DL-H v Devon Partnership NHS Trust and Secretary of State for Justice [Upper Tribunal (AAC)]
| Jurisdiction | UK Non-devolved |
| Judgment Date | 12 April 2010 |
| Neutral Citation | [2011] UKUT 143 (AAC) |
| Date | 12 April 2010 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Upper Tribunal (AAC), M/1653/2009
UTJ Jacobs
M Westgate QC (instructed by CVC Solicitors) for DL-H; V Butler-Cole (instructed by Bond Pearce LLP) for the Trust.
Whether arguments can be raised on an appeal to the Upper Tribunal beyond those raised when permission to appeal was granted; the approach of the Upper Tribunal to a judgment of the First-tier Tribunal; whether it was necessary to consider "proportionality" as well as the statutory test for release in ss72/73 Mental Health Act 1983; whether the Tribunal was bound to discharge on the facts; whether the reasons given were adequate; the approach as to the discretion as to disposal in the Upper Tribunal.
DL-H had numerous previous convictions, some involving the use of force or risk to life; he also had a history of substance abuse. In 2006, he was convicted of arson to a shop he was burgling and made the subject of hospital and restriction orders under ss37 and 41 Mental Health Act 1983. There were incidents of violence in hospital. An application for discharge was refused in March 2009, the Tribunal finding that DL-H had an antisocial personality disorder of both a nature and degree to warrant detention in hospital for his own health and safety and the protection of others, that detention in hospital was appropriate, that continued treatment in hospital alleviated or prevented a deterioration in his condition, and that appropriate medical treatment was available. It expressed the hope that he would begin to engage in treatment. In reaching these conclusions, the Tribunal accepted evidence of the Responsible Clinician and other evidence from the detaining hospital and rejected evidence called for DL-H. Amongst the issues raised was whether there was proper evidence that there was treatment available for anti-social personality disorder: DL-H's experts noted that this was a matter on which there was no adequate research, and there was evidence from nursing staff as to his hostility, such that nursing staff did not engage with him.
DL-H appealed to the Upper Tribunal, and permission was granted at an oral hearing. At the hearing of the appeal, he argued that the Tribunal had not been entitled to refuse to discharge on the evidence, that it disregarded relevant material; that its reasons were inadequate; and that it had wrongly failed to consider the question of proportionality. Some of the arguments raised at the full hearing were
supplemental to the grounds raised at the permission hearing: the Trust argued that this was not permissible. The Trust also argued that, even if the decision of the Tribunal was in error, it should not be set aside in light of changed circumstances - namely that DL-H had been transferred to a different hospital and there was a basis for suggesting that he had a mental illness - and his right to make a further application to a Tribunal.
Decision: 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 s12(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 (r14(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698)).
Reasons for Decision:
A. Introduction
1. 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 ss37 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.
B. The scope of the appeal
2. 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.
3. 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 s11 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 3 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: r47(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: r45(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: r22(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 r2. 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, r15(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 r8(3). Those provisions should be sufficient to ensure that additional grounds are only considered if that would be fair and just.
4. 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...
To continue reading
Request your trial
-
EH (PTA: Ltd Grounds; Cart Jr) Bangladesh
... ... [2021] UKUT 117 (IAC) UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) ... Home Office Presenting Officer, for the Secretary of State ... Cases referred to: DL-H v Devon Partnership NHS Trust v Secretary of e for Justice [2010] UKUT 102 (AAC) ... ...
-
Biplab Kumar Sarkar v Secretary of State for the Home Department
...tribunal has jurisdiction to consider new points that have not been included in an appellant's original grounds of appeal – see DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC) at paragraph 3 – but that is not the same as saying that the tribunal can re-open a decision refusing perm......
-
PS HM 487 2011
...text-align:left; page-break-after:avoid; font-weight:bold } [2011] AACR 42 (PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC)) Judge Jacobs HM/487/2011 30 March 2011 Tribunal procedure and practice – tribunal jurisdiction in mental health cases – whether application on re......
-
GM v Dorset Healthcare National Health Service Trust and the Secretary of State for Justice
...tribunal retains jurisdiction and has to apply the community treatment order criteria: PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC), [2011] AACR 29. If the application to the tribunal was made when the patient was detained under section 3 of the Act but the patient h......
-
Table of Cases
...Crim 1631 277, 278 Primary Care Trust, (A) v P and Others [2009] EW Misc 10 (EWCOP) 229 PS v Camden & Islington NHS Foundation Trust [2011] UKUT 143 (AAC) 145 R v Antoine [2000] UKHL 20 276 R v Ashworth Hospital Authority (now Mersey Care NHS Trust) ex parte Munjaz [2005] UKHL 58 15, 85 R v......
-
Challenging the Lawfulness of Detention - Mental Health Tribunals, etc
...even though the patient is discharged onto a new CTO by the time of the hearing (see PS v Camden & Islington NHS Foundation Trust [2011] UKUT 143 (AAC)). • As a matter of practice (confirmed, e.g. in R (on the application of MN) v MHRT [2008] EWHC 3383 (Admin)), a patient under section 47, ......