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 3 August
2012 under reference MP/2012/12062) 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
1.
This is one of two appeals that raise the same issue. The other appeal
is HM/2423/2012. I held a joint oral hearing of these appeals on 14
February 2013. Roger Pezzani of counsel appeared for the patient in this case; Stephen
Simblet of counsel appeared for counsel in the other case. I am grateful to
them both for their arguments on the appeals. Neither Trust appeared.
A.
The issue and how it arises
2.
The patient in this case is Ms S. She has been detained under section 3
of the Mental Health Act 1983. On 15 July 2012, she applied to the First-tier
Tribunal and her application was heard on 3 August 2012. The tribunal decided
that she should not be discharged. As part of its reasons, the presiding judge
wrote:
6. The Tribunal
heard evidence from Dr I RC that, in her opinion, the patient was currently
suffering from a mental disorder, namely schizo-affective disorder which was of
a nature and degree to warrant detention in hospital for treatment.
…
11. Given
the above, the doctor felt that the patient’s detention was necessary for her
own health and safety and for the protection of others; …
15. Given
the evidence heard and observed by the Tribunal, it found as a fact to the
civil standard that the patient was suffering from a mental disorder of both a
nature and degree to warrant detention in hospital for treatment as necessary
for the patient’s own health and safety and the protection of others as the
least restrictive option available.
3.
Ms S applied for permission to appeal on two grounds: (i) the tribunal
had applied the test appropriate to detention under section 2 rather than, as
it should have, detention under section 3; and (ii) the tribunal had failed to
explain, as it had said it would, why it did not make a recommendation. The
First-tier Tribunal gave Ms S permission to appeal to the Upper Tribunal. The
judge, who had not presided at the hearing, identified the point of law as ‘whether
there is a qualitative difference between the criteria in section 72(a) and
(b).’ That is a reference to section 72(1)(a) and (b).
B.
The legislation – what is says and what it means
4.
I deal first with the issue as posed in the grant of permission to appeal.
5.
Section 2 applies if a patient is admitted to hospital for assessment.
2 Admission for
assessment
…
(2) An application for
admission for assessment may be made in respect of a patient on the grounds
that—
(a) he is
suffering from mental disorder of a nature or degree which warrants the
detention of the patient in a hospital for assessment (or for assessment
followed by medical treatment) for at least a limited period; and
(b) he ought
to be so detained in the interests of his own health or safety or with a
view to the protection of other persons.
6.
Section 3 applies if a patient is admitted to hospital for treatment.
The patient may, or (as in this case) may not have been first detained under
section 2:
3 Admission for
treatment
…
(2) An application for
admission for treatment may be made in respect of a patient on the grounds
that—
(a) he is
suffering from mental disorder of a nature or degree which makes it appropriate
for him to receive medical treatment in a hospital; …
(c) it is
necessary for the health or safety of the patient or for the protection
of other persons that he should receive such treatment and it cannot be
provided unless he is detained under this section; …
7.
The differences between sections 2 and 3 are reflected in the language
of section 72(1)(a) and (b). The former applies to cases of detention under
section 2; the latter to cases of detention under section 3:
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—
(a) the
tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it
is not satisfied—
(i) that
he is then suffering from mental disorder or from mental disorder of a nature
or degree which warrants his detention in a hospital for assessment (or for
assessment followed by medical treatment) for at least a limited period; or
(ii) that
his detention as aforesaid is justified in the interests of his own health or
safety or with a view to the protection of other persons;
(b) the
tribunal shall direct the discharge of a patient liable to be detained
otherwise than under section 2 above if it is not satisfied—
(i) that
he is then suffering from mental disorder or from mental disorder of a nature
or degree which makes it appropriate for him to be liable to be detained in a
hospital for medical treatment; or
(ii) that
it is necessary for the health of safety of the patient or for the protection
of other persons that he should receive such treatment; or
(iia) that
appropriate medical treatment is available for him; or
(iii) in
the case of an application by virtue of paragraph (g) of section 66(1)
above, that the patient, if released, would be likely to act in a manner
dangerous to other persons or to himself.
8.
I accept the arguments of both counsel that there is a difference
between the criteria in section 2 and section 3 and that this difference is
reflected in the criteria under section 72(1)(a) and (b).
9.
The most significant factor leading to this conclusion is the purpose of
sections 2 and 3. Detention, for whatever purpose, involves a deprivation of
liberty. As such, it must be strictly justified. Once it is known that a
patient requires treatment for the effects of a mental disorder, the criteria
can be, and are, appropriately exacting. But detention for assessment must, of
necessity, be less exacting, since the need for treatment is not then known.
Assessment under section 2 may, as an essential preliminary to establishing the
need for treatment, be necessary in order to render section 3 effective for
some patients. To that extent, it plays an important role in protecting the
health and safety of those patients and the protection of others. This does, of
course, reduce the protection for the patient, but that is balanced by the fact
that, unlike section 3, detention under section 2 is limited by the need for an
assessment and for a period of 28 days.
10. The
difference in the language of the sections reflects the difference in purpose.
For the purposes of this case, the key difference is that under section 2 the
mental disorder must warrant detention and the patient ought to be
detained for health, safety or protection, whereas under section 3 the mental
disorder must make detention appropriate and necessary for
health, safety or protection. The terms relevant to section 2 are less exactly on
their own and in their context. The context is related to their purpose.
11. The
caselaw supports a difference. Mr Pezzani cited R v South Thames Mental
Health Review Tribunal, ex parte M [1998] COD 38. Collins J there decided
that if a patient had been detained under section 2 at the time of the
application to the tribunal but was detained under section 3 at the time of the
hearing, the tribunal had to apply the criteria relevant to the latter rather
than the former. As Mr Pezzani argued, that would not be necessary if the
criteria were the same.
12. The
history of the mental health legislation also supports this analysis. As Mr
Pezzani pointed out, the difference in language between section 72(1)(a) and
(b) was new to the 1983 Act. The equivalent provisions of the Mental Health Act
1959 – sections 25(2) and 26(2) – did not draw the distinction. It may be that
the change of language was brought about by the decision of the European Court
of Human Rights in Winterwerp v The Netherlands (1979) 2 EHRR 387.
13. This
is not to say that the conditions for detention under section 2 are not
demanding. Just that they are less demanding than for section 3. It would not
be appropriate for me to try to define the differences between those sections.
The language used is everyday language that merely has to be applied. But it
has to be applied in a context that requires detention to be strictly
justified.
C.
Why the tribunal’s reasons are inadequate
14. I
do not accept that the tribunal misdirected itself by applying section 72(1)(a)
instead of 72(1)(b). The First-tier Tribunal in its mental health jurisdiction
deals with a limited number of legal issues. That does not diminish their
importance, but it does mean that the members of the tribunal quickly become
familiar with the legal tests appropriate to different cases. And that makes it
more likely that the judge made a slip in writing the reasons than that the
panel as a whole made a slip in making a decision. Surely one of them would
have noticed that they were applying the wrong criteria, especially as Ms M had
not been detained under section 2. Moreover, the reasons also refer to the test
of necessity (paragraphs 11 and 15 of its reasons), which is only relevant to
section 72(1)(b). So if the tribunal did misdirect itself, it did so not by
applying section 72(1)(a) instead of 72(1)(b), but by muddling and combining
the criteria from the two paragraphs. That is even less likely that applying
the wrong paragraph. Nevertheless, the only evidence I have of the detail of
the tribunal’s reasoning is what the presiding judge recorded and those reasons
are inadequate, as I now explain.
15. The
tribunal’s written reasons should show that its decision was justified in law.
They should:
·
state what facts the tribunal found;
·
explain how and why the tribunal made them;
·
show how the tribunal applied the law to those facts.
16. The
Legal Grounds for the Tribunal’s Decision uses the language of section
72(1)(b), not section 72(1)(a). That was correct, but I attach little
significance to it, as I understand that those grounds are produced from a
template. Paragraph 6 records the responsible clinician’s evidence in terms of warrant.
That was correct; the judge cannot be faulted for using the precise language of
the doctor’s report. Paragraph 15, on the other hand, purports to state the
tribunal’s final decision in legal terms and, in doing so, the judge has
combined the language of section 72(1)(a) and (b). In doing so, it harks back
to the language of the doctor’s report. And it is that report that is the
ultimate cause of the problem. Mr Pezzani read me the opening paragraphs of the
report. I will not set them out. It is sufficient to say that they are in the
form of a series of questions and answers. One of the questions attempts to
deal with numerous possibilities, which the doctor has assented to as a
package. I doubt whether it is possible to hold all the views expressed by the
doctor’s single assent to the question as a whole. The result is that doctor’s
report was a difficult document to assess. It was affected by the use of the
wrong language and by its confused focus, at least at the beginning. Faced with
that evidence, it was important for the tribunal to analyse the evidence to
ensure that the doctor’s opinions could properly be related to the relevant
criteria. And its reasons had to show that that had been done. But the judge
has not set out any such analysis. He has stated findings of fact. The need for
detention is not self-evident from those findings. The reasons give no
indication that there was cause for care in assessing the doctor’s opinion
based on those facts. That is why the reasons are inadequate and why I have set
aside the tribunal’s decision.
D.
Two lessons
17. There
are two lessons to draw from this case and from HM/2423/2012,
18. First,
a tribunal does not make an error of law simply because of an infelicitous use
of the wrong language. The tribunal’s reasons have to be read as a whole and in
the context of the evidence and submissions to it.
19. Second,
presiding judges should take care not to drift into the wrong language in
expressing their tribunals’ reasons. That is especially so when the evidence
has done just that. Being led astray casts doubt on the tribunal’s reasoning as
a whole and presents the opportunity for arguing that the tribunal’s decision
involved an error of law.
E.
The tribunal’s failure to explain why it did not make a recommendation
20. Ms
S asked the tribunal to make a recommendation. It did not do so, but according
to Mr Pezzani it undertook to say why in its reasons. It did not do so. The
tribunal’s undertaking is irrelevant. Ms S asked the tribunal to make a
recommendation and it should have explained why it did not do so, whether the
tribunal gave an undertaking or not. That failure is an error of law. but it is
the sort of error that does not justify setting aside a tribunal’s decision.
The proper course would be for the First-tier Tribunal to review the decision
and then to amend its reasons under section 9(4)(b) of the Tribunals, Courts
and Enforcement Act 2007 by adding the necessary explanation.
|
Signed on original
on 18 February 2013
|
Edward Jacobs
Upper Tribunal Judge
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