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 after a
hearing on 23 March 2012 under reference MP/2011/15317) 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 for rehearing by a differently constituted panel.
Reasons
for Decision
A.
The issue
1.
There are two issues in this case. One concerns the adequacy of the
tribunal’s reasons; the other concerns the interpretation and operation of
section 74 of the Mental Health Act 1983, which I refer to as the Act. I have
set the decision aside for inadequacy of reasons and decided that the tribunal
correctly applied section 74. I have set out my analysis of section 74, as it
is of general application and I heard argument from counsel.
B.
The parties
2.
This appeal is brought by Mr C, who is a mental patient. He is detained by
the first respondent. The Secretary of State for Justice is the second
respondent.
C.
Background
3.
Mr C was born in 1969 and was known to psychiatric services from 1990.
While detained voluntarily in 1995 he began a relationship with a fellow
patient. They split up and she formed a new relationship. In April 1996, he
spent five days in hospital following suicidal ideation. On 2 May 1996, two
days after his release, he killed his former girlfriend and her new boyfriend by
stabbing them 90 times. He was convicted on two counts of murder at a retrial
in November 1998. The jury rejected a defence of diminished responsibility. In August
2000, he was transferred to Broadmoor Hospital pursuant to a direction of the
Secretary of State under sections 47 and 49 of the Act. That made him a
restricted patient under section 79 of the Act. He was transferred to his
present hospital in 2009. While there, he has had unescorted leave in the
grounds and escorted leave in the community, all without incident. At the time
of the hearing before the First-tier Tribunal, he had recently been transferred
to a low security ward.
D.
The application to the First-tier Tribunal
4.
On 1 July 2011, Mr C applied to the First-tier Tribunal under section 70
of the Act. He was examined by the medical member on the day of the hearing, 23
March 2012. The tribunal decided:
If the patient had been subject
to a Restriction Order under Section 41, the patient would NOT have been
entitled to be discharged from liability to be detained in hospital for medical
treatment.
5.
The judge provided written reasons for that decision. The first paragraphs
set out a history. The next two paragraphs deal with diagnosis, which was
agreed. The judge then summarised the cases for continued detention and
entitlement to discharge, and Mr C’s oral evidence. Finally, the judge gave the
tribunal’s conclusions. I need to quote only some of those reasons.
6.
As part of the case for Mr C, his solicitor had argued that any
discharge would be subject to conditions imposed by the Parole Board, which
would diminish any risk he might represent. The tribunal rejected that argument:
The hypothesis upon which
s.74(1)(a) requires the tribunal to proceed is that the applicant is subject to
a restriction order, so that conditional discharge would envisage the discharge
being subject only to such conditions as the tribunal could properly impose
under s.73(4).
7.
On discharge, the tribunal accepted the view of the responsible
clinician:
We prefer and accept the
evidence, opinion and recommendations of [the responsible clinician], supported
by the other mental health professionals whose reports were before us. In our
view Mr C… needs further psychological work, and also to be tested with
exposure to an extensive programme of unescorted community leave before it
could be concluded that he is safe to return to living in the community, even subject
to conditions.
The case for Mr C was contained in the evidence of Dr
Kahtan. The tribunal made two comments on his evidence. First, it rejected Dr
Kahtan’s opinion that there was no link between Mr C’s mental disorder and the
murders that he had committed. It considered that this opinion was (i)
‘counter-intuitive’, (ii) contrary to the psychiatric evidence supporting the
defence of diminished responsibility, and (iii) inconsistent with Dr Kahtan’s
acceptance that Mr C’s disorder had previously justified detention. Second:
we also have regard to the fact
that the [responsible clinician] is and has been the treating doctor and is, by
virtue of that fact, better placed to assess the benefits that Mr C… has
received, and is likely to receive, from appropriate treatment, as well as to
assess the risks that, if discharged, he would present.
E.
The appeal to the Upper Tribunal
8.
The First-tier Tribunal gave Mr C permission to appeal to the Upper
Tribunal. I directed an oral hearing, which took place before me on 3 December
2012. Mr Roger Pezzani of counsel appeared for Mr C. Ms Sonia Hayes of counsel
appeared for the second respondent. I am grateful to them for their written and
oral submissions. The Secretary of State was not represented.
F.
Section 74
9.
This section governs the tribunal’s powers when a person has been
transferred from prison to a hospital.
74 Restricted patients subject to
restriction directions
(1) Where an application to
the appropriate tribunal is made by a restricted patient who is subject to a
limitation direction or a restriction direction, or where the case of such a
patient is referred to the appropriate tribunal, the tribunal—
(a) shall
notify the Secretary of State whether, in its opinion, the patient would, if
subject to a restriction order, be entitled to be absolutely or conditionally
discharged under section 73 above; and
(b) if
the tribunal notifies him that the patient would be entitled to be
conditionally discharged, may recommend that in the event of his not being
discharged under this section he should continue to be detained in hospital.
(2) If in the case of a
patient not falling within subsection (4) below—
(a) the
tribunal notifies the Secretary of State that the patient would be entitled to
be absolutely or conditionally discharged; and
(b) within
the period of 90 days beginning with the date of that notification the Secretary
of State gives notice to the tribunal that the patient may be so discharged,
the tribunal shall direct the
absolute or, as the case may be, the conditional discharge of the patient.
(3) Where a patient continues
to be liable to be detained in a hospital at the end of the period referred to
in subsection (2)(b) above because the Secretary of State has not given the
notice there mentioned, the managers of the hospital shall, unless the tribunal
has made a recommendation under subsection (1)(b) above, transfer the patient
to a 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.
(4) If, in the case of a
patient who is subject to a transfer direction under section 48 above, the
tribunal notifies the Secretary of State that the patient would be entitled to
be absolutely or conditionally discharged, the Secretary of State shall, unless
the tribunal has made a recommendation under subsection (1)(b) above, by
warrant direct that the patient be remitted to a 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.
(5) Where a patient is
transferred or remitted under subsection (3) or (4) above the relevant hospital
direction and the limitation direction or, as the case may be, the relevant
transfer direction and the restriction direction shall cease to have effect on
his arrival in the prison or other institution.
(5A) Where the tribunal has
made a recommendation under subsection (1)(b) above in the case of a patient
who is subject to a restriction direction or a limitation direction—
(a) the
fact that the restriction direction or limitation direction remains in force
does not prevent the making of any application or reference to the Parole Board
by or in respect of him or the exercise by him of any power to require the
Secretary of State to refer his case to the Parole Board, and
(b) if
the Parole Board make a direction or recommendation by virtue of which the
patient would become entitled to be released (whether unconditionally or on
licence) from any prison or other institution in which he might have been
detained if he had not been removed to hospital, the restriction direction or
limitation direction shall cease to have effect at the time when he would
become entitled to be so released.
(6) Subsections (3) to (8) of section
73 above shall have effect in relation to this section as they have
effect in relation to that section, taking references to the relevant hospital
order and the restriction order as references to the relevant hospital
direction and the limitation direction or, as the case may be, the transfer
direction and the restriction direction.
(7) This section is without
prejudice to sections 50 to 53
above in their application to patients who are not discharged under this
section.
G.
Analysis – adequate reasons
10. Mr
Pezzani argued that the tribunal’s reasons were inadequate on two grounds. Ms
Hayes argued that the tribunal’s decision was reasoned, rational and could be
understood. She presented a detailed analysis of the evidence to show that its
conclusions were referable to the evidence before it. I accept that the
tribunal’s reasons were inadequate on one of Mr Pezzani’s grounds. That renders
it unnecessary to deal with his other ground.
11. Ms
Hayes’ argument convinced me that it was permissible for the tribunal to make
the decision it did on the evidence before it. Mr Pezzani accepted that that
was the case. He argued that what she was doing was working backwards from the
tribunal’s decision and extrapolating on how it might have come to that
conclusion. I might have accepted Ms Hayes’ argument if the tribunal had only had
the written report of Dr Kahtan. She was right that he had not been
unequivocally in support of discharge in his written evidence. However, the
judge recorded his unequivocal oral evidence that ‘he would be seeking a
recommendation for conditional discharge.’ The result was that there was a
conflict in the medical evidence that the tribunal had to resolve, which it did
by rejecting his evidence. What the tribunal then had to do was to explain why.
It said that the responsible clinician had more experience of Mr C than did Dr
Kahtan. That is not of itself a reason for preferring evidence. It is the
background to almost every case and it does not always follow that greater
knowledge means greater insight. The tribunal should have explained what it was
in the responsible clinician’s experience that made her view preferable. The
tribunal also commented on Dr Kahtan’s view on the link between the index
offences and Mr C’s mental state. I do not understand why this should
necessarily undermine the doctor’s view on discharge. The issue for the
tribunal was the risk at the time of the hearing. Any connection between his
mental disorder and the murders was merely evidential on that issue, not
decisive.
H.
Analysis – section 74
12. Mr
Pezzani argued that the tribunal had misdirected itself and had failed to take
account of the practical reality of likely Parole Board conditions when
deciding whether detention was necessary. Ms Hayes argued that the tribunal had
acted correctly within the limits of its jurisdiction. I accept Ms Hayes’
argument.
13. The
First-tier Tribunal is a statutory tribunal created under section 3(1) of the
Tribunals, Courts and Enforcement Act 2007. As such, it has only the
jurisdiction conferred on it by statute: Evans v Bartlam [1937] AC 473
at 480. The issue is: what is the scope of the tribunal’s jurisdiction under
section 74 of the Act.
14. There
are broadly two regimes for those who have committed offences and are detained
in hospital as a result of having a mental disorder. One regime is the
exclusive preserve of the mental health authorities – the Secretary of State
for Justice, the responsible clinician and the tribunal. A patient is subject
to this regime if the criminal court makes a hospital order and, perhaps, a
restriction order. The patient is not subject to criminal sanction, so on
recovery there is only one issue - discharge from the scope of the Mental
Health Act. In exercising its jurisdiction, the tribunal’s role is as a
decision-maker. The other regime is the joint preserve of the mental health
authorities and the Parole Board. A patient is subject to this regime if, while
in prison, the Secretary of State for Justice directs transfer to a mental
hospital. The patient is subject to criminal sanction, so on recovery there are
two issues – release, which is for the Parole Board, and discharge from the
scope of the Act, which is for the mental health authorities. In exercising its
jurisdiction, the tribunal’s role is only advisory. A recommendation for a
conditional or absolute discharge means only discharge from the scope of the
Act. In practice, it takes effect as transfer back to prison, unless the Parole
Board authorises release. Section 74(1)(b) allows a tribunal to specify that
the patient remain detained if the patient is not conditionally discharged as
recommended.
15. Mr
Pezzani cited R (Abu-Rideh) v Mental Health Review Tribunal and the
Secretary of State for the Home Department [2004] EWHC 1999 (Admin). The
case concerned a foreign national who was detained as a suspected terrorist. He
was transferred to Broadmoor Hospital under section 48 of the Act. The Mental
Health Review Tribunal refused to recommend discharge as this would involve a
return to prison where his health would deteriorate. He sought a judicial
review of this decision. Counsel for the Tribunal, Miss Grey, argued that the
tribunal was not limited to considering the possibility of discharge into the
community, which would not be permissible under the terrorist legislation. She
argued (at [39]) that the tribunal ‘had to face up to that practical reality.’
Gage J refused the application, saying:
45. Turning to Mr Bowen's
second reason, namely that the phrase "restriction order" used in
section 74(1)(a) must mean that the Tribunal's considers discharge into the
community: I do not accept this as correct. It seems to me much more likely, as
Miss Grey submitted, that it is a statutory device referring back to the
criteria set out in the section 73. I do not accept that that phrase means that
the Tribunal can only consider the alternative to discharge into the community.
In this connection it is convenient to deal with Mr Bowen's submission on the
meaning of discharge in section 74(1)(a) and (b). I prefer Miss Grey's
submission that discharge here refers to no more than discharge from hospital.
It does not exclude consideration of discharge back to prison.
I am not technically bound to follow that analysis, but I
respectfully agree with it.
16. The
tribunal in this case decided that ‘conditional discharge would envisage the
discharge being subject only to such conditions as the tribunal could properly
impose under s.73(4).’ That is precisely correct. The tribunal’s jurisdiction
is limited to issues of discharge. It has no power to impose conditions as to
release, which is the exclusive preserve of the Parole Board. The tribunal was
right to refuse to take account of the conditions that might be imposed by the
Parole Board. It limited itself to the conditions that could be imposed under
section 73. That was the correct analysis. It takes account of the respective
roles of the mental health and Parole Board. The tribunal had to limit itself
to discharge from the scope of the Act. If it recommended discharge, it was
then a matter for the Board to decide what action to take, if any, in respect
of release. It would have been wrong to take account of possible Board
conditions. That would have been to trespass into the proper role of the Board,
to anticipate its decisions, and to speculate without evidence on the
conditions that might be imposed if it decided on release.
17. I
accept that a tribunal has to take account of practical reality, as decided by Abu-Rideh.
However, in that case the practical reality was known to the tribunal. The
claimant could not be released. He could be discharged, but that would mean a
return to prison, which the tribunal found would be contrary to his mental
health. In contrast, the tribunal in this case did not know what the Parole
Board would do. It did not know whether it would agree to Mr C’s release. And
if it did, the tribunal did not know what conditions might be imposed. What
those conditions might be if the Board were to authorise release was not part
of the practical reality; it was speculation. The only practical reality known
to the tribunal was that, if it recommended discharge, Mr C would be
transferred back to prison under section 74(4).
I.
The effect of my decision
18. There
will now be a rehearing before a different panel of the First-tier Tribunal,
which will decide Mr C’s application on the evidence before it and as at the
time of the hearing.
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Signed on original
on 4 December 2012
Corrected on 19 December 2012
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Edward Jacobs
Upper Tribunal Judge
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