Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
Save for the cover sheet, this decision may be made public
(rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No
2698)). That sheet is not formally part of the decision and identifies the
patient by name.
As the decision of the First-tier Tribunal (made on 22
December 2010 under reference MH/2010/18490) involved the making of an error in
point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the
Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the
tribunal.
DIRECTIONS:
A.
The reference in respect of the patient under section 68(7) of the
Mental Health Act 1983 has not lapsed.
B.
The correspondence from Blavo & Co is not to be treated as an
application under section 66(1)(ca).
C.
A judge of the First-tier Tribunal will give case management directions
in respect of the reference.
Reasons
for Decision
A.
The issues that I have to decide
1.
This case raises two issues. First, does a reference made when a
patient’s community treatment order is revoked lapse when a new community
treatment order is made? Second, when is it permissible for the tribunal to
treat a letter as an application for a patient’s case to be considered by the
First-tier Tribunal?
B.
How the issue arises
2.
The patient in this case was detained under section 3 of the Mental
Health Act 1983 on 23 March 2010. A community treatment order was made on 20
May 2010, but she was recalled to hospital on 10 August 2010 and the order was
revoked on 11 August 2010. The hospital managers referred her case to the
First-tier Tribunal on 23 August 2010. The reference is made on a simple form
that asks for the managers to provide some basic information that is within
their knowledge. If the managers had been represented at the hearing, I would
have wanted to know why it took 12 days to complete that form. On 10 September
2010, a new community treatment order was made and the patient returned to live
in the community.
3.
On 7 October 2010, the First-tier Tribunal set out its position in a
letter to the patient’s solicitors. The letter begins by referring to the
difficulties caused by patients who are reluctant to take part in the tribunal
process while on community treatment orders. It then says:
… where the only reason for a
referral was the recall to hospital from a CTO and the subsequent revocation of
the CTO (a section 68(7) referral) then, in logic, that reason completely
disappears if the patient returns back to the community under a new CTO.
Referring to the caselaw of the Upper Tribunal (see below),
the letter says:
… these decisions make it plain
that referrals generally survive changes in status – not least because,
periodically, a patient is entitled to an independent review of their
circumstances under the Act and these periodic reviews should not be de-railed
by changes in status. But a 68(7) referral is triggered not by the passage of
time but by the revocation of the CTO.
Finally, the letter then refers to the overriding objective
and specifically to the expense and distress caused by listing and hearing for
cases in which the patients do not wish to participate.
4.
Following further correspondence, in which the patient’s solicitors
protested that the patient was entitled to have her case considered, the
tribunal made this decision:
For the reasons given in my
Directions and Order I have decided that S.68(7) referrals should generally be
treated as lapsed if, before the hearing, the patient is again discharged from
hospital back onto a CTO.
I am prepared, however, to treat
the letter from Messrs Blavo & Co as an application to the tribunal, under
S.66(1)(ca), to consider whether or not to discharge the new CTO under
S.72(1)(c).
I therefore direct the
Responsible Authority to file with the tribunal a statement and reports
relating to [the patient’s] case, as appropriate for a Community Patient,
within 3 weeks of the date of this direction.
5.
On 18 January 2011, the First-tier Tribunal gave permission to appeal
against that decision.
6.
I held an oral hearing of the appeal on 23 March 2011. The patient was
represented by Mr Roger Pezzani of counsel, instructed by Blavo & Co,
solicitors. The hospital managers were not represented and did not make written
submissions. I am grateful to Mr Pezzani for his assistance and arguments.
C.
The Upper Tribunal’s jurisdiction in this case
7.
The Upper Tribunal has jurisdiction both on appeal and on judicial
review. In the exercise of its appellate jurisdiction, the Upper Tribunal is
limited by statute to the lawfulness of the decision under appeal. The decision
in this case was made in furtherance of a policy adopted by the First-tier
Tribunal. The appellate jurisdiction does not cover the lawfulness of that
policy. That is an issue that could only be considered by the Upper Tribunal in
the exercise of its judicial review jurisdiction. I have, though, made some
comments on how the tribunal might proceed in cases where the patients do not
co-operate.
D.
The legislative structure – judicial oversight
8.
Deprivation of liberty under section 3 of the Mental Health Act 1983 is
only permissible on the criteria laid down in the Act. The application of those
criteria is safeguarded by judicial oversight. Patients have a right to
challenge their detention by way of application to the First-tier Tribunal.
That right is triggered by key events in their detention (section 66(1)) and
must be exercised within specified period (section 66(2)). As an additional
protection for patients in some circumstances, the hospital managers are
required to refer a patient’s case to the First-tier Tribunal if the patient
has not exercised the right to make an application (section 68)). The
tribunal’s duties, on both applications and references, are laid down by
section 72.
E.
The legislative structure - community treatment orders
9.
Community treatment orders are governed by sections 17A to 17G of the
Act. They are available only for patients who have been detained for treatment
under section 3 of that Act (section 17A(1) and (2)). While an order is in
force, the authority to detain the patient under section 3 is suspended
(section 17D(1) and (2)(a)). The responsible clinician may recall the patient
to hospital without revoking the order (section 17E), as was initially done in
this case, and may revoke the order (section 17F(4)), as was later done. If an
order is not revoked after a patient has been recalled for 72 hours, the
patient must be released (section 17F(6)). Once an order is revoked, the
position is as if the patient had never been discharged from hospital under the
order (section 17G(2)) and the Act applies accordingly (section 17G(3)). The
managers of the hospital responsible for the patient’s detention must refer the
patient’s case to the First-tier Tribunal ‘as soon as possible after the order
is revoked’ (section 68(7)). Once a reference has been made, the tribunal’s
duties are the same as on any other application or reference (section 72).
F.
The Upper Tribunal caselaw
10.
There are two relevant decisions of the Upper Tribunal:
11.
In AA v Cheshire and Wirral Partnership NHS Foundation Trust
[2009] UKUT 195 (AAC), the issue was whether an application made while a
patient was detained under section 3 lapsed when the patient was made the
subject of a community treatment order. Upper Tribunal Judge Rowland decided
that it did not.
12.
In KF, MO and FF v Birmingham and Solihull NHS Mental Health
Foundation Trust [2010] UKUT 185 (AAC) [2011] AACR 3, a three-judge panel
approved the reasoning in AA and decided that a reference made
while a patient was detained under section 3 did not lapse when the patient was
made the subject of a community treatment order.
G.
Analysis - lapsing
13.
Lapsing is regularly discussed, but its nature is little analysed. It
applies when the legal subject matter of proceedings ceases to exist. I do not
have to decide whether that is a sufficient or only a necessary condition for
lapsing to occur.
14.
My provisional view on previewing the case before the hearing was that
the First-tier Tribunal was correct that the reference lapsed when the patient
was made the subject of a new community treatment order. I have decided that
that view was wrong for three reasons.
15.
First, I accept Mr Pezzani’s argument. Whether or not the reference has
lapsed depends on the nature of the reference, which is a matter of statutory
interpretation. The overriding objective is limited to the rules of procedure
and practice directions; it has no relevance to the interpretation of the Act. Nor
is the policy adopted by the First-tier Tribunal relevant to the issue of
interpretation (R (Gillan) v Commissioner of Police of the Metropolis
[2006] 2 AC 307 at [15]). On that issue, I have to accept the authority of KF,
and of AA, which was approved in KF. Given that the legislation
places a patient whose community treatment order has been revoked in the same
position as any other patient detained under section 3, the reasoning in those
cases governs this case.
16.
Second, the subject matter of a reference under section 68(7) is not
related to the circumstances that trigger it. The reference is not a review of
the patient’s recall to hospital or the revocation of the community treatment
order. Those events triggered the duty on the hospital managers to make the
reference. However, the tribunal had to exercise its powers under section 72.
The reference is not limited to a review of the events that led to the patient
being recalled and her community treatment order revoked. So, the subject
matter of the reference does not cease to exist when a new order is made. The
statutory conditions of detention must be satisfied whether the patient is
detained in hospital or released under a new order. Accordingly, the subject
matter of the reference survives and in line with AA and KF it
requires the tribunal to consider the position as at the date of the hearing. When
the tribunal wrote that ‘in logic, that reason completely disappears if the
patient returns to the community’, it was referring to the events that
triggered the duty to refer the case, not to the scope of the tribunal’s duties
on the reference. As I have explained, that was a mistake.
17.
Third, the tribunal’s approach to lapsing is inconsistent with at least
one provision of the Act. Section 68(1) sets out some events that trigger a
reference. One of those triggers applies to a community patient, who is by
definition the subject of a community treatment order. Section 68(3)(c)
provides that they do not apply if ‘a reference has been made in respect of the
patient under subsection (7) below.’ The obvious purpose of that provision is
to prevent duplication of proceedings. It envisages that a section 68(7)
reference might be ongoing when a reference would otherwise be triggered for
the same patient who has since become a community patient. Such provision would
not be necessary if the section 68(7) reference had lapsed by the making of the
later order.
H.
Analysis – treating a letter as an application
18.
As I have decided that the reference under section 68(7) did not lapse,
there is no scope for the solicitors’ correspondence to be treated as an
application under section 66. However, as this issue was discussed at the
hearing, I will say something about the scope of this power.
19.
Judges regularly treat a document as having a particular procedural
status. This may arise for two reasons: the document may not have presented in
any particular form or it may have been presented in an inappropriate form. As
an example of the former, a letter from a patient complaining generally about
being in hospital may be treated as an application under section 66. As an
example of the latter, applications for permission to apply for judicial review
may be treated as applications for permission to appeal if the latter is
available as a remedy.
20.
This power to treat a document as having a particular status is a
beneficial one in that: (i) it ensures a tribunal is able to deal with the
substance of the matter; (ii) it avoids attaching too much importance to
procedural forms; and (iii) it thereby makes the tribunal more accessible. As
such it is in accordance with the overriding objective. There are, however,
limits. It is not permissible to take this approach to override an unequivocal
indication by a solicitor to the opposite effect. That is especially so when
its effect is to deprive a patient of the chance to time her section 66
application for later, should she not obtain her discharge on the reference.
The power is appropriately exercised for the applicant’s advantage, not
potential detriment.
I.
The First-tier Tribunal’s policy
21.
As I have said, I am not in this case reviewing the First-tier
Tribunal’s policy. Mr Pezzani pointed out that the First-tier Tribunal was not
a party to the proceedings and there were no witness statements to vouch to the
matters of fact that the tribunal had referred to. Nonetheless, I accept the
word of a judge that references made on the revocation of a community treatment
order are causing significant problems for the First-tier Tribunal. With that
in mind, it may be helpful if I say something about how that tribunal might
handle cases in which a patient does not co-operate. It is, of course, for the
tribunal to decide in each case how best to use its powers.
22.
The first point to note is that the effective and efficient use of the
reference on revocation requires the co-operation of three parties: the
hospital mangers, the patient, and the First-tier Tribunal. Nothing can be done
until the managers make the reference. The statute requires that to be done as
soon as possible. In this case, it took almost two weeks to complete a simple
form. The chances of the procedure being effective are greatly enhanced if the
managers of the patient’s hospital act quickly, as their statutory duty
requires.
23.
Once a reference has been made, the First-tier Tribunal is able to use
its case management powers. In doing so, it has to work within the framework of
the statutory provisions and the rules of procedure. I understand that the
Tribunal Procedure Committee will be consulting on changes to the rules that
may make it easier for the tribunal to handle cases in which a patient does not
co-operate. In making its response to the consultation, the First-tier Tribunal
will have the opportunity to explain the nature and scale of the problem.
24.
The statute and the rules of procedure are based on a concern to protect
a vulnerable patient. That presents difficulties when the patient does not wish
to co-operate or even participate in the proceedings. These are not limited to
patients who are subject to community treatment orders. The tribunal must
exercise its powers in a way that ensures that a patient’s best interests are protected.
I am sure that the judges responsible for case management and the panels
responsible for hearing references are always alert to ensure this. But, having
said that, there is a limit to what can be achieved without co-operation. Judges
and tribunals can only act on the material available to them.
25.
One power that the tribunal could use is the power to stay proceedings
under rule 5(3)(j) of the Tribunal Procedure (First-tier Tribunal) (Health,
Education and Social Care Chamber) Rules 2008 (SI No 2699). However, it might
be considered an abuse of that power if it were effectively used as a means of
permanent disposal or as a means of avoiding deciding the case at all.
26.
More appropriate, perhaps, would be for the tribunal to arrange block
hearings of community treatment references on the limited information that it
is able to obtain. The tribunal is only under a duty to examine the patient ‘as
far as practicable’ (rule 34(1)) and it is not practicable if a patient will
not co-operate. In those circumstances, the tribunal can hear the case in the
patient’s absence under rule 39. The tribunal can use its powers under rules 5
and 15 to give directions on evidence from the responsible clinician and others
that is appropriate in all the circumstances, taking account of the overriding
objective and, in particular, of the need to act proportionately under rule 2(2)(a).
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Signed on original
on 30 March 2011
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Edward Jacobs
Upper Tribunal Judge
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