DC v Nottinghamshire Healthcare NHS Trust [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 22 March 2012 |
| Neutral Citation | [2012] UKUT 92 (AAC) |
| Date | 22 March 2012 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
[2012] UKUT 92 (AAC)
Upper Tribunal (AAC), HM/0079/2012
UTJ Jacobs
Mr Pezzani for C; Ms Charbit for the Trust
Whether an adjournment rather than the granting of a deferred conditional discharge was proper; the relationship between the two powers.
DC was a restricted patient, having been convicted of manslaughter on the grounds of diminished responsibility. On 4 July 2011, a Tribunal adjourned his case until 22 September 2011 to allow aftercare arrangements to be made, noting that "with the exception of the availability of suitable aftercare for the Patient, none of the criteria for his detention in hospital for treatment are met"; it also indicated that it was satisfied that he should be subject to recall, but that it was unclear about the aftercare arrangements that could be made. On 22 September 2011, the Tribunal dismissed arguments that is should have granted a deferred discharge on 4 July 2011 and that it should provide DC with its provisional findings from that date; it then adjourned further as it did not have time to hear evidence as to the aftercare arrangements and it also wished to receive further information as to the risk of a recurrence of the conduct that led to the index offence.
The Tribunal granted permission to appeal. The argument for DC was that the nature of the findings on 4 July 2011 indicated that the test for detention was not met and so there was a duty to discharge rather than adjourn; the argument for the Trust was that the reasons indicated that the test for discharge was not met.
Decision
Save for the cover sheet, this decision may be made public (r14(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 s11 of the Tribunals, Courts and Enforcement Act 2007:
The adjournment decisions of the First-tier Tribunal under reference MM/2011/06268, made on 4 July and 22 September 2011 at Rampton Hospital, did not involve the making of an error on a point of law.
Reasons for Decision
A. What I have to decide
1. At what point in considering the possible discharge of a restricted patient is the tribunal no longer allowed to adjourn but obliged to defer a direction for a conditional discharge? In this case, had the tribunal reached that point? The answer to the first question is in para 26. The answer to the second question is: no.
B. The history of the case
2. Mr C is a mental patient detained in Rampton Hospital. The First-tier Tribunal adjourned his case twice and Mr C has appealed against those decisions. The ground of appeal is that the tribunal should have made a deferred conditional discharge. I held an oral hearing of the appeal on 19 March 2012. Mr Pezzani of counsel represented Mr C. Ms Charbit of counsel represented the detaining authority. The Secretary of State for Justice, as usual, did not send a representative. I am grateful to counsel for their written and oral arguments.
C. The basis of the claimant's detention
3. Mr C was charged with murder. He was found unfit to plead on 22 November 2001 and dealt with under s5(1) of the Criminal Procedure (Insanity) Act 1964 and para 2 of Sched 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. He was later found fit to plead and was convicted of manslaughter on 23 July 2004. The court made hospital and restriction orders under ss37 and 41 of the Mental Health Act 1983. As a restricted patient, the provisions of the Act applied only to a limited extent. For the purposes of this case, the circumstances in which Mr C may be discharged differ from those that apply to a non-restricted patient.
D. The Secretary of State's reference to the First-tier Tribunal
4. On 14 March 2011, the Secretary of State for Justice referred Mr C's case to the First-tier Tribunal under s71(2) of the 1983 Act. That subsection imposes a duty to refer the case of any restricted patient whose case has not been considered by a tribunal for 3 years.
E. The proceedings before the First-tier Tribunal
5. The case first came before the tribunal on 4 July 2011. Mr C was represented by his solicitor, Ms Ward. The tribunal adjourned the case until 22 September 2011, saying:
The Tribunal is mindful of the requirement to avoid delay, so far as compatible with proper consideration of the issues. However, it is necessary in the interests of justice to adjourn the case for the following reasons.
1. Having heard all the evidence available to it, the Tribunal concludes that, with the exception of the availability of suitable aftercare for the Patient, none of the criteria for his detention in hospital for treatment are met.
2. The Tribunal is satisfied that, on 12 May 2001 when the patient committed the index offence, he was suffering an acute psychotic episode. However, it is unclear whether this was a discrete episode which is unlikely to recur; or whether it may recur; or whether it was symptomatic of an underlying chronic and enduring mental illness which has been in remission for many years. In the light of this finding, the Tribunal is of the view that, if the Patient were discharged, it would be appropriate for him to remain liable to be recalled to hospital for further treatment; and that it may be appropriate to make his discharge subject to further conditions.
3. The Responsible Authority is unprepared for the Patient to be conditionally discharged and it is presently unclear whether suitable aftercare can be made available for the Patient under s117 of the Act.
4. Accordingly, upon the authority of R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West RegionsMHLR[2002] MHLR 13, noted in Jones 13th ed at �1-856, the Tribunal adjourns the hearing to give the Responsible Authority the opportunity [for] making arrangements for the aftercare of the Patient.
The tribunal directed the responsible clinician to file a report at least 20 days before the next hearing, updating the tribunal. It also directed the Community
Health Team to file a report by 5 September 2011 setting out an aftercare plan.
6. The case came back before the same panel on 22 September 2011. Mr Pezzani of counsel represented Mr C and Ms Charbit of counsel represented the detaining authority. Mr Pezzani made 3 submissions:
- The tribunal should not have adjourned on 4 July. It should have ordered a deferred conditional discharge.
- The tribunal should not hear further evidence on the issues in para 2 of the reasons given on 4 July.
- The tribunal should provide him with a copy of its provisional findings recorded on 4 July.
7. The tribunal rejected all 3 submissions. It then adjourned the hearing for these reasons:
The Tribunal is mindful of the requirement to avoid delay, so far as compatible with proper consideration of the issues. However, it is necessary in the interests of justice to adjourn the case for the following reasons.
1. Having regard to �1 of the Reasons for Adjournment on 4 July 2011, the Tribunal needs to hear further evidence to enable it to decide upon the appropriate conditions to which the Patient should be subject upon discharge.
2. On 22 September 2011, there was insufficient time following the legal...
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