Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

In respect of the application for permission to appeal against the decision made by the President of the Mental Health Review Tribunal for Wales on 21 February 2011:

Permission to appeal is refused.

DIRECTION:

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 and his nearest relative by name.

Reasons for Decision

A.          THE PROCEEDINGS

1.           These proceedings began as an application for judicial review of a decision made by the President of the Mental Health Review Tribunal for Wales (MHRTWales) by letter and email on 21 February 2011. The MHRTWales was the respondent to the application. It was lodged with the Upper Tribunal. The solicitors were unaware of the recent decision of the Upper Tribunal in LS v London Borough of Lambeth [2010] UKUT 461 (AAC). The three-judge panel in that case decided that all decisions of the First-tier Tribunal were appealable to the Upper Tribunal, except for those decisions excluded by section 11(5) of the Tribunals, Courts and Enforcement Act 2007. That would suggest that an interlocutory decision such as that made by the President is appealable and I have proceeded on that basis, although the reasoning in LS may require some qualification as applied to section 78A, because that section contains no category of excluded decision.  Accordingly, I treated the application as an application for permission to appeal and waived the irregularity caused by the failure to apply for permission from the MHRTWales before coming to the Upper Tribunal.

2.           In view of the change in the nature of the application, the parties have changed. The MHRTWales is no longer a party. The appellant is the father and nearest relative of the patient who is detained under section 3 of the Mental Health Act 1983. The managers of the hospital where he is detained are respondents. The patient is also a respondent. He is a party to his nearest relative’s proceedings before the MHRTWales (see the definition of ‘party’ in rule 2(1) of the Mental Health Review Tribunal for Wales Rules 2008 (SI No 2705)) and, therefore, also before the Upper Tribunal (see head (a)(i) of the definition of ‘respondent’ in rule 1(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)). 

3.           I directed an oral hearing of the application, which was held on 6 April 2011. The appellant was represented by Mr Mark Mullins of counsel, instructed by Conroys solicitors. The other parties were not represented. I am grateful to Mr Mullins for his submissions at the hearing.

B.          THE TRIBUNAL’S DECISION

4.           As his son’s nearest relative, the appellant has various powers and rights under the Mental Health Act 1983. On 4 January 2011, he applied under section 23(2)(a) for his son to be discharged and under section 24(1) for him to be visited and examined. On 6 January 2011, the responsible clinician barred the discharge by certificate under section 25(1). This allowed the appellant to apply under section 66(1)(g) to the MHRTWales, which he did on 12 January 2011.

5.           The case was listed for hearing on 23 February 2011. Conroys advised that it was necessary to obtain the patient’s medical records in order to advise the appellant in the proceedings and to consider whether to obtain an expert report. They were able to obtain some, but not all, of those records. Their correspondence with the tribunal culminated in two letters being sent on behalf of the President. The first was sent on 16 February 2011:

[The President] is of the view that it is not appropriate to issue directions to compel disclosure of the medical and social care records on the grounds that you have not received the consent of the Patient to access such records. Further, [she] is of the opinion that it is for the Tribunal panel to determine whether there is sufficient information available at the time of the hearing to fully consider your client’s application. Consequently, any subsequent representations in regards to disclosure of these records must be made to the Tribunal Panel at the Hearing.

The solicitors made a detailed request for her to reconsider on 18 February 2011 and she replied on 21 February 2011:

[The President] has considered the content of your letter and has made the following observations.

The remit of the Tribunal is to determine whether the Patient satisfies the criteria for detention under the Mental Health Act 1983. Dispute between the funding authorities as to hospital placements are a separate matter. Representations can be made to the panel at the Hearing if it is thought that the Patient should be discharged if appropriate accommodation can be identified, but it is not a matter for which [the President] is prepared to grant a postponement for an independent report.

With regards to the issue of [the patient’s] capacity to give consent to access his records, the Patient’s solicitor has not raised capacity with us and consequently it would appear that they are currently acting on [his] instructions. Again, the question of capacity can be argued before the panel if it is thought to be relevant.

…

Consequently, the Tribunal will go ahead on the 23 February.

6.           The solicitors were concerned that a hearing before a panel was premature. They considered that it would be detrimental to the patient’s health to be prepared to attend a hearing only for it to prove abortive. The nearest relative would also need to arrange cover for his wife, for whom he is a carer. They advised him to seek permission to apply for judicial review, which he did. The tribunal then vacated the hearing.  

C.          THE LAW GOVERNING PERMISSION TO APPEAL

7.           An appeal lies against decisions of the MHRTWales to the Upper Tribunal under section 78A of the Mental Health Act 1983. This provides for an appeal, with permission, ‘on any point of law arising from a decision made by’ that tribunal. On basic principle, I may give permission to appeal if there is a realistic prospect that the decision was erroneous in law or if there is some other good reason to do so (Lord Woolf MR in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538).

8.           As the decision under challenge is a case management one, special considerations apply. I discussed these in RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC). The circumstances of that case were very different in that it concerned an order by the First-tier Tribunal that a patient should not be told that he was being covertly medicated. However, on the principles that govern the approach to appeals against case management decisions, I said:

7. The non-disclosure order was a case management decision. Appellate courts are supportive of these decisions and discourage appeals against them. They often have to be made with little time for analysis or reflection. Appeals can disrupt the proceedings, produce inefficiency and increase costs. They are capable of being used for tactical purposes. Ultimately, the judge dealing with the case is probably best placed to make a judgment on how best to proceed in the context of the proceedings. Challenges are best considered at the end of the proceedings, when it is possible to judge whether the decision adversely affected the outcome.

8. This does not mean that case management decisions are immune from scrutiny. The decision may have been given after a hearing and with time for analysis. If it is made ahead of the final hearing, it may be possible to deal with an appeal quickly to avoid disrupting the First-tier Tribunal’s timetable. There may be no question of seeking a tactical advantage. The issue may be severable from the more routine management of the proceedings. And it may be possible to anticipate the likely effect.

9. On the spectrum of case management decisions, the non-disclosure order is more susceptible to scrutiny than most. The judge held a hearing and took time before issuing her reasons. The issue is severable from the routine management of the case. It is important and its effects can be anticipated: the patient’s solicitors argue that they are unable to obtain his instructions on the real case for his continued detention. There is no question of tactical advantage being sought and it has been possible to deal with the appeal quickly.

D.          MY ANALYSIS

9.           The applications to the tribunal and the President’s responses were made rather informally through correspondence. It is appropriate to read that correspondence as a whole and not to take one letter or passage in isolation.

10.        Taking the correspondence as a whole, it is clear that the President was doing two things. First, she was refusing to make any order for disclosure, saying that it was a matter for the panel. Second, she was refusing to postpone the hearing. They are essentially linked.

11.        A different judge might have taken a different view, but that is the nature of many case management decisions. The issue for me is whether the President’s decision was one that she was not entitled to make. I have decided that she was entitled to make it. The solicitors had set out the case for needing the disclosure order, and for postponing the hearing of the application, in order to advise their client and to avoid any harm to the patient. I consider that the President was entitled to decide that those issues should be considered by a full panel. The argument turned on whether further medical evidence was required. That was something best judged by panel member with appropriate knowledge and expertise. And it was a decision best made in the context of the proceedings as a whole. That would include the views of those representing the patient; it is not clear that they were in agreement on all matters with the solicitors acting for the nearest relative.

12.        The President was also entitled to decide that the hearing of the application should go ahead. I am sure she was aware of the possible risk to the patient if the hearing proved abortive, but she had to balance that risk against the possibility that the panel might be prepared to decide in favour of the nearest relative without the need for further evidence. A telephone directions hearing, as suggested by the solicitors, could not have that effect. I tried to put this possibility to Mr Mullins, but regret that my powers of explanation failed. He replied that the nearest relative had a right to participate in proceedings. My point was, and is, that he might have succeeded without needing to participate, rendering the issues of consent and disclosure redundant. The President had to consider that as one of a number of outcomes. Under modern case management procedures, she was in control of the procedure and could not limit herself to the perspective of any one party.

13.        The context explains the President’s reference to a dispute about where the patient should be detained. Underlying the nearest relative’s case is a concern that his son is detained in Wales rather than nearer his home and family. That is a legitimate concern, but it is not a matter over which the tribunal had jurisdiction, as the President pointed out.

14.        Mr Mullins argued that the President had made a clear error of law by misdirecting herself on R (S) v Plymouth City Council [2002] 1 WLR 2583. He took me through the details of Hale LJ’s reasoning, which I have to accept as a correct statement of the law. Mr Mullins is correct that the consent of the patient, and the patient’s capacity to give consent, are not decisive and have to be balanced along with other factors.

15.        I am not sure that the President did misdirect herself on the relevance of consent to disclosure of medical records. This argument relies on the sentence in the letter of 16 February that reads:

‘[The President] is of the view that it is not appropriate to issue directions to compel disclosure of the medical and social care records on the grounds that you have not received the consent of the Patient to access such records.

The passage that I have italicised is ambiguous. There are two possible readings. It may indicate the reason why she considered that it was not appropriate to issue directions. In other words, the President was saying: I refuse to issue the directions that you have requested, because disclosure requires the patient’s consent. That is how the solicitors have read it. If that is correct, she does appear to have misdirected herself on R (S) v Plymouth City Council. The other possible reading is that it merely records the solicitors’ reason for requesting the direction. In other words, the President was saying: I refuse to issue the directions that you have requested after being refused disclosure without the patient’s consent. On this reading, there is no misdirection; the passage is merely a matter of fact.

16.        Even if the President did misdirect herself in law in respect of R (S) v Plymouth City Council, the issue would have been reconsidered by the panel at the hearing. Mr Mullins argued that fee-paid judges may in practice be reluctant to differ from decisions of the salaried judiciary. I accept that that may be so in some respects, but in this case the President was saying that it was a matter for the panel to decide. In those circumstances, the panel would be implementing the President’s wish that it should decide the issue, not differing from her.

17.        Mr Mullins argued that the President’s reasons were inadequate, as she had not carried out the balancing exercise required by R (S) v Plymouth Cit y Council. Her reasons are indeed short and perhaps little more than her conclusions. That is only to be expected of case management decisions. Judges are not expected to write judgments when required to make routine rulings on the future conduct of a proceedings. Specifically on the balancing exercise, it was unnecessary for the President to deal with that in detail anyway, as she was saying that the panel should conduct that exercise at the hearing, if it arose. What is clear from the letters she wrote is the President’s view that the issues were appropriate for a full panel and a hearing.

E.           HOW MHRTWALES SHOULD PROCEED WHEN A CASE MANAGEMENT DECISION IS CHALLENGED

18.        This case was unusual as it began as an application for permission to apply for judicial review. The President’s decision to vacate the hearing may be explained by that context. It is, of course, a matter for her and not for me to decide how to proceed if a party applies for permission to appeal against a case management decision. In many such cases, she may consider that it is appropriate to continue with the proceedings. I have already said that it is the nature of many case management decisions that the Upper Tribunal will be unlikely to give permission to appeal. It is preferable to judge the impact, if any, of the decision on the outcome of the proceedings. That can only be done when the outcome is know. There is also the danger, which does not arise in this case, of a party using an application for permission in order to obtain the advantage that the case management decision has denied. That tactic must not be allowed to succeed.

F.           THE EFFECT OF MY DECISION

19.        As I have refused permission, the future handling of the case is a matter for the MHRTWales. Circumstances may have changed since February and the tribunal’s case management directions will no doubt reflect those changes.

Signed on original on 7 April 2011

Edward Jacobs Upper Tribunal Judge