CS v Elysium Healthcare & Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | UTJ Mitchell |
| Judgment Date | 29 June 2021 |
| Neutral Citation | [2021] UKUT 186 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HMW/916/2020 |
Neutral Citation: [2021] UKUT 186 (AAC)
Judge: UTJ Mitchell
HMW/916/2020
Court and Reference: Upper Tribunal (AAC),
Facts: A person convicted by a court may be sentenced to detention in a psychiatric hospital under s37 Mental Health Act 1983; if the person poses a particular risk, a restriction order under s41 may also be made, which has an impact on various matters, including the release regime. A person serving a prison sentence may be transferred to a psychiatric hospital under s47 by the Secretary of State; this has effect as though a s37 order had been made, and may be accompanied by a s49 restriction direction, which makes the patient subject to the effect of a s41 restriction order (and which expires on the release date from the prison sentence). Section 69(2) allows a s47 patient to apply to a Tribunal within 6 months of the order being made; s70(a) provides that a restricted patient (which includes those subject to ss37/41 and 47/49) may apply to a Tribunal in the period of 6–12 months after the hospital order or transfer direction has been made and s70(b) provides a right to apply thereafter once every 12 months. For a ss37/41 patient, the Tribunal decides under s73 whether to grant an absolute or conditional discharge if the criteria for detention are not made out; for a s47/49 patient, the Tribunal indicates whether the criteria for a discharge are made out, following which the Secretary of State may grant an absolute or conditional discharge or transfer the patient back to prison.
In 2008, CS was made subject to an indeterminate sentence of imprisonment for public protection (IPP); in April 2016, he was transferred to a psychiatric hospital under ss47/49 of the 1983 Act. In March 2020, the Court of Appeal quashed the IPP sentence and imposed orders under ss37/41 of the 1983 Act. At that time, an application made to the Mental Health Review Tribunal for Wales under s70(b) was pending: on 1 April 2020, the Tribunal determined that it no longer had jurisdiction because s70 of the 1983 Act precludes an application to a Tribunal within the first 6 months of a patient being detained under ss37/41. The Tribunal President granted permission to appeal. For CS, it was argued that s70 precluded a Tribunal application until 6 months had passed since the person became a restricted patient; but that the effect of s11(3) Criminal Appeal Act 1968 was that a sentence passed by the Court of Appeal in place of one it quashed took effect from the date of the original sentence, such that CS was outside the period in which he could not apply (and in any event he had applied under s70(b) prior to the sentence being changed on appeal). It was also argued that a contrary conclusion breached the requirement in s11(3) of the 1968 Act that a replacement sentence not be more severe than the sentence imposed below and might also breach the right to a speedy review of the lawfulness of detention in Art 5(4) ECHR. Elysium Healthcare did not participate, but the Secretary of State supported the appeal, contending that it was necessary to construe s70 of the 1983 Act purposively in order to comply with Art 5(4) and to meet the policy of the 1983 Act that there should be treatment not containment and judicial supervision.
Representatives: S Simblet QC and R Pezzani (instructed by Duncan Lewis Solicitors) for CS; Elysium Healthcare did not participate; F Paterson (instructed by the Government Legal Department) for the Secretary of State.
Decision (on consideration of the papers):
The decision of the Upper Tribunal is to allow the appeal. The decision of the Mental Health Review Tribunal for Wales taken on 1 April 2020 under reference TR29167 involved an error on a point of law. Under s12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remake it as follows:
(1) The Mental Health Review Tribunal for Wales has jurisdiction to determine the application made on 21 January 2020 by the patient Mr S under s70 of the Mental Health Act 1983.
(2) Subject to (3) below, the tribunal is to determine the application under the powers conferred on the tribunal by s73 of the 1983 Act.
(3) (2) above does not apply if the patient is no longer a restricted patient by virtue of a hospital order under s37 of the 1983 Act together with a restriction order under s41 in which case the tribunal is to determine whether it retains jurisdiction to determine the patient's application and, if so, under which of its powers it is to be determined.
(4) The case file is to be put before the President of the Mental Health Review Tribunal for Wales as soon as possible.
1. In these reasons:
— “1983 Act” means the Mental Health Act 1983;
— “MHRT(W)” means the Mental Health Review Tribunal for Wales;
— “s37/41 restricted patient” means a restricted patient by virtue of a hospital order under s37 of the 1983 Act together with a restriction order under s41;
— “s47/49 restricted patient” means a restricted patient by virtue of a transfer direction under s47 of the 1983 Act together with a restriction direction under s49.
2. The 1983 Act creates a number of different types of restricted patient. The issue here is whether a tribunal application made when a patient was one type of restricted patient remains valid if, before it is determined, the patient becomes a different type of restricted patient. In this case, the patient was originally a restricted patient by virtue of a transfer direction together with a restriction direction and, subsequently, a restricted patient by virtue of a hospital order together with a restriction order. I decide that the MHRT(W) erred in law in finding that it lacked jurisdiction to determine the application made when the patient was subject to transfer/restriction directions.
3. On 14 May 2008, the patient, as I shall refer to him, was made subject to a sentence of imprisonment for an indeterminate period for public protection. In April 2016, the Secretary of State gave a transfer direction coupled with a restriction direction so that the patient became a s47/49 restricted patient. He was duly transferred to a psychiatric hospital.
4. On 5 March 2020, the Court of Appeal allowed Mr S's appeal against his sentence of imprisonment for public protection. The Court quashed that sentence and replaced it with a hospital order together with a restriction order under ss37 and 41 of the 1983 Act respectively. Under the Court of Appeal's decision, Mr S became a s37/41 restricted patient.
5. Before the Court of Appeal gave its decision, Mr S exercised his right to apply to the MHRT(W) for review of his detention under the 1983 Act. At the date of the Court's decision, that application remained undetermined. Following the Court's decision, the MHRT(W) addressed the validity of the application made by Mr S when he was a s47/49 restricted patient. The MHRT(W) was comprised of a Deputy President sitting alone.
6. The MHRT(W) gave its decision, on 1 April 2020, 25 days after that of the Court of Appeal. The patient's solicitor's postponement request of 17 March 2020 shows that she assumed that Mr S's undetermined tribunal application would, as she put it, ‘roll over’ and be treated as an application duly made by a s37/41 restricted patient.
7. The MHRT(W)'s decision of 1 April 2020 was made after consideration of the patient's solicitor's written submissions but without holding a hearing.
8. The MHRT(W) observed that, when Mr S made his application, the tribunal had “power to entertain it by virtue of s69(2)(b)” of the 1983 Act. I do not understand that observation in the light of the restrictions to which all types of restricted patient are subject (see below). The scope of s69(2)(b) is not an issue on this appeal but I mention it here in case the tribunal wishes to reconsider its views on the operation of that provision.
9. The MHRT(W) reminded itself of the 1983 Act's prohibition on a first tribunal application, in the case of a s37/41 restricted patient during the 6 months following imposition of a restriction order (s70 of the 1983 Act).
10. The patient's solicitor argued that the application he made as a s47/49 restricted patient did not lapse upon him becoming a s37/41 restricted patient. The representative cited the High Court's decision in R (MN) v MHRT[2008] EWHC 3383 (Admin), [2009] MHLR 98, which the MHRT(W) summarised as follows:
“the Court accepted that an application made under s47/49 lapses when the Restriction Direction ceases but accepted that to avoid delay the Tribunal could treat the application as if it were an application under s69(2)(a) which would mean that the Tribunal could hear the application within the first 6 months of the deemed...
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