“…In 2016, I was 16 years old and I was extremely sick mentally. I was diagnosed with schizo affective disorder, eating disorders and ptsd. I was having psychotic episodes and during that time I found myself harming my younger brother. I have no memory of it and wasn’t charged in the end. I would like to add that I am now in a really good place and haven’t had a psychotic episode for three years. If there’s any evidence needed on my current health to prove there’s no risk at all, I can provide that if needed. I don’t think I need to be put on the barring list because of this.”
“I am writing in support of [MK] proceeding with her university placements. Whilst she has a history of offenses, these are in the contact [sic] of historical psychotic symptoms, PTSD and mood instability. She has had a forensic opinion from Dr [SJ] to this effect. [MK] is now receiving psychological support for her mental health problems and is managing to maintain relatively stable mental health. Mental health services would continue to be in regular contact with Kingston University student support services should there be any concerns about relapse.”
“(2) An appeal…may be made only on the grounds that DBS has made a mistake- (a) on any point of law; (b) in any finding of fact which it has made and on which the decision…was based.”
“43…unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS.”
‘23…. I would accept that the ISA [now DBS] must give sufficient reasons properly to enable the individual to pursue the right of appeal. This means that it must notify the barred person of the basic findings of fact on which its decision is based, and a short recitation of the reasons why it chose to maintain the person on the list notwithstanding the representations. But the ISA is not a court of law. It does not have to engage with every issue raised by the applicant; it is enough that intelligible reasons are stated sufficient to enable the applicant to know why his representations were to no avail.’
“(3) DBS must include the person in the children’s barred list if – (a) it is satisfied that the person has engaged in relevant conduct, (aa) it has reason to believe that the person…might in future be, engaged in regulated activity relating to children, and (b) it is satisfied that it is appropriate to include the person in the list.”
“19. [MK’s] grounds of appeal largely argue that the DBS failed to take into account certain information, such as her psychosis being linked to a ‘toxic household’ and that she was encouraged to work with vulnerable people by her own psychiatry team. However, these are matters to which the DBS’ attention was not drawn and do not show that the DBS arguably erred in law. In the absence of supporting evidence, I am also unable to find that the DBS arguably erred in fact. 20. [MK] also argues, in general terms, that the DBS’ risk assessment was inconsistent with her improved mental health and the absence of any recent harmful behaviour. Again, these are topics about which no, or very little, supporting evidence was brought to the DBS’ attention. However, there is an underlying issue connected to [MK’s] arguments namely the almost complete absence of any medical evidence about [MK’s] medical treatment and recovery after the 2016 incident and her compulsory admission to hospital. [MK] did supply a supporting letter from her care co-ordinator, but it seems to me that the care co-ordinator, for whatever reason, thought she was being asked to offer a view on [MK’s] suitability to commence a course of study in nursing. The absence of recent medical evidence was noted by the DBS in their reasons for their decision. For instance, the barring process document noted that the DBS had no information about [MK’s] current mental state, nor did they know anything about how well she had engaged with therapeutic help and whether she had addressed the ‘thoughts and behaviours’ that lay behind the 2016 incident. 21. It might be said that [MK] only had herself to blame for the lack of recent medical evidence / relevant evidence about the risks she might pose to children and vulnerable adults. She was invited to provide evidence about her current mental health but, in response, supplied a letter from her care co-ordinator about her suitability to pursue a nursing course. However, the DBS must have known that they were dealing with a young person (a) who had a fairly recent history of severe mental illness – I think it may be taken as read that minors are not sectioned under theMental Health Act 1983 unless their mental state is very poor; (b) whose medical records must have contained extensive information about her mental state, her therapeutic engagement and the level of risk that she might pose; (c) who may well have misunderstood the DBS’ request for evidence about her current mental health given that her response was to supply a supporting letter about her suitability to pursue a nursing course; (d) whose chances of pursuing a career in her chosen field would be curtailed by her inclusion on a barred list; and (e) whose rehabilitation plans may have been linked to her achieving her goal of becoming a mental health support worker. 22. In the circumstances just described, arguably it was unfair, and an error of law, for the DBS to proceed to make barring decisions without providing [MK] with a further opportunity to provide medical evidence. Arguably, such further opportunity was also necessary in order for the DBS to demonstrate that barring was a proportionate response in [MK’s] case. [MK] had been compulsory admitted to hospital and, upon discharge, was provided with statutory aftercare services undersection 117 of the Mental Health Act 1983 . The mention of depot medication in the community also raises the possibility that she was discharged under a community treatment order. As a person discharged from compulsory hospital admission, MK may must also have been supported in the community under the Care Programme Approach arrangements (or a similar intensive support arrangement). My point is that all of these interventions are inevitably associated with a good deal of assessment, care planning and other therapeutically relevant documentation which should be located in [MK’s] medical records. Arguably, the DBS, in order to deal fairly with [MK] and demonstrate the proportionality of any barring decision, should have asked her to consent to the disclosure of her medical records. This may well have filled the evidential vacuum in this case and allowed the DBS to analyse risk on a properly informed basis rather than take the approach that was arguably taken of assuming that, in the absence of relevant therapeutic evidence, [MK] had to be treated as posing an ongoing risk. I grant [MK] permission to appeal on the ground described in this paragraph.”
“It would assist [MK] if she were able to obtain legal assistance for her appeal. While I note that she was unable to find legal representation before the listed permission hearing, she may wish to consider contacting MIND’s Legal Line. MIND may not be able to provide representation, but they may be able to direct her to an organisation that can. Her chances of obtaining representation may be improved by the fact that I have granted her permission to appeal to the Upper Tribunal. The telephone number for MIND’s legal line is 0300 466 6463.”
“Throughout this process, I have sought advice from various professionals, but I have found it incredibly difficult to discuss this situation due to the immense shame and embarrassment attached to it. I have also been advised that it does not matter what the truth is, but rather that I should say what the judge wants to hear. However, I find it impossible to go on like that. I want to be able to tell my story truthfully, so it can be understood for what it is. I believe that only by being honest about what truly happened can I hope to move forward from this and I know I have nothing to lose.”
“3. The protracted history of these proceedings is a concern. The Upper Tribunal must be confident that the Appellant is able and willing to conduct her case in a timely fashion. I therefore direct that, within two weeks of the date on which these directions are issued, the Upper Tribunal must receive her written confirmation as to whether she wishes her appeal to be decided (a) at a hearing or (b) on the papers. 4. Under rule 8(3)(a) of theUpper Tribunal Rules 2008 , the Appellant is warned that, if she fails to comply with direction (3) above, the proceedings on her appeal may be struck out in their entirety.”