DL-H M 1653 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Jacobs |
| Judgment Date | 08 April 2010 |
| Neutral Citation | 2010 UKUT 102 AAC |
| Subject Matter | Mental health |
| Respondent | Devon Partnership NHS Trust and Secretary of State for Justice |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | M 1653 2009 |
| Appellant | DL-H |
Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (held at Langdon Hospital on 18 March 2009 under reference MP/2008/04460) 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 a differently constituted First-tier Tribunal sitting in the Health, Education and Social Care Chamber.
DIRECTIONS:
The tribunal must undertake a complete reconsideration of the issues that are raised by the patient’s application in the circumstances obtaining at the time of the rehearing.
Save for the frontsheet (which identifies the parties by name), this decision may be made public (rule 14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).
Reasons for Decision
- Introduction
- This case concerns the continued detention of a patient. He was convicted of arson in 2006 and made the subject of hospital and restriction orders under sections 37 and 41 of the Mental Health Act 1983. He applied for an absolute discharge in January 2008. After a series of adjournments, the hearing took place before the First-tier Tribunal on 18 March 2009. It decided that he should not be discharged. His applications for permission to appeal to the Upper Tribunal were refused by the First-tier Tribunal and then by me, in both cases on the papers. Walker J gave permission following an oral hearing, saying that the grounds of appeal were arguable. He then transferred the case to me for hearing. That hearing took place on 6 April 2010. The patient was represented by Martin Westgate QC, instructed by CVC Solicitors. The Trust was represented by Victoria Butler-Cole, of counsel, instructed by Bond Pearce LLP. She spoke to a skeleton argument prepared by Jenni Richards, of counsel. The Secretary of State took no part in the appeal. I am grateful to the advocates for their written and oral arguments
- The scope of the appeal
- Ms Butler-Cole objected to some of the grounds in Mr Westgate’s skeleton argument. They did not form part of the application that was before Walker J. She argued that permission was necessary to raise them. Having made her objection to those grounds, she responded to them in case I agreed to consider them
- I reject the argument that an appeal is necessarily limited to the grounds in the application on which permission was given and that further permission is required to raise other grounds. The right of appeal is conferred by section 11 of the Tribunals, Courts and Enforcement Act 2007. It is discretionary and subject to the grant of permission. Permission is governed by the rules of procedure. The rules contain three provisions for restricting the scope of an appeal: (i) limited permission; (ii) the control of the issues on which the tribunal requires submissions; and (iii) the power to strike out a party’s case. The rules confer power on the First-tier Tribunal to give permission only on limited grounds: rule 47(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). The Upper Tribunal has equivalent power in respect of an appeal to the Court of Appeal on limited grounds: rule 45(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698). There is no express power for the Upper Tribunal to give limited permission to appeal to itself. However, the rules envisage this possibility: rule 22(4)(b). This is, presumably, permissible without express authority and in the exercise of the tribunal’s discretion. The rules must be interpreted and applied to give effect to the overriding objective under rule 2. As a matter of interpretation, it would not be fair and just to restrict the scope of an appeal to the grounds in the application on which permission was given. The rules apply to the whole of the work of the Upper Tribunal, not just mental health. The Secretary of State for Work and Pensions is the respondent to the vast majority of appeals before the Administrative Appeals Chamber and takes a neutral and objective approach to appeals, often identifying issues favourable to a claimant. It would not be desirable to hinder that approach, as many appellants are either not represented at all or not professionally represented. Mental health cases are different in that the patient is usually professionally represented. But it is not possible, as a matter of interpretation, to draw a distinction on that ground. That is a matter, if it is relevant at all, for the application of the rules. My interpretation does not allow a party complete freedom to raise additional grounds at will. The Upper Tribunal has ample power to control the issues that will be considered on an appeal. As well as the possibility of giving limited permission, rule 15(1)(a) authorises the tribunal to give directions as to the issues on which it requires submissions. In an extreme case, the tribunal may even strike out all or part of a party’s case under rule 8(3). Those provisions should be sufficient to ensure that additional grounds are only considered if that would be fair and just.
- Turning to the application of this approach to the circumstances of this case, I consider that it is fair and just to allow the appellant to raise his additional grounds. The ultimate issue is his liberty, which requires particular scrutiny. Mr Westgate’s arguments relate directly to that issue and to the factors on which a tribunal must be satisfied in order to justify the patient’s continued detention. I can see no prejudice to the respondents in allowing all aspects of the patient’s detention to be considered. Ms Butler-Cole certainly had no difficulty in responding to the new grounds. My discussion of the issues raised may also assist in future cases. Finally, it is relevant, but not perhaps very significant, that Walker J did not limit his permission to the grounds set out in the application, as he could have done. The rules envisage that this is possible. Rule 45(5) provides that, if the Upper Tribunal gives permission to appeal to the Court of Appeal on limited grounds, it must give reasons for ‘any’ grounds on which it refused permission. That envisages that there may not be any grounds on which permission was refused. In other words, the Upper Tribunal may give permission on all the grounds in an application but limit the permission to those grounds. Rule 47(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 makes equivalent provision in respect of permission to appeal to the Upper Tribunal.
- The patient
- The patient was born in 1966. He has 61 convictions for a variety of offences. The majority involve theft, fraud and offences against property. Some involve the use of force or the risk to life. He has two convictions for arson, including the index offence, which was committed in October 2005. The patient burgled a charity shop, taking jewellery and the shop’s safe. He then set fire to the premises in order, he says, to destroy his finger prints.
- The patient has a history of alcohol and drug abuse. He has overdosed on heroin and cocaine while detained in hospital. There are also records of a series of incidents involving threats of violence before and during his detention.
- The legislation
- The tribunal had to decide four issues under section 72(2) of the Mental Health Act:
‘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-
…
(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 or 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; ...’
‘Mental disorder’ is defined by section 1(2) as ‘any disorder or disability of the mind’. ‘Medical treatment’ is defined in section 145:
‘145 Interpretation
(1) In this Act, unless the context otherwise requires-
…
“medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below); …
…
(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a...
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