dismissal decision, as it had taken the contrary view. We agree with that analysis for the following reasons. 53. First, we are satisfied that AA was correctly decided for the reasons set out by Judge Rowland at paragraphs 43-58 of his decision and in particular that this is the natural construction of section 72(1) of the 1983 Act. We note in passing that the First-tier Tribunal issued its dismissal decision in FF’s case before Judge Rowland’s decision in AA was available. 54. Second, we agree that there is no reason to hold that references to the First-tier Tribunal should be treated any differently to applications in this regard, and indeed every reason why they should be treated in the same way. Most notably, section 72(6) of the 1983 Act expressly provides that section 72(1)-(4) applies equally to managers’ references (under section 68) as to patients’ applications (under section 66). In addition, if the intention was that references (but not applications) were to lapse upon a change of status, such as being discharged subject to a CTO, then one would have expected that express statutory provision would have been made to require a fresh reference by hospital managers whenever an existing reference lapsed. The absence of any such express provision in the 1983 Act indicates that references to tribunals were not meant to lapse on a change in status. This construction is supported by section 68(4) of the 1983 Act, which specifically requires hospital managers to make a reference to the tribunal if a patient withdraws his or her application to a tribunal more than six months after the applicable day. 55. This analysis is consistent with the approach taken by Collins J. in R v South Thames Mental Health Review Tribunal ex parte M , namely that the patient’s right to make an application to a tribunal is founded on the fact of admission, rather than the detention. It followed in that case that the change in a patient’s status from section 2 to section 3 did not deprive him of a tribunal hearing if that change took place after a valid application had been made but before it had been heard (although, as seen above, the criteria to be applied did change). Moreover, the tribunal’s decision to dismiss the section 2 application could not prevent the patient from making a subsequent section 3 application during the first six months of detention. 56. We see nothing in the judgments of Stanley Burnton J. (as he then was) in R (on the application of SR) v Mental Health Review Tribunal [2005] EWHC 2923 (Admin) ; [2006] MHLR 121 or Plender J. in R (on the application of MN) v Mental Health Review Tribunal [2008] EWHC 3383 (Admin) which is inconsistent with this analysis. There are two reasons for that conclusion. First, although in both cases the Administrative Court ruled that in the specific circumstances of those proceedings a fresh application was required, the Court was concerned with different regimes under the 1983 Act (those governing the now-repealed provisions for after-care under supervision (“ACUS”) and those relating to restricted patients respectively). Second, both Stanley Burnton J. and Plender J. expressly endorsed the judgment of Collins J. in R v South Thames Mental Health Review Tribunal ex parte M . 57. We therefore agree with Mr Hooper’s specific submissions that:(1) in the context of references, the words “in respect of a patient who is liable to be detained under this Act or is a community patient” in section 72(1) refer to the patient’s status both at the date the reference is made and at the subsequent hearing of that reference;(2) a patient may therefore fall within section 72(1) by being liable to be detained under the Act when the reference is made and by being a community patient at the time of the hearing (as was the case for FF); and(3) sub-paragraphs (a) to (c) in section 72(1) refer only to the patient’s status as at the time of the hearing (not the date of the reference), and set out the legal tests to be applied depending on the patient’s particular status at that time (see AA v Cheshire and Wirral Partnership NHS Trust [2009] UKUT 195 (AAC) at paragraph 45). 58. We also agree with Mr Pezzani that this construction is consistent with the guidance contained at paragraphs 32.14 and 32.15 of the Code of Practice: Mental Health Act 1983 (Department of Health, 1999). That guidance, which contemplates that updated reports might be needed if a patient’s status changes, necessarily assumes that a fresh application or reference will not be needed if a CTO is made. The practical consequences of this approach 59. The consequence of the analysis above is that any movement from section 2 to section 3 or to community patient status does not affect the continuing validity of an extant and undetermined application or reference to the First-tier Tribunal. The application or reference still falls to be determined by the tribunal in accordance with the patient’s status at the time of the actual hearing and subject to the relevant criteria under section 72(1)(a)-(c). 60. There may, of course, and depending upon the circumstances, be a number of outstanding applications and/or references before the First-tier Tribunal. This raises similar issues to those identified in KF and MO (see paragraph 35 above). The effective use of the First-tier Tribunal’s case management powers should enable outstanding proceedings to be consolidated, heard and determined together. As we have already observed (see paragraph 39 above) the position may be more complicated where there is a change in the patient’s status from section 3 to a CTO. Different clinicians and other mental health professionals may become involved in the patient’s care and reports provided by the professionals who were involved in the patient’s care whilst he or she was an in-patient may not address the criteria which the First-tier Tribunal will have to consider at the hearing in accordance with the patient’s status at that time. This is an important factor which judges dealing with case management will need to keep firmly in mind when using case management powers, to ensure that cases are dealt with in a timely fashion and that, when appropriate and possible, hearing dates already fixed are retained for the hearing of the new application or reference. Appropriate and imaginative use of the case management powers should be encouraged to ensure that the relevant professionals are able to provide the required reports in time, notwithstanding the presence of a sometimes rapidly changing landscape in respect of the patient’s status. Disposal of FF’s appeal to the Upper Tribunal 61. The substance of FF’s application for permission to appeal to the Upper Tribunal was a challenge to the First-tier Tribunal’s dismissal decision of 21 May 2009. That dismissal decision involved an error of law as the reference to the First-tier Tribunal under section 68(2) of the 1983 Act had not lapsed on the making of the CTO. However, the dismissal decision, made by a tribunal judge sitting alone on the jurisdictional issue, did not involve a substantive consideration of the continuing legality of FF’s detention. Accordingly FF has no continuing interest in having that decision set aside and does not apply for any specific order or relief. 62. In those circumstances we take the view that the appropriate order is to rule that the First-tier Tribunal’s decision of 21 May 2009 involved an error of law but we exercise our discretion not to set it aside, as that would serve no useful purpose on the particular facts of this case. (Signed on the Original) Mr Justice Walker CP HH Judge Sycamore CP Upper Tribunal Judge Wikeley (Dated) 2 June 2010 ANNEXES Annex 1: Chronology in KF’s case 24 February 2009 KF admitted to hospital under s.2 MHA 1983 8 March 2009 KF makes section 2 application to First-tier Tribunal (F-tT) 16 March 2009 F-tT dismisses KF’s section 2 application 23 March 2009 KF admitted under s.3 MHA 1983 24 March 2009 KF makes section 3 application to F-tT 27 March 2009 KF applies to F-tT for permission to appeal 16 03 2009 decision 2 April 2009 F-tT reviews 16 03 2009 decision but takes no action and refuses permission to appeal to the Upper Tribunal 24 April 2009 KF discharged from hospital 28 April 2009 KF applies to Upper Tribunal for permission to appeal 16 03 2009 decision 18 May 2009 Upper Tribunal refuses KF’s application for permission to appeal on papers 9 June 2009 KF applies for reconsideration of refusal of permission to appeal 6 August 2009 Upper Tribunal grants KF permission to appeal following oral hearing 7 September 2009 KF (and MO) file and serve grounds of appeal 8 January 2010 KF (and MO) apply for appeal to be treated as judicial review applications 28 April 2010 Oral hearing before Upper Tribunal of appeal before three-judge panel Annex 2: Chronology in MO’s case 7 November 2008 MO admitted to hospital under s.2 of the MHA 1983 17 November 2008 MO makes section 2 application to F-tT 28 November 2008 MO admitted under s.3 of the MHA 1983 9 December 2008 MO makes section 3 application to F-tT 17 December 2008 F-tT dismisses MO’s section 2 application 12 January 2009 F-tT written decision dismissing MO’s section 2 application sent to her solicitor 16 January 2009 MO applies to F-tT for permission to appeal 17 12 2008 decision 11 February 2009 F-tT refuses to review 17 12 2008 decision and refuses permission to appeal to the Upper Tribunal 3 March 2009 F-tT dismisses MO’s section 3 application 12 May 2009 MO applies to Upper Tribunal for permission to appeal 17 12 2008 decision 6 August 2009 Upper Tribunal grants MO permission to appeal following oral hearing 7 September 2009 MO (and KF) file and serve grounds of appeal 11 September 2009 MO discharged from hospital 8 January 2010 KF (and MO) apply for appeal to be treated as judicial review applications 28 April 2010 Oral hearing before Upper Tribunal of appeal before three-judge panel Annex 3: Chronology in FF’s case 15 May 2008 FF admitted to hospital under s.3 of the MHA 1983 23 February 2009 Hospital managers refer FF’s case to F-tT under s.68(2) of the MHA 1983 7 May 2009 FF discharged from hospital under CTO 21 May 2009 F-tT decides that reference to tribunal lapses as a result of the CTO 22 May 2009 FF applies for permission to appeal against 21 05 2009 decision 2 June 2009 F-tT declines to review 21 05 2009 decision and refuses permission to appeal 11 June 2009 CTO is revoked; hospital managers make further reference to F-tT under s.68(7) of the MHA 1983 3 August 2009 FF applies to Upper Tribunal for permission to appeal against 02 06 2009 decision 16 November 2009 F-tT considers s.68(7) reference but declines to order discharge from hospital 15 December 2009 Hospital managers make second reference to F-tT under s.68(2) of the MHA 1983 22 December 2009 Upper Tribunal gives FF permission to appeal against 02 06 2009 decision 15 March 2010 F-tT considers second s.68(2) reference but declines to order discharge from hospital 19 April 2010 FF indicates wish to appeal 21 05 2009 decision and or seek judicial review of 02 06 2009 decision 28 April 2010 Oral hearing before Upper Tribunal of appeal before three-judge panel