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.
This decision is given under section 11 of the Tribunals,
Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2012/01686,
made on 15 March 2012 at the Gordon Hospital, did not involve the making of an
error on a point of law.
Reasons
for Decision
A.
History and background
1.
Mrs H was born on 15 April 1976. She is married to Mr H and the couple
have one child. Her psychiatric history dates back to mid-2000, when she had a
diagnosis of schizo-affective disorder. Her diagnosis is now paranoid
schizophrenia. At times, she was treated as an outpatient. At other times, she
was admitted under either section 2 or section 3 of the Mental Health Act 1983.
There was a pattern of discharge, followed by non-compliance with her
medication, followed by relapse and readmission. Her last admission was in August
2008. She remained detained until January 2009, when she was discharged on a
community treatment order. On 8 January 2012, she applied to the First-tier
Tribunal for a discharge from the order. The tribunal heard her case on 15
March 2012. It ordered her discharge from 15 June 2012. The tribunal gave the Trust
permission to appeal to the Upper Tribunal. I directed a hearing of the appeal,
which was held on 13 June 2012. The Trust was represented by Mr Patel of
counsel. Mrs H was represented by Mr Hill. I am grateful to them for their
submissions at the hearing. I am also grateful to all of those who co-operated
to ensure that the hearing was effective at such short notice.
2.
At the end of the hearing, I announced that I would dismiss the appeal.
These are my reasons.
B.
The First-tier Tribunal’s reasons
3.
Mrs H’s responsible clinician opposed her application. He was concerned
that she would stop taking her medication and would relapse without seeking
assistance. He thought she might be ready for discharge by early 2013.
4.
The tribunal found that Mrs H had been symptom free for at least the
last three years. Her medication had been twice reduced recently without ill
effect. She experienced side effects from her medication as well as other
symptoms that could not be attributed to it. She lacked insight, believing that
she had been cured following an exorcism by a Catholic priest. She did, though,
say that she would take her medication again if her husband told her to. The
tribunal decided that there was not much more that could be expected by way of
improvement.
5.
The tribunal found that Mrs H had a mental disorder. She had never
harmed herself, although she had once threatened to cut herself with a plastic
knife. She had never done anyone serious harm. She had merely slapped and
pushed her husband and slapped her mother. There was no risk that her health
would deteriorate in the ‘near future’, even if she stopped her medication. The
tribunal noted that her husband was supportive and would take appropriate
action if she did begin to deteriorate.
6.
The tribunal agreed with Mrs H’s representative that a deferred
discharge would be better than an immediate discharge, expressing the hope that
in the meanwhile the responsible clinician would consider reducing the level of
her medication. The tribunal considered the possible effect that this might
have, saying: ‘if that happens and she reacts adversely to it, then no doubt the
appropriate action can be taken.’
C.
After the First-tier Tribunal hearing
7.
The Trust wrote to the tribunal asking it to clarify what ‘appropriate
action’ meant. The judge replied:
It will be for the RC
[responsible clinician] to decide what is the appropriate way forward, not the
Tribunal. It could be an increase or change in medication, it could be recall
under the still existing s3 or a further sectioning of her once the discharge
date is met and there may be other options, but that is a clinical decision and
not a legal one.
D.
Section 72 of the Mental Health Act 1983
8.
This provides:
72 Powers of tribunals
(1) Where application is made
to the appropriate tribunal by or in respect of a patient who is liable to be
detained under this Act or is a community patient, the tribunal may in any case
direct that the patient be discharged, and—
…
(c) the
tribunal shall direct the discharge of a community patient if it is not
satisfied–
(i) that
he is then suffering from mental disorder or mental disorder of a nature or
degree which makes it appropriate for him to receive medical treatment; or
(ii) that
it is necessary for his health or safety or for the protection of other persons
that he should receive such treatment; or
(iii) that
it is necessary that the responsible clinician should be able to exercise the
power under section 17E(1) above
to recall the patient to hospital; or
(iv) that
appropriate medical treatment is available for him; or
(v) in
the case of an application by virtue of paragraph (g) of section 66(1)
above, that the patient, if discharged, would be likely to act in a manner
dangerous to other persons or to himself.
(1A) In determining whether the
criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in
particular, consider, having regard to the patient's history of mental disorder
and any other relevant factors, what risk there would be of a deterioration of
the patient's condition if he were to continue not to be detained in a hospital
(as a result, for example, of his refusing or neglecting to receive the medical
treatment he requires for his mental disorder).
(3) A tribunal may under
subsection (1) above direct the discharge of a patient on a future date
specified in the direction; and where a tribunal does not direct the discharge
of a patient under that subsection the tribunal may—
(a) with
a view to facilitating his discharge on a future date, recommend that he be
granted leave of absence or transferred to another hospital or into
guardianship; and
(b) further
consider his case in the event of any such recommendation not being complied
with.
E.
The decision to discharge
9.
There are two aspects to the First-tier Tribunal’s decision: (a) the
decision to discharge; and (b) the decision to defer the discharge. I will take
them separately, starting with (a).
10. Mr
Patel argued that it was irrational for the tribunal to discharge Mrs H. She
had a history of improving, failing to take her medication, and then
deteriorating. He described her as the classic revolving door patient. I reject
this argument.
11. It
is important to understand the respect roles of the First-tier Tribunal and the
Upper Tribunal. It determines how the latter approaches appeals from the
former.
12. The
Upper Tribunal respects the facts found by the First-tier Tribunal, because it
is constitutionally proper so to do. The First-tier Tribunal’s essential
function is to find the facts and then to apply the law to those facts. In
doing so, it may have to interpret the law, but usually the law is
straightforward and not in dispute. This is in contrast to the Upper Tribunal.
It only has jurisdiction if there is a ‘point of law arising from a decision’:
section 11(1) of the Tribunals, Courts and Enforcement Act 2007. It has power
to make findings of fact, but only if it has set that decision aside and is
re-making it: section 12(4)(b). In deciding whether the First-tier Tribunal
made an error of law, the Upper Tribunal has no power to undertake its own
assessment of the evidence or to make its own findings of fact in substitution
for those of the First-tier Tribunal. It must respect the fact-finding role,
provided that the First-tier Tribunal carried out that task rationally and
explained why it made its findings. To do otherwise would subvert the statutory
limit of its jurisdiction.
13. The
Upper Tribunal also respects the facts found by the First-tier Tribunal,
because they are worthy of respect. For mental health cases, the tribunal
consists of a judge, a Consultant Psychiatrist and someone with substantial
experience of health or social care matters: paragraph 3 of the Senior
President’s Practice Statement Composition Of Tribunals In Relation To
Matters That Fall To Be Decided By The Health, Education And Social Care
Chamber On Or After 3 November 2008. That composition makes the tribunal
uniquely experienced to decide the issues that arise in mental health cases.
14. The
mental health legislation provides control of last resort for those with a
mental disorder. Mrs H is subject to a community treatment order. That means
that she is living in the community but liable to be recalled to hospital. In
the scheme of the mental health legislation, that is the lightest of control.
But it is still control and she is entitled to be free of it if the statutory
conditions for it are not met. She may be a classic revolving door patient, but
she is entitled to be free from control when the door is open outwards.
15. Mrs
H has never been a danger to anyone. The most she has done is to slap and push adult
members of her immediate family. She is in no danger of doing any serious harm
to herself. The most she has done is to threaten to cut herself with a plastic
knife. The only risk is that her condition will deteriorate if she stops taking
her medication. The tribunal was aware of Mrs H’s history. It was set out in
the evidence and it was not in dispute. The tribunal was, therefore, aware as
part of that history that she had previously stopped taking her medication. She
even admitted that she would do so again. However, she also said that she would
take her medication if her husband took her to the doctor. The key issue for
the tribunal was: would that be effective to prevent any significant
deterioration? If it would, there was no basis on which the community treatment
order could continue. The answer would be yes provided that: (i) the
tribunal believed that Mr H would monitor his wife and ask her to take
medication if she deteriorated; and (ii) the tribunal believed that she would
comply with his wishes. As to (i), Mr H had seen his wife improve and
deteriorate a number of times over the last 12 years, so he could recognise the
symptoms. The tribunal found that he was supportive of his wife, so he would
act to protect her. As to (ii), the tribunal believed what Mrs H. It had the
chance to assess her evidence in the context of the history of her condition
and behaviour. It accepted what she said. With those matters settled in favour
of Mrs H, the only proper course for the tribunal was to discharge her. Those findings
were the key to the case. They are a classic example of a First-tier Tribunal
exercising its fact-finding function. There is no basis on which they could be
challenged as a matter of law. Mr Patel’s argument, in effect though not in
form, sought to re-argue the tribunal’s assessment of the evidence.
F.
The decision to defer discharge
16. Mr
Patel argued that the tribunal had not given adequate reasons for deferring the
discharge. He argued that none of the reasons justified a deferral. I reject
this argument.
17. It
is well-established that a tribunal has to decide whether the statutory
conditions remain satisfied at the time of the hearing. In other words, it has
to be satisfied that the patient is entitled to be discharged at that time.
This applies whether the discharge is immediate or deferred. Deferral is a
means of managing the deferral. A tribunal is not entitled to use the deferral
to test whether a patient is ready for discharge. This is so well known that I
would not accept that the tribunal had misdirected itself without clear
indication that it had done so: Re P (Witness Summons) [1997] 2 FLR 447
at 455 and R(SB) 5/81 at [7]. There is none.
18. The
tribunal dealt with deferral in paragraph 10 of its reasons:
Mr Hill submitted that immediate
discharge of the section might not be wholly appropriate and that a deferred
discharge might be better. We agree. We hope that in the intervening 3 months
[the responsible clinician] will look at the possibility of a gradually
reducing level of medication; if that happens and she reacts adversely to it,
then no doubt the appropriate action can be taken.
That reasoning is not pellucid. It is, though, sufficiently
clear. The tribunal was deferring to allow an opportunity for the responsible
clinician to reduce Mrs H’s medication. That might make it more bearable for
her; she had complained about the side-effects. It cannot be read as a deferral
so that her medication would be reduced in order to make her ready for release.
It is not consistent with the way it expressed itself.
19. Mr
Hill suggested to the First-tier Tribunal that it defer Mrs H’s discharge, as
he believed that it would be better for Mrs H’s medication to be reduced
gradually than suddenly. He admitted to me that that was a mistake; he had not
appreciated that she was on depot medication. I am sure that an experienced
tribunal would not have made that mistake about the nature of Mrs H’s
medication.
20. If
the tribunal were at fault in respect of deferral, it would only be that its
reasons were not set out adequately. If the tribunal had made that error, I
would have exercised my discretion under section 12(2)(a) of the Tribunals,
Courts and Enforcement Act 2007 not to set its decision aside. The tribunal’s
decision to discharge was soundly made and Mr Hill told me that the responsible
clinician had not changed Mrs H’s medication. In other words, the circumstances
were just as they were at the time of the hearing. If anyone had cause to
complain about the deferral, it would be Mrs H, not the Trust.
G.
The powers of the detaining authority under a deferred discharge
21. The
Trust was unsure how to proceed if Mrs H’s condition deteriorated before her
discharge date. I do not know whether detaining authorities generally are
unsure of their powers in those circumstances, so I will set them out.
22. The
judge’s reply, which I have quoted in paragraph 7, is accurate. An authority’s
powers have to be considered at two stages: (i) before the discharge takes
effect; and (ii) thereafter. As to (i), the community treatment order remains in
force until the discharge takes effect. Until then, a patient remains liable to
have her medication changed and to be recalled to hospital. As to (ii), it is
possible to detain a patient immediately following discharge. Theoretically,
that could be under section 2. In practice, it would almost certainly be under
section 3. That possibility is allowed by, but subject to, the decision of the
House of Lords in R (Von Brandenburg) v East London and The City Mental
Health NHS Trust [2004] 2 AC 280. It is permissible to re-admit a patient
on the basis of ‘information not known to the tribunal which puts a significantly
different complexion on the case as compared with that which was before the
tribunal.’ At [10].
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Signed on original
on 14 June 2012
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Edward Jacobs
Upper Tribunal Judge
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