CO/5225/2001
Neutral Citation Number: [2002] EWHC 811 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT 
Royal Courts of Justice
Strand
London WC2A 2LL

Friday 19th April 2002
B e f o r e
Mr JACK BEATSON Q.C.
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Sitting as a Deputy High Court Judge
R on the application of
PATRICK WARREN
v
THE MENTAL HEALTH REVIEW TRIBUNAL LONDON NORTH & EAST REGION
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr M Mullins instructed by Kaim Tobner Solicitors on behalf of the Claimant
Mr M Chamberlain instructed by The Treasury Solicitors on behalf of the Defence
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Judgment
As Approved by the Court
Crown Copyright ©

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JACK  BEATSON Q.C.:-

1.	In this application for judicial review the Claimant challenges a decision of the Mental Health Review Tribunal (London North and East Region) (“the Tribunal”) of 31 October 2001 refusing to order his absolute discharge from Broadmoor Hospital. The Tribunal served an Acknowledgement of Service, with summary grounds for opposing permission attached but due to what appears to have been an administrative error, this was not put before Elias J who granted permission to proceed on the papers on 14 January 2002.

2.	Prior to his admission to Broadmoor Hospital on 28 March 2001, he Claimant was a prisoner at HMP Parkhurst, serving a three year sentence for sexual assault on a 59-year old woman at Greenwich District Hospital. He was transferred to Broadmoor Hospital pursuant to a transfer direction under section 47 of the Mental Health Act 1983 and a restriction direction under section 49. The transfer to Broadmoor was on the recommendation of Dr Vermeulen, a Consultant Forensic Psychiatrist, whose report, dated 10 November 2000, diagnosed the Claimant as suffering from paranoid schizophrenia and a psychopathic disorder and stated that the Claimant required prolonged hospitalisation and rehabilitation through mental health services. The Claimant’s sentence expired on 23 June 2001 and he subsequently applied to the Tribunal under section 69(2) of the 1983 Act.

3.	Before turning to the decision of the Tribunal I set out the relevant parts of the statutory framework in relation to transfers to hospital and prison and vice versa and in relation to the powers of tribunals. The provisions in relation to transfers are:- 

s. 47.—(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners—

(a)	that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and

(b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition.

(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case.

s. 49.— (1) Where a transfer direction is given in respect of any person, the Secretary of State, if he thinks fit, may by warrant further direct that that person shall be subject to the special restrictions set out in section 41 above...

(2) A direction under this section shall have the same effect as a restriction order made under section 41 above and shall be known as a “restriction direction” …

s. 50.—  (1) Where a transfer direction and a restriction direction have been given in respect of a person serving a sentence of imprisonment and before the expiration of that person’s sentence the Secretary of State is notified by the responsible medical officer, any other registered medical practitioner or a Mental Health Review Tribunal that that person no longer requires treatment in hospital for mental disorder or that no effective treatment for that disorder can be given in the hospital to which he has been removed, the Secretary of State may—

(a) 	by warrant direct that he be remitted to any prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed; or

(b)	exercise any power of releasing him on licence or discharging him under supervision which would have been exercisable if he had been remitted to such a prison or institution as aforesaid...

(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect on the expiration of the sentence.

(3) Subject to subsection (4) below, references in this section to the expiration of a person’s sentence are references to the period during which he would have been liable to be detained in a prison or other institution if the transfer direction had not been given.

4.	The general discharge criteria are contained in section 72.

s. 72—  (1) Where application is made to a Mental Health Review Tribunal by or in respect of a patient who is liable to be detained under this Act, the tribunal may in any case direct that the patient be discharged, and—
 ….
(b)	the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied—

(i)	that he is not then suffering from mental illness,  psychopathic disorder, severe mental impairment or
    mental impairment or from any of these forms of
disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; or
(ii)	that it is not necessary for the health or protection of the patient or for the protection of other persons that he
should receive such treatment...

(2) In determining whether to direct the discharge of a patient detained otherwise than under section 2 above in a case not falling within paragraph (b) of subsection (1) above, the tribunal shall have regard—

(a)	to the likelihood of medical treatment alleviating or preventing a deterioration of the patient’s condition; and

(b)	in the case of a patient suffering from mental illness or severe mental impairment, to the likelihood of the patient, if discharged, being able to care for himself, to obtain the care he needs or to guard himself against serious exploitation.

5.	Section 73 deals with the power to release patients subject to a restriction order and includes a power to direct the conditional discharge of a patient. Section 74 deals with the position of a patient who has been transferred from prison to hospital under either section 47 or 48 subject to restriction directions. In the case of such patients the tribunal cannot order discharge but is confined to making recommendations to the Home Secretary. By section 50(2) a restriction direction ceases to have effect on the expiration of the patient’s sentence of imprisonment. It follows that section 74 ceases to apply at that point. 

6.	In the Claimant’s case, as well as Dr V’s report, the tribunal had the following medical  evidence before it. First, there was a report, dated 1 June 2001, by Dr Mikhail who also diagnosed the Claimant as having paranoid schizophrenia and concluded that his mental illness was of a nature and degree which made it appropriate for him to be liable to be detained in hospital and that this was necessary for his own health and safety and for the protection of other persons. Secondly, there was a report dated 1 August 2001, by Dr Payne (the RMO), who confirmed the diagnosis and expressed the opinion that the Claimant “remains at high risk of further sexual offending both inside and outside psychiatric hospital”, but considered that it was not clear that the Claimant required to be kept at Broadmoor rather than at a medium secure unit. Thirdly, on 6 September Mrs J. Deacon, a  Senior Social Worker, concluded the Claimant continued to be a risk to the public in general and women in particular and that she could not support his application for discharge. The tribunal heard evidence by Dr Payne, Mrs Deacon, the Claimant represented by a Mr Conroy, the Claimant’s mother and a Ms Lawrence. It stated that having heard this evidence:- 

“…we are satisfied that the patient suffers from schizophrenia with a well documented history of thought disorder, delusional and grandiose beliefs and of disinhibited and sexually inappropriate behaviour. He is in receipt of medication with which he is presently compliant but has little insight and wishes complete discharge. His past and recent behaviour speaks of the risks to himself and others if his treatment was other than in hospital. His health appears to preclude a return to prison as inappropriate.”

Accordingly it ordered that the Claimant should not be discharged.

7.	  The tribunal’s decision is challenged on two grounds. First, the reasons given for the decision as required by rule 23 of the Mental Health Review Tribunal Rules lack the required degree of specificity and fail to address the statutory criteria. Mr Mullins submitted that in particular the reasons do not deal in the way that they should with the nature or degree of the Claimant’s mental disorder and whether his continued detention was appropriate or necessary on the statutory grounds. Secondly, the Tribunal “fundamentally misunderstood the legal and factual position of the claimant” , apparently treating him as a patient subject to a restriction direction who could either be transferred to prison or perhaps conditionally discharged  when this was not the case since his sentence had expired on 23 June 2001. 

Submissions on the legal status of the Claimant

8.	It is common ground that the Tribunal erred as to the legal status of the Claimant.  In his skeleton argument, Mr Chamberlain, on behalf of the Defendant accepts that the consequence of the Claimant’s sentence expiring on 23 June 2001 is that, after that date, the restriction direction ceased to have effect and there was no power to remit the Claimant to prison. Accordingly, the test to be applied by the Tribunal was that set out in s. 72(1)(b). It was thus obliged to discharge the Claimant if satisfied either that he was not then suffering from mental illness or not suffering from a mental illness of a nature or degree that made it appropriate for him to be liable to be detained in a hospital for medical treatment or that it was not necessary for his health and safety or for the protection of other persons that he should receive such treatment. 

9.	But Mr Chamberlain submitted that the error was not material to the decision and had not affected it in any way and that irrelevant errors do not vitiate a decision. He relied on the statement by Lord Browne-Wilkinson in R v. Hull University Visitor, ex p Page [1993] AC 682, at 702:

“The mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, i.e. an error in the actual making of the decision which affected the decision itself”.

10.	In the present case Mr Chamberlain argued the error was irrelevant because, on the evidence before it, the Tribunal considered that the Claimant was suffering from mental illness that made it appropriate for him to be detained for treatment in hospital. He submitted this conclusion could not logically have been affected by its belief that it had power to remit him to prison. This was because the error was not connected to the Tribunal’s conclusions on the statutory tests which it had to satisfy and was not relevant to its assessment of the facts. Mr Mullins, on behalf of the Claimant, submitted that it could not be said that that the error was irrelevant because, if the Claimant was a prisoner, the options were hospital or prison whereas, under section 72 the Tribunal had to consider whether a patient might be cared for in the community. 

Submissions on the adequacy of the reasons

11.	Mr Mullins submitted that the reasons given in this case were inadequate because there was no direct reference to the statutory criteria, the reference to a return to prison suggested that the wrong statutory criteria may have been used, and were otherwise so short that they gave no opportunity for the Claimant to see if the Tribunal had erred. The reasons did not specify the Claimant’s inappropriate past behaviour or what the risks were to others if his treatment was otherwise than in hospital.
 
12.	Mr Mullins relied on the review by Burnton J of the authorities on the need for and the adequacy of reasons given by, in particular a Mental Health Review Tribunal, for its decision in R (on the application of Ashworth Hospital Authority) v. MHRT West Midlands & North West Region & others [2001] EWHC Admin 901 at paragraph 78. His Lordship, who held that in that case similarly brief reasons were inadequate, stated that the relevant law was contained in the following propositions:

“(a)  Proper adequate reasons must be given that deal with the substantial points that have been raised: Re Poyser and Mills ‘Arbitration [19641 2 QB 467, 478, the classic statement of Megaw J, made, it should be noted, in the context of an arbitration award.

(b)	Reasons must be sufficient for the parties to know whether the tribunal made any error of law: Alexander Machinery Ltd v Crabtree [1974] ICR 120.

(c)	Where, as in the case of Mental Health Review Tribunals, Parliament has required that a decision be given with written reasons, those reasons have to be adequate. They may be elucidated by subsequent evidence, but in general, inadequate written reasons cannot be saved by such evidence: R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302.

(d)	A Mental Health Review Tribunal’s reasons must deal with the entirety of its decision, and not only its decision on the issues set out in section 72(1)(a) or (b) of the Mental Health Act: Bone v Mental Health Review Tribunal [1985] 3 All ER 330.

(e)	It is unnecessary for a tribunal to set out the evidence and arguments before it or the facts found by it in detail: Varndell v Kearney & Trecker Marwin Ltd [1983] ICR 983.

(f)	It is often difficult to explain why one witness is preferred to another. Generally speaking, a tribunal’s decision will not be inadequately reasoned if it does not give such an explanation.

(g)	In assessing the adequacy of reasons, one must bear in mind that the decision will be considered by parties who know what the issues were (R v Mental Health Review Tribunal exp Pickering [19861 1 All ER 99, 102; R v Mental Health Review Tribunal exp Booth [1997] EWHC Admin 816, per Laws J at paragraph 29.

(h)	However, the reasons must sufficiently inform both the patient and the hospital as to the findings of the tribunal: Pickering at 104. This consideration has been given added significance by the decision of the Court of Appeal in Brandenburg. A tribunal must also bear in mind that its decision may have to be considered by those who were not present at or parties to the hearing, such as Dr Silva and the local health authority in the present case. Furthermore, in my judgment there is no real difference in the requirements of reasons where the decision of the tribunal is to discharge a patient and where its decision is to refuse to do so, at least in a case such as the present, where inappropriate discharge may create risks for third parties, whose own Convention rights under Articles 2 and 5 may be in play.

(i)	In considering the adequacy of reasons the Court is entitled to take into account the fact that the tribunal has a legally-qualified chairman, and that in the case of Mental Health Review Tribunals the reasons do not have to be given immediately. Rule 23 does not require its decision or its reasons to be recorded in writing immediately after the hearing, and Rule 24 gives the Tribunal 7 days in which to communicate its written decision and reasons.”

His Lordship also emphasised the importance of the context, the issues and the evidence in determining whether reasons are adequate. 

13.	Mr Chamberlain submitted that Burnton J’s propositions and his conclusion that the reasons in the Ashworth Hospital case were inadequate reflected the fact that the Tribunal’s conclusion was against the weight of the written evidence.  Although five of the six doctors who gave written evidence did not support discharge, the Tribunal accepted the evidence of the sixth and ordered discharge. Similarly in R v Mental Health Review Tribunal, ex p. Clatworthy [1985] 3 All ER 699, on which the Claimant relied, the Tribunal rejected the evidence of two psychologists. He accepted that where the evidence discloses a serious dispute between the experts, and particularly in a case like Ashworth, where the Tribunal accepts one expert’s view against the weight of the other expert evidence, the Tribunal must explain why they have preferred one view to the other. Where, however, there is no real dispute between the experts he submitted that briefer reasons will suffice.  

14.	In the present case there was no dispute that the Claimant was suffering from schizophrenia. The Tribunal’s recitation of some of his symptoms (“well documented history of thought disorder, delusional and grandiose beliefs... disinhibited and sexually inappropriate behaviour”) sufficed, in the light of the clear evidence before it, to enable the Claimant (and anyone else) know why it came to the conclusion that the illness from which he was suffering was of a nature and degree which make it appropriate for him to be liable to be detained in a hospital. Equally, the reasoning which supports the conclusion that it was necessary for Mr Warren to remain in hospital is clear. In the circumstances it was unnecessary for the Tribunal to list the incidents which were documented at some length in medical reports before the Tribunal. 

Conclusions

15.	 I will deal with the adequacy of the reasons first. The detail required in reasons must, as recognised by Burnton J. in the Ashworth Hospital case reflect the context and the nature of the evidence, including whether the Tribunal was faced with conflicting evidence. Although, since Mental Health Review Tribunals are concerned with the liberty of citizens, their decisions are at the most important end of the spectrum of tribunal decisions, it has been recognised that even in the case of these tribunals can be brief. In part this is because, as has been recognised (see e.g. R v Mental Health Review Tribunal, ex p. Booth [1998] COD 203   and R v Mental Health Review Tribunal, ex p Pickering  [1986] 1 All E.R. 99, 102) they are addressed to an “informed audience” “well aware of what issues were raised and the nuances raised by those issues” and the decisions are not, as it were, to be read in the air. As is stated in de Smith, Woolf and Jowell’s Judicial Review of Administrative Action p 467 “Brevity is an administrative virtue, and elliptical reasons may be perfectly comprehensible when considered against the background of the arguments at the hearing”.

16.	I have concluded that the brief reasons in this case are, in the context of the issues raised and the evidence before the Tribunal, adequate to inform the Claimant why the Tribunal arrived at its decision. The reasons separately address both the diagnostic question of whether the Claimant was suffering from a mental illness and the policy question of whether it is safe to discharge him that Forbes J in ex p Pickering (at 101) said it was essential to distinguish. Since one of the purposes of reasons is to enable the person affected to identify error (Alexander Machinery Ltd. v. Crabtree  [1974] ICR 120; Bone v. Mental Health Review Tribunal [1985] 3 All ER 330) the fact that the reasons in this case disclosed an error as to the Claimant’s status has troubled me. But here the error has been revealed and its effect falls to be considered as a matter of substance as an error of law or misdirection rather than a defect  in the reasons. Moreover, the mistake was an obvious one which did not mislead the Claimant. de Smith, Woolf and Jowell’s Judicial Review of Administrative Action p 467 states that courts “ought to forgive obvious mistakes that were unlikely to mislead anyone”. 

17.	I turn to Mr Chamberlain’s argument based on ex p Page. In view of the medical evidence before the tribunal I have concluded that the error as to the legal status of the Claimant was not material to the decision not to discharge him and does not accordingly suffice to justify remitting the issue to the Tribunal. On the undisputed medical evidence before the Tribunal there was, in this case, no question of treatment in the Community. It is well established that for judicial review to issue it is necessary for an error of law or a misdirection to be material: as well as ex p Page, see the authorities collected in Fordham, Judicial Review Handbook 3rd. ed. p. 722. The error or misdirection here did not affect the outcome in any way and it is therefore not appropriate for the court to interfere in judicial review proceedings. This application is accordingly dismissed.