AM v Partnerships in Care Ltd and Secretary of State for Justice [2015] UKUT 0659 (AAC)
| Jurisdiction | UK Non-devolved |
| Judge | UTJ K Markus |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] UKUT 659 (AAC) |
| Docket Number | HM/1334/2015 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Date | 25 November 2015 |
Neutral Citation: [2015] UKUT 0659 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judges: UTJ K Markus QC
HM/1334/2015
Appearances: K Round for AM; L Davidson for Partnerships in Care; the Secretary of State did not appear.
Issues: The role of factual findings in relation to risk assessment; whether a Tribunal had made a factual error in reaching conclusions of fact; the adequacy of reasons relating to findings of fact.
Facts: AM was diagnosed to have a personality disorder. His Responsible Clinician supported ongoing detention because of concerns about the risk of sexual offending: in relation to other matters, it was said that AM had made progress and might be suitable for discharge after testing. Although AM had not been convicted of any sexual offences, 3 allegations of rape had been made against him, relating to incidents in prison and hospital between 2001 and 2007. He declined to be assessed in relation to matters of sexual risk. A psychiatrist giving evidence for AM supported conditional discharge, noting the lack of any other problematic sexual behaviour since 2007, though accepted that work would have to be done if the allegations were true.
A Tribunal upheld detention. It concluded that, on balance, 2 of the 3 rapes occurred, there being inadequate material to allow a conclusion in relation to the third; and so there was a significant risk of sexual violence that required assessment and, if appropriate, treatment. On appeal, it was argued that there was unfairness arising from the failure of the Tribunal to alert AM to the making of findings about the rape allegations; that it had made a significant error of fact because it wrongly understood that there had been forensic evidence in support of 2 rapes, whereas that was the case in relation to 1 allegation only; and that its reasons had been inadequate or revealed an irrational conclusion.
The decision of the Upper Tribunal is to allow the appeal.
The decision of the First-tier Tribunal made on 5 December 2014 under number MP/2014/18862 was made in error of law. Under s12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case for rehearing by a differently constituted tribunal which will consider the appeal afresh.
1. The Appellant (AM) is and was at the relevant time a patient in a hospital owned by the Respondent. He was detained under the Mental Health Act 1983 (MHA) pursuant to a hospital order with restrictions after being found unfit to plead. The index offences were robbery and occurred in 2002 and 2003.
2. On 22 December 2014 the First-tier Tribunal decided not to discharge AM from detention. The tribunal gave AM permission to appeal. I directed an oral hearing of the appeal which took place before me on 3 November 2015 in London. The Appellant was represented by Ms K Round of counsel and the Respondent by Ms L Davidson of counsel, both of whom had appeared in the First-tier Tribunal. I am grateful to them for their helpful written and oral submissions. The Secretary of State for Justice was notified of the appeal and the hearing but has not participated.
3. There was no issue before the First-tier Tribunal that AM had a personality disorder whose components were anti-social/dissocial and borderline. In addition, although this had not been closely examined or challenged at the hearing, his Responsible Clinician (RC) believed he fulfilled the clinical criteria for psychopathy.
4. The First-tier Tribunal noted that AM had taken some positive steps since the previous tribunal hearing. He had engaged effectively with all areas where engagement was essential, save for psychosexual work. I explain below how the issue of psychosexual work arose. As a result of the progress AM had made, his multi-disciplinary team (MDT) agreed that he could step down from his current placement to a low secure unit. The doctors at the proposed low secure unit declined to accept him because they felt that he first needed to complete a psychosexual assessment and the further therapeutic intervention resulting from it, so as to reduce the risk of sexual violence in the future. Therefore he remained where he was and in general sustained continued improvement. However in April 2014 he was found collapsed and unconscious in the toilet at night, and physicians suspected an opiate overdose. AM claimed that a fellow patient had spiked his drink, though his explanation was thought to be incoherent. In July 2014 AM commenced a friendship with a female patient but there were concerns as to her vulnerability and unwillingness to be in a relationship with him.
5. The RC had prepared a detailed report for the First-tier Tribunal and gave evidence which was summarised by the tribunal in its reasons. The RC explained that he had placed AM on depot medication in order to reduce his paranoid traits, that this appeared to have been effective and so his depot medication continued. One of the RC's principal concerns was regarding assessment of and treatment relating to sexual behaviour. Members of the MDT were unclear about AM's sexual behaviour and consequent risk factors. There was no sexual element to his index offence but allegations against AM while in detention had raised concerns. These were:
a. 2001: rape of a young adult male peer with whom he shared a cell at HMP Woodhill.
b. April 2006: rape and sexual assault of a male peer at Beech House (a secure hospital unit).
c. Between November 2006 and January 2007: rape on a young adult male peer, allegedly in the shower room and involving penetrative and oral sexual assault.
6. As a result of the allegations, none of which had resulted in a criminal conviction, the RC said that the nature and extent of AM's risk to others arising from his sexuality was unclear. AM declined to undergo assessment for this. Initially he had told the RC that he could not remember any of the incidents but he later said that he accepted that they may have taken place and was willing to have one to one discussions about them but not group discussions. In his evidence to the First-tier Tribunal he again said he was prepared to engage in one to one discussions, but then said that he would only do so if he was conditionally discharged. The RC also...
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