MB v BEH MH NHST & Secretary of State for Justice [2011] UKUT 328 (AAC)

UKUT-AAC
MB v BEH MH NHST & Secretary of State for Justice
[2011] UKUT 328 (AAC) · 2011-08-12
[1]This appeal by the appellant succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Judge of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 21 st January 2011 (under reference MP 2010 21451) to consent to the withdrawal of the application for discharge made under the provisions of the mental health legislation.[2]I refer the matter to the President of the Health, Education and Social Care Chamber of the First-tier Tribunal for directions to arrange a hearing by a completely differently constituted panel in that chamber, which is to hold a new hearing and make a fresh decision on the application for discharge that was made on 6 th October 2010, based on its own assessment of the evidence and arguments as at the date of the hearing before it.[3]I held an oral hearing of this appeal on 10 th August 2011. The appellant, a hospital patient, was represented by Mr Roger Pezzani of counsel and Mr Jonathan Wilson, solicitor (neither of whom appeared below), instructed by Kaim Todner, Solicitors. Neither the first respondent (a Mental Health NHS Trust) nor the second respondent (the Secretary of State for Justice) attended and neither had made any comment on the appeal although they had been sent copies of all the relevant papers. Background and Procedure[4]The appellant is a man who was born on 9 th July 1982. He is referred to in this decision as “the appellant” or “the patient”. There is no dispute that he suffers or has suffered from paranoid schizophrenia and from mental disorder for the purposes of the relevant legislation. He first came into contact with mental health services in March 2004 when he was running in front of cars in the road. He was admitted to a mental hospital on 27 th January 2007 and discharged on 9 th August 2007, following which he missed several appointments and some depot injections but was not readmitted to hospital despite his requests that this happen.[5]On 14 th March 2008 the appellant repeatedly stabbed a neighbour with whom he had previously been friendly, inflicting 12 wounds. He was arrested on the same day for attempted murder of the neighbour. Although he had had a depot injection two days previously it appears that he was hallucinating and hearing voices. Initially remanded in prison, on 10 th June 2008 he was moved to the mental hospital where he has remained ever since. On 5 th February 2009, at the Crown Court, he was found not guilty of attempted murder by reason of insanity and the court imposed orders under the provisions of sections 37 and 41 of the Mental Health Act 1983. Thus he became a restricted patient.[6]On 6 th October 2010 the appellant applied to the First-tier Tribunal for discharge. Dr Reid, the responsible clinician, supported by the social worker and the nursing team, was of the opinion that the criteria for continued detention were not satisfied, and that the appellant should be conditionally discharged, on the basis that he would be accommodated in a particular hostel, which had been identified and for which funding arrangements had been made. Dr Reid envisaged the possibility that by the time of the hearing the appellant would not have completed an adequate number of familiarisation visits, and that it might be necessary to defer discharge. In fact, as at the date of the hearing permission for the appellant to stay at the hostel one night a week on overnight leave had been given but the appellant was still waiting for the Secretary of State to agree more frequent leave.[7]The hearing took place at the hospital on 20 th January 2011. Dr Reid told the tribunal in his oral evidence that he would like the appellant to have much more overnight leave at the hostel each week before discharge to enable the team to know whether the appellant would suffer any stress at the hostel which would stop the community mental health team being satisfied as to their ability to supervise him. He thought that this might take about three months.[8]The appellant was represented at the hearing by a solicitor, Mr Levant Kemal, who made a very full attendance note, the contents of which have not been challenged. The note included the following reported intervention by the presiding

judge at the end of Dr Reid’s evidence:

“Mr Kemal, you can see what position we’re in. Having heard the evidence of the responsible clinician, it is unlikely that we would discharge the patient today. I have not discussed this with the other panel members. However you have heard that he cannot have a conditional discharge because he has not had the leave which was required by the doctor, and the conditional discharge is something that cannot be put into place as there is no community treatment or no hostel. He needs to be further tested for this situation. You may put in a withdrawal application and put your application in again for a tribunal once [the appellant] has had a period of five days a week overnight leave.”
[9]During a brief adjournment Mr Kemal spoke to Dr Reid and took instructions from the appellant and when the hearing resumed he asked the judge whether he would indicate whether the tribunal would order a deferred conditional discharge. The judge simply said “no”, but it is not clear whether this meant that he would not give an indication or whether the tribunal would not direct deferred conditional discharge. Mr Kemal then applied for consent to withdraw the appeal, the tribunal agreed to this and the judge said, “That is a sensible decision”.[10]On the following day, 21 st January 2011, the tribunal consented on a standard form to the withdrawal of the appeal (page 29 of the Upper Tribunal file). There was no application for reinstatement but there was an application for permission to appeal to the Upper Tribunal. This was refused on 2 nd March 2011 by a different judge of the First-tier Tribunal (pages 15 to 17). The application was renewed direct to the Upper Tribunal and on 1 st April 2011 I indicated that I was not persuaded on the basis of the papers, but directed that there should be an oral hearing of the application. This took place on 20 th April 2011 and I granted permission (page 78). The respondents had been notified of that hearing but had made no submissions and were not represented. On 16 th June 2011, at the request of the appellant, I directed that there be an oral hearing of the substantive appeal to the Upper Tribunal (page 82), and this took place on 10 th August 2011. I was told that the appellant is still detained in the same hospital and is awaiting arrangements for a greater amount of overnight leave. The Relevant Law[11]The following provisions of the Mental Health Act 1983 are relevant: s. 70 A person who is a restricted patient … and is detained in a hospital may apply to the appropriate tribunal – (a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order; and in any subsequent period of 12 months.… s. 77(1) No application shall be made to the appropriate tribunal by or in respect of a patient under this Act except in such cases and at such times as are expressly provided by this Act. s. 77(2) Where under this Act any person is authorised to make an application to the appropriate tribunal within a specified period, not more than one such application shall be made by that person within that but for that purpose there shall be disregarded any such application which is withdrawn in accordance with Tribunal Procedural Rules.[12]The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 provide as follows, so far as is relevant: 17(1) Subject to paragraphs (2) and (3) a party may give notice of the withdrawal of its case, or any part of it –(a) …(b) orally at a hearing 17(2) Notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal … 17(3) [not relevant] 17(4) A party which has withdrawn its case may apply to the Tribunal for the case to be reinstated. 17(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 28 days after – (a) …; or (b) The date of the hearing at which the case was withdrawn orally under paragraph (1)(b).[13]In the present case the period during which the first application for discharge could be made under section 70 of the 1983 Act was from 5 th August 2010 to 4 th February 2011. The application was made on 6 th October 2010. An unsuccessful application would mean that a further application could be made during the period 5 th February 2011 to 4 th February 2012 (I am told that no application has been made during the part of that period that has so far passed). The effect of withdrawing the application that had been made on 6 th October 2010 was to preserve the appellant’s right to remake the application before 5 th February 2011 – which was only a few days after the date of the hearing. Had the application not been withdrawn but been unsuccessful, a further application could still be made during the year from 5 th February 2011 to 4 th February 2012. The Issues[14]There can be little doubt that in raising the possibility of a withdrawal the presiding judge was trying to be helpful to the appellant and save him from wasting his right to apply for discharge before 5 th February 2011 by pursuing an application that in the judge’s view could not succeed, although it is possible that the judge did not appreciate that the timing was such that there were very few days left in which to remake the application.[15]However, Mr Pezzani argued that there was a breach of the rules of natural justice in that the judge and/or the tribunal had decided the matter at the close of Dr Reid’s evidence without hearing the appellant or any other witness and without hearing Mr Kemal’s submissions on the law and evidence. The judge clearly indicated that the application for discharge had no prospect of success. Further, if the judge thought that the tribunal would take the view that was no chance of a discharge before the three months referred to by Dr Reid, remaking the application in the next few days (certainly if it resulted in a speedy hearing) was not actually likely to help the appellant. The judge and/or the tribunal appear not to have given any proper consideration to the possibility of deferring conditional discharge, which would have been consistent with the recommendations of the clinical team. Conclusions[16]When giving Directions on 1 st April 2011 I made it clear that the decision that is under appeal to the Upper Tribunal is the decision of the First-tier Tribunal to consent to withdrawal. There is no doubt that this is an appealable decision and is not a decision excluded from the right to appeal to the Upper Tribunal by section 11(5) of the Tribunals, Courts and Enforcement Act 2007 or by regulations (see also LS v London Borough of Lambeth [2010] UKUT 461 (AAC) ; R ota O v MHRT [2006] EWHC 2659 (Admin) per Mr Justice Collins at paragraph 41: “the agreement of the Tribunal to an application to withdraw must be a judicial act”; Hanson v Church Commissioners for England and another, R v London Rent Assessment Committee ex parte Hanson [1978] 1QB 823 CA).[17]Useful guidance on how a tribunal panel should approach its task was given by Mr

Justice Stanley Burton in R ota S v MHRT and The Department of Health [2002] EWCH 2522 (Admin):

“22. … there can normally be no objection to members of a tribunal or court forming or discussing their provisional view of the case before the hearing. Judges and tribunal members are human and cannot be prevented from forming an initial view of a case when they read the papers. The forming of an opinion before the hearing is normally objectionable only if it is not provisional, liable to be challenged by the evidence produced and the submissions of the parties, but is firm and concluded: in which case the hearing is an ineffective charade. The business of multi-member courts could not be carried on efficiently if their members were not able to discuss the issues and exchange provisional views before the hearing … 32. In my judgment “due impartiality” in the present context [as required by the European Court of Human Rights] requires a member of a tribunal not to have a preconceived concluded opinion on the merit’s of the applicant’s case. The [Court] did not suggest that that a provisional view formed before the commencement of the hearing is objectionable. If an otherwise impartial and independent member of a tribunal has a preconceived concluded opinion, or if he expresses himself in such a way as to give rise to a reasonable apprehension that he has a preconceived concluded opinion, he lacks the necessary impartiality, but not otherwise.”
[18]I agree with Mr Pezzani (paragraphs 21 and 22 of the grounds of appeal of 20 th March 2011) that the presiding judge of the First-tier Tribunal in the present case “expressed himself in such a way as to give rise to reasonable apprehension that he had formed a preconceived concluded opinion … [the appellant] was effectively told that he should give up. It was an indication by the tribunal that he had no possibility of success”. In my opinion this did amount to a breach of the rules of natural justice and fair procedure in that (albeit for reasonable motives) the appellant was effectively denied a proper opportunity to put his case. I do not say that the presiding judge and/or the tribunal were personally prejudiced against the appellant, but I do say that he and/or they appeared to have prejudged the case in the way warned against by Mr Justice Stanley Burton and to have put Mr Kemal in an impossible professional position.[19]I appreciate what the judge was trying to do and it is a dilemma that has faced all experienced tribunal judges, but in this case he went far too far. Perhaps the judge could have put the matter more tentatively and helpfully. For example: “You have heard what Mr Reid has said. You might think that you need to be able to persuade us of the following matters …” or words to similar effect; but it cannot be right to have said what he did.[20]Having reached the above conclusions, I nevertheless had doubts about giving a remedy. This was because(a) there was no application to reinstate the case under rule 17(4),(b) in principle an application could still have been made before 5 th February 2011 and(c) I had concerns over whether giving a remedy would have any practical point.[21]However, if there is now a fresh hearing in respect of the 6 th October 2010 application, especially at this distance of time, a completely new look can be taken in the light of changed circumstances and, should it be unsuccessful, the appellant will retain the right to make a further application before 5 th February 2012. The advantages of this outweigh my concerns in (a) and (b).[22]For the above reasons this appeal by the patient succeeds. H. Levenson Judge of the Upper Tribunal 12 th August 2011

Cited in 2 later judgments